Affirming No. 95-UC-04 & -05
Reversed, CV-95-311

                                      Case No. 95-UCA-02
                                      Issued:  September 6, 1995

TOWN OF LISBON,             )
          Appellant,        )
     v.                     )         DECISION AND ORDER          
                            )    ON UNIT CLARIFICATION APPEAL
          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


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.


     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.


     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

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).


     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


     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.


 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.


     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


rationale for our policy is the concept of the viable bargaining
unit within the context of the particular employer organization.


     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