Affirmed Town of Lisbon v. Teamsters, No. 95-UCA-02 Reversed, CV-95-311. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 95-UC-04 & -05 Issued: May 11, 1995 ________________________________ ) TEAMSTERS UNION LOCAL 340, ) ) Bargaining Agent, ) ) and ) UNIT CLARIFICATION REPORT ) TOWN OF LISBON, ) ) Employer. ) ________________________________) This unit clarification proceeding was initiated on October 27, 1994, when Teamsters Union Local 340 (Teamsters) filed a petition for unit clarification pursuant to Section 966(3) of the Municipal Public Employees Labor Relations Law (MPELRL), 26 M.R.S.A. 966(3) (1988), and Board Unit Clarification Rule 1.16 requesting inclusion of a newly-created Solid Waste Supervisor position in an existing Public Works collective bargaining unit of employees of the Town of Lisbon (Town), described: INCLUDED: Shop Supervisor, Mechanic, Foreman, Operator I, Operator II, Laborer, Operator, Assistant Operator, Landfill Attendant. EXCLUDED: All other employees of the Town of Lisbon. The Town's October 1, 1994 response, which opposes the accretion, states that there is no community of interest between the Solid Waste Supervisor and other unit positions. On November 9, 1994, the Town filed a petition for unit clarification requesting that the the positions of Shop Supervisor and Highway Foreman1 be excluded from the unit on the ____________________ 1 For ease of reference and understanding I have referred throughout this report to the Public Works Foreman as the Highway Foreman and to the Public Works Maintenance Shop Supervisor as the Shop Supervisor. -1- basis of greatly enhanced supervisory job duties.2 Upon due notice an evidentiary hearing on the merits of both petitions was held on January 27, 1995, in the Board's Conference Room, located on the seventh floor of the State Office Building in Augusta. Prior to commencement of the hearing the parties met with the hearing examiner in informal conference. The factual and/or legal stipulations reached in those discussions as well as stipulations reached in off-the-record discussion during the hearing have been incorporated herein. The Teamsters are represented in this matter by Business Agent Carl Guignard; the Town, by Roger R. Therriault, Esq. The parties were afforded full opportunity to examine and cross-examine witnesses, to present documentary evidence, and to submit oral and written argument. The Teamsters presented as witnesses Highway Foreman George Ayer, Sr., Shop Supervisor Roger Goyette and Teamsters Steward Elwood Beal. The Town presented as witnesses Public Works Director Roger Martel and Solid Waste Supervisor Wayne Ricker. A letter signed by Roger Goyette and George Ayer was tendered after the close of the record, on February 22, 1995. This letter was sealed in an envelope and has not been seen or considered by the hearing examiner. The parties filed posthearing briefs, the last of which was received on March 6, 1995. JURISDICTION The jurisdiction of the undersigned hearing examiner to hear and decide the merits of these petitions lies in 26 M.R.S.A. 966(3) (1988) and Board Rule 1.16. ____________________ 2 The Teamsters' Response, which opposes the requested exclusion, states that these positions continue to share a community of interest with employees in the existing unit. -2- EXHIBITS The following documents were admitted into evidence as joint exhibits: Joint Exhibit No. 1 - Solid Waste Supervisor job description (2 pages) Joint Exhibit No. 2 - Public Works Landfill Attendant job description (2 pages) Joint Exhibit No. 3 - Public Works Transfer Station Attendant job description (1 page) Joint Exhibit No. 4 - Public Works Transfer Station Operator job description (2 pages) Joint Exhibit No. 5 - Public Works Foreman job description (2 pages) Joint Exhibit No. 6 - Equipment Operator job description (2 pages) Joint Exhibit No. 7 - Public Works Equipment Operator II job description (2 pages) Joint Exhibit No. 8 - Public Works Laborer II job description (2 pages) Joint Exhibit No. 9 - Public Works Laborer I job description (2 pages) Joint Exhibit No. 10 - Public Works Laborer/Driver job description (2 pages) Joint Exhibit No. 11 - Public Works Maintenance Supervisor job description (2 pages) Joint Exhibit No. 12 - Public Works Automotive Mechanic Helper job description (2 pages) Joint Exhibit No. 13 - Public Works Automotive Mechanic job description (2 pages) Joint Exhibit No. 14 - The parties' July 1993 - June 1994 collective bargaining agreement (47 pages) -3- POSITIONS OF THE PARTIES The Teamsters contend that there has been no change in the community of interest which, in 1981, the Shop Supervisor and Highway Foreman were found to share with other unit employees. The Teamsters further contend that the newly-created Solid Waste Supervisor, the Shop Supervisor and the Highway Foreman are all working foremen or leadworkers properly included in the unit containing the employees they supervise. More specifically, the Teamsters' contentions respecting these positions are as follows: SHOP SUPERVISOR AND HIGHWAY FOREMAN These lead workers perform work substantially identical to and alongside of that done by their subordinates. They enjoy the same hours of work and benefits as their subordinates and have constant contact with other unit employees. These supervisors and their supervised employees are all ultimately "overseen" by the Director of Public Works. These supervisors train and supervise others in the maintenance of property and machinery and have more skills and knowledge than their subordinates, but these facts are inherent in any supervisory job and are not dispositive. These supervisors assign and execute work participatorily, and they themselves, as well as their fellow unit employees, desire their continued unit inclusion. SOLID WASTE SUPERVISOR This supervisor has fewer subordinates than the Road Foreman, works the same hours as his subordinates, "performs hands on work as a part of his duty functions" and "works with members of the public works all day every day" in a "recycling facility [which] is [only] walking distance [from] the main public works building." The Solid Waste Supervisor has contact with -4- the Selectmen and the public but these contacts are not sufficient in character to support exclusion from the unit. The Town contends that the two previously-existing positions "as evolved" and the newly-created Solid Waste Supervisor position do not share a community of interest with supervised employees. The Town's petition asserts a "potentiality of problems involving proper supervision" and the "develop[ment of] a tension in having the work supervisor as part of the Bargaining Unit." The Town's specific allegations respecting each of these positions are as follows: SOLID WASTE SUPERVISOR This salaried position, which supervises two permanent and assorted other "temporary" employees, was created as the result of the Town's switch from operating a dump to operating a transfer station/ recycling site. This employee is responsible for the sale of recyclable material and attendant record keeping, is the first level for handling disciplinary matters and leave requests, conducts performance evaluations and enforces safety and work rules, and has "responsibilities involving budget development and administration." This position involves minimal handling of materials, and up to 90 percent of the work day of the occupant is devoted to supervisory tasks. HIGHWAY FOREMAN This supervisor of six full-time employees earns a wage 27 percent greater than his department's average and 16 percent higher than the next-highest paid division employee. This supervisor "is responsible for determining the daily jobs to be performed by the highway division and for the assignment of those jobs to particular individuals," as well as "on-the-job -5- decisions regarding the conduct of the division's work." He performs hands-on work during only 40 percent of his workday. The Foreman is responsible for monthly reports, has been given increased overall responsibility, participates "in a written job evaluation process," enjoys a considerable amount of autonomy and discretion in handling complaints from the public, handles disputes among employees in the first instance, initially responds to disciplinary matters, implements safety and work rules, deals with initial leave requests and has responsibilities with regard to both development and administration of the budget and purchasing. The Town believes that this position has evolved and that any previous community of interest has attenuated sufficiently to warrant the position's removal from the unit. SHOP SUPERVISOR This position supervises one full-time employee and an ASPIRE employee, is responsible for the maintenance of all Town vehicles and equipment, earns 17 percent more than the one employee supervised, is responsible for making all job assignments in the maintenance shop, is responsible for resolving competing demands on the shop, initially determines the need for overtime, initially determines leave, and possesses budget preparation, administration and purchasing responsibilities. The Town has not sought to exclude any of these supervisors for their failure to satisfy the public employee definitional provisions contained in 26 M.R.S.A. 962(6) (1988 & Supp. 1994), and has not contended that any of them are professional employees within the meaning of 26 M.R.S.A. 962(5) (1988). -6- STIPULATIONS The parties reached the following stipulations: 1. The proper titles of the positions at issue here are Public Works Solid Waste Supervisor, Public Works Foreman and Public Works Maintenance Supervisor. 2. The Town of Lisbon is a public employer within the meaning of Section 962(7) of the MPELRL. 3. The Solid Waste Supervisor, the Shop Supervisor and the Road Foreman are all public employees within the meaning of 26 M.R.S.A. 962(6). 4. Teamsters Local Union 340 is the bargaining agent of employees in the Lisbon Public Works Department bargaining unit within the meaning of Section 962(2) of the MPELRL. 5. The Teamsters presently represent for the purposes of collective bargaining a unit of public works employees of the Town of Lisbon described: Included: Shop Supervisor, Mechanic, Foreman, Operator I, Operator II, Laborer, Assistant Operator, Operator and Landfill Attendant. 6. The Board may take administrative notice of its records respecting units of the Town of Lisbon Public Works Department. 7. The position of Solid Waste Supervisor came into existence on March 14, 1994. That date was Ricker's first day of work in the position. 8. There is no question concerning representation. 9. The issue of the unit placement of the positions of Shop Supervisor, Solid Waste Supervisor and Highway Foreman have been undertaken by the parties, without resolution having occurred to date. 10. The parties' most recent collective bargaining agreement -7- expired on June 30, 1994. 11. Contract negotiations for a successor agreement have not produced a final agreement. 12. The hearing examiner has jurisdiction to hear and decide the unit clarification issues in this case under 26 M.R.S.A. 966(1) and (2). 13. There is no present supervisory unit of Town Public Works Department employees and neither party contends that any of these positions are appropriate for inclusion in the Town Police Department's Supervisory unit. 14. Neither party contends that a separate unit of supervisors would constitute an appropriate bargaining unit. 15. In order to clarify the differences between present job categories for which there are job descriptions, and the historical job positions that were referred to in the papers which established the unit initially, the parties agree to the following pairings of historical job classifications and job categories for which there are existing job descriptions: The historical position of Shop Supervisor is now referred to as the Public Works Maintenance Supervisor. The historical position of Mechanic now embraces the following classifications: Public Works Automotive Mechanic, Public Works Automotive Mechanic Helper. The Automotive Mechanic Helper position next above is now filled intermittently by a Highway Department employee, who, when filling it, receives a stipend for his service in that capacity. The historical position of Foreman is now entitled Public Works Foreman. The historical Operator I position is now entitled Equipment Operator I. The historical Operator II position is presently -8- referred to as Equipment Operator II. The historical position of Laborer now includes the job descriptions entitled Public Works Laborer I, Public Works Laborer II and the position of Laborer/Driver, concerning which there is a reference in the parties' present contract. The historical position of Operator is now referred to as the Multiple Equipment Operator. The historical position of Assistant Operator presently has no current job description. The Town presently uses a Laborer/Driver and pays that person a stipend for work out of class while working in the historical position that was Assistant Operator. 16. The contract's reference to a "Job Captain," with corresponding wage, refers to the circumstance where the Department's performance of two separate jobs requires two Foremen, one at each site, and also the situation where, because the Highway Foreman is absent, a Foreman is required. In the latter case a Job Captain is assigned. 17. The Job Captain assignment is a floating position or assignment rather than a job category. 18. The Transfer Station Supervisor/Driver position referred to in the contract is neither presently filled nor anticipated to be filled. With regard to the present positions in which individuals are employed the parties stipulate to the following: 19. The Public Works Director is Roger Martel. 20. There are two divisions: Highway and Solid Waste. 21. The Highway Division is comprised of the Highway and Maintenance Shop. 22. The Highway Department is composed of the following job classifications and positions: George Ayer, Highway Foreman; -9- Steve Dussault, Equipment Operator; Charlie Joy, Truck Driver/Laborer; as well as Truck Driver/Operators: Elwood Beal, David Judd, Dan Poisson, William Hamm; Laborer Gilbert Card; and John Gayos, a Part-time Laborer/Janitor who works for four per day, twenty hours a week. 23. Roger Goyette, the Supervisor of the Maintenance Shop, is also referred to as the Maintenance Supervisor. Brian Hobart is the Mechanic. 24. In the Solid Waste Division there is a Solid Waste Supervisor, Wayne Ricker; a Landfill Attendant/Supervisor's Assistant, Jerry Arsenault; and a Transfer Station Attendant, Normand Levesque. 25. In addition to the foregoing positions the Town also presently employs three individuals paid through the Maine State ASPIRE program. The longest any ASPIRE employee has worked has been a year. The parties are unable to reach any sort of resolution as to whether those employees were to be considered in or out of the unit. 26. The Town uses workfare employees, assigned by the Welfare Manager, who each work approximately 20 hours per week. Two of these employees work for the Town presently. They are temporary employees within the meaning of the MPELRL's "public employee" definition. 27. As "temporary" employees, the Town hires and works Community Service Employees assigned by the Court or the Police Department. The parties agree to the exclusion of these employees from the Public Works unit. 28. The Town employs Storm Workers, whose names are contained on a list called a "wing list," who are excluded "seasonal" employees within the meaning of the MPELRL. -10- FINDINGS OF FACT The Public Works Department Roger Martel has been the Town's Public Works Director since July, 1992. He served for the previous twenty-two years as the Town's Shop Supervisor. Roger Goyette was the Public Works Department Mechanic, under Martel, until he became Shop Supervisor in 1992. Since becoming Public Works Director Martel has sought to change the roles of Highway Foreman Ayer and Shop Supervisor Goyette away from those of "working foremen." Martel's goal has been to increase the administrative responsibilities of the contested positions because of his assessment that they were "under utilized" and "under-empowered" in past years.3 They now are required to file reports, through the Public Works Director to the Town Manager, on what their departments have accomplished each month.4 Prior to Martel's tenure the supervisory responsibilities described in the job descriptions of the Foreman and the Maintenance Shop Supervisor were not being accomplished on a regular basis. The hourly wage rates which were in effect at the expiration of the parties' '93-'94 contract are as follows: Foreman, $10.82; Multiple Equipment Operator, $8.50; Truck Driver/Laborer, $7.73; Landfill Laborer/Transfer Station Attendant, $6.18; Laborer, $6.18; Transfer Station Supervisor/Driver, $8.50. ____________________ 3 The Board has not, to date, specifically dealt with the interplay of "Total Quality Management," "Labor Management Cooperation Committees" or other "employee participation or empowerment" initiatives with provisions of the MPELRL which concern supervisory employee unit placement. 4 The present job descriptions for the three positions at issue were unspecifiedly distributed without modification by Martel at the end of negotiations for the most recently-expired contract. Martel merely pulled the job descriptions out of the file, copied them and mailed them. The existing job descriptions were not modified to reflect a requirement of the filing of a monthly report because Martel didn't think the job descriptions had to be changed to require such. None of the employees in the contested positions have ever been notified of a change in their job descriptions. -11- The Highway Foreman At present George Ayer, Highway Foreman for the last fifteen years, decides what the daily highway tasks are going to be and which of his six supervised employees will perform them. Ayer is responsible for driving a plow during snowstorms and for deciding whether plowing or sanding will be performed. Ayer also makes decisions such as whether to engage private contractors for blasting ledge. Ayer estimates that he performs hands on work during 40 percent of his day. Ayer has worked under several public works directors. Some have allowed him the leeway in duties that Martel has; some, like Wayne York, the next previous director, have not. Ayer was told by Martel when he first came on as Director that Ayer would be given total control of the "public works forces." Ayer doesn't know if all of his budetary recommendations, such as that a new mower or saw be purchased, have been accepted. Ayer has, under previous directors, made out daily or monthly work reports. York once gave Ayer evaluation reports to perform with respect to his employees. In the past Goyette and Ayer have acted as oral resource persons in Martel's evaluations of their subordinates' performance. Most recently, however, Ayer and Goyette have completed written forms used by Martel to evaluate the performance of their subordinates. Martel was never involved in the performance evaluation process when he was the Shop Supervisor. Ayer mitigates some unspecified citizen complaints without contacting Martel. Ayer becomes involved in disputes among subordinates and recommends disciplinary action by Martel. Ayer is responsible for enforcing work and safety rules applicable to the work being performed. Both Ayer and Goyette receive leave requests and obtain Martel's approval for all recommendations of leave grants or denials. Ayer serves as a resource person in budget preparation. Ayer's major purchases must be co-signed by Martel but he possesses the authority to purchase for minor job site needs such as shovels or cold patch. Ayer serves as a resource person with respect to equipment -12- purchases. He does not promulgate bid specifications or review bids. As an hourly employee Ayer earns 27 percent more than the average public works employee and 16 percent more than his next- highest paid employee. The present job description for the Town's Public Works [Highway] Foreman states: GENERAL STATEMENT OF DUTIES: Performs and supervises all phases of work pertinent to Public Works Department. Responsible for technical and limited administrative work in the construction, maintenance and repair of streets and associated systems. DISTINGUISHING FEATURES OF CLASS: An employee of this class functions as a working foreman with supervisory responsibilities. He is responsible for organizing, assigning, and reviewing the work of a large group of skilled, semi-skilled, and unskilled workers engaged in the maintenance and repair of streets, sidewalks, and related projects. Assignments are received from Public Works Director, but the employee must exercise discretion and independent judgment in directing and supervising the operations of assigned tasks. EXAMPLES OF WORK: (Illustrative only and not all inclusive) Frequently performs all manual tasks and operates all vehicles, tools and equipment incidental to the operation of the Public Works Department. Organizes, assigns, supervises, inspects the work of skilled, semi-skilled, and unskilled workers in street repair and maintenance activities, such as, road construction, installation of storm drain system, installation of sewer system, cleaning of streets, plowing of streets, snow removal and other related work; Organizes, assigns, and supervises the work of the Highway Crew; Receives, investigates, and disposes of street condition and related complaints; Supervises the maintenance of time, material, equipment use records, requisitions supplies and materials, and submits to superiors all cost accounting data as required; Makes regular and irregular inspections of work in progress; Trains and instructs subordinates, operates pertinent equipment in support of all phases of work for the Public Works Department; Supervises preventative maintenance program and insures the non- abusive use of equipment by his subordinates. DESIRED KNOWLEDGE, SKILLS AND ABILITIES: Thorough knowledge of repair and maintenance of streets, all phases of road construction, storm drain system, sewer system, winter maintenance and general repair and maintenance work pertinent to the field of Public Works. Thorough knowledge of the proper utilization and capabilities of all equipment and miscellaneous tools of the Public Works Department. Ability to interpret plans, profiles and cross sections of road construction, storm drain systems, sewer systems and general construction. Ability to demonstrate leadership traits and principles. Ability to grow with increasing responsibilities. Ability to administer work progress reports and other related reports. Skilled in the art of supervising. Skilled in the use of a pop level and transit. Skilled in the -13- operation of equipment and miscellaneous tools of the Public Work Department. ACCEPTABLE EXPERIENCE AND TRAINING: High School Graduate; 5 years['] experience at street and road constrution (sic) with 2 years['] experience in a supervisory capacity; or any equivalent combination of education experience. Must possess a valid State of Maine Class II license and preferably a Class I license. Although the existing Highway Foreman job description states that the Foreman is "[r]esponsible for technical and limited administrative work," Martel asserts that Ayer's administrative work is presently "much greater" and is "no longer limited." Contrary to the statement in his job description, that a distinguishing feature of the work of an employee in his class is the performance of the functions of a "working foreman," Martel believes that Ayer performs "little [in the way of] manual tasks" and that he "supervises a great deal more than he actually works in hand[s]-on work." Ayer's hands-on work, which Martel believes to be "rare,"5 includes snowplowing, chainsawing and grader operation. Martel believes Ayer's job description to be incorrect to the extent that it states that Ayer receives his assignments from him. Martel states that he has input but that "[m]ost of the daily assignments [Ayer] decides on his own." Ayer has had the discretion to decide which jobs will be done, where and by whom, under other public works directors than just Martel, although Ayer's responsibilties "in terms of administering [his] people and the jobs that they do" is "somewhat" greater now than in the past. Ayer possesses a Class I license, now known as a Class B CBL. None of Ayer's supervised employees perform administrative or supervisory duties. The Shop Supervisor Roger Goyette has been the Shop Supervisor for 2 years. The Shop repairs and maintains all Town-owned vehicles. Goyette decides what daily work he, his one full-time subordinate and his ____________________ 5 Martel perceives that Ayer performs supervisory duties during 90 percent of his workday. -14- one ASPIRE employee will perform. Goyette consults with Martel and makes presentations to the selectmen on "big-ticket" items. Goyette spends most of his day doing mechanic's work. Goyette's duties also include "mitigating a warranty problem with a part" with vendors, "seeking bid prices on a new piece of equipment" and "picking up information from . . . vendors . . . getting pointers from them as to how [the department] will go at the next task, differently, or how [the department] should purchase the next piece of equipment." The present job description for the Town's Public Works Department Maintenance Supervisor states: GENERAL STATEMENT OF DUTIES: This employee directs the shop repair and maintenance activities of the Town Garage and all Town owned automotive equipment. Work involves responsibility for establishing, maintaining and evaluating uniform practices and policies relating to automotive equipment service and repair. DISTINGUISHING FEATURES OF THE CLASS: The employee of this class is responsible for the supervision of skilled mechanics and for establishing an efficient shop maintenance program entailing all phases of garage operations. This position requires planning and scheduling work so that town vehicles and equipment will remain in proper operating condition by making decision as to the serviceability and adequacy of equipment. Work is performed with considerable independence within a framework of general policies and is reviewed by the Director of Public Works through the analysis of shop production, maintenance records, equipment operation and personal observation. EXAMPLES OF WORK: (Illustrative only and not all inclusive) Establishes work standards and policies for mechanics employed at Town Garage in the repair and maintenance of equipment; Plans, assigns and inspects the work of mechanics engaged in overhaul, repair, servicing, and in the maintenance of automotive and heavy construction equipment and miscellaneous tools; Determines the necessary repair parts to be purchased for completion of work; Directs a preventative maintenance program for town vehicles; Keeps repair and costs records on each piece of equipment; Assists, trains and instructs subordinates in all pertinent areas of the maintenance field; Supervises and participates in the maintenance and repair of equipment; Performs skilled mechanical work in the repair and overhaul of equipment; Performs fabricating work with acetylene and electrical welding equipment; Prepares administrative work records related to the operation of the Town Garage; When necessary assists in the operation of equipment for road crew projects, landfill site operations, transfer station operations, -15- snow plowing, snow removal operations and related activities. When necessary performs all tasks required of subordinates. DESIRED KNOWLEDGE, SKILLS AND ABILITIES: Thorough knowledge of the practices, methods, tools, parts, and materials used in the maintenance and repair of automotive, construction, and related equipment. Thorough knowledge of the operating principles of gasoline and diesel engines, and of mechanical components of the automotive, construction and related equipment. Thorough knowledge of the occupational hazards in safety precautions of equipment work. Considerable knowledge of the principles and practices of the automotive repair shop management. Thorough knowledge of the practices, methods, and tools of the welding trade. Ability to demonstrate leadership traits and principles. The ability to write specifications for the purchase of new equipment for the Town. Ability to organize garage facilities and personnel to meet flunctuating (sic) and unusual demands. Ability to work long hours under duress. Ability to plan and supervise the work of skilled mechanics in a manner conducive to full productivity and high morale. The ability to remain flexible in establishing priorities during the repair of equipment. Ability to establish and maintain an effective working relationship with superiors, Town Officials, co-workers and the general public. Ability to work long hours in adverse weather and under adverse working conditions. Skill in the use and proper care of tools and equipment in the automotive trade. ACCEPTABLE EXPERIENCE AND TRAINING: Extensive experience as an automotive and heavy equipment mechanic. Two years['] experience in a supervisory capacity in the maintenance field. Graduate of a Vocational Technical Institute. Supplemented by specialized automotive or heavy equipment repair training or any equivalent combination of education or experience. Must possess a State of Maine Class I license and Class D State Inspection License. Goyette obtains information from vendors when the Town undertakes to acquire new road maintenance equipment or solid waste machinery. Goyette's "responsibilities with respect to evaluations, . . . granting of leave, dispute resolution, discipline, training, safety rules and work rules and those kinds of things . . . [are] absolutely identical" to Ayer's. Goyette "checks" line items in the budget at least once a month. Goyette tells Martel what his projected budgetary needs are, by line item, for the future fiscal year. Goyette promulgates specifications for highway and solid waste division equipment, and has an undefined role in preparing bid documents and requests for proposals. Goyette's recommendations respecting the evaluation of bids must be approved by Martel, the Town Manager, and the selectmen. Goyette schedules vehicle maintenance with other department heads and adjusts priority for maintenance among -16- them. Goyette earns a salary which is 17 percent greater than that of his Mechanic. Goyette makes recommendations on overtime to Martel. Martel has approved each of these recommendations "so far." Goyette's job description otherwise fairly represents the duties of his position. When Martel was the Maintenance Shop Supervisor, he had less contact with suppliers in the purchase of equipment and parts than Goyette does now. He also had less input into the purchasing of new vehicles. As Shop Supervisor Martel dealt with department heads, respecting vehicles, through the public works director. Goyette deals with department heads directly regarding such matters. Goyette's latitude and independence presently is greatly increased over the latitude that Martel had when he was in Goyette's position in matters such as the scheduling of work. Goyette's discretion in purchasing is unspecifiedly greater than Martel's was. Goyette's duties have been the same for the last 2 years. Martel did not confer these additional "supervisory" powers on a single occasion; rather, they were ceded to Goyette over time. Martel has worked with Goyette and Ayer since they were first employed. Goyette has access to and is responsible for staying within his budget and reports to Martel with respect to budget matters. Martel was merely informed to stop spending at points, by the Director of Public Works. Goyette desires to remain in the bargaining unit and along with his fellow unit members desires that the Solid Waste Supervisor be included therein as well. In Goyette's opinion, the inclusion of the Solid Waste Supervisor in the unit will make no difference in the ability of any of the other departmental employees to do their jobs. For the last 2 years the occupants of all three contested positions have possessed the ability to settle grievances6 at the first step and to make recommendations to Martel respecting ____________________ 6 There is no evidence of any such settlements. -17- employee transfers,7 The Shop Supervisor's compartive percentage of hands-on work is greater than that of the other two contested positions. Goyette's day is devoted, in the winter, about 80 percent to hands-on work. In the spring he performs no hands-on work. The amount of his time spent in looking for equipment is equivalent to that which was performed by Martel when he had Goyette's position. The Solid Waste Supervisor Because of state "mandates" the Town has closed its landfill, implemented recycling and hired a Solid Waste Supervisor to run its solid waste transfer station or "recycling" operations. The Town previously operated a transfer station staffed by two employees, and a landfill with one attendant, all of whom were supervised by the Public Works Director. The recycling area is open in the winter from 7:30 a.m. to 4:00 p.m. Tuesday through Friday and Saturday from 7:00 a.m. to 3:00 p.m. In the summer the area opens at 6 o'clock. Other Public Works employees' regularly scheduled work is accomplished during the normal business week. The transfer station is presently located adjacent to the public works facility within a common enclosure. The present job description for the Town's Public Works Solid Waste Supervisor states: Job Summary: 1. Directs the public and contractors in solid waste disposal practices and policies. 2. May operate recycling equipment and perform routine maintenance on equipment. 3. Developes (sic), implements and promotes solid waste recycling program to board of selectmen, citizens and the press. 4. Obtains all necessary permits and submits all required reports to the various licensing agencies. 5. Issues waste disposal stickers, licenses and temporary permits. 6. Identifies markets for recyclable waste products and maintains markets for materials. 7. Performs related work as assigned. ________________________ 7 There is no evidence of any recommendation respecting transfer. -18- Supervision Received: Works under the direct supervision of the public works director. Supervision Exercised: Will supervise transfer station attendant and landfill attendant. May also occasionally supervise part-time, temporary general assistance workers and/or other work related to recycling. Examples of Duties: 1. Plan, organize, direct and coordinate activities of the solid waste division. 2. Make studies and prepare reports for the director. 3. Attend selectmen's meetings and other boards and provide information on solid waste problems. 4. Interface with commercial and industrial haulers alone with residential users. 5. Be familiar with Department of Environmental Protection regulations and rules. Employment Standards: Graduation from a two (2) year technical school or a high school diploma with five (5) years of progressively responsible experience in the field of solid waste management. Knowledge of the principles and practices of a municipal waste disposal system; knowledge of federal and state regulations and of town ordinances pertaining to solid waste. Possession of a valid Maine vehicle operator's license. (Class "A" C.V.L. preferred). Experience dealing with public and administrative duties preferred. Ricker reports directly to Martel. Ricker had a role in the design of the present transfer station facilities. Ricker serves on the Town's solid waste committee, enforces the Town's recycling ordinance and gives presentations on recycling in local schools and to industry. Ricker generates revenue by marketing the Town's recyclables in a "volatile" market and keeps the records of the recycling program.8 Ricker performs the same personnel functions as Goyette and Ayer and his budgetary and purchasing responsibilities are the same as theirs. Ricker has been employed as the Town's Solid Waste Supervisor since March 14 of 1994. Ricker negotiated his beginning salary with the ____________________ 8 There is no allegation or evidence that the profitability of his efforts in this regard is used as a measure in the evaluation of Ricker's work performance. -19- selectmen and signed an individual employment contract with the Town. Ricker earns a salary 21 percent greater than that of his closest subordinate. The Board of Selectmen decided that Ricker would be paid a fixed salary. Only Martel, his Secretary and Ricker have ever earned a "salary" within the Public Works Department. Ricker spends a minimal amount of time performing work similar to that of the employees he supervises, such as "pulling the trailer out and moving recyclables." Martel estimates that Ricker spends 70 percent of his day in "supervision." Ricker estimates that he devotes 10-15 percent of his time to hands-on duties identical to those of his subordinates. His job description is otherwise correct regarding his duties. Ricker works a minimum of 40 hours and has requested no compensatory time to date. Ricker feels he would be unable to effectively supervise his employees were he to be included in their bargaining unit. He does not desire to be included therein. Ricker attends selectmen's meetings and deals with private industry; the other two contested positions do not. Ayer speaks with Ricker daily. His work-related contact with Ricker is primarily to resolve manpower issues such as Ricker's need for the loan of an extra employee from Ayer. Goyette's contact with Ricker is usually limited to situations where Ricker wants something modified, fixed or built. Ricker only asks Goyette for the loan of an employee if Ayer "does not have enough people" or if no one wants to help out "on the highway side." Ricker then comes out back and asks Goyette or Brian (his assistant) if they want to work for him. If Ayer can't spare his Class I operator Goyette or Brian "haul the trash truck for [Ricker]." Present Contract Status In 1991 the parties were involved in mediation and fact finding prior to executing a contract on December 30, 1993, effective for a one-year period commencing retroactively on July 1, 1993. The parties are presently in successor negotiations. Consideration in mediation of the unit placement of the contested positions has been requested by the Town. -20- Other Town Bargaining Units There are presently five bargaining units of Town of Lisbon employees. Teamsters Union Local 340 represents a one-member bargaining unit of the Town of Lisbon Police Department's Supervisors which includes the single classification of Sergeant. The Teamsters also represent a unit of Wastewater Treatment Plant employees in Lisbon which includes the Chief Mechanic, the Shift Operator and the Assistant Shift Operator. AFSCME Council 93 represents a unit of the Town of Lisbon General Government employees which includes the Accounts Payable Clerk, the Deputy Tax Collector, the Computer Operator/Payroll, the Receptionist, the Sewer Billing/Counter Clerk, the Deputy Welfare Director, the Assessing Clerk, the Park Ranger and the Collection Clerk. The International Brotherhood of Police Officers represents a bargaining unit of the Town's law enforcement employees occupying the following job classifications: Patrolman, Dispatcher, Corporal, Juvenile Officer and Detective. The Initial Public Works Unit Determination In the unappealed unit determination report which initially configured this public works unit the Shop Supervisor and the Highway Foreman were found appropriately included, over the objection of the Town. The complete findings of fact in that case are as follows: 1) The Lisbon Public Works Department is composed of two divisions - the Highway Division and the Solid Waste Division. The Highway Division has two sections - the mechanical section and the highway section. Employed in the mechanical section are the Shop Supervisor and two Mechanics. The Foreman and employees holding the positions of Operator I, Operator II and Laborer are employed in the highway section. The Solid Waste Division employs an Operator, Assistant Operator, and Landfill Attendant. The Director of Public Works is in charge of the Department. The Director has a secretary, whose position is not proposed to be included in the bargaining unit. 2) The Shop Supervisor supervises the two Mechanics who work in the mechanical section. While the Shop Supervisor spends most of his time working on jobs along with the Mechanics, he also plans the workday, within the hours of work set by the Director of Public Works, and assigns the Mechanics to jobs. The Shop Supervisor also orders most of the parts needed in the mechanical section. When expensive items - those costing more than $400 or -21- $500 - are involved, the Shop Supervisor checks with the Director before placing the order. 3) The Shop Supervisor is not authorized to hire or fire employees, although he has recommended that a certain person be hired as a Mechanic. He has not yet disciplined or evaluated any employee. When a Mechanic wants a day off, he tells the Shop Supervisor, who asks the Director. The Shop Supervisor handles minor complaints and gripes by the Mechanics, but refers any major issues to the Director or the Town Manager. When the Director makes up the Departmental budget, he asks the Shop Supervisor about the status of the equipment in the mechanical section. The Shop Supervisor is not consulted with regard to personnel matters. When the Director is on vacation or otherwise absent from work the Shop Supervisor is not placed in charge of the Department. He continues to perform his regular duties the same as if the Director was present. 4) The Shop Supervisor has been an employee of the Public Works Department for about 10 years. On 3 occasions, he has been named the interim Director of Public Works while the Director's position was vacant. The last occasion was about 2 years ago, when the Shop Supervisor served as interim Director for 7 months. As interim Director, the Shop Supervisor worked on the budget and performed the other administrative duties required of the Director as well as his regular duties as Shop Supervisor. The Shop Supervisor has been offered the Director's post several times, but thus far has refused the position because he prefers to do mechanical rather than administrative work. The last time a Director of Public Works was hired, the interim Director went back to performing the duties of Shop Supervisor without any formal action on the part of the Board of Selectmen or the Town Manager. The Shop Supervisor recognizes that his situation is different from that of the rank-and-file employees in that he performs supervisory duties and has greater responsibilities than the average employee. 5) The Foreman, who has held his position about one year, spends most of his time working along with the other 4 employees in the highway section. The Foreman presently is being trained as a foreman, and the Director estimates it will be several more years before he becomes fully qualified for the job. As part of his training, the Foreman recently attended a foreman's school. The Director presently sits down with the Foreman to set priorities and plan the schedule. The Foreman then assigns the employees to the jobs which need to be done. The Foreman has no authority to hire or fire employees or set personnel policies. When the Director is going to be absent from work, he leaves instructions regarding what is to be done and his phone number with the Foreman. The Foreman was hired by the Director, with the approval of the Town Manager. The Board of Selectmen took no formal action to appoint the Foreman to his position. DISCUSSION As is more fully explained below I conclude that the Shop Supervisor and the Highway Foreman continue to share a clear and identifiable community of interest with employees in the public works unit, which is not outweighed by any conflict of employment -22- interests. I further conclude that, in the absence of any conflict in his and his subordinate unit members' employment interests, the Solid Waste Supervisor should be included in the public works collective bargaining unit on the basis of the Board's policy against the proliferation of small, unnecessary bargaining units. 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 supervisory or other position is included in the bargaining unit, the executive director or his designee shall make the determination. 26 M.R.S.A. 966(1) (1988). The MPELRL also 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 procedures 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. In addition to allegations of substantial change in the duties of an existing position, the creation of a new job classification is a change that is usually deemed sufficient to satisfy the threshold requirement of "substantial change." See Portland Public Library Staff Association and Portland Public Library, No. 88-UC-03, slip op. at 9 (Me.L.R.B. June 2, 1988). Allegations of substantial change in two positions and the creation of a new position support the petitions in the instant case. -23- Rule 1.16(A) of the Board's Unit Determination Rules states, in pertinent part: 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 clarification 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. 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 parties have stipulated that no question concerning representation exists and that there is presently no contract in effect. The unit placements of the positions in dispute have been unavailingly undertaken by the parties. Accordingly, the petitions supporting the parties' disputes are timely and sufficient. The inquiry now turns to whether each of these supervisors shares a community of interest with employees in the public works unit and, if they do share a community of interest, whether, for each supervisor, that community of interest is outweighed by conflict of employment-related interests. I recently outlined the rationale underlying Board unit configuration proceedings, the role of the hearing officer and the factors to be considered in determining community of interest in a unit determination report in the case styled Richmond Employees Association and Town of Richmond, No. 94-UD-09, slip op. at 22-25 (Me.L.R.B. Apr. 26, 1994). That discussion, which quotes extensively from the unit determination report in the case East Grand Teachers Association/MTA/NEA and MSAD No. 14 Board of Directors, No. 92-UD-01, slip op. at 14-15 (Me.L.R.B. Oct. 1, 1991), bears restatement here: The lodestar that guides the creation of appropriate bargaining units under the -24- Municipal Public Employees Labor Relations Law ("Act"), 26 M.R.S.A. ch. 9-A (1988 and Supp. 1993) is fostering an improved relationship between public employees and their employer " . . . by providing a uniform basis for recognizing the right of public employees to join labor organizations of their own choosing and to be represented by such organizations in collective bargaining for terms and conditions of employment. 26 M.R.S.A. 961 (1988). The Supreme Judicial Court has discussed the importance of the bargaining [unit] in fulfilling the purpose of the Act as follows: The institutional purpose of the bargaining unit, then, is to strengthen the bargaining position of the employees as a group. It does so procedurally by aggregating the employees into a unit and thus providing the basic mechanism for collective bargaining; it does so substantively by defining the group whose economic rights and benefits will be governed by majoritarian processes. The bargaining unit is, in short, a fundamental element in the self-governing relation between the public employee and his employer. Indeed, under the National Labor Relations Act, the coherent bargaining unit is perceived as a necessary condition for effectuating the national labor policy of collective bargaining. Pittsburg Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S.Ct. 908, 85 L. Ed. 1251 (1941). In light of the role played by the bargaining unit, we likewise believe that the two fundamental purposes of the MPELRL--freedom of employee self- organization and voluntary adjustment of the terms of employment--are best effectuated through the creation of coherent bargaining units composed of employees who have "an identifiable community of interest" in the subjects controlled by the collective bargaining agreement. -25- Lewiston Firefighters Association v. City of Lewiston, 354 A.2d 154, 161 (Me. 1976). Collective bargaining is a response to the inherent inequality of bargaining power between a single employee and her or his employer. Collective bargaining attempts to level the playing field and empower individual employees in the negotiating process by providing a mechanism through which an employee can coordinate his or her bargaining proposals with those of co-workers with whom the employee shares similar terms and conditions of employment. The Act explicitly recognizes that appropriate bargaining units are composed of employees who share a "community of interest" and does not condition employees' unit inclusion on whether they share identical terms and conditions of employment. 26 M.R.S.A. 966(2) (1988). [Quoting East Grand Teachers Association/MTA/NEA and MSAD No. 14 Board of Directors, No. 92-UD-01, slip op. at 14-15 (Me.L.R.B. Oct. 1, 1991).] The Board has addressed 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 examiner consider whether a clear and identifiable community of interest exists between the positions in question so that potential conflicts of interest among bargaining unit members during negotiations will be minimized. Employees with widely different duties, training, supervision, job locations, 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 20-10031 (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: -26- (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) similarities 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 organizational structure. Rule 1.11(F). . . . Finally, the MPELRL establishes the following standard for the determination of the appropriate unit placement of supervisors: In determining whether a supervisory position should be excluded from the proposed bargaining unit, the executive director or his designee shall consider, among other criteria, 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 establishment of performance standards for subordinate employees and taking correcting measures to implement those standards. 26 M.R.S.A. 966(1) (Supp. 1993). All three supervisors are employed in public works positions. They are all variously required to perform the manual and mechanical tasks performed by their subordinates.9 They each perform administrative duties not performed by their subordinates ____________________ 9 The Highway Foreman, with six subordinates, spends 40 percent of his workday performing hands-on work. The Shop Supervisor, with one subordinate, spends seasonally up to 80 percent of his workday performing hands-on work, and the Solid Waste Supervisor, with two subordinates, spends 15 percent of his time performing hands-on work. -27- such as written and oral reporting, minor purchasing, and resourcing management on major purchases and budgeting.10 They each perform nonmanagerial supervisory duties such as task direction, relaying leave requests, requesting approval of overtime, contributing input to the evaluation of their subordinates' performance,11 scheduling subordinates within the work hours established by the Director, and fielding employee complaints at the first step of the contractual grievance procedure.12 These supervisors report directly to Martel, who is the ultimate overseer of all public works employees. Although the evidence establishes that Ricker earns a salary 21 percent higher than his closest subordinate, his closest subordinate's wages are not established in the record. Ayer and Goyette earn 16 percent and 17 percent more than their highest paid subordinates and the Truck Driver/Laborer earns 25 percent more than the Laborer. Ricker's salary and assumedly his benefits are established by an individually-negotiated contract13 now, but they are capable of being negotiated with the collective bargaining agent. The benefits, wages, and terms and conditions or employment of all other public works employees save Martel and his secretary are determined through collective bargaining. The probative value of Ricker's salaried status is diminished by the expired contract's provision of compensatory time for salaried employees. A high ____________________ 10 Ricker unquestionably spends a significantly greater proportion of his day performing administrative duties than does either of the two other supervisors. 11 The fact of Martel's conversion, from oral to written, of Ayer's and Goyette's input into their subordinates' performance evaluations is inconsequential in light of the absence of either any indication of the acceptance of their appraisals by Martel, or the use to which such evaluations are put. 12 Under the parties' expired contract supervisors were the first step in a process having subsequent steps involving the department head, the Town Manager and binding arbitration. 13 The terms of this contract were not entered into the record. -28- school diploma is a nearly uniform requirement in the unit, as is at least some relevant experience. Only the Shop Supervisor is required to have post high school education or supervisory experience. The Shop Supervisor, the Solid Waste Supervisor, and their respective subordinates with them, work at separate sites within a common public works enclosure. Although the Highway Foreman and his subordinates work throughout the Town their work originates and concludes at the public works yard. There is frequent contact among the supervisors and general contact by supervisors with all the public works employees. There is some overlap of duties which is occasioned by members of the Highway and Shop sections supplementing the ranks of the Solid Waste division. The historical unit configuration has apparently satisfied the included employees. There is no evidence of any difficulty or "tension" resulting from the historical unit inclusion of the Shop Supervisor and Highway Foreman. There is no evidence that the employment interests of non-supervisory employees have been subordinated to employment interests unique to these supervisors. Only the Solid Waste Supervisor opposes his inclusion. Ricker expressed no desire respecting the possibility of a supervisory unit. There are already five bargaining units in the Town, including one 1-person unit. There is no Town-wide supervisory unit and, with the exception of the Director, his secretary and Ricker, all Town public works public employees are organized by the Teamsters. With respect to the exclusion of supervisors from units of their subordinates on the basis of supervisory conflict of -29- interest14 it is by now well established that: Unlike the National Labor Relations Act which excludes supervisors altogether from its coverage, the MPELRL does not compel either exclusion from MPELRL coverage altogether, or exclusion from units of subordinates. 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 supervisory 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 fragmentation, of small bargaining ____________________ 14 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), I 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 supervisory conflict of interest: evidence of the exercise of personal decisions to hire, promote, discharge or discipline employees or instances of the effective recommendation of such personnel actions; evidence of the performance of significant duties in the observation and evaluation of employees where such observations and evaluations play a substantial role in reappointment, non-reappointment, grant of continuing contract status, award of merit pay or promotion; evidence of the exercise of independent judgment in the ranking of subordinates for the purposes 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 indicating the exercise of independent judgment in the determination, 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 discretion 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. -30- units, we have approved of the creation of such separate supervisory units. Maine School Administrative District No. 14, supra, at 12-13; Maine School Administrative 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 minimize 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. Richmond Employees Association and Town of Richmond, No. 94-UD-09, slip op. at 28-29 (Me.L.R.B. Apr. 26, 1994). There is no evidence that any of these supervisors have hired, reprimanded, suspended, demoted, promoted or fired any subordinate. Their only role in the evaluation of the performance of their subordinates is as resource persons. There is no indication that performance evaluations effect the satisfaction of probationary requirements or impact the award of wage increases. They do not have the authority on their own to assign overtime or approve or disapprove leave requests. In short, none of these supervisors possesses a supervisory conflict of interest with subordinate unit employees. I have considered the duties and responsibilities of the Highway Foreman, the Shop Foreman and the Solid Waste Supervisor, in light of the standards set forth above. Based upon the record considered in light of the parties' arguments I conclude that the Shop Supervisor and the Highway Foreman continue to share a community of interest with employees in the public works unit. I also conclude that the Solid Waste Supervisor shares a strong community of interest with the two other supervisors and that the Board's policy against the unnecessary creation of small -31- bargaining units15 requires his inclusion.16 APPROPRIATE UNIT DETERMINATION On the basis of the parties' stipulations, the foregoing findings of fact and discussion, and pursuant to the provisions of 26 M.R.S.A. 966 (1988 and Supp. 1994), I conclude that the following unit of employees of the Town of Lisbon is appropriate for the purposes of collective bargaining, within the meaning of 26 M.R.S.A. 966 (1988 & Supp. 1994): INCLUDED: Public Works [Highway] Foreman, Public Works Maintenance Shop Supervisor, Solid Waste Supervisor, Mechanic, Operator I, Operator II, Laborer, Operator, Assistant Operator, Landfill Attendant. Dated at Augusta, Maine, this 11th day of May, 1995. MAINE LABOR RELATIONS BOARD /s/________________________ M. Wayne Jacobs Designated Hearing Examiner ____________________ 15 The Board's policy of discouraging the unnecessary proliferation of small bargaining units is long standing. The Board has explained its rationale as follows: Small bargaining units must be bargained for and serviced just as [must] large bargaining units. The State is obligated 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-A-09, slip op. at 13, 6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983). 16 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 overfragmentation 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. -32- The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4) (Supp. 1994), to appeal this report to the Maine Labor Relations Board (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 the issuance of this report. See Rules 1.12 and 7.03 of the Board's Rules and Procedures for full requirements. -33-