City of Saco and Teamsters, No. 83-A-08, affirming 83-UC-12
       



 STATE OF MAINE                                        MAINE LABOR RELATIONS BOARD
                                                       CASE NO. 83-A-08
                                                       Issued:  July 18, 1983
 ________________________
                         )
 CITY OF SACO            )
                         )
  and                    )               REPORT OF APPELLATE REVIEW
                         )              OF UNIT CLARIFICATION REPORT
 TEAMSTERS LOCAL UNION   )
 NO.48                   )
 ________________________)
       
      This is an appeal of a unit clarification report, filed pursuant to 26 M.R.S.A.
 Section 968(4) on June 8, 1983 by the City of Saco ("City").  The hearing examiner
 determined in the report that the Secretary in the Office of Community Development
 and the Secretary in the Economic Development Department both are "public employees"
 who should be included in the existing Clerical and Maintenance Bargaining Unit in
 the City of Saco.  The City contends on appeal that the hearing examiner erred by
 finding that the two Secretaries are not "temporary employees" who are not entitled
 to be included in a bargaining unit.
 
      The parties waived hearing of the appeal and submitted their arguments to the
 Labor Relations Board in memoranda.  The City was represented by labor consultant
 Robert D. Curley and Teamsters Local 48 ("Local 48") was represented by Secretary/
 Treasurer Walter J. Stilphen.
 
       
                                 JURISDICTION
 
      Local 48 filed the unit clarification petition in this case as the certified
 bargaining agent of the City of Saco Clerical and Maintenance Bargaining Unit.  The
 City is a public employer as defined in 26 M.R.S.A. Section 962(7).  The jurisdic-
 tion of the Maine Labor Relations Board to review the unit clarification proceeding
 and render a decision and order lies in 26 M.R.S.A. Section 968(4).
 
 
                              FINDINGS OF FACT
        
      Upon review of the entire record, the Labor Relations Board adopts as modified
 the hearing examiner's findings of fact:
 
                                   [-1-]
 __________________________________________________________________________________

      1. The parties stipulated that, but for the allegation that they are not
 "public employees" under 26 M.R.S.A. Section 962(6), the Secretary in the Office
 of Community Development and the Secretary of the Economic Development Department
 share a clear and identifiable community of interest with the employees presently
 included in the Clerical and Maintenance Bargaining Unit.  The parties also stipu-
 lated that both secretarial positions were created subsequent to negotiations for
 the current collective bargaining agreement in effect between the parties for the
 Clerical and Maintenance Bargaining Unit.
 
      2. The Office of Community Development is not a separate department of the
 City but rather is part of the City Administrator's office. The Office of Com-
 munity Development presently is operating under a grant received in 1981.  Funding
 for the third and final year of the program is due to expire in July, 1984 unless
 a subsequent grant is received.  There is no assurance that future funding will be
 received.  Staff for the Office of Community Development, including the Secretary,
 are hired knowing that their employment is for the grant period and that their
 positions will be eliminated if subsequent funding is not received.
 
      3. The City entered into an agreement to hire an Economic Development Direc-
 tor for a period of one year on August 20, 1982.  Paragraph 1 of the agreement states
 in pertinent part:  "For purposes of State and Federal income tax and Social Secur-
 ity, the Director shall be considered and classified as an employee.  For all other
 purposes, the Director shall be considered and classified as an independent contrac-
 tor."  Paragraph 2 of the agreement states in pertinent part:  "The City shall pro-
 vide the Director with an office and a secretary to assist him in carrying out his
 duties."
 
 
                                   DECISION
        
      The hearing examiner correctly ruled that all the prerequisites for the grant-
 ing of a unit clarification petition have been satisfied in this case, and the City
 does not challenge any of these rulings. The only issue presented is whether the
 hearing examiner erred by finding that the two Secretaries are not "temporary em-
 ployees" within the meaning of 26 M.R.S.A. Section 962(6)(G).[fn]1  We determine that
 __________

 1/  Section 962(6)(G) defines "public employee" to mean any employee of a public
     employer except any person "[w]ho is a temporary, seasonal or on-call employee."
     Section 966(1) states "that anyone excepted from the definition of public em-
     ployee under Section 962 may not be included in a bargaining unit."

                                       -2-
 __________________________________________________________________________________

 no error was committed by the hearing examiner and therefore affirm his order that
 the two Secretaries be included in the Clerical and Maintenance Bargaining Unit.
 
      The test for determining whether an employee is a Section 962(6)(G) temporary
 employee is as follows:
       
          "The point of the 'temporary, seasonal, or on-call ' exclusion is
      to exclude those employees who, because they work irregularly or spora-
      tically, do not have a community of interest with the permanent, full-
      time employees in the unit.  Thus, as the hearing examiner held, tradi-
      tional community of interest considerations control the determination
      whether an employee is a temporary, seasonal, or on-call employee."
 
Town of Berwick and Teamsters Local 48, MLRB No. 80-A-05 at 3 (July 24, 1980).
       In the present case the parties have stipulated, and rightfully so, that the two
 Secretaries share a clear and identifiable community of interest with the members
 of the bargaining unit; the secretaries perform the same duties that other members
 of the unit perform.  The fact that the Community Development Secretary is paid
 from a grant which may not be renewed does not mean the employee cannot share a
 community of interest with other public employees.  We have held that workers
 such as CETA employees and Title I Teacher Aides whose salaries are paid from
 grant monies are "public employees" entitled to be included in bargaining units,
 and we see no basis for making a contrary ruling here.  See, e.g., United Paper-
 workers International Union and M.S.A.D. No. 33, Report of Appellate Review at 2
 (Dec. 14, 1976); Harmony Teachers Association and Harmony School Department, Unit
 Clarification Report at 3 (Sept. 11, 1979). As the hearing examiner noted, the
 Community Development Secretary's position will be in existence for at least 3
 years, so it is not possible to say that the employee holding the position works
 on an irregular or sporatic basis.
 
      As for the Economic Development Secretary, the hearing examiner correctly
 held that the fact that this employee may work for an independent contractor does
 not mean that the employee cannot be a "public employee."  The agreement between
 the City and the Economic Development Director states that, "The City shall provide
 the Director with an office and a secretary to assist him in carrying out his
 duties."  The Secretary therefore is employed not by the Director but by the
 City, and consequently is a public employee who is entitled to be included in a
 bargaining unit.  As the position will last for at least one year, it is not the
 type of position subject to the Section 962(6)(G) exclusion.

                                   -3-
 __________________________________________________________________________________
                   
      Finally, the City on appeal has attempted to introduce a copy of the
 City Charter, arguing that since the Charter does not indicate that the Communi-
 ty Development and Economic Development offices are official City departments,
 the two offices and their employees must be seen as temporary entities.  Since
 our authority under Section 968(4) is limited to reviewing matters presented
 to the hearing examiner, we will not consider on appeal any document or argument
 not presented to the hearing examiner.  See, e.g., Teamsters Local 48 and City
 of Portland, Report of Appellate Review at 5 (Feb. 20, 1979).  We therefore
 reject the City's argument because it was not raised in a timely fashion.  We
 also note in any event that the argument is irrelevant, for the fact that the
 employer considers the employee to be a temporary employee is not dispositive
 of the issue.  See, e.g., AFSCME, Council 74 and City of Bangor, MLRB No. 79-A-02
 at 3-4 (Oct. 17, 1979).
 
      We conclude that the hearing examiner correctly found that the Secretary in
 the Office of Community Development and the Secretary in the Economic Development
 Department are not "temporary employees."  Since the two Secretaries share a
 clear and identifiable community of interest with the members of the bargaining
 unit, the hearing examiner properly ordered that the two positions be included
 in the unit.  The City's appeal must be denied.
 
 
                                      ORDER
        
      Based on the foregoing findings of fact and discussion and by virtue of and
 pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A.
 Section 968(4), it is ORDERED:
 
      1.  The City of Saco's appeal of the unit clarification report in this
          matter is denied.
 
      2.  The determinations of the hearing examiner are affirmed.  The
          description of the existing Clerical and Maintenance Bargaining
          Unit in the City of Saco is modified to include, in addition to
          all other positions presently in the unit, the positions of
          Secretary in the Office of Community Development and Secretary in
          the Economic Development Department.

                                      -4-
 __________________________________________________________________________________       

     
 Dated at Augusta, Maine, this 15th day of July, 1983.



                                    MAINE LABOR RELATIONS BOARD
                                                 


                                    /s/____________________________________________
                                    Donald W. Webber, Alternate Chairman



                                    /s/____________________________________________
                                    Don R. Ziegenbein, Employer Representative
       
       
       
                                    /s/____________________________________________
                                    Harold S. Noddin, Employee Representative
       
       
          
             
      The parties are advised of their right, pursuant to Title 26 M.R.S.A.
 Sections 968(4) and 972, to seek review of this decision by the Superior
 Court by filing a complaint in accordance with Rule 80B of the Rules of Civil
 Procedure within 15 days after receipt of this decision.
 
                                    -5- 
 __________________________________________________________________________________