STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 91-UC-04
Issued: April 17, 1991
_____________________________________
)
STATE OF MAINE, )
)
Petitioner, )
)
and ) UNIT CLARIFICATION REPORT
)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Bargaining Agent. )
_____________________________________)
On August 21, 1990, pursuant to section 979-E(3) of the State Employees
Labor Relations Act ("SELRA"), 26 M.R.S.A. 979-E(3) (1988), and Maine Labor
Relations Board ("Board") Rule 1.16, the State of Maine ("State") filed an
amended petition for unit clarification with the Board, seeking to move the job
classification of auto mechanic foreman from the Operations, Maintenance and
Support Services Bargaining Unit ("OMS unit") to the Supervisory Services
Bargaining Unit ("supervisors' unit"). The Maine State Employees Association,
Local 1989, SEIU ("MSEA") opposes the transfer, and has moved for dismissal
of the petition. Its motion is based on the grounds that the State has, in
an unrelated matter pending before the executive director of the Board
(No. 91-UC-11), asserted that the 1989-92 collective bargaining agreement for
the supervisors' unit contains a binding bargaining unit description. Since
that description, MSEA argues, does not include the classification of auto
mechanic foreman, and no changes in the classification are alleged to have
occurred since the collective bargaining agreement was signed on September 5,
1989, the State's petition should be dismissed under Board Rule 1.16. The
State replies that changes have occurred since the contract was signed. Both
parties assert that the hearing examiner in this matter is bound by any deter-
mination made by the executive director in No. 91-UC-11 regarding whether the
list of job classifications in the supervisors' agreement is a bargaining
unit description for the purposes of Rule 1.16.
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The evidentiary hearing originally scheduled for October 23, 1990, was
rescheduled for December 4, 1990; that hearing, in turn, was rescheduled and
held at 9:30 a.m. on Monday, January 14, 1991, in Room 714 of the State Office
Building, Augusta, Maine. Sandra S. Carraher, Esquire, represented the State,
and Timothy L. Belcher, Esquire, represented MSEA. No one requested
participation in the proceeding as an interested party.
At the hearing the parties were afforded the opportunity to present evidence
and argument and to cross-examine witnesses. Upon completion of the hearing,
the parties waived oral argument and filed written briefs, the last of which was
received on February 5, 1991. The transcript of this proceeding was completed
on January 14th; neither party requested a copy.
Prior to commencement of the formal hearing, the parties met with the
hearing examiner in an informal conference. The stipulations reached by the
parties at that time have been incorporated herein. Participating in the infor-
mal conference and/or appearing as witnesses, in addition to the representatives
of record, were:
on behalf of the State:
Jack Clements Equipment Superintendent (DOT Division 4)
Dick Davis Superintendent of Buildings, Prop. Mgmt.
Div., BPI, Dept. of Admin.
Ron Mollison Auto Mechanic Foreman (DOT Division 3)
Bob Seltzer Equipment Superintendent (DOT Division 2)
Bob Towle Personnel Specialist (DOT)
Dave Wagner Motor Transport Services Manager (DOT -
Augusta)
on behalf of MSEA:
Gary Ronco Auto Mechanic I
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Current collective bargaining agreements for the OMS and supervisors' units
accompanied the petition and accordingly are in the record. The following
additional documents were admitted into the record, by stipulation, as amended
by the hearing examiner's notations thereon:
P-1 DOT Motor Transport Services organizational chart
P-2 DOT Motor Transport Services organizational chart
P-3 DOT Motor Transport Services organizational chart
P-4[fn]1 job description for automotive mechanic foreman (dated Sept. 1984)
P-5[fn]1 job specification (task statement) for auto mechanic foreman (BPI,
Prop. Mgmt. Div.; went into effect prior to 1986)
P-6[fn]1 job posting for auto mechanic foreman (DOT; March 17, 1982)
P-7[fn]1 job posting for auto mechanic foreman (DOT; Oct. 3, 1990)
In addition, after notice to and opportunity for comment by the parties, the
hearing examiner has taken official notice of the following documents, pur-
suant to 5 M.R.S.A. 9058 (1989):
1) the grievance procedure article in the Operations, Maintenance
and Support Services collective bargaining agreements for
1978-80, 1980-81, 1982-83, 1984-86 and 1987-89;
2) job activity questionnaires that were submitted as exhibits
in the appeal proceedings for the 1976 State unit
determination:
MSEA #16 - machinist foreman
MSEA #18 - painter foreman
MSEA #20 - plumber foreman
MSEA #23 - mason foreman
MSEA #28 - automotive mechanic foreman
Neither party has contested the substance or materiality of these documents.
JURISDICTION
The jurisdiction of the hearing examiner to hear this matter and to make a
______________________________
1 These four documents were introduced and admitted at the request of MSEA;
they had been provided to MSEA by the State, and therefore were inadvertently
given petitioner (P) exhibit numbers at the time of the hearing.
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unit clarification decision lies in 26 M.R.S.A. 979-E(3) (1988).
STIPULATIONS
1. MSEA is the certified bargaining agent, within the meaning of 26
M.R.S.A. 979-A(1) (1988), for the OMS and supervisors' units. The State is
the public employer, within the meaning of 26 M.R.S.A. 979-A(5) (1988), of the
employees in those units; the job classification of auto mechanic foreman is
currently in the OMS unit.
2. The parties are unable to agree on an appropriate modification of the
bargaining units at issue, and there is no question concerning representation
within the meaning of 26 M.R.S.A. 979-E(3) (1988).
3. One or more auto mechanic foreman positions currently exist in each of
the following departments: the Department of Transportation ("DOT"), the
Department of Administration ("Admin."), the Department of Corrections, the
Department of Conservation, and the Department of Public Safety ("DPS").
4. Out of approximately 23 auto mechanic foreman positions, there are 14
such positions in DOT's Motor Transport Services ("MTS"), which is in the Bureau
of Maintenance and Operations. MTS leases equipment, maintains equipment for
other divisions of the Bureau such as the Bridge Maintenance Division, and
repairs equipment owned and utilized by other departments within State govern-
ment. Five of those 14 auto mechanic foreman positions are located in the
Augusta shop of MTS. The remaining nine positions are in the seven field divi-
sions that are located around the State.
FINDINGS
Upon review of the entire record, the hearing examiner makes the following
additional findings:
1. Both the OMS unit and the supervisors' unit were created by a Board
unit determination. Council No. 74, AFSCME and Office of State Employee
Relations, No. 75-UD-04, et al. (Me.L.R.B. Sept. 22, 1976). In that
determination, the job classifications of machinist foreman, mason foreman,
painter foreman and plumber foreman were placed in the supervisors' unit.
MSEA appealed the decision regarding the placement of these classifica-
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tions, and the Board upheld the hearing examiner's determination. Council
No. 74, AFSCME and Office of State Employee Relations, No. 77-A-02 (March
17, 1977). The job classification of auto mechanic foreman was placed in the
OMS unit in the original determination. The State did not appeal that
placement.
2. The job activity questionnaires that were submitted in the unit appeal
proceedings (No. 77-A-O2) for the classifications of machinist foreman, painter
foreman, plumber foreman, mason foreman and automotive mechanic foreman all
indicate that the job duties for each include laying out, assigning, inspecting
and supervising work of skilled employees as well as participation in the per-
formance of that work. The following statements appear in the job descriptions
of those questionnaires:
machinist foreman - "The most important aspect of this job is the required
ability to supervise a staff of skilled machinist[s]."
painter foreman - "The most difficult aspect of this job is the supervising
and carrying out duties in and among a mental health patient area."
plumber foreman - "The most important function of this classification is the
health and welfare of the residents in the hospital through safe plumbing
practices."
mason foreman - "The most important aspect of this position is the assign-
ment, layout, inspection, and supervision of craftsmen and helpers."
automotive mechanic foreman - "The most difficult aspect of this class is to
supervise the subordinate employees and ensure that their work is performed
correctly."
3. Collective bargaining agreements currently in effect for the OMS and
supervisors' units were entered into on September 5, 1989.
DOT
4. The Motor Transport Services manager supervises the five auto mechanic
foremen in the Augusta shop; those five, in turn, supervise crews of auto
mechanics. Each of the seven field divisions is managed by an equipment
superintendent who supervises the auto mechanic foremen; they in turn supervise
the auto mechanics in their crews. Direct supervision consists of assigning
work and ensuring that crews perform their maintenance and repair work correctly
and in a safe and timely manner.
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5. Over the time period from 1976 when the bargaining units were formed
until 1990, the amount of time spent "turning a wrench" by auto mechanic foremen
in DOT has varied substantially, from two foremen designated as "working fore-
men" who performed substantial hands-on work, to foremen with little or no
hands-on responsibility. In the smaller garages the small crew size has
required auto mechanic foremen to do more wrench-turning; as crews have grown,
wrench-turning by those foremen has decreased. Until 1990, foremen spent most
of their non-wrench-turning time in direct supervision of their crews, and the
remainder doing paperwork and other duties such as writing and tracking job
orders, scheduling work, controlling inventory, tracking labor charges and
checking time sheets. Field division foremen generally had more paperwork
responsibilities than foremen in the Augusta shop, including making out payroll.
6. In 1987, because the director of MTS had identified a need for super-
visory training and because a new civil service law required it, auto mechanic
foremen and other supervisors began receiving more intensive training than they
had received in the past. The new training covered human resources skills --
interpersonal relations, interviewing and selecting new employees, handling
grievances, handling disciplinary matters (including documenting incident
files), and conducting and writing performance appraisals. It also included
training in affirmative action and prevention of sexual harassment.
7. DOT auto mechanic foremen have been conducting performance appraisals
on the employees they supervise since at least 1986; at least one foreman was
conducting them as early as 1977.
8. Few discipline problems arose, and disciplinary duties for foremen
prior to 1987 were vague. In one instance, a foreman was disciplined for
failing to require an auto mechanic to attend some schooling. Since their
new training, foremen are expected to administer oral discipline when necessary;
written reprimands and suspensions must be reviewed and approved by higher
management.
9. Grievance-handling responsibilities prior to 1987 were also vague; for
the most part, the issue didn't come up. Since the new training, auto mechanic
foremen are expected to handle step 1 employee grievances; this duty is consis-
tent with the language in the grievance provision of the OMS collective bargain-
ing agreements for 1978-80, 1980-81, 1982-83, 1984-86, 1986-87, 1987-89
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and 1989-92.
10. Auto mechanic foremen have been sitting on job interview panels for
auto mechanic crews (along with equipment superintendents in the field divi-
sions, and with the manager of MTS in the Augusta shop) since at least 1986.
In 1986, a new personnel policy included auto mechanic foremen on interview
panels for other crews, including panels for new hires in other divisions of the
Bureau of Maintenance and Operations -- in the Highway Maintenance Division,
for instance. By directive of the MTS manager, foremen in the Augusta shop do
not have this duty.
11. DOT auto mechanic foremen have never had the authority to hire or fire the
employees they supervise. The director of Motor Transport Services makes those
decisions, with recommendations from the job interview panels.
12. Prior to 1987, foremen's duties regarding prevention of sexual harass-
ment were unclear; foremen have rarely been faced with this issue due to the
lack of women in MTS over the years. Since their new training, foremen are more
clearly responsible for preventing sexual harassment, with higher management
available to provide assistance when necessary.
13. Although DOT has had an affirmative action policy for many years, prior
to 1987 duties regarding affirmative action were unclear. Since their new
training, foremen are expected to enforce the policy, presumably through their
hiring recommendations to the MTS director.
14. In 1990, the amount of time that DOT auto mechanic foremen spent super-
vising their crews decreased substantially, due to the institution of a computer-
ized information management system called MESIS. Foremen now spend as much as
three or four hours at the computer terminal. Work on the computer includes
such tasks as generating repair orders, entering task statements for those
orders so that parts can be ordered, correcting time records for work crew mem-
bers, tracking vehicle warranties and making out payroll.
15. In at least one field division, the auto mechanic foreman fills in for
the equipment superintendent in his absence; that has been the case since at
least 1986.
16. In job postings for DOT auto mechanic foremen in 1982 and 1990, the job
description and qualifications in the two postings were virtually identical.
The 1990 posting contained the following language not present in the 1982
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posting:
Required Knowledge and Abilities: Considerable technical
knowledge and experience in the repair and maintenance of
automotive and heavy construction equipment and ability to
supervise and instruct skilled mechanics. Ability to under-
stand and carry out oral and written instructions. Ability
to keep shop records.
However, these requirements all appear in the September 1984 job description for
auto mechanic foreman, which applied to auto mechanic foremen in all departments
of State government (and is still in effect).
17. Auto mechanic foreman positions in DOT are filled through the ranks of
auto mechanics.
Admin.
18. There is one auto mechanic foreman position in the Department of
Administration; that foreman schedules work for and supervises two auto mechan-
ics, and spends approximately 30 percent of his own time "turning a wrench."
19. In 1986, the auto mechanic foreman was supervised by the assistant
superintendent of buildings in the Property Management Division of the Bureau of
Public Improvements. In July of that year, the assistant superintendent (who is
now the superintendent) instituted several changes in the job duties of the auto
mechanic foreman. The foreman's new duties included:
a. conducting performance appraisals (although the job description
required auto mechanic foremen to conduct performance appraisals for the
employees they supervised, the foreman in Admin. had not been doing them);
b. more coordination of outside repairs (repairs that could not be
done in-house);
c. sitting on job interview panels for auto mechanics and other new
hires;
d. initiating fuel orders for division vehicles (he was already moni-
toring fuel usage);
e. providing input on biennial budgets;
f. providing input in redrafting the written test for auto mechanics
(the date for this change is unclear, and the superintendent could not say
whether the foreman had had input on the previous version of the test);
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g. providing better safety training for mechanics (he was already
responsible for safety);
h. joint responsibility for locking the service building at the end of
the work day;
i. initiating and documenting monthly vehicle safety inspections;
j. coordinating the division's special functions with other trades;
k. providing weekly reports on vehicle and garage operations at newly
established weekly supervisors' meetings;
l. preparing a monthly performance indicator report (of jobs per-
formed, man-hours required, expenses incurred).
20. It is unclear who was handling step 1 grievances in 1986 when the
changes in item 16 above were instituted. The foreman now has responsibility
for step 1 grievances, although there have not been any grievances to handle.
(The current and prior collective bargaining agreements state that as step 1 in
the grievance procedure, grievances are presented orally to the employee's imme-
diate supervisor, which for auto mechanics is the auto mechanic foreman).
21. The task statement in effect at least since 1986 for auto mechanic
foremen in Admin. states that they are responsible for the discipline of
employees when necessary. Since at least 1986, no discipline has been
necessary.
Other
22. No testimony or documentary evidence was presented regarding auto
mechanic foremen in departments other than DOT and Admin.
DISCUSSION
This proceeding was conducted pursuant to 26 M.R.S.A. 979-E(3) (1988) and
Unit Determination Rule 1.16. Section 979-E(3) of SELRA states:
Unit Clarification. Where there is a certified or
currently recognized bargaining representative and where the
circumstances surrounding the formation of an existing bar-
gaining unit are alleged to have changed sufficiently to
warrant modification in the composition of that bargaining
unit, any public employer or any recognized or certified
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bargaining agent may file a petition for a unit clarification,
provided that the parties are unable to agree on appropriate
modifications and there is no question concerning represen-
tation.
Rule 1.16(A), in addition to reiterating the statutory requirements, provides:
Unit clarification petitions may be denied if (1) the ques-
tion raised should properly be settled through the election
process, or (2) the petition requests the clarification of
unit placement questions which could have been but were not
raised prior to the conclusion of negotiations which result-
ed in an agreement containing a bargaining unit description.
The parties have stipulated (and the record indicates) that three of the four
requirements of section 979-E(3) have been met. MSEA is the certified
bargaining representative for both the OMS and supervisory units, the parties
have not been able to reach agreement on transfer of the auto mechanic foremen
from the OMS to the supervisors' unit, and there is no question concerning
representation.
Changed circumstances
Several questions are presented by the State's petition:
1) Has the requirement for changed circumstances since formation of the OMS
unit been met? (Has sufficient change occurred for any positions in the
classification? Must a change in circumstances occur for every position in a
job classification in order for that classification to be transferred from one
unit to another? Can the classification be split?)
2) If a sufficient change in circumstances has occurred, are the lists of
job classifications in the printed supervisors' and OMS collective bargaining
agreements each a "bargaining unit description" as that term is used in Board
Rule 1.16(A)(2)?
3) If so, did the change in circumstances occur before or after Septem-
ber 5, 1989, the date the latest collective bargaining agreements were signed?
The requirement for changed circumstances "is a threshold question on
which the petitioner, in a unit clarification proceeding, 'bears the burden of
alleging the requisite change and, further, of establishing the occurrence of
said change in the unit then at issue.'" MSAD No. 14 and East Grand Teachers
Assoc., No. 83-A-09, slip op. at 7, 6 NPER 20-14036 (Me.L.R.B. Aug. 24,
1983), quoting from State of Maine and MSEA, No. 82-A-02, slip op. at 16, 6
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NPER 20-14035 (Me.L.R.B. June 2, 1983) (Interim Order).
Criteria for determining whether a supervisory position should be excluded
from a bargaining unit are set out in 26 M.R.S.A. 979-E(1) (1988):
. . . In determining whether a supervisory position should
be excluded from the proposed bargaining unit, the executive
director or his designee shall consider, among other cri-
teria, if the principal functions of the position are charac-
terized by performing such management control duties as
scheduling, assigning, overseeing and reviewing the work of
subordinate employees, or performing such duties as are
distinct and dissimilar from those performed by the employees
supervised, or exercising judgment in adjusting grievances,
applying other established personnel policies and procedures
and in enforcing a collective bargaining agreement or
establishing or participating in the establishment of perfor-
mance standards for subordinate employees and taking correc-
tive measures to implement those standards.
In establishing the OMS unit in 1976, the hearing examiner stated:
Employees in this unit are primarily skilled and semi-
skilled "blue-collar" employees, including the traditionally
recognized crafts and trades. They may be involved with
skilled or semi-skilled manual labor and construction, repair,
maintenance or service of buildings, domestic and/or repair
service (in non-institutional setting), or the operation of
machines, or equipment and vehicles. These employees in this
unit typically work with things, not people, and the upper
limit of formal education required to perform the job
function generally does not exceed graduation from secondary
schooling. While these employees may be able to transfer
into other jobs requiring similar skills and abilities
within the bargaining unit, their career ambitions are usually
satisfied through the use of career ladders. The lower
levels of supervision are frequently filled by employees who
have been promoted through the ranks. Employees in the
unit may be employed in either indoor or outdoor locations.
Employees in this unit have special interests in job
security, career ladders, job posting and promotional oppor-
tunities, progression from apprectice [sic] to journeymen
status, seniority, shift differentials, and assignments of
work and holiday work, inclement weather policy, equipment,
uniform and tool allowances, overtime practices and pay and
health programs.
Council No. 74, AFSCME and Office of Employee Relations, No. 75-UD-04, et al.,
slip op. at 13-14 (Me.L.R.B. Sept. 22, 1976). The hearing examiner described
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the supervisors' unit as follows:
Employees in this unit fill "middle management" positions
of a supervisory nature as contemplated in Section 979-E of
the State Employees Labor Relations Act but are not excluded
per se from coverage thereunder pursuant to the provisions
of Section 979-A, Paragraph 6. These employees are respon-
sible for the direction and efficient and effective utilization
of other employees and, under collective bargaining, will
assume varying degrees of responsibility for contract admini-
stration (i.e., criteria set forth in Section 979-E of the
Act). These employees have special interest in job content,
extend [sic] and nature of supervision, promotion oppor-
tunities and managerial/supervisory training and development.
Id. at 15.
As the parties pointed out in their briefs in this matter, the hearing exam-
iner is bound by the determination made by the executive director in State of
Maine and MSEA, Nos. 83-UC-43 & 91-UC-11 (Me.L.R.B. Apr. 9, 1991) (Interim
Order), regarding whether the list of job classifications in the 1989-92 super-
visors' agreement is a bargaining unit description for the purposes of Board
Rule 1.16. He found that it is. Derivatively, therefore, the list of classifi-
cations in the OMS agreement is also a unit description for the purposes of Rule
1.16. Since the State provided no evidence in this matter to show that it was
unable to raise at the bargaining table the issue of transfer of auto mechanic
foremen to the supervisors' unit, any changed circumstances that occurred prior
to September 5, 1989, when the current agreement was signed, are untimely for
the purposes of the State's petition. Each of the changes alleged by the State
are considered in this context.
The changes alleged by the State to have occurred for the auto mechanic
foremen in DOT are as follows: 1) a decrease in "wrench-turning"; 2) an increase
in supervisory responsibilities related to discipline, grievance handling,
and sexual harassment prevention; 3) greater job interviewing responsibilities,
to include interviewing for new hires other than auto mechanics, and ensuring
compliance with DOT's affirmative action policy; and 4) an increase in
recordkeeping in connection with a new computer system. For the single
auto mechanic foreman position in Admin., changes alleged to have occurred
include 1) increased supervisory responsibilities in connection with performance
appraisals, safety training, interviewing for new hires, and providing input for
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a revised test for hiring auto mechanics; and 2) new non-supervisory responsi-
bilities (initiating fuel orders and vehicle safety inspections; coordination of
outside repairs; providing budget input; securing the service building; coor-
dination of special functions; and preparing monthly performance indicator
reports and weekly operations reports). No changes are alleged to have occurred
for auto mechanic foremen in departments other than DOT and Admin.
DOT
The first change upon which the State relies is decreased wrench-turning for
DOT foremen. The job description in effect for auto mechanic foremen at the
time the OMS unit was formed in 1976 indicates that auto mechanic foremen per-
formed skilled work and also supervised others performing that work. Evidence
at the recent hearing in this matter revealed significant variation over time
and among foremen in the percentage of time spent in each activity, depending on
which DOT field garage foremen worked in. As work crews grew, supervisory time
increased for those foremen who had been wrench-turning for a substantial por-
tion of their day.
The hearing examiner is hesitant to rely on the change in time spent in
direct supervision as a basis for transferring auto mechanic foremen to the
supervisors' unit, for two reasons. First, although the testimony regarding the
timing of this change was imprecise at best, the change appears to have occurred
before September 5, 1989. Second, it appears to have affected relatively few of
DOT's auto mechanic foremen -- most of them have always spent the majority of
their day doing supervisory duties rather than wrench-turning.
The increase in supervisory responsibilities related to discipline,
grievance handling and sexual harassment prevention is no more persuasive. Any
changes that occurred were in connection with improved training, and therefore
occurred prior to September 5, 1989. Even if that were not the case, there is
little or no evidence in the record to indicate that the supervisory training
that began in 1987 actually changed the duties of the foremen -- it simply
trained them to do what they were supposed to be doing all along. Handling of
grievances is a case in point. (Exercising judgment in adjusting grievances is
one of the statutory criteria to be considered in determining in which unit to
place a supervisory position.) Testimony at hearing indicated that grievance-
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handling responsibilities were vague prior to the training. However, the
grievance provision of each OMS collective bargaining agreement, from the first
one in 1978 until the present, indicates that immediate supervisors have always
had responsibility for step 1 grievances. It might well be that improved
training that actually resulted in an increase in performance of existing duties
would be sufficient change under section 979-E(3) of SELRA. However, in the
pending case testimony indicated that grievances, disciplinary problems and
sexual harassment claims are all very rare occurrences.
The increase in duties related to hiring is untimely raised under Rule 1.16.
Auto mechanic foremen have sat on interview panels for auto mechanics since at
least 1986 (no evidence was presented regarding whether they were doing so at
the time the bargaining unit was formed in 1976). Expansion of that respon-
sibility to include panels for other new hires occurred sometime in 1986, well
before the current collective bargaining agreement was signed. The respon-
sibility of foremen for enforcement of DOT's affirmative action policy, through
hiring recommendations to the MTS director, was simply clarified as a result of
the 1987 supervisory training. As with other duties for which training was
provided, the issue rarely arises.
The only change asserted by the State for DOT foremen that occurred after
the collective bargaining agreement was signed is the increase in recordkeeping
in connection with the new computer system that was installed in 1990. That
change is troublesome for two reasons. On the one hand the State points to
increased time spent directly supervising employees that occurred as wrench-
turning decreased; here it points to increased recordkeeping responsibilities
that correspondingly have decreased the time spent in direct supervision.
The second problem with this change is the nature of the computer duties.
Work on the computer includes such tasks as generating repair orders, making out
payroll, correcting time records of work crew members, tracking vehicle warran-
ties and entering detailed task statements so parts can be ordered (inventory
control). There is little or no difference in kind between the administrative
duties of foremen before and after installation of the computer system, although
there is a substantial difference in the amount of time spent on those duties.
However, unless the duties are relevant to the criteria in section 979-E(1) for
determining unit placement of supervisors, the amount of time spent is of no
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consequence. Here they are not relevant.
The hearing examiner does not believe that the criterion of "performing such
duties as are distinct and dissimilar from those performed by the employees
supervised" was intended to include just any duties, as long as they are differ-
ent from those performed by subordinates. As the Board has stated previously:
The purpose of creating separate supervisory employee bargain-
ing units is to minimize potential conflicts of interest
within bargaining units, between supervisors and their subor-
dinate employees, as well as to lessen conflicts of loyalty
for supervisors between duty to their employer and allegiance
to fellow unit employees.
Penobscot Valley Hospital and Maine Federation of Nurses and Health Care
Professionals, No. 85-A-01, slip op. at 8, 8 NPER ME-16011 (Me.L.R.B. Feb. 6,
1985). Thus, duties contemplated by the "distinct and dissimilar" criterion
include those in connection with hiring (or making hiring recommendations),
transfers, layoffs and recalls, and promotions -- duties that substantially
align the interests of the supervisor with the interests of the employer and
cause conflicts of interest. The auto mechanic foremen's new computer respon-
sibilities do not in any way affect that alignment.
Admin.
Several changes have been made in the duties of the single auto mechanic
foreman in the Department of Administration since formation of the unit;
however, the changes occurred well before September 5, 1989, and thus are time-
barred under Board Rule 1.16. In any case, few of the new duties fit into any
of the criteria of section 979-E(1), and those that do are duties either that
the foreman was already supposed to be doing according to the job description,
or that foremen in other departments (DOT, for instance) were actually doing.
Thus, these changes for one foreman cannot reasonably be the basis for trans-
ferring all 23 foremen positions to the supervisory unit.
Conclusion
With one exception, the changes presented by the State in support of its
petition occurred prior to September of 1989 and thus are time-barred under
Board Rule 1.16. Even in the absence of that rule, the pre-1989 changes either
affected only a few employees, were changes in training for existing duties that
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are rarely performed, or were changes that are not relevant under section
979-E(1) of SELRA. Nor is the one change that occurred in 1990 relevant under
section 979-E(1). Consequently the hearing examiner need not reach the issue of
whether a relevant change in duties for less than all of the positions in the
job classification of auto mechanic foreman would warrant either transferring
the whole classification, or splitting it and transferring only those affected
by the change. Nor need she address the fact that moving some or all of the
foremen to the supervisors' unit might create as many conflicts as it removed,
since the State employees who supervise the foremen are themselves in the super-
visors' unit.
Finally, the hearing examiner would like to address an issue that has made
this decision a more difficult one than most to make. As notification to the
parties indicated, the hearing examiner reviewed the job descriptions for five
different foreman classifications (machinist foreman, painter foreman, plumber
foreman, mason foreman and automotive mechanic foreman) submitted during the
unit appeal in 1977. Although there is little or no difference apparent in the
job descriptions for the five classifications, the auto mechanic foreman classi-
fication was placed in the OMS unit and the others were placed in the super-
visors' unit -- in spite of the statutory directive that consideration be given,
among other things, to whether "principal functions of the position are charac-
terized by performing such management control duties as scheduling, assigning,
overseeing and reviewing the work of subordinate employees."
It might well be that the hearing examiner simply made a mistake in 1976 --
that all five classifications should have been placed in the same unit. MSEA
appealed the decision to place four of the five positions in the supervisors'
unit, and it lost that appeal. The State chose not to appeal this aspect of
the hearing examiner's 1976 decision (that is, the decision to place the auto
mechanic foreman classification in the OMS unit), and this hearing examiner has
no authority to correct that mistake, if indeed a mistake occurred. The State's
only recourse now appears to be to transfer this classification if and when the
employees in the classification indicate a desire to be transferred (and there-
fore an agreement can be reached with MSEA to make the transfer).
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ORDER
On the basis of the foregoing stipulations, findings and discussion and
pursuant to the provisions of 26 M.R.S.A. 979-E(3) (1988), it is hereby
ORDERED:
That the State's petition for unit clarification seeking to
move the job classification of auto mechanic foreman from
the Operations, Maintenance and Support Services Bargaining
Unit to the Supervisory Services Bargaining Unit is dismissed.
Dated at Augusta, Maine, this 17th day of April, 1991.
MAINE LABOR RELATIONS BOARD
/s/_______________________________________
JUDITH A. DORSEY
Designated Hearing Examiner
The parties are hereby advised of their right, pursuant to 26 M.R.S.A.
979-G(2) (1988), to appeal this Order to the Maine Labor Relations Board.
To initiate such an appeal, the party seeking appellate review must file a
notice of appeal with the Board within fifteen (15) days of the date of issuance
of this report. See Rules 1.12 and 7.03 of the Board's Rules and Procedures.
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