STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 93-UC-02 Issued: December 10, 1992 ______________________________ ) AFSCME COUNCIL 93, ) ) Petitioner, ) ) and ) UNIT CLARIFICATION REPORT ) CITY OF SACO, ) ) Public Employer. ) ______________________________) This unit clarification was commenced by the filing of a unit clarification petition by AFSCME Council 93, on September 3, 1992. AFSCME's petition seeks the inclusion of a Recycling Working Foreman position in a unit of Public Works employees of the City of Saco described: INCLUDED: Head Mechanic, Mechanic, Foreman I, Foreman- Sewer, Heavy Equipment Operator, Light Equipment Operator, Truck Driver, Laborer, Mechanic Store Clerk, Park and Rec. Maint., Park and Rec. Technician and Sidewalk Plows. EXCLUDED: All other employees of the City of Saco. The petition alleges that the sought-after position was created within the last year. The City's October 21, 1992, response states that the sought- after position is a supervisory one not appropriate for inclusion in the unit. The response also states that the "employee holding the position would have the option of electing to become a member of the Teamsters Supervisory Unit." Finally, the response states that "the City of Saco, based upon past practice with respect to other accre- tions to the bargaining unit in question, and based upon an agreement with the prior bargaining agent for the unit, believes that the ques- tion of whether the position of recycling foreman should be included [-1-] ______________________________________________________________________ in the bargaining unit is one that should be addressed as part of the collective bargaining process in the context of negotiating a new contract with the unit." Upon due notice, an evidentiary hearing was conducted by the undersigned on October 26, 1992, in Room 714 of the State Office Building in Augusta, Maine. The Employer was represented at hearing by Attorney James P. Boone. The Petitioner was represented by AFSCME, State of Maine Coordinator Kenneth A. Dietrich. No other interested party either participated or requested to participate in the pro- ceedings. The Petitioner called as witnesses Recycling Foreman Mark Sanders and City Truck Driver Marius Palange. The City called as wit- nesses City Administrator Larry Mitchell and Public Works Director Larry Nadeau. The City submitted the following exhibits which were admitted without objection: City Exhibit No. 1 A two-page job description for the position of Recycling Working Foreman City Exhibit No. 2 The cover page and page 24 of an agreement between the City and AFSCME Council 93 City Exhibit No. 3 A one-page job description for the position of Recycling Laborer--Part Time. AFSCME submitted one exhibit, admitted without objection, consisting of one duplex photocopied page listing Saco School and Municipal employees and their salaries. Neither party filed briefs. The transcript was completed on November 4, 1992. Pursuant to the parties' stipulation of admission, made via telephone conference, AFSCME filed a copy of the parties' most recent collective bargaining agreement on November 2, 1992. During a conference call on Tuesday, December 8, 1992, the parties stipulated that "members of the Public Works unit perform manual work and/or operate heavy and/or light equipment and/or machinery." -2- ______________________________________________________________________ JURISDICTION The jurisdiction of the hearing examiner to hear this matter and to make a unit clarification determination lies in 26 M.R.S.A. 966(1) and (2) (1988). Neither party has objected to the hearing examiner's assumption of jurisdiction over this matter. STIPULATIONS In off-the-record discussion prior to hearing the parties reached the following stipulations: 1. The City of Saco is a public employer within the meaning of 26 M.R.S.A. 962(7) (1988 & Supp. 1992). 2. The present occupant of the Saco Recycling Working Foreman position is a public employee within the meaning of 26 M.R.S.A. 962(6) (1988). 3. The employees occupying positions within the existing City Public Works unit are public employees within the meaning of 26 M.R.S.A. 962(6) (1988). 4. AFSCME Council 93 is the bargaining agent of the employees mentioned in paragraph 3 above within the meaning of 26 M.R.S.A. 962(2) (1988). 5. The position of Recycling Working Foreman was created by the City on July 1, 1991. 6. There is no question concerning representation in the instant case. 7. The issue of the unit placement of the Recycling Working Foreman has been raised by AFSCME and has not been resolved. 8. The parties' most recent collective bargaining agreement expired June 30, 1992. 9. AFSCME has sent a letter to the City requesting successor negotiations and the City is presently awaiting AFSCME's initial pro- posals. -3- ______________________________________________________________________ POSITIONS OF THE PARTIES The positions of AFSCME and the City are best summarized by their closing arguments set forth in their entirety, as follows: [Mr. Dietrich: AFSCME asserts t]hat by the testimony given today, the nature of the work, the supervisory responsi- bilities of the employee for the position are not different from that of other foremen who are in the collective bargaining agreement and were part of the bargaining unit that AFSCME represents. The location of the work is rela- tively the same as other employees, as evidenced by the time clock in the lounge and the physical location; that these positions are in fact similar in nature, and this position should be accreted to the AFSCME bargaining unit. [Mr. Boone:] The city obviously disagrees with that or else we wouldn't be here. The evidence showed that the facility where the recycling foreman works is physically separate from the public works facility. There isn't the type of interaction between the recycling foremen and public works other than when he's supervising public works employees as recycling foreman. Their testimony was that the relation- ship that he has with the director of public works is a direct relationship. It's not--he is directly supervised by the public works director. The relationship is not like the foremen that are members of the bargaining unit, who typi- cally under normal circumstances report to the working fore- man rather than directly to the director of public works. The testimony was that the nature of the work performed is different, that Mr. Sanders has a much greater degree of paperwork. He needs to be involved in planning and carrying out scheduling matters that are not functions of the other supervisors, the other foreman; and based on all of those factors we feel that this position is not properly part of the bargaining unit. FINDINGS OF FACT On June 14, 1984, Council #74, AFSCME was certified by the Maine Labor Relations Board (Board) as the exclusive collective bargaining agent of a unit of public works employees of the City of Saco described: Head Mechanic, Assistant Head Mechanic, Mechanic, Foreman I, Street Foreman, Sewer Foreman, Heavy Equipment Operator, Light Equipment Operator, Truck Driver I, Truck Driver II, -4- ______________________________________________________________________ Waste Truck Driver, Refuse Collector and Laborer.[fn]1 The parties' expired contract's[fn]2 recognition clause states: The City recognizes the Union as the sole and exclusive bargaining agent for the unit comprised of the named posi- tions in Appendix A hereof, for the purposes of collective bargaining and entering into agreements relative to wages, hours and working conditions. In the event that a new position is created or a job restructured, the City shall meet with the Union for the purposes of determining inclusion in the unit and the appropriate wage schedule. Job description will be reviewed in six months and become part of the contract. Appendix A of the agreement lists the following positions with the caveat that the Head Mechanic "classification is being eliminated": Head Mechanic, Mechanic, Foreman I, Foreman-Sewer, Heavy Equipment Operator, Light Equipment Operator, Truck Driver, Laborer, Mechanic Store Clerk, Park and Rec. Maint., Park and Rec. Technician, Sidewalk Plows and Truck Driver. The City employs a Foreman of Parks and Recreation, Mr. Hinrichsen, and a Head Foreman (Working Foreman-Public Works), Mr. Townsend, who are represented for the purposes of collective bargaining by the Teamsters. The City employs an Automotive Mechanic Foreman (Garage or Shop Foreman), Sam Soule, who was excluded from the Teamsters' unit by agreement of the parties. The City also employs a Sewer Foreman, Mr. Bastille, and a Foreman I, Mr. Dwelley, who are members of the Public Works unit. In July of 1991, the City created a full-time Recycling Working Foreman position. Mark Sanders has occupied the Recycling Working Foreman position since January of 1992. Sanders arrives at work at 7:00 a.m. and punches in on the time clock, used by all Public Works employees, which is located in the main lobby of the Public Works garage. In the entire Public Works Department, only the ____________________ 1 ARTICLE 24--PRIOR PRACTICE of the parties' expired agreement indicates that "[a]s a result of negotiations between the City and the Union, the Union agrees that the position of Public Works Inspector shall be excluded from joining the Union [sic]." 2 The parties' expired contract was effective July 1, 1990, through June 30, 1992. -5- ______________________________________________________________________ Shop Foreman and the Director are exempted from punching a time card. Sanders attends a daily task assignment meeting at Public Works Director Larry Nadeau's office which is attended by Head Foreman Townsend, Automotive Mechanic (Garage or Shop) Foreman Soule, Foreman I Dwelley and Sewer Foreman Bastille. The Foreman I and Sewer Foreman on a daily basis perform work assigned by Nadeau. Prior to this year and under "normal conditions," the Foreman I and Sewer Foreman report(ed) directly to Townsend. All Public Works foremen presently report directly to Nadeau. Working Foreman Townsend has, in the absence of the Public Works Director in the past, acted as "essentially an assistant public works director."[fn]3 Sanders reports directly to and is supervised by Nadeau. Nadeau will typically visit the recycling facilty once during the course of a day to oversee the carrying out of Sanders' work. Although the Shop Foreman was designated to monitor the activities of the recycling building in Sanders' absence at this hearing, the Recycling Laborer ordinarily assumes and performs Sanders' job functions in his absence and the plant continues to receive, process and bail contractor deposited recyclables. Sanders opens up the recycling building, assigns a work schedule to his Laborer and picks up and assigns any required and available Workfare employees. Workfare employees pick up trash in and around the recycling building and the cold storage site, remove contaminents, sort plastic recyclables by color and take the caps off plastic jugs. On approximately five work days per month, other Public Works Laborers work in the recycling center, or with the chipper, and are supervised by Sanders. Sanders' responsibilities include departmental recycling, City recycling and transfer station composting. The job responsibilities of the previous Recycling Foreman did not include departmental ____________________ 3 The testimony in this respect is unclear, inasmuch as City Exhibit 3 indicates that the City apparently employs a Mr. Dumas as Assistant Public Works Director. -6- ______________________________________________________________________ recycling. The previous Foreman worked primarily inside the recycling building and dealt with less recycling volume. In the course of his workday, Sanders operates heavy equipment such as loaders in addition to a Bobcat brand skid-steer, a bailer and a chipper. Unspecified Public Works employees operate dump trucks. Unspecified Public Works employees operate the wood chipper more frequently than Workfare or recycling employees. All of the equipment operators in Public Works run loaders. Sanders' regular workday ends at three o'clock. When Sanders works past three it is usually toward the end of the work week when he works late to make room for City residents' weekend deposits. Sanders does not have to obtain prior approval but does later have to justify his overtime to Nadeau. Sanders supervises one Recycling Laborer. That employee operates the Bobcat and also operates the chipper. Prior to occupying the Recycling Working Foreman position, Sanders was the City's Recycling Laborer. Sanders possesses no qualification for his position other than job experience. The only difference in qualifications between Sanders' position and the Laborer's position is the ability to sched- ule vendor collections. The job description for the City classifica- tion of Recycling Working Foreman was promulgated by Nadeau and Mitchell. Sanders did not hire his present Laborer. He did recommend his hire to the Director based on the Laborer's previous employment as a Workfare employee. Sanders did not interview anyone for the vacant Laborer position. Sanders has no disciplinary authority. Sanders' supervisory authority is limited to making sure that the Recycling Laborer performs his daily tasks and follows established safety guide- lines. Sanders does not verify the Laborer's time card. The Laborer, loaned Public Works employees and Workfare employees are Sanders' only subordinates. The number of available Workfare employees varies. The highest number of Workfare employees supervised at any one time by Sanders has been five. Sanders earns $10.25/hour or $21,320 annually and does not know what his Laborer's hourly wage is. The Laborer works 32 hours per -7- ______________________________________________________________________ week and earns approximately $7.50/hour. Truck Driver annual salaries range from $18,034 to $19,136. Mechanics earn $19,573 annually and the Head Mechanic, $23,275. Laborers earn from $6,672 to $16,619. Nadeau earns $37,553 and the Parks Director, $30,732. Townsend earns $28,205; Soule, $25,242; Dwelley, $23,004; Hinrichsen, $21,923; and Bastille, $21,433. Light Equipment Operators earn from $19,598 to $20,372. Dumas earns $23,058 annually. Sanders speculates that his role in recommending any wage increase for the Laborer would be limited to comment upon his work record. The City Administrator ulti- mately approves or disapproves all hiring and firing recommendations made by department heads. Sanders and the Automotive Mechanic (Garage or Shop) Foreman are the only Foremen who possess the ability to write purchase orders on an asneeded basis such as, in Sanders' case, for the transport of recyclables and the purchase of materials. A private contractor mechanically off-loads recyclable materials from a compartmented truck into bins at the recycling center. Sanders and his Laborer stand clear of the off-loading. The material is then cleaned of contaminents, baled and cold-stored. Sanders and his Laborer work side by side and take turns spreading the recyclable material with the Bobcat to facilitate its decontamination. Sanders keeps a tally of recyclables received, arranges for bailing and schedules vendor pickup of accumulated recyclables. The Public Works Director decides which vendors get the City's recycling business. After contacting vendors to schedule their trucks, Sanders' respon- sibilities involve loading the trucks and getting the proper paperwork signed and exchanged. Sanders devotes five hours per week to paper- work. On arrival Sanders and/or his Laborer load the vendor trucks using the Bobcat. Departmental recycling requires Sanders to provide plastic gar- bage bins weekly to all City departments and to help them post signs encouraging the separation of their rubbish. Sanders personally or with the assistance of Workfare employees empties departmental bins into separate boxes in the back of a pickup truck. Departmental recycling comprises two or three hours of Sanders' workweek. There is no evidence of what number of regular and overtime hours comprise -8- ______________________________________________________________________ Sanders' workweek. At the transfer station the recycling division uses yard waste to make compost for City residents. Residents deposit their yard waste with a subcontractor transfer station attendant. On a weekly basis for a couple of hours Sanders and a Public Works employee transfer the waste from the transfer station receiving area to the compost area located behind the transfer station, using a loader and a dump truck. Sanders usually runs the dump truck. On occasion Sanders has devoted an entire workday to loading trucks with compost for residents. Sanders spends eighty-five percent of his workweek inside the recycling building. Sanders performs identical work alongside his Laborer approximately twenty percent of his work time and performs chores similar in nature to those performed by the Laborer during approximately eighty percent of his workday. Sanders and his Laborer often simultaneously operate bailers at opposite ends of the building. During eighty percent of their work time the Foreman I and Sewer Foreman work alongside and perform the same work as their supervised employees. The City and AFSCME reached agreement on an undisclosed pre- hearing date to include the part-time Recycling Laborer in the bargaining unit via the next Public Works unit collective bargaining agreement. The current Teamsters' supervisory unit collective bargaining agreement is effective from September of 1992 through June of 1995. A general inquiry was made by the City of the Teamsters respecting whether the issue of the inclusion of the Recycling Foreman in the supervisory unit would be raised during negotiations for the supervisory contract. The Teamsters did not respond. The issue of supervisory unit placement of the Recycling Foreman was not included in the formal contract proposals exchanged by the City and the Teamsters. The City abandoned the Recycling Foreman supervisory unit placement issue. The existing supervisory unit contract contains a recognition clause which describes the supervisory unit without spe- cifically mentioning the Recycling Foreman position. The Administrator perceives that all Saco City employees (nonunion, including department heads, as well as employees repre- -9- ______________________________________________________________________ sented by AFSCME and TEAMSTERS) possess non-salary fringe benefits in the areas of overtime, sick leave, vacation time and health plans which "are very close to the same," with "specific differences that apply to different departments." Sanders possesses blanket pre- approval for overtime at the end of the workday. Unit employees must obtain 24-hour prior approval of the Director for overtime. Sanders' benefits and working conditions also differ from unit employees in the following respects: call time for Sanders is unspecifiedly different from that of unit employees; Sanders apparently is not subject to the assignment of sidewalk sweeping and street painting duties and is not eligible for holiday duty bonus pay; Sanders does not know whether he has health insurance; Sanders receives a clothing and boot allowance and an unspecified amount of unaccumulable sick leave; Sanders is not eligible for a sick-leave-usage bonus pay available to unit employees. The recycling facility in which Sanders' office is located is a separate building located on Saco's North Street, on the same property as the Public Works garage. Only the Public Works (Street and Sewer) Department is located at the Public Works yard. The Parks and Recreation Department is separately located downtown. The "separate" Public Works and Parks and Recreation Departments do share employees. The Public Works yard is composed of the main shop, the main office, the truck fleet, the salt shed and materials accumulated in the yard. The Public Works building contains a break room, a restroom, a phone and a supply shop used by Sanders and other Public Works employees. Sanders' office is located about 200 yards from Nadeau's. Recycling and other Public Works employees attend training sessions together. The pumps at which Public Works, Treatment Plant and Parks and Recreation vehicles are fueled are located between the Public Works and Recycling Buildings. There is some contact by Sanders with employees who fuel vehicles in the Public Works yard. Sanders doesn't know who occupies the positions of Assessor or Building Inspector. A Laborer from Parks and Recreation brings recyclable materials to Saunders once or twice a month. Sanders has on only one occasion assisted other Public Works Department employees in performing the -10- ______________________________________________________________________ department's street functions. Sanders transported a trench box to a Public Works street department job site in a vehicle ordinarily used to transport recyclable materials to Saco Steel. As a result, the Sewer Foreman was admonished not to use non-unit employees for unit work. DISCUSSION As is more fully set forth below, I conclude in light of the evi- dence and arguments that the petition in this case was properly filed and that the Recycling Working Foreman is appropriately accreted to the existing Saco Public Works bargaining unit. The MPELRL provides in section 966(1) that: In the event of a dispute between the public employer and an employee or employees as to the appropriateness of a unit for purposes of collective bargaining or between the public employer and an employee or employees as to whether a super- visory or other position is included in the bargaining unit, the executive director or his designee shall make the deter- mination. 26 M.R.S.A. 966(1) (1988). The MPELRL provides, with respect to the availability of Board unit clarification procedures, that: Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the formation of an existing bargaining 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 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 representation. 26 M.R.S.A. 966(3) (1988). The purpose of unit clarification proce- dures is to analyze job classifications in light of changes which have occurred since the formation of the bargaining unit to determine whether the changes are sufficient to warrant modification of the unit's description. The creation of a new job classification is a change that is usually deemed sufficient to satisfy the threshold requirement of "substantial change." Portland Public Library Staff Association and Portland Public Library, No. 88-UC-03, slip op. at 9 (Me.L.R.B. June 2, 1988). Rule 1.16(A) of the Board's Unit -11- ______________________________________________________________________ Determination Rules states: Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed sufficiently to warrant modification in the composition of the bargaining unit the employer or the incumbent recognized or certified bargaining agent may file a petition for a unit clarification (MLRB Form 2) pro- vided that the parties are unable to agree on appropriate modifications and there is no question concerning represen- tation. Unit clarification petitions may be denied if (1) the question raised should properly be settled through the election process, or (2) the petition requests the clarifi- cation of unit placement questions which could have been but were not raised prior to the conclusion of negotiations which resulted in an agreement containing a bargaining unit description. This rule reflects a policy favoring the establishment of bargaining unit parameters through agreement of the parties.[fn]4 It is discretionary and permits but does not mandate the dismissal of unit clarification petitions. See State v. MSEA, No. 82-A-02, slip op. at 5 & 6, 6 NPER 20-14027 (Me.L.R.B. June 2, 1983). The record indicates that all of the statutory prerequisites to the filing of the instant clarification petition have been satisfied. The Petitioner is the certified collective bargaining agent and the Recycling Working Foreman position was created after the unit was ini- tially created. No party has asserted and the record evidence does not give rise to an inference of the existence of a question con- cerning representation.[fn]5 Finally, the record establishes that the issue of the unit placement of the Recycling Working Foreman was raised in the current, and at present, inconclusive negotiations for a ____________________ 4 Monetary predictability in the adequate funding of collective bargaining agreements is enhanced by the Board's rule allowing the dismissal or refusal of petitions raising clarification issues for the first time subsequent to and in contradiction of contractual agreement on unit descriptions. 5 The possibility of the accretion of one employee to a unit of this size does not create a question concerning representation. -12- ______________________________________________________________________ successor to the parties' contract which expired on June 30, 1992. Contrary to the contention of the City, I do not consider the terms of the parties' expired contract's recognition clause to constitute a clear and unmistakable waiver of the right to bring this unit clarifi- cation matter. See M.S.A.D. No. 56 Teachers Association v. M.S.A.D. 56, No. 89-UC-03, slip op. at 14-15 (Me.L.R.B. May 12, 1989) (citing cases). Having found the petition to be timely and sufficient, I shall first address the issue of whether the Recycling Working Foreman shares a community of interest with members of the existing Public Works collective bargaining unit. The Board has discussed the duty of hearing examiners to assess whether a community of interest exists among prospective fellow unit members as follows: Title 26 M.R.S.A. 966(2) requires that the hearing exam- iner consider whether a clear and identifiable community of interest exists between the positions in question so that potential conflicts of interest among bargaining unit mem- bers during negotiations will be minimized. Employees with widely different duties, training, supervision, job loca- tions, etc., will in many cases have widely different collective bargaining objectives and expectations. These different objectives and expectations during negotiations can result in conflicts of interest among bargaining unit members. Such conflicts often complicate, delay and frustrate the bargaining process. AFSCME and City of Bangor, No. 79-A-01, slip op. at 4, 1 NPER 20-10032 (Me.L.R.B. Oct. 17, 1979). See also Board Unit Determination Rule 1.11(F). In evaluating the presence or absence of community of interest, the Board requires, at minimum, assessment of the following eleven factors: (1) similarity in the kind of work performed; (2) common supervision and determination of laborrelations policy; (3) similarity in the scale and manner of determining earn- ings; (4) similarity in employment benefits, hours of work and other terms and conditions of employment; (5) similari- ties in the qualifications, skills and training of employees; (6) frequency of contact or interchange among the employees; (7) geographic proximity; (8) history of collective -13- ______________________________________________________________________ bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the public employer's organizational structure. Council 74, AFSCME and City of Brewer, MLRB No. 79-A-01, slip op. at 3-4, 1 NPER 20-10031 (Oct. 17, 1979); (cited with approval in Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, AFT, AFL-CIO, MLRB No. 85-A-01, slip op. at 4, 8 NPER ME-160l1 (Feb. 6, 1985)). See Board Unit Determination Rule 1.11(F). The evidence establishes that like the Foreman I and Sewer Foreman, the Recycling Foreman spends eighty percent of his workday performing work identical to that of supervised subordinates.[fn]6 The parties have stipulated that Public Works unit employees perform manual work and/or operate heavy and/or light equipment and/or machin- ery. The records supports a similar finding respecting the Recycling Laborer and Working Foreman. Accordingly, I find that Sanders, his Laborer and members of the Public Works unit all perform substantially similar job duties. The possession of similar, not identical, job responsibilities and conditions is the central inquiry in community of interest determinations. While the evidence establishes that Sanders and his Laborer work primarily indoors, there is no evidence respecting the balance of Public Works employees, other than the inference that dump truck and sidewalk plow operation is primarily accomplished out of doors. I make no conclusion respecting the similarity in con- ditions under which Sanders' and unit employees' work is performed. Although Sanders, the Foreman I and Sewer Foreman are presently supervised directly by Nadeau, the evidence establishes that under ____________________ 6 Absent evidence to the contrary, the parties' agreement to include the Recycling Laborer in the Public Works unit supports a reasonable inference that the parties have also agreed that the Laborer and members of the unit share a community of interest. But cf. Auburn School Committee v. Auburn Education Association, No. 91-UDA-01, slip op. at p.3, n.1, 14 NPER ME-220061 (Me.L.R.B. May 8, 1991). The fact that the Recycling Working Foreman performs work identical to that of the Laborer he supervises suggests that he, too, shares a community of interest with members of the Public Works unit. -14- ______________________________________________________________________ normal conditions the Foreman I and Sewer Foreman are subject to an additional layer of undescribed supervision. All Public Works employees are, however, ultimately supervised by Nadeau, who retains nearly all managerial departmental control. There is no indication of who determines labor-relations policy for Sanders. Unit employees' wages, hours and terms and conditions of employment are determined through collective bargaining. All of the employees at issue are hourly-paid. The three subject foremen receive approximately equiva- lent annual salaries, although Sanders' salary is not set through collective bargaining. The record establishes no significant dif- ference in Sanders' and unit employees' overall benefits, hours of work and other terms and conditions of employment.[fn]7 Other than semi- skilled equipment or mechanical operations, there is no evidence of the qualifications, skills and training of Public Works employees. Sanders likewise is not subject to any exceptional qualifications or training requirements. Sanders meets weekly with the other two unit foremen at Nadeau's office, attends training sessions with Public Works employees, supervises a loaned public works employee at least weekly and has ample daily opportunity for informal contact due to the location of shared facilities in the Public Works building. The Recycling and Public Works building are co-located in the Public Works yard. There is nothing probative in the parties' collective bargaining history. There is no clear indication of Sanders' pre- ference, if any, whether to be included in the Supervisory or Public Works unit. In response to the question whether Sanders has "a pre- ference one way or another as to whether or not [his] position is part of the AFSCME unit," Sanders replied only, "I have a good working relationship with the City. I believe if it was tied down with the hours that my position would be hindered." The Teamsters did not, on inquiry by the City, express a desire to include the Recycling Foreman in the Supervisory unit and have not entered an appearance in this case. The Teamsters' Supervisory Unit apparently does not seek ____________________ 7 See, Orono School Committee and Orono Teachers Association, No. 89-UD-04 and 89-UC-02, slip op. at 16 (Me.L.R.B. Dec. 14, 1988). -15- ______________________________________________________________________ Sanders' accretion.[fn]8 The issue of Sanders' inclusion in the Teamsters' unit was not preserved by request during City/Teamsters negotiations. As a con- sequence, absent agreement of the parties, no accretion to the Teamsters' unit would be available by unit clarification until 1995. Additionally, establishment of a single-member Recycling Working Foreman unit would offend the Board's long-standing policy against the unnecessary proliferation of small bargaining units.[fn]9 The Board has explained its rationale as follows: Small bargaining units must be bargaining for and serviced just as [must] large bargaining units. The State is obli- gated to provide under 26 M.R.S.A. Section 965 the same mediation and arbitration services for small units as are provided for large units. The formation of small bargaining units among employees in the same department can thus result in the employer, the union, and the State expending an amount of time, energy and money all out of proportion to the number of persons served. M.S.A.D. 43 and M.S.A.D. 43 Teachers Association, No. 84-A-05, slip op. at 4-5, 7 NPER 20-15015 (Me.L.R.B. May 30, 1984), see, e.g., MSAD 14 and East Grand Teachers Association, No. 83-UCA-09, slip op. at 13, 6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983), MSAD 16 Library Employees Association and MSAD 16 Board of Directors, No. 82-A-03, slip op. at 3 (Me.L.R.B. Aug. 12, 1982). There is nothing in the record pertaining to the public employer's organizational structure which counsels ____________________ 8 The Employer's evidence in this regard, running against the Employer's unit placement preference as it does, although hearsay, is credible. There is, however, no indication whether the Teamsters' demurrer is owed to the reach of the AFL-CIO affiliate's no-raid agreement. 9 See, Lubec Education Association, MTA/NEA and M.S.A.D. No. 19 Board of Directors, No. 83-UD-17 (Me.L.R.B. Apr. 13, 1983) (Head Bus Driver/Custodian included in unit due to policy against overfragmen- tation although supervisory duties included scheduling, assigning, reviewing and overseeing work of employees, submitting a budget for salaries and supplies, ordering supplies up to $500, interviewing and participating in the hiring of subordinates for vacancies, adjusting grievances, applying established personnel policies and participating in the formulation of job descriptions and performance criteria). -16- ______________________________________________________________________ against the requested inter-departmental accretion. I find that Board criteria numbered 1, 3, 5, 6 and 7 strongly support the requested accretion, that criteria 2, 10 and 11 mildly support the accretion and that the evidence respecting considerations related to criteria 4, 8 and 9 is either insufficient or is not dis- positive. I therefore conclude that the Recycling Working Foreman shares a community of interest with members of the Public Works Unit and if not appropriately excluded on the basis of supervisory conflict of interest should be accreted thereto. The inquiry now turns to whether the Recycling Foreman's supervisory duties compel a conclusion that his accretion would be inappropriate due to the requirements of 26 M.R.S.A. 966(1). In Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, No. 85-A-01, 8 NPER ME-16011 (Me.L.R.B. Feb. 6, 1985), the Board stated, at page 8, that: Section 966(1) does not require the exclusion of supervisory employees from bargaining units composed of the employees whom they supervise but relegates the decision of the super- visory employees' unit status to the sound discretion of the hearing examiner. Maine School Administrative District No. 14 and East Grand Teachers Association, MLRB No. 83-A-09, at 12 (Aug. 24, 1983). Except in instances where the resulting one- or two-member supervisory unit would contravene our policy of discouraging the proliferation, through fragmen- tation, of small bargaining units, we have approved of the creation of such separate supervisory units. Maine School Administrative District No. 14, supra, at 12-13; Maine School Administative District No. 43 and Maine School Administrative District No. 43 Teachers Association, MLRB No. 84-A-05, at 4-5 (May 30, 1984). The purpose of creating separate supervisory employee bargaining units is to mini- mize potential conflicts of interest within bargaining units, between supervisors and their subordinate employees, as well as to lessen conflicts of loyalty for supervisors between duty to their employer and allegiance to fellow unit employees. I have considered the duties of the Recycling Working Foreman both in light of this statement of Board policy and in light of the following requirement of 26 M.R.S.A. 966(1) (Pamph. 1992): In determining whether a supervisory position should be excluded from the proposed bargaining unit, the executive -17- ______________________________________________________________________ director or his designee shall consider, among other cri- teria, if the principal functions of the position are characterized 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 establish- ment of performance standards for subordinate employees and taking corrective measures to implement those standards. Based upon the record I conclude that the Recycling Working Foreman is a leadworker whose quotidian duties do not rise to the level described above as an appropriate basis for excluding supervisors from units containing their subordinates. The community of interest which the Recycling Workng Foreman shares with his Laborer and members of the Public Works unit is not outweighed by any actual, routine and signif- icant conflict of employment interests. The record does not establish training in supervisory duties to be a prerequisite of employment as Recycling Working Foreman. See Region 8 Employees Association and Region 8 Cooperative Board, No. 88-UD-11, slip op. at 3 (Me.L.R.B. Mar. 30, 1988); Teamsters Local Union No. 48 and Town of Cape Elizabeth, No. 86-UD-03, slip op. at 21 (Me.L.R.B. Jan. 31, 1986); Teamsters Local Union No. 48 and Van Buren Light and Power District, No. 85-UD-14, slip op. at 10 (Me.L.R.B. Jan. 25, 1985); Teamsters Local Union No. 48 and Lewiston-Auburn Water Pollution Authority, No. 79-UD-15, slip op. at 4 (Me.L.R.B. Feb. 23, 1979). Sanders' supervisory authority on the whole appears to be no more than that required to assure a safe and coordinated work effort, the classic limited authority of a leadworker. Compare Teamsters Local Union No. 48 and Town of Cape Elizabeth, No. 86-UD-03 (Me.L.R.B. Jan. 31, 1986) (Highway Foreman's ministerial service as acting department head, making of gratuitous and unsuccessful disciplinary recommendations and lack of final authority over crew assignment, vacation and sick leave of subordinates compelled inclusion in bargaining unit of subordinates), with, Teamsters Local Union No. 48 -18- ______________________________________________________________________ and Boothbay Harbor Water System, No. 82-UD-29 (Me.L.R.B. May 11, 1982) (Water System Foreman excluded where supervisory duties included scheduling, directing, evaluating and supervising employees, establishing work priorities, maintaining records and making hiring recommendations). See, e.g., Teamsters Local Union No. 48 and Town of Lebanon, No. 86-UD-02 (Oct. 17, 1985), aff'd, No. CV-85-656 (Me.Sup.Ct., Yor.Cty., Dec. 13, 1985) (Police Administrator who lacked final authority in singular possibly conflicting duty, that of sched- uling, included in unit with patrolmen); Teamsters Local Union No. 48 and Van Buren Light and Power District, No. 85-UD-14 (Me.L.R.B. Jan. 25, 1985) (duties of Line Foreman who assigned, oversaw and reviewed work of employees determined as a whole not to be so distinct and dissimilar from those performed by supervised employees to warrant exclusion from proposed unit); Teamsters Local Union No. 48 and Town of Pittsfield, No. 81-UD-09 (Me.L.R.B. Jan. 15, 1981) (Sergeant posi- tion found to be "working supervisor" where supervisory duties were limited and undemanding and where vast majority of time was devoted to regular patrol work); City of Bangor and Local 1599, IAFF, No. 80-UD-15 (Me.L.R.B. Feb. 1, 1980) (Fire Lieutenants held to be "group leaders" or working foremen" where they had various added responsibilities of a limited nature but essentially performed rank-and-file duties). Employees possessing greater supervisory authority than Sanders have been included in units with supervised employees. See, e.g., Council 74, AFSCME and Rockland Wastewater Treatment Facility, No. 82-UD-03, 4 NPER 20-12035 (Me.L.R.B. Aug. 12, 1981), (Chief Operator who supervised Senior Operator, Operators, Lab Director and Lab Technicians, who made monthly shift assignments, computed waste and flow rates, kept Federally-mandated operational and effluent records, selected test sites within the system, exercised discretion in varying treatment plant operations, inspected equipment, and ordered chemicals included in Public Works unit). In light of the fact that Sanders performs manual labor similar to that performed by his Laborer and other Public Works employees during approximately eighty percent of his workday, it cannot -19- ______________________________________________________________________ realistically be said that the principal functions of his positions are either distinct and dissimilar from those performed by subordinates, or characterized primarily by managerial control duties. See Southern Aroostook Teachers Association, MTA/NEA and Southern Aroostook Community School District, No. 86-UD-18, slip op. at 25 (Me.L.R.B. Jan. 26, 1987). In M.S.A.D. No. 5 High School Department Coordinators and M.S.A.D. No. 5, No. 88-UD-01 (Me.L.R.B. Oct. 16, 1987), the under- signed commented, albeit in a school unit context, upon the evidentiary basis to support allegations of supervisory conflict, as follows: Although not intended to constitute an exhaustive listing, the following examples are illustrative of the variety of evidence which may be probative of the issue of the existence of the supervisory conflict of interest: evidence of the exercise of personal decisions to hire, promote, discharge or discipline employees or instances of the effec- tive recommendation of such personnel actions; evidence of the performance of significant duties in the observation and evaluation of teachers where such observations and evalua- tions play a substantial role in reappointment, non- reappointment, grant of continuing contract status, award of merit pay or promotion; evidence of the exercise of indepen- dent judgment in the ranking of subordinates for the pur- poses of establishing an order of lay-off or re-call beyond merely ranking by seniority; evidence of the performance of a role in the curriculum area(s) of responsibility indi- cating the exercise of independent judgment in the deter- mination, modification or attainment of curriculum objectives, and the placement of teachers in curriculum courses; evidence of the exercise of prevailing influence in textbook selection or the preparation of class schedules or assignments; evidence of the exercise of significant discre- tion in the promulgation or execution of a working budgetary document for an area of responsibility; evidence of the non- ministerial grant or denial of the use of vacation, sick, bereavement, educational or other leaves of absence; and evidence of the use of settlement authority in grievance procedures. Based upon the findings of community of interest and lack of supervisory conflict discussed above, I make the unit clarification determination set forth below. UNIT CLARIFICATION DETERMINATION Pursuant to 26 M.R.S.A. 966 (1988 & Supp. 1992) and on the basis of the above discussion applying the Board's precedent to the -20- ______________________________________________________________________ stipulations and findings of fact in light of the legal arguments of the parties, I conclude that the Recycling Working Foreman is appropriately included in the existing City of Saco Public Works collective bargaining unit. Dated at Augusta, Maine, this 10th day of December, 1992. FOR THE EXECUTIVE DIRECTOR OF THE MAINE LABOR RELATIONS BOARD /s/_________________________________ M.WAYNE JACOBS Designated Hearing Examiner The parties are hereby advised of their right pursuant to 26 M.R.S.A. 968(4) (Supp. 1992), to appeal this report 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 Board Rules 1.12 and 7.03 for full requirements. -21- ______________________________________________________________________