STATE OF MAINE MAINE LABOR RELATIONS BOARD
No. 90-UC-0l
Issued: November 22, 1989
_____________________________
)
TEAMSTERS UNION LOCAL 340, )
)
Petitioner, )
)
and ) UNIT CLARIFICATION REPORT
)
)
THE TOWN OF WELLS, )
)
Public Employer. )
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This unit clarification matter was initiated on July 17, 1989, when
Teamsters Union Local 340 (Teamsters) filed a unit clarification petition
pursuant to 26 M.R.S.A. 966(3) (1988) and Board Unit Determination Rule
1.13. The Teamsters' petition requests that the Town of Wells Public Works
or Highway Department collective bargaining unit, presently represented for
the purposes of collective bargaining by the Teamsters, be clarified to
include the newly-created position of Public Works Clerk. The Teamsters
contend that the employee occupying the Highway Department Clerk position
is a public employee and that the parties' present contract's recognition
clause applies, causing the position to be included within the bargaining
unit. The Town opposes the Teamsters' request contending that the Clerk
lacks a community of interest with the other Highway Unit employees and
that she is, in any event, a confidential employee excluded from the
coverage of the Municipal Public Employees Labor Relations Law. A full
evidentiary hearing of the issues raised by the petition was conducted by
the undersigned at the Board's offices in Augusta, Maine, on August 29 and
October 25, 1989. An unsuccessful telephone conference scheduled for the
purpose of taking the testimony of Public Works Clerk Denise Rogers was
attempted on October 18, 1989. No record evidence resulted from that
telephone conference call. The Teamsters are represented in this pro-
ceeding by Teamsters' Vice President and Business Agent Harvard
Brassbridge. The Town of Wells (Town) is represented in this matter by its
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attorney, Linda D. McGill, Esquire. At hearing the parties were offered
the opportunity to present evidence and argument and the opportunity to
cross-examine witnesses. The Teamsters elicited the testimony of Rogers
and Wells Highway Department Shop Steward Milton F. Goff. The Town eli-
cited the testimony of Town Manager Jonathan Carter and Wells Public Works
or Highway Commissioner Casper Bridges. The following documents were
marked for indentification, as indicated: Employer's Exhibit number 1, a
twenty-nine page exhibit consisting of the parties' collective bargaining
agreement effective January 1, 1989 through December 31, 1990; Employer's
Exhibit number 2, a two-page job description for the Light Equipment
Operator classification; Employer's Exhibit number 3, a two-page job
description for the Heavy Equipment Operator classification; Employer
Exhibit number 4, a one-page job description for the position of Road
Commissioner; Employer's Exhibit number 5, a one-page job description for
the Highway Department Office Clerk classification; Employer's Exhibit
number 6, a one-page job description for the Office Clerk classification;
Employer's Exhibit number 7, a one-page internal employment posting;
Employer's Exhibit 8, a one-page stipulation of the parties concerning the
job duties of the Transfer Station employees. All of the Employer's
exhibits were admitted without objection by the Teamsters. The Teamsters
offered no documentary evidence. Both parties filed posthearing briefs
which were received November 9, 1989. The transcript of the proceeding was
completed on November 15, 1989.
JURISDICTION
The undersigned Hearing Examiner's jurisdiction to conduct a unit
clarification hearing herein and to issue a report thereof, lies in 26
M.R.S.A. 966(3) (1988). The creation of the position of Public Works
Clerk is a sufficient change in "the circumstances surrounding the for-
mation of" the Public Works or Highway Department collective bargaining
unit to permit entertainment of the question of whether the unit should be
clarified. The petition is filed by the incumbent collective bargaining
agent and concerns a position filled subsequent to the conclusion of nego-
tiations for the existing bargaining agreement. The possibility of the
accretion of one employee to a unit of the size of the highway unit does
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not raise a question concerning representation.
Remaining for resolution is the question of whether the parties'
agreed-to recognition clause, by which the Town "recognizes the [Teamsters]
as the exclusive bargaining agent for . . . all full-time employees of the
Wells Highway Department, including transfer station employees," effec-
tively bars the present unit clarification pursuant to Board Unit
Determination Rules 1.13(A)(a). The Teamsters argue, in effect, that any
job classification filled by a Highway Department public employee would
fall within the contemplation of this recognition clause.
I find that, because the description of the unit is generic and not
established by specific job categories, the description of the "job cate-
gories" contained in the bargaining unit cannot be said to clearly and une-
quivocally answer the question of whether the clerk position is included
within the unit's description. In light of the dearth of evidence, noted
hereafter, concerning the intent of the parties when they converted the
previously job-title specific description to the present generic descrip-
tion, it is at least as arguable that the parties intended to settle on an
operational/manual Highway Department unit, as it is that they intended the
Teamsters to represent any and all future employee classifications created
within the Highway Department, regardless of considerations of community
of interest.
Appropriate unit determinations, particularly those reached by agree-
ment of the parties, are not immutable. In fact, the ability of a party to
petition the Board for clarification of a bargaining unit, regardless of
the existence of a collective bargaining agreement, is specifically pre-
served in 26 M.R.S.A. 967(2) (1988). See Teamsters Local Union No. 48
and Town of Kittery, Hearing Examiner Unit Clarification Report[No. 79-UC-08], slip op.
at 5 n.2 (Me.L.R.B. June 5, 1979). Moreover, the duty of the Executive
Director or the Director's designee to determine issues of appropriate unit
placement is mandated by 26 M.R.S.A. 966 (1988), upon the filing of a
sufficient unit clarification petition establishing "a dispute between the
public employer and . . . employees as to whether a . . . position is
included to the bargaining unit." I conclude, therefore, that the question
of the unit placement of the Public Works Clerk is appropriately before
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this agency.
STIPULATIONS
In off-the-record discussion prior to the hearing the parties reached
the following stipulations:
1. The Town of Wells is a public employer within the meaning of 26
M.R.S.A. 962(7)(1988).
2. Teamsters Local Union No. 340 is the bargaining agent, within the
meaning of 26 M.R.S.A. 962(2)(1988) of the Wells Highway Department
collective bargaining unit.
3. For the purpose of this unit clarification proceeding there is no
dispute that the petitioning Teamsters is a successor in interest to
Teamsters Local Union 48.
4. There are no side agreements or understandings regarding unit
placement that vary the initial unit description other than the agreements
contained within the provisions of collective bargaining agreements or let-
ters of agreement which the parties have filed with the Board.
5. The position of Office Clerk in the Highway Department was created
by action of the Town at its March 11, 1989 meeting, the position was
posted on March 17, 1989 and was filled with Denise Rogers on June 26, 1989.
6. The tentative agreement covering the existing collective bargaining
agreement was ratified by the Teamsters on February 22, by the Employer on
February 28 and was formally executed on March 17, 1989.
7. The Teamsters first proposed that the Clerk position be included in
the existing unit on approximately April 1, 1989, and the employer
responded in the negative approximately one week thereafter.
8. Denise Rogers had no confidential collective bargaining responsi-
bilities with regard to negotiations for the existing contract.
9. The Town's bargaining team in negotiations for the existing con-
tract was comprised or Town Manager Jonathan Carter, Public Works Director
Casper Bridges and Maine Municipal Association (MMA) Representative
Michael Wing.
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10. The Teamsters' bargaining team in negotiations for the existing
contract was comprised initially of Teamsters Representative David Berg,
and Steward Michael Goff. Berg was replaced around February 3, 1989, by
Harvard Brassbridge.
11. There have been four contracts between the parties respecting the
highway unit, covering the periods 1983-84, 1984-85, 1986-88 and 1989-90.
12. The bargaining teams in negotiations for the 1983-84 contract were,
for the Town, MMA Representative George Hunter, Casper Bridges and Town
Manager Fred Breslin; and for the Teamsters, Berg and Goff.
13. The parties recall no bargaining history which explains the change,
from the job-specific description contained in the parties' initial unit
agreement, to the generic description contained in the original and present
contracts.
FINDINGS OF FACT
The parties executed on May 21, 1982 and filed with the Board on May 24,
1982, a document memoralizing their agreement on the appropriateness of a
unit comprised of the following job classifications: Laborers, Mechanics/
Operators, Light Equipment Operators, Heavy Equipment Operators and Auto
Mechanics. By way of the recognition clause contained in the parties'
collective bargaining agreement, in effect January 1, 1983 through
December 31, 1984, the parties modified the description of the Highway
Department unit from its previous job-specific description to the following
generic description: "[t]he Town recognizes the Union as the exclusive
bargaining agent for the purpose of collective bargaining, relative to
wages, hours and working conditions for all full-time employees of the
Wells Highway Department who are also public employees as defined by Title
26, Chapter 9-A, Section 962(6)." On July 25, 1988, the parties signed a
document which memoralized their agreement to include the Transfer Station
employees in the existing highway unit. The Board received copies of the
parties agreement in this regard on September 15 and 21, 1988, and on
September 23, 1988, ordered the posting of a Board Notice to Employees
notifying affected employees of the parties' unit modification agreement.
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Rogers was employed by the Town as a Dispatcher prior to becoming
Public Works Clerk. Neither party asserts that Rogers has worked less than
six months at the Town. Prior to Rogers there has never been a full-time
clerical employee in the Highway Department. Although there previously was
no typewriter or computer in the Public Works Office, many of the clerical
duties which Rogers now performs were performed by Bridges or by other
highway department staff on an ad hoc basis. The Teamsters first became
aware of the existence of the Public Works Clerk position when a position
vacancy announcement was posted on March 17, 1989, the same day the present
contract was executed. There is no evidence that the Town notified the
Teamsters of either the intent to seek approval of such a new position by
the Town Council, or the actual approval of the position on March 11, 1989.
On April 24, 1989, the Teamsters filed a petition for unit clarification
which sought clarification that the new Clerk position is included in the
existing Public Works Unit. The petition averred that the Town had denied
the request for recognition of the appropriatness of the inclusion.
Because the position had at that time not yet been filled, the petition was
returned to the Teamsters, as premature.
There are ten employees in the highway department and four employees at
the transfer station. The transfer station and highway garage are located
one and a quarter miles apart. There are presently only four Public Works
Department classifications: Commissioner, Public Works Clerk, Heavy
Equipment Operator (HEO) and Light Equipment Operator (LEO). LEOs hold
Class II licenses, function as laborers and operate trucks weighting one
ton or less. HEOs possess a Class I license, operate heavier equipment and
function as laborers. LEOs and HEOs are required to possess an eighth
grade education, whereas a high school diploma is required of the Clerk;
along with commerical courses and office experience. Transfer station
employees perform scale house, recycling and solid waste activities
including crusher, scale, baler and front end loader operations. Transfer
station employees are classified as either LEOs or HEOs. Their present pay
is transitional although at the expiration of the present contract they
will be paid according to their respective equipment operation classifica-
tion's contract wage rate. Transfer station employees are intermediately
supervised by a Transfer Station Manager whereas highway department
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employees report directly to Bridges. Although transfer station employees
report directly to the transfer station and therefore have little contact
with Rogers, members of the Highway Department report to the Highway Garage
and have contact with Rogers when she comes to work in the morning, when
they are around the garage during the day and when they park their equip-
ment at night. Highway Department employees spend most of their work day
away from the garage and Rogers' dispatch duties are few. Roger's desk is
co-located with the table at which highway garage employees break and lunch.
The Town's Fire and Police Departments are organized. The following
additional unorganized clerical positions presently exist at the Town
(number of employees in parenthesis). Secretary to the Police Chief (1),
Asessing Department Clerks (2.5), Code Enforcement Office Clerks (2),
General Office Clerks (5), Deputy Town ClerK (1). These clerical employees
are supervised by their respective department heads. Rogers has consulted
with and was given some limited training by other town clerical employees.
Rogers files, makes daily activities logs, performs payroll functions,
takes pump readings, answers the phone, takes messages and notes com-
plaints, collects fees for and disperses driveway and road-opening permits
and keeps the department's vacation, sick leave and comp-time records.
Rogers also operates the department's new computerized fuel system.
The benefits applicable to the Public Works Clerk position are: Social
Security, sick, vacation and holiday leave, longevity pay of $15 for every
five years of service and the option to purchase income protection under
the MMA's insurance plan. Public Works Department employees and all other
Town employees have similar benefits, with the exception of longevity pay.
Public Works employees receive longevity pay computed according to the
following methods: after 10 years of continuous service - $.40 per hour -
after 15 years an additional $.40 per hour, with a maximum of $.80 per
hour. The Clerk's salary of $7.64/hour to start was established by
reference to the Town Personnel ordinance, applicable to non-union
employees and established by the Wells Personnel Board. Beginning LEOs
earn $7.13/hour. Beginning HEOs earn $7.84/hour.
Bridges has helped form management's proposals and has reviewed
Teamsters proposals in Highway Department Unit collective bargaining nego-
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tiations. The Town employs MMA to do the actual negotiations. Carter is
the second in command on the Town's Highway Department bargaining team and
Bridges, as number three, contributes as a resource person. Bridges
supplied Carter with a couple of handwritten items concerning salary infor-
mation during the last round of negotiations. Bridges also participated in
discussions of the "pros and cons of the present contract," but was "ill
and . . . away from the table," for a large portion of the negotiations.
On prior occasions when Bridges has required secretarial or clerical
assistance he has used the services of Carter's Secretary or the services
of the Deputy Treasurer. In the last round of negotiations Bridges had the
Town Manager's Secretary type up one sheet of confidential collective
bargaining material on one occasion. The amount of such typing in past
negotiations has been no greater. Rogers desires to be represented for the
purposes of collective bargaining in a unit of clerical employees if she
is to be representated at all.
DISCUSSION
As is more fully explained herein I find that Rogers is a public
employee who does not share a community of interest with employees in the
Highway Department Bargaining Unit sufficient to compel her inclusion
therein. I also find the parties contract not to be dispositive of the
issue of unit placement. The Board's standards for granting confidential
designations and the policy reasons underlying such designations are well
established. The pertinent portions of the discussion of those matters,
contained at pages 6 through 9 of the case styled, Kittery Employees Asso-
ciation and Town of Kittery, Nos. 86-UD-06 and -08 (Me.L.R.B. Feb. 13, 1986),
bear repeating here:
The Municipal [Law] negatively defines the term "public
employee" by providing seven specific exceptions which, when
applicable, operate to deprive employees of public employers sta-
tus. See 26 M.R.S.A. 962(6) (Supp. 1985-1986). These excep-
tions are narrowly construed by the Board in order to prevent
unnecessary abridgment of the statutory collective bargaining
rights guaranteed to public employees by 26 M.R.S.A. 961 and
963 (Supp. 1985-1986). See Teamsters Local Union No. 48 and
Town of Lisbon, Hearing Examiner's Unit Determination Report [No. 81-UD-17],
slip op. at 4 (Me.L.R.B. June 8, 1981), quoting, State of Maine
v. Maine Labor Relations Board, No. CV-77-135 (Me. Super. Ct.
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Ken. Cty., Oct. 10, 1980). See generally Teamsters Local Union
No. 48 and City of Biddeford, Hearing Examiner's Unit
Determination Report [No. 80-UD-22], slip op. at 5 (Me.L.R.B. Apr. 9, 1980).
The Act provides one such specific exception for employees of
public employers "[w]hose duties as . . . deputy, administrative
assistant or secretary necessarily imply a confidential rela-
tionship to the executive head, body, department head or division
head." In determining the applicability of this "confidential"
exception the Board balances the bargaining rights of employees
concerned wtih the statutory right of their public employers to
require a reasonable number of employees to assist them in pre-
paring for and engaging in collective bargaining negotiations.
See generally M.S.E.A. and Maine Maritime Academy, Hearing
Examiner's Unit Determination Report [No. 82-UD-04], slip op. at 7-8 (Me.L.R.B.
Jan. 22, 1982); Teamsters Local Union No. 48 and City of
Biddeford, Hearing Examiner's Unit Determination Report [No. 78-UD-34], slip op.
at 2 (Me.L.R.B. Aug. 4, 1978); Teamsters Local Union No. 48 and
Town of Fairfield, Hearing Examiner's Unit Determination Report [No. 78-UD-42],
slip op. at 4 (Me.L.R.B. July 31, 1978).
The underlying purpose of the exclusion of confidential
employees from bargaining units is to prevent such employees from
being subjected to an irreconcilable conflict of interest in
which their loyalties are divided between their employer, who
expects confidentiality, and their union, which may seek disclo-
sure of confidential employer labor relations material to gain
advantage in bargaining. An employee in possession of confiden-
tial information not connected with labor relations matters is
not generally subjected to such divided loyalty. Union member-
ship is not incompatible with an employee's duty of loyalty to
the employer when that duty requires confidentiality regarding
matters other than labor relations. See Town of Fairfield and
Teamsters Local 48, Report of Appellate Review of Unit Deter-
mination Report [No. 78-A-08], slip op. at 3 (Me.L.R.B. Nov. 27, 1978).
Furthermore, only involvement in aspects of collective bargaining
negotiations is sufficient to support "confidential" designation.
Involvement in contract administration and grievance adjustment
is not. See State of Maine and Maine State Employees Associa-
tion, No. 82-A-02, slip op.at 9 (Me.L.R.B. Aug. 9,1983).
The Board has stated that the following standards are to be
applied in determining whether an employee is "confidential,"
within the meaning of the Municipal Act:
We have often stated that, to be a confidential
employee," one must be "permanently involved in collec-
tive bargaining matters on behalf of the public
employer or that the duties performed by the employee
involve the formulation, determination and effectuation
of the employer's employee relations policies.
Waterville Police Department and Teamsters Local Union
No. 48, Report or Appellate Review of Unit Determina-
tion Report [No. 78-A-06], slip op. at 3 (Me.L.R.B. Oct. 4, 1978).
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Maine School Administrative Distirct No. 14 and East Grand
Teachers Association, No. 83-A-09, slip op. at 8-9 (Me.L.R.B.
Aug. 24, 1983), quoting, State of Maine and Maine State Employees
Association, No. 82-A-02, Interim Order at 18 (Me.L.R.B. June 2,
1983).
This requirement, that the employee's participation in
collective bargaining matters be significant, does not
set out a strict empirical formula mandating the inclu-
sion or exclusion of employees from collective bargain-
ing. That determination must be made on an ad hoc
basis by the hearing examiner on the facts developed
through the unit hearing process. The requirement of
significance of an employee's participation in collec-
tive bargaining matters may be satisfied either when
the individual's involvement is substantial, although
it is performed rarely, or when the activity is rela-
tively minor but is undertaken on a regular basis as
part of the employee's job functions. The significance
of the employee's involvement turns on the nature of
his or her access to information which could, if
revealed to the bargaining agent, jeopardize the
employer's collective bargaining position, Town of
Fairfield [and Teamsters Local Union No. 48, Report of
Appellate Review of Unit Determination Hearing [No. 78-A-08], slip
op. at 3 (Me.L.R.B. Nov. 27, 1978)], and also on what
the employee does with such information. The employee
must use said information in the formulation and deter-
mination of the employee's labor relations policies or
collective bargaining proposals in order to be found to
be a confidential employee.
Penobscot Valley Hospital and Maine Federation of Nurses and
Health Care Professionals, No. 85-A-01, slip op. at 9-10
(Me.L.R.B Feb. 6, 1985), quoting, Maine School Administrative
District No. 14 and East Grand Teachers Association, No. 83-A-09,
slip op. at 8-9 (Me.L.R.B. Aug. 24, 1983). The Board has also
opined that:
Clerical employees who do not formulate or determine
the employer's labor relations policies may, neverthe-
less, be found to be confidential employees. This
conclusion is in recognition of the fact that "in many
if not most cases, 'confidential' supervisory employees
need access to at least one 'conficiential' clerical
employee, in order to carry out their confidential
duties.
Penobscot Valley Hospital and Maine Federation of Nurses and
Health Care Professionals, No. 85-A-01, slip op. at l0 (Me.L.R.B.
Feb. 6, 1985).
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I have considered the Town's request for confidential designation
of the Clerk in light of the above-referenced standards and policy.
Because confidential designation is required to be made on the basis of
present duties, Teamsters Local Union No. 48 and Town of Lisbon, Hearing
Examiner Unit Determination Report [No. 81-UD-17], slip op. at 5 (Me.L.R.B. June 8, 1981),
and may not be made on the basis of "anticipated" or "prospective" duties,
Counsel 74, AFSCME and Town of Millinocket, Hearing Examiner Unit
Determination Report [No. 80-UD-13], slip op. at 7 (Me.L.R.B. Feb. 12, 1980), quotinq
Waterville Police Department and Teamsters Local 48, Report of appellate
review of Unit Determination [No. 78-A-06], slip op. at 4 (Me.L.R.B. Oct. 4, 1978), the
Town's requested confidential designation is untimely. During the hearing
the Teamsters objected to the testimony presented by the Town regarding
what collective bargaining duties Rogers might have in any future collec-
tive bargaining negotiations. The hearing examiner apprised the Town of
the Board's general rule set forth immediately above of refusal to make
confidential designation based on prospective duties alone. The Town
responded that to follow such precedent would "require the employer to
compromise itself and put the employee in a conflict of interest situation
before the Board will hear the case." Because my ultimate unit placement
decision does not give rise to the conflict of interest concerns voiced by
the Town, I find no distinction upon which to refrain from applying the
Board's general rule. The Teamsters objection is, accordingly, sustained.
That testimony regarding future duties of Rogers has been disregarded. At
such time as the actual duties of the Public Works Clerk have changed suf-
ficiently to warrant confidential designation, the Town may refile its
request pursuant to 26 M.R.S.A. 966(3)(1988) and Board Unit Determination
Rule 1.13. See Waterville Police Department and Teamsters Local Union No. 48,
No. 78-A-06, slip op. at 4 (Me.L.R.B. Oct. 4, 1978).
The inquiry now turns to whether the Public WorKs Clerk shares a com-
munity of interest with and should be included in the present Public Works
or Highway Department collective bargaining unit. The pertinent portions
of the Municipal Public Employees Labor Relations Law provide "that there
must be a 'clear and identifiable community of interest among the employees
concerned' for a given bargaining unit to be appropriate for the purposes
of collective bargaining." Penobscot Valley Hospital and Maine Federation
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of Nurses and Health Care Professionais, No.85-A-01, slip op. at 4
(Me.L.R.B. Feb. 6, 1985). See 26 M.R.S.A. 966(2)(1988). The Board has
established eleven criteria to be used in determining the presence or
absence of a community of interest among employees. Town of Lebanon and
Teamsters Local Union No. 48, No. 86-A-01 (Me.L.R.B. Dec. 5, 1985). Those
factors are:
(1) similarity in the kind of work performed; (2) common
supervision and determination of labor-relations policy;
(3) similarity in the scale and manner of determining
earnings; (4) similarity in employment benefits, hours of
work and other terms and conditions of employment; (5)
similarity in the qualifications, skills and training of
employees; (6) frequency of contact or interchange among
the employees; (7) geographic proximity; (8) history of
collective bargaining; (9) desires of the affected
employees; (10) extent of union organization; and (11)
the public employer's organization structure.
Council 74, AFSCME and City of Brewer, No. 79-A-01, slip op. at 3-4
(Me.L.R.B. Oct. 17, 1979); cited with approval in, Penobscot Valley
Hospital and Maine Federation of Nurses and Health Care Professionals, No.
85-A-01, slip op. at 4 (Me.L.R.B. Feb. 6, 1985); and, Council 74, AFSCME
and Teamsters Local Union No. 48 and County of Cumberland, No. 84-A-04,
slip op. at 11 (Me.L.R.B. Apr. 25, 1984). I have considered the arguments
contained in the parties' briefs and have examined the evidence in light of
the community of interest criteria above and find, upon consideration, that
the Public Works Clerk does not share a community of interest with the mem-
bers of the existing Public Works/Highway Department Bargaining Unit.
The record with respect to the community of interest criteria numbered
3, 4 and 7 strongly supports a finding of community of interest. All High-
way Department employees are hourly and begin at pay rates which are not
widely different. There is no evidence of overtime or total hours
disparity and no evidence was adduced as to shift work differences among
department employees. All department employees enjoy similar benefits,
with the exception of longevity pay, as do all Town employees, and,
although the geographic proximity of garage employees to the Clerk is
greatest, the transfer station employees are not so geographically
dispersed as to hinder adequate communication on matters of shared concern.
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Criterion number 2 also supports a conclusion of community to the extent
that the garage employees and the Clerk are directly, and the transfer sta-
tion employees ultimately, supervised by Bridges.
Criteria 8, 10 and 11 are not helpful to the instant inquiry. There
is no bargaining history respecting the Public Works Clerk or the existing
unit which is relevant to the instant unit placement issue. With the
exception of the fact that all other highway department employees, save
Bridges, are in the existing unit and that none of the Town's clerical
employees are organized there is no other pertinent evidence regarding
extent of organization. There is no evidence in the public employees
organizational structure.
Criteria numbers 1, 5, 6 and 9 do not support a finding of community of
interest and I consider their combined effect to be controlling. The evi-
dence establishes that Rogers' job duties are comprehensively different
from those of other department employees. The record establishes that
although some clerical duties were performed in the past on an ad hoc basis
by some garage employees, the functional separation of clerical and manual
tasks, with the inception of the Clerk's position, will be definitive.
The skills, qualifications and training required in the generally
operational/manual and clerical positions are fundamentally different.
There will likely be no occasion in the future for Rogers to perform any
manual/operational duties and vice versa. Moreover, the areas of func-
tional or performance related concerns of the two types of job classifica-
tions will probaoly not significantly intersect. Although there is
assumedly rough mutual concern, for example, that the final check cutting
payroll function be performed, the matter of how the underlying payroll
functions are done is likely a matter of little concern outside of Rogers
and Bridges. Finally, even if the decision were a close one at this point,
and it is not, I would conclude that the requisite community is lacking
based on the expressed desire of Rogers to be included in a unit composed
of similar clerical job classifications. The lack of a present clerical
bargaining unit leaves open the possibility of that distinct desire.
The Board routinely accepts the voluntary agreements of parties con-
cerning wall-to-wall units and their agreements on less than all-inclusive
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units containing diverse job classifications. See MSAD No. 56 Teachers'
Association and MSAD No. 56, No. 88-UC-03, slip op. at 18 (Me.L.R.B.
May 12, 1989)(citing cases). Where, however, the parties disagree as to
issues of unit placement regarding a preexisting unit the eleven community
of interest factors should be applied to preserve, to as great an extent as
is possible, the basic character of the existing unit. I find that
including the Clerk in the existing Highway Unit would not be consistent
with preserving its community of interest based operational/manual
character.
APPROPRIATE UNIT DETERMINATION
On the basis of the foregoing findings of fact and discussion and by
virtue of and pursuant to the provisions of 26 M.R.S.A. 966 (1988), the
undersigned concludes that Public Works Clerk Denise Rogers is a public
employee within the meaning of 26 M.R.S.A. 962(6)(1988), and that on the
basis of a lack of community of interest it would be inappropriate to
clarify tne existing Wells Public Works or Highway unit to include her.
The Teamsters' petition is, therefore, hereby DISMISSED.
Dated at Augusta, Maine, this 22th day of November, 1989.
MAINE LABOR RELATIONS BOARD
/s/________________________________
M. Wayne Jacobs
Designated Hearing Examiner
The parties are advised of their right, pursuant to 26 M.R.S.A. 968(4)
(1988) to appeal this report to the Maine Labor Relations Board by filing a
notice of appeal within fifteen days of the date of this report. See Board
Unit Determination Rule 1.10. Board General Provisions Rule 6.03.
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