Affirming No. 95-UC-04 & -05 Reversed, CV-95-311 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 95-UCA-02 Issued: September 6, 1995 ____________________________ ) TOWN OF LISBON, ) ) Appellant, ) ) v. ) DECISION AND ORDER ) ON UNIT CLARIFICATION APPEAL TEAMSTERS UNION LOCAL 340, ) ) Appellee. ) ____________________________) This unit clarification proceeding was initiated by a petition filed by the Teamsters Union Local 340 (hereinafter referred to as "Teamsters") on October 27, 1994, requesting inclusion of the newly-created position of Solid Waste Supervisor in the existing collective bargaining unit of Public Works employees. The Town of Lisbon ("Town") opposes this accretion, and contends there is no community of interest between the Solid Waste Supervisor and other unit positions. The Town then filed a petition for unit clarification on November 9, 1994, requesting that the positions of Shop Supervisor and Highway Foreman be removed from the Public Works employees' unit on the basis of greatly enhanced supervisory duties. The union contends that these two positions, which have been included in the bargaining unit since 1981, should remain in that unit because their community of interest with other unit positions remains unchanged. The petitions were consolidated and an evidentiary hearing on the merits of both petitions was conducted on January 27, 1995. The unit clarification report which is the subject of this appeal was issued on May 11, 1995. The Town appealed the report on May 25, 1995, and submitted a Memorandum of Appeal on May 30, 1995. The Town challenges the hearing examiner's determination that the Shop Supervisor and the Highway Foreman continue to -1- share a community of interest with non-supervisory employees in the Public Works unit and, therefore, should remain in that bargaining unit. The Town also challenges the hearing examiner's determination that the Solid Waste Supervisor should be included in this same unit in that he shares a strong community of interest with the two other supervisors and his inclusion is consistent with the Board's policy of discouraging the unnecessary proliferation of small bargaining units. The Board, comprised of Chair Peter T. Dawson, Employer Representative Howard C. Reiche, Jr., and Alternate Employee Representative Gwendolyn Gatcomb, heard oral argument and deliberated this matter on July 6, 1995. The Town is represented by Roger R. Therriault, Esq., and the Teamsters by Carl Guignard, Business Agent. JURISDICTION The Town of Lisbon is an aggrieved party within the meaning of 26 M.R.S.A. 968(4), and is a public employer within the meaning of 26 M.R.S.A. 962(7) (Supp. 1994). Teamsters Union Local 340 is the bargaining agent within the meaning of 26 M.R.S.A. 962(2) of the unit of Public Works employees of the Town of Lisbon. The jurisdiction of the Maine Labor Relations Board to hear this appeal and to render a decision herein lies in 26 M.R.S.A. 968(4) (Supp. 1994). FINDINGS OF FACT Neither party has taken exception with any material finding of fact contained in the hearing examiner's unit clarification report issued on May 11, 1995.fn1 Those findings of fact are hereby incorporated in and made a part hereof. _______________ 1 The Town cites two factual errors on pages seven and eight of its Memorandum of Appeal related to hourly wage rates and a bargaining unit which is no longer in existence. We decline to resolve these factual disputes in that neither is determinative of our decision in this appeal. -2- DISCUSSION Petitions for unit clarification are subject to the provisions of 26 M.R.S.A. 966(3) and the Board's Rules and Procedures, Rule 1.16. The statute requires the party seeking to include or exclude positions from a bargaining unit to show that circumstances surrounding the formation of the existing bargaining unit have changed sufficiently to warrant the requested modification. Similarly, our decisions have delineated the requirements necessary to prevail in a petition for unit clarification: [The requirement for changed circumstances] is a threshold question on which the petitioner in a unit clarification proceeding "bears the burden of alleging the requisite change and, further, of establishing the occurrence of said change in the unit then at issue." MSAD No. 14 and East Grand Teachers Association, No. 83-A-09, slip op. at 7, 6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983) (quoting from State of Maine and MSEA, No. 82-A-02, slip op. at 16, 6 NPER 20-14035 (Me.L.R.B. June 2, 1983)) (Interim Order). The standard by which we review a hearing examiner's unit clarification report is also well established: We will overturn a hearing examiner's rulings and determinations if they are "unlawful, unreasonable, or lacking in any rational factual basis." It is thus not proper for us to substitute our judgment for the hearing examiner's; our function is to review the facts to determine whether the hearing examiner's decisions are logical and are rationally supported by the evidence. AFSCME, Council 93 and Town of Sanford, No. 92-UDA-03, slip op. at 4 (Me.L.R.B. May 7, 1992); State of Maine and AFSCME Council 93, No. 91-UCA-02, slip op. at 2 (Me.L.R.B. Feb. 21, 1991), aff'd on other grounds, Bureau of Employee Relations v. Maine Labor Relations Board, 611 A.2d 59 (Me. 1992). -3- We will first address the Town's petition requesting removal of the positions of Shop Supervisor and Highway Foreman from the existing bargaining unit. The gist of the Town's petition is that there is an inherent conflict when supervisors are permitted to join forces with their subordinates, both in terms of their relative status and in the collective bargaining process. The Town appeals to the Board to acknowledge the realities of today's economy and the evolving role of first-line supervisors in a changing labor-management relationship. The Town contends that the Board will limit the Town's ability to effectively manage and negotiate if these supervisors, or "working foremen," are not on management's side of the bargaining table. We are mindful of the current economic realities and the public's interest in "getting more for less" from its government. We understand the need for public employers to require their supervisors to do more than oversee the job performance of their subordinates. This present-day reality does not, however, preclude placement of supervisors in bargaining units with their subordinates in every case. The Municipal Public Employees Labor Relations Law recognizes that in some situations supervisors ought to be excluded from bargaining units comprised of subordinate employees. Section 966(1) of the statute specifically sets forth the types of duties which may preclude a supervisor from joining forces with subordinates, if such duties are "the principal functions of the position": 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 -4- 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 corrective measures to implement those standards. 26 M.R.S.A. 966(1). In order to prevail in its petition, the Town must establish there has been a substantial change in the positions in question, with regard to the functions enumerated above, and that there no longer exists the community of interest between them and the remaining members of the Public Works unit that existed when the unit was formed in 1981. We note at the outset that the Town does not seek to exclude these supervisors on the basis of the exemption found in 26 M.R.S.A. 962(6)(C).fn2 Nor does the Town contend that these supervisors should be removed from the unit because they are "professional employees."fn3 The Town argued before the Board that these supervisors serve a vital role for management as information sources for bargaining issues; however, there is no evidence on the record that this issue was explored with witnesses or that the parties were given the opportunity to develop and challenge the evidentiary basis for this argument. Although a supervisor's role in bargaining, if established through competent evidence in the proceeding below, is relevant to the "distinct and dissimilar" analysis required by section 966(1) and could persuade us to assign supervisors to a separate unit from their immediate subordinates, no such evidence exists _______________ 2 Any person whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head, body, department head or division head is not considered a "public employee" for purposes of this law. 3 26 M.R.S.A. 966(2) provides that no unit shall include both professional and nonprofessional employees unless a majority of such professional employees vote for inclusion in such unit. The term "professional employee" is defined in 26 M.R.S.A. 962(5) and includes, inter alia, any employee engaged in work involving the consistent exercise of discretion and judgment in its performance. -5- on this record.fn4 Similarly, the Town's petition asserts a "potentiality of problems involving supervision" and the "develop[ment of] a tension in having the work supervisor as part of the bargaining unit." If there was any evidence of this actually being the case in Lisbon the Board might have been persuaded that a community of interest no longer exists in this unit. The record is devoid of any evidence of actual conflict caused by the inclusion of these two positions in the bargaining unit over the last fourteen years. While the newly-appointed Solid Waste Supervisor anticipates such problems, the persons employed in the other two supervisory positions for quite some time have not experienced any impediment to their ability to effectively manage their subordinates and prefer to remain in this unit. See M.S.A.D. No. 14 and East Grand Teachers Association, No. 83-A-09, slip op. at 17, 6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983). (Unit decisions are based on the employees' actual duties and responsibilities and not on the basis of future intended responsibilities.) The hearing examiner's finding that the Shop Supervisor and 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 interests, is logical and rationally supported by the evidence on the record. The Town has failed to meet its burden of showing a substantial change in the principal functions of these two positions since they were originally included in the bargaining unit in 1981. _______________ 4 We have recognized the potential for conflicts of interest and of loyalty when supervisors and their subordinates are in the same bargaining unit in the case of Richmond Employees Association and Town of Richmond, No. 94-UD-09, slip op. at 28-29 (Me.L.R.B. Apr. 26, 1994). Nevertheless, the statute requires a showing of a substantial change in this regard before the Board may remove supervisors from existing units and there is no evidence that this is the case in Lisbon. -6- We now turn our attention to the union's petition for inclusion of the newly-created position of Solid Waste Supervisor. We have held in the past that 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). We see no reason to make an exception here. The Town raises the same objections to this position's inclusion in the unit as it does for the other two supervisory positions. While this supervisor, arguably, has less of a community of interest with his subordinates than do the other two, the hearing examiner's finding that he shares a strong community of interest with the other two supervisors in the unit is supported by the evidence. This community of interest is the primary basis for the hearing examiner's conclusion that the Solid Waste Supervisor should be included in this unit. Contrary to the Town's contention at oral argument, the Board's policy against the unnecessary proliferation of small bargaining units is not the determining factor in our decision to include this supervisor in the existing unit. It is an important factor, nonetheless. We take this occasion to reiterate our firmly-held belief that the creation of small units does nothing to advance the important public policy set forth in Section 961 of the Law to promote the improvement of the relationship between public employers and their employees. See M.S.A.D. 60 Teachers Assoc./MTA/NEA and M.S.A.D. 60 Board of Directors, No. 89-UD-13 (Me.L.R.B. Sept. 8, 1989). We hold that, in addition to the traditional justifica- tion for our policy that small bargaining units require the public employer and the bargaining agent to expend as much, if not more, time and money in negotiating and administering collec- tive bargaining agreements as do larger units, an additional -7- rationale for our policy is the concept of the viable bargaining unit within the context of the particular employer organization. ORDER On the basis of the foregoing findings of fact and discussion and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 968(4) (Supp. 1994), it is ORDERED: that the May 25, 1995 appeal of the Town of Lisbon, filed with respect to the May 11, 1995 unit clarifica- tion report in Case Nos. 95-UC-04 & -05, is denied and the report is affirmed as set forth above. Dated at Augusta, Maine, this 6th day of September, 1995. MAINE LABOR RELATIONS BOARD The parties are hereby advised /s/_______________________________ of their right, pursuant to Peter T. Dawson 26 M.R.S.A. 968(4) (Supp. Chair 1994), to seek review of this Decision and Order on Unit Clarification Appeal by the Superior Court. To initiate /s/_______________________________ such a review an appealing Howard C. Reiche, Jr. party must file a complaint Employer Representative with the Superior Court within fifteen (15) days of the date of announcement hereof, and otherwise comply with the __________________________________ requirements of Rule 80C of Gwendolyn Gatcomb the Maine Rules of Civil Alternate Employee Procedure. Representative -8-