STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 99-UD-03 & 99-UD-05 Issued: January 20, 1999 ______________________________ ) TEAMSTERS UNION LOCAL #340, ) ) Petitioner, ) ) and ) UNIT DETERMINATION ) REPORT TOWN OF BOOTHBAY HARBOR, ) ) Public Employer. ) ______________________________) INTRODUCTION This unit determination proceeding was initiated on August 4, 1998, when Mr. Carl Guignard, a representative of the Teamsters Union Local #340 (hereinafter referred to as the "Union"), filed a petition for unit determination with the Maine Labor Relations Board ("Board" or "MLRB"). That petition sought to create a bargaining unit of office and clerical employees of the Town of Boothbay Harbor (No. 99-UD-03). On September 18, 1998, the Union filed a petition for unit determination seeking to create a unit of the Public Works Department employees of the Town of Boothbay Harbor (No. 99-UD-05). The hearing for these two matters was consolidated by the hearing examiner. In Case No. 99-UD-03, the Union's proposed Office and Clerical Employees Unit consists of the following five positions: Bookkeeper/Deputy Treasurer/Asst. Tax Collector, Assessor's Clerk/Asst. Tax Collector, Deputy Tax Collector/Secretary, Code Enforcement Officer, and Administrative Assistant. The Town of Boothbay Harbor ("Employer") contends that four of the positions should be excluded on the basis of either 26 M.R.S.A. 962(6)(B), 962(6)(C), or both and that, in any event, the positions do not share a community of interest. In Case No. 99-UD-05, the Union's proposed Public Works Unit consists of two positions: Public Works Foreman and Operator/ -1- Truck Driver/Laborer. The Town argues that the Public Works Foreman should be excluded from that unit on the basis of 26 M.R.S.A. 962(6)(D) or, in the alternative, because the position is a supervisor. Prior to commencement of the formal hearing, the parties met with the hearing examiner to explore the possibility of settlement and, if unsuccessful at settlement, to offer exhibits into evidence and formulate stipulations of fact. EXHIBITS The parties agreed to the admission of the following joint exhibits: Joint Exhibit #1 Job Description, Code Enforcement Officer Joint Exhibit #2 Job Description, Assistant Bookkeeper/ Secretary with "Dep. Tax Collector" handwritten above typewritten title Joint Exhibit #3 Job Description, Deputy Tax Collector/Deputy Treasurer with a handwritten line drawn through "Deputy Tax Collector" Joint Exhibit #4 Job Description, Police Secretary The following additional exhibits were offered into evidence: Union Exhibit #1 Town of Boothbay Harbor, Personnel Manual (undated) Employer Exhibit #1 Boothbay Harbor Code, Chapter 3, Administration of Government, 7/10/97 STIPULATIONS 1. Teamsters Local Union #340 is an employee organization within the meaning of Title 26, section 962. 2. The Town of Boothbay Harbor is the public employer within the meaning of Title 26, section 962. -2- HEARING After due notice an evidentiary hearing on the two petitions was held by the undersigned hearing examiner on October 14, 1998, at the Board's hearing room in Augusta, Maine. Carl Guignard, Teamsters Union Local #340, appeared on behalf of the Union. Joseph J. Hahn, Esq., appeared on behalf of the Town of Boothbay Harbor. No one requested to intervene. The Union presented as it witnesses Mr. Dabney Lewis, Code Enforcement Officer, and Mr. Daren Graves, Public Works Department employee. The Employer presented as its witnesses Ms. Laurie Smith, Town Manager, and Mr. Floyd McDunnah, Chief of Police. The parties were given the opportunity to examine and cross- examine witnesses, offer evidence and present oral argument at the close of the hearing. Post-hearing briefs were filed by both parties, the last of which was received on November 10, 1998. JURISDICTION The Teamsters Union Local #340 is a public employee organization within the meaning of 26 M.R.S.A. 962(2) and the Town of Boothbay Harbor is a public employer within the meaning of 26 M.R.S.A. 962(7). The jurisdiction of the hearing examiner to hear this matter and make a unit determination lies in 26 M.R.S.A. 966(1) and (2)(1988). FINDINGS OF FACT 1. The Town Manager of Boothbay Harbor, Ms. Laurie Smith, reports directly to the Town of Boothbay Harbor's 5-member Board of Selectmen. Of the five positions sought to be included in the Office and Clerical Employees Unit, four of the individuals report directly to the Town Manager. The fifth position, the Administrative Assistant, reports to the Chief of Police who, in turn, reports to the Town Manager. Also reporting directly to -3- the Town Manager are the Public Works Foreman, the Harbor Master, and the Water Systems Superintendent. 2. The Town Manager also holds the positions of Road Commissioner, Tax Collector, Treasurer and Water Systems Manager. In the latter capacity, she reports to the Water Commissioners rather than the Board of Selectmen. 3. Four of the individuals in the proposed clerical unit work together in one large room in the administrative offices of the Town Office. The Town Manager's Office is located near the administrative office and is next to the Water System Superin- tendent's Office. The fifth employee in the proposed unit, the Administrative Assistant, works in the Police Department which is located about 30 feet down the hall toward the rear of the same building. 4. All four employees in the administrative offices and the Administrative Assistant work the same work week: Monday through Friday from 8:30 to 4:30 with an hour off for lunch. 5. The Code Enforcement Officer is paid on a salary basis and is expected to work an occasional evening or weekend. He is not entitled to overtime for extra hours worked. The other employees are paid on an hourly basis and would be paid overtime for extra hours worked. 6. The employees refer to a copy of the Personnel Manual submitted as Union Exhibit #1 for a description of policies regarding promotions, demotions, layoffs, and benefits. The Code Enforcement Officer has provided copies of the manual to other employees on occasion. The employees are not aware of any more recent copy of the personnel manual. 7. All five of the positions proposed for the Clerical and Office Employees Unit are subject to a six-month probationary period described in the personnel manual. The employees are all subject to the same policies and benefits. -4- 8. The employees in the proposed Clerical and Office Employees Unit have frequent contact with one another. The Administrative Assistant comes into the administrative offices from the Police Department two or three times a day for things such as making copies, ordering supplies through the Town Manager's Secretary, addressing payroll issues with the Book- keeper/Deputy Treasurer, or asking for a message to be relayed to someone who is out of the office. The contact among the four employees working in the administrative office is much greater as their desks are in the same area. Although each person has his or her own specific job responsibilities, they assist each other responding to telephone calls and routine inquiries at the counter. 9. There is no history of collective bargaining among the clerical and office employees. The one employee testifying indicated that the employees desire to be represented together, but there was confusion concerning the distinction between unit composition issues and the desirability of a particular bargaining agent. 10. The Code Enforcement Officer (CEO) is appointed to his position on an annual basis by the Selectmen and is sworn in by the Town Clerk each year. The CEO is appointed pursuant to Title 30-A, section 2601-A. The position has been filled by Mr. Dabney Lewis for over 14 years. The job description for the CEO lists as "necessary special requirements" certification under Title 30-A and Rule 80K, certification as a Licensed Plumbing Inspector, and master certification from Maine Building Officials and Inspectors Association. The job description lists as desirable experience and training: "Experience in the construction industry or as a journeyman electrician or plumber; graduation from an accredited high school, supplemented by vocational training in building construction, structural design, or a related field; or any equivalent combination of experience and training." -5- 11. As CEO, Mr. Lewis processes building permits, does code interpretations and ordinance work for the town. Both the Town Manager and the CEO can issue building permits and investigate complaints about land use laws. The CEO and the Police Depart- ment have enforcement powers with respect to the code. The CEO answers questions from the public regarding code enforcement issues. Depending on how busy it is, he helps people at the counter who have come to pay excise taxes or to complete other routine tasks. Although attending to citizens at the counter is not his primary responsibility, he stated that he is usually the third person to step up to the counter to respond to questions, doing so when the first two are occupied or absent. 12. The following job description for Deputy Tax Collector/ Deputy Treasurer was introduced as Joint Exhibit #3. A hand- written line was drawn through the words "DEPUTY TAX COLLECTOR" and the name of the incumbent, "Kim Upham," was handwritten in the upper corner.[fn]1 The Town Manager testified that the content of the job description is accurate except that the lien duties have been transferred to Deborah Sample who now performs the Deputy Tax Collector duties. DEPUTY TAX COLLECTOR/DEPUTY TREASURER Nature of Work This is responsible administrative and financial work in the collection of various taxes for the Town of Boothbay Harbor, and the handling of Town funds. Employee of this class is responsible for collecting numer- ous taxes, preparing regular reports of collected monies, main- taining tax records for all accounts, and other clerical and bookkeeping work as required. Work involves significant public contact while collecting monies, and the compilation of records and reports. Work is performed under the general supervision of the Town Manager subject to applicable State laws and regulations and regular audits. ____________________ 1 The current title of the position held by Ms. Upham is Bookkeeper/Deputy Treasurer/Asst. Tax Collector. -6- Examples of Work (Illustrative Only) Is responsible for all accounts receivable, accounts pay- able, and tax payments. Receives and records payments of property taxes, and prepares collected monies for deposit. Maintains all Town banking records and accounts. Provides information to citizens, real estate agents and others on property taxes. Prepares a monthly financial and budget report for Manager and Selectmen. Prepares, records and receives payment of boat and automo- bile excise taxes. Registers cars, trucks and other motorized vehicles, main- taining records for the State. Prepares regular reports on registrations, tax collection and other financial records. Prepares reports on the collection status of property taxes. Prepares payroll for all Town employees. May assist Town Manager with various special projects. Processes all incoming Town mail. Inputs information and figures regarding the municipal budget into the computer and prepares reports as requested by the Town Manager. Performs related work as required. Requirements of Work Knowledge and understanding of the State statutes relating to the duties and responsibilities of municipal tax collec- tors. Knowledge of modern office procedures, practices and equip- ment. Ability to establish and maintain effective working rela- tionships with other Town officials, employees and the general public. Proficiency in the use of the adding machine, typewriter and -7- the ability to use the Town computer system. Ability to maintain records and prepare reports. Ability to understand and follow the laws and regulations governing the activity of a municipal tax collector. Desirable Experience and Training High school graduation supplemented by advanced courses in accounting or bookkeeping plus experience in the collection of various monies; or any equivalent combination of experience and training. 13. Kim Upham has been the Deputy Treasurer for about 10 years. She also was the Deputy Tax Collector until about two years ago, when that function was reassigned to Deborah Sample. Ms. Upham maintains the Town's bank accounts, does the payroll, assists in preparing the budget, generates various reports, manages the bond schedule, and is responsible for the Town's accounts payable and accounts receivable. In consultation with the Town Manager, she also manages the Town's cash-flow needs by transferring town funds to CDs and Dreyfus accounts. She has some discretion regarding the terms of these accounts. The Board of Selectmen has adopted specific policies that govern the use of town funds that the Treasurer and Deputy Treasurer must follow. 14. The Town Manager is responsible for preparing the budget for the Town. Each department submits the requests and Ms. Upham assists in compiling that information on their computer and making sure all budget requests have been received. 15. The Town Manager believes that she would be negligent if she did not have a Deputy Treasurer and Deputy Tax Collector appointed as allowed by Title 30-A, section 2603. The Town Manager stated that her insurance company required her to make these appointments. The Town Manager's intent is for the deputy to be able to do all the Treasurer's or Tax Collector's duties in her absence. 16. The Code Enforcement Officer, the Deputy Treasurer and -8- the Deputy Tax Collector have all been appointed annually to one- year terms. The only change was when Deborah Sample first became the Deputy Tax Collector about two years ago. The appointment process begins when the appointment papers are prepared which list each person and the duties to which they are appointed. The Board of Selectmen makes the appointments at one of their regular monthly meetings. After that, the Town Clerk makes out cards for each of them and, one by one, they are sworn in. 17. The Code Enforcement Officer testified that everyone in the Clerical and Office Employees Unit is appointed in the same fashion. He also testified that his understanding is that Police Officers are appointed and sworn in annually, as well. 18. The Town Manager emphasized that they do not appoint jobs, they appoint duties, such as deputy tax collector and deputy treasurer. Although the CEO's duties are essentially equivalent to the position, the role of deputy tax collector and deputy treasurer can be (and have been) reassigned to different jobs. 19. The following job description was introduced as Joint Exhibit #2. The words "Dep. Tax Collector" were handwritten above the job title and the name of the incumbent, "Debby Sample," was handwritten in the upper corner.[fn]2 The Town Manager testified that the content of the job description is accurate except for the lien duties corresponding to the Deputy Tax Collector role. ASSISTANT BOOKKEEPER/SECRETARY Nature of Work This is a responsible administrative and clerical position providing assistance to both the Town government and the munici- pal Water System. ____________________ 2 The current title of the position held by Ms. Sample is Deputy Tax Collector/Secretary. -9- Employee of this class is responsible for assisting in the receipt and posting of all Town and water system revenues, and assisting in the recording and processing of expenditures. Work also involves providing secretarial support to the Town Manager and Water System Manager. Work is performed under the general direction of the Town Manager and Water System Manager, subject to review through observation and regular audits. Examples of Work (Illustrative Only) Assists in preparing correspondence, auto registration, and water bills. Transcribes and types minutes of meetings and prepares bills for various Town and Water System accounts. Assists in receiving excise taxes, town taxes, boat excise, mooring fees, water bills and other Town and Water System receipts. Pre-prices our registrations upon receipt from the State. Prepares bank deposits. Receives, records, and makes deposits for traffic viola- tions. Answers phone and attends to counters. Assists in all other Town and Water System office functions. Prepares all correspondence for the Town manager Prepares all bills for Water System, and posts amounts due on customer cards. Orders supplies for all municipal departments. Assists in maintaining up-to-date tax records in the Town computer system. Inputs information regarding the municipal budget into the computer, and assists in preparing budget information. Prepares daily computer reports and runs back-ups. Daily balances cash drawer for correct amounts of collected and posted deposits. Performs related work as required. Requirements of Work -10- Knowledge of municipal accounting practices and procedures. Ability to deal with the public responding to complaints and inquiries. Considerable knowledge of business English, grammatical construction, spelling, punctuation, and arithmetic, and possession of an excellent vocabulary. Knowledge of laws and regulations applying to Town and Water System functions. Ability to accurately compile and maintain fiscal records. Knowledge of correct composition of business correspondence and municipal and Water System forms. Ability to type efficiently and operate other office equip- ment such as computer, calculator and copier. Desirable Experience and Training High school graduation supplemented by courses in accounting or bookkeeping, plus experience in the collection of taxes or funds; or any equivalent combination of experience and training. 20. Chapter 3 of the Town's Code is entitled "Administration of Government" and is one and a half pages long. It contains sections covering the date of the annual town meeting, notice of the meeting, reports and purchasing procedures. The only provision related to employment is the following: 3-5 Appointment of officers. All officers provided by law and not required to be elected shall be appointed by the Selectmen. 21. As Secretary to the Town Manager, Deborah Sample types most of the Town Manager's correspondence. The Town Manager has a computer in her office and has on occasion typed her own correspondence when, for example, the need arose after hours or with respect to the current unit determination petition for the clerical unit. 22. The Town Manager is on the negotiating team for the existing Water Systems bargaining unit and the Police Department bargaining unit. The Town Manager helps to draft collective -11- bargaining ideas and positions, corresponds with the outside negotiator and with the Town's attorney requesting legal advice or clarification on certain issues related to collective bargaining. The Town Manager's secretary, Deborah Sample, usually types for her. Both the Town Manager and Ms. Sample typed up some of the Town's proposals. Ms. Sample has full access to the personnel files and the files related to collective bargaining. 23. The negotiating team for the Police Department unit consists of the Town Manager, the Police Chief, sometimes a selectman and sometimes an outside negotiator. In the most recently-bargained police contract, consultant David Berg was hired as a negotiator and the typing of the contract was taken care of by his office. 24. Georgette Carignan holds the position of Administrative Assistant.[fn]3 As such, she is the receptionist and clerical support for the Chief of Police and other members of the Police Department. She answers the phone, maintains personnel and payroll records, and types all correspondence and other reports for the Police Chief. The Chief of Police speaks freely with her regarding collective bargaining matters and relies on her to type up his notes on the bargaining proposals the Department has under consideration. In addition, when he needs to run an idea by the Town Manager concerning a matter to be negotiated, the Chief will have his secretary type it up. Ms. Carignan has done such typing for him a number of times. She has also typed up bargaining proposals that were going back and forth between the parties. 25. The Personnel Manual submitted as Union Exhibit #1 is a 24-page document with chapter headings such as Recruitment, Selection and Appointment; Probationary Period; Promotions, Demotions, Resignations, Layoffs; Pay Plan; Employee Benefits; ____________________ 3 The job description for this position is titled "Police Secretary." -12- Disciplinary Actions and Grievance Procedure. 26. The following provisions are contained in the Town's Personnel Manual, Chapter II, Recruitment, Selection and Appointment: 2-2. Qualifications: For any position vacancy, the Town Manager will establish the basic requirements for the successful performance of the job. 2-3. Application and Eligibility: . . . C. Disqualification: The Town Manager has the right to reject any candidate from consideration if he finds that the candidate does not have the qualifications for the job. . . . 2-4. Employee Selection: A. Selection. Selection of employees will be based on job-related skills, knowledge, experience, education as well as prior demonstrated performance. Screening and interviewing applicants will be as authorized by the Town Manager, utilizing the expertise of Department Heads to the fullest extent possible. Final appointment will be made by the Town Manager, except that in the case of Department Head appointments confirmation of the Selectmen is required. . . . 27. The Personnel Manual states that employees must receive a performance evaluation prior to the expiration of the six-month probationary period. Evaluations are reviewed by the Town Manager. 28. The Personnel Manual states that the Town Manager develops a "merit list" for the Selectmen suggesting which employees should get merit increases. This is based on consultation with department heads and review of the performance evaluations. 29. For disciplinary measures, the Personnel Manual states "Department Heads are responsible for enforcing these regulations and referring problem situations to the Town Manager for appropriate disciplinary action." -13- 30. Public Works Department employees plow snow, sand, maintain roads, do culvert work, ditch work, maintain road signs, mow, empty trash cans, maintain public parks, and maintain the grounds around the town office. The Public Works Department has large trucks and snow plows that require a Commercial Driver's License (CDL) to operate. 31. There are four employees in the Public Works Department, three in an Operator/Truck Driver/Laborer position and the Public Works Foreman, Hans Holton. All of the employees in the Public Works Department, including the Foreman, are paid on an hourly basis and receive overtime pay for hours over 40 in a week. The normal work week is eight-hour days, Monday to Friday. Each of the four employees has to work a weekend each summer month to empty trash cans. The assignments for summer weekend duty are made by drawing names from a hat. 32. The Public Works Department employees refer to the Town's Personnel manual for a description of the policies and benefits. A copy of the personnel manual introduced as Union Exhibit #1 is kept in a folder on top of a file cabinet in Mr. Holton's office at the Public Works Garage for everyone's reference. All four of the employees are subject to the same policies and benefits except that Hans Holton, the Foreman, is also provided with a pick-up truck that he is allowed take home. 33. There is no history of collective bargaining in the Public Works Department and the one public works employee who testified indicated that all of the employees desire to be together in one bargaining unit. 34. The Public Works Foreman has an associate's degree in civil engineering, is trained as a surveyor and is the person in the department who performs those duties, such as surveying and setting catchbasin height, that require such technical expertise. The other employees in the department do not have engineering or -14- surveying training or expertise. All four employees in the department have a commercial driver's license. 35. Mr. Holton was hired by the Town Manager Laurie Smith about three years ago. No evidence was presented showing that the Selectmen were involved in the process or that the Board confirmed his appointment. 36. The Public Works Foreman performs the same functions as the other public works employees as well as performing various administrative duties. The Foreman spends two to three hours a day doing paperwork: less or none on days of snow storms or major projects, more if there are no significant projects underway and he needs to catch up. Mr. Holton usually goes to the Town Office to see Laurie Smith at 9 o'clock each day. He plans and schedules the employees' work assignments and schedules vacations. The Foreman takes care of paperwork related to purchase orders, maintains records, opens bids, makes daily work assignments and assesses problems with roads. He deals with complaints from the public and contractors and is the person called when there is an emergency. 37. The Public Works Department employees all start their work day by meeting in the Foreman's office at the Town Garage. Sometimes they work in teams and sometimes they work individ- ually. Once they start on their day's assignment, they return to the garage for lunch and breaks, if possible, and for supplies as needed. 38. The uncontroverted testimony by the most senior department employee, Mr. Daren Graves, was that the Public Works Foreman has not performed any formal performance evaluations on any current employees in the Public Works Department. No evidence was presented that the Foreman had conducted any appraisals on former employees. 39. The Town Manager and the Public Works Foreman share -15- responsibility for hiring decisions at least with respect to positions that are not seasonal or on-call positions. They both review all applications as they are received, they interview the candidates together, and the Town Manager ensures that the candidates have the proper license and meet the preemployment physical requirements. Applications are taken in the Town Office. If the Foreman receives any directly, he gives them to the Town Manager. 40. In filling the three open positions earlier in the year, the Town Manager's top choice was different than the Foreman's top choice. The Foreman's top choice, Daren Graves, was hired first, then a few weeks later the Town Manager's top choice was hired. Daren Graves testified that he was hired by the Town Manager at a meeting where both the Public Works Foreman and the Town Manager were present. 41. The Foreman has not needed to invoke the disciplinary procedure on any employees nor have any grievances been filed in the Public Works Department. 42. Town Manager considers the Public Works Foreman to be the Department Head and he attends Department Head meetings, also attended by the Harbor Master, Police Chief and Water Systems Superintendent. DISCUSSION In this consolidated report, I will first address the exclusions and community of interest issues raised with respect to the Office and Clerical Employees Unit (No. 99-UD-03). I will then deal with the department head exclusion and community of interest issues raised concerning the Public Works Department Unit (No. 99-UD-05). Office and Clerical Employees Unit, Fixed-Term Appointments In response to the Union's petition, the Town argues that -16- section 962(6)(B) requires the exclusion of three positions from the proposed Office and Clerical Employees Unit. Section 962(6)(B) excludes from collective bargaining any person: [a]ppointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer, except that appointees to county offices shall not be excluded under this paragraph unless defined as a county commissioner under Title 30-A, section 1302. The Town claims that the Code Enforcement Officer fits within this exclusion, that the Bookkeeper/Deputy Treasurer/ Assistant Tax Collector position should be excluded on the basis of her appointment as Deputy Treasurer, and that the Deputy Tax Collector/Secretary position should be excluded on the basis of her appointment as Deputy Tax Collector. As a preliminary matter, it is important to note that the statutory exclusions from collective bargaining must be strictly construed. The statute is remedial in nature and therefore the exceptions must be narrowly drawn to effectuate the fundamental purpose of the statute. State of Maine and Maine State Employees Association, No. 82-A-02, First Interim Order, slip op. at 6 (Me.L.R.B. June 2, 1983). In previous bargaining unit reports, hearing examiners have identified three clear prongs to the 962(6)(B) exclusion: whether the executive body or head made the appointment, whether it was made for a specified term, and whether it was made pursuant to a statute, ordinance or resolution. Teamsters Union Local 340 and City of Presque Isle, No. 92-UD-10, slip op. at 17 (Me.L.R.B. Aug. 18, 1992). See also, Town of Thomaston and Teamsters Local Union #340, No. 90-UC-03 (Me.L.R.B. Feb. 22, 1990). Hearing examiners have also concluded that the reference in 962(6)(B) to appointment "to office" meant more than just appointment to a job, but required the appointment be to an office of the sort that a municipality would expect a certain degree of political responsiveness. Presque Isle, No. 92-UD-10, -17- at 22-25. See also, Thomaston, No. 90-UC-03, at 17 ("the presumed purpose of the exemption [is to allow] the town to maintain an element of political responsiveness in certain town positions"). If the phrase "appointed to office" could include appointment to any job, a municipality could conceivably exclude all employees from coverage of the Act by making them all appointments for a specified term. In Presque Isle, the hearing examiner noted the problems with such an interpretation: [T]he hearing examiner does not believe that it was the Legislature's intention, in passing the MPELRL in 1969, on the one hand to create a comprehensive collective bargaining law covering municipal employers, and on the other hand to nullify that law by giving municipalities free reign to exclude all employees on their payrolls from collective bargaining simply by passing charters, ordinances or resolutions that authorize all appointments to be for fixed terms. Presque Isle, No. 92-UD-10, at 21. The hearing examiner pointed out that municipal police officers and municipal constables appointed to fixed terms pursuant to state statute are not excluded from collective bargaining by operation of section 962(6)(B). Id. at 22. In concluding that this particular exclusion may have been directed at a need for a degree of political responsiveness, the hearing examiner in Presque Isle noted that "Section 962(6)(B) excludes persons appointed to office for a specified term, not simply those appointed for a specified term." Id. at 22. The hearing examiner reviewed various sections of Title 30-A and found substantial support for the notion that a distinction was intended in using the phrase "appointed to office": For instance, section 2001(11) defines a municipal official as "any elected or appointed member of municipal government." 30-A M.R.S.A. 2001(11) (Supp. 1991). Certain officials must be elected (members of the municipality's legislative body and school committee members). The remainder may be elected or appointed. 30-A M.R.S.A. 2525 (Supp. 1991). Persons specifically referred to in Title 30-A as officials, -18- whom the municipality may therefore elect or appoint, include the clerk, treasurer, tax collector and members of boards of assessors. Single assessors, also named as officials, are appointed in lieu of an elected or appointed board of assessors. 30-A M.R.S.A. 2525, 2526, 2552 and 2603 (Supp. 1991). Appointments of officials are generally for one year . . . . These provisions taken together suggest that officials are those high enough in municipal government for political responsiveness to be expected, either through election or through fixed-term appointment. The case is even more convincing when one looks at a distinction Title 30-A makes between officials and employees, in addition to the length of appointment. Both officials and employees have just cause protection under section 2601. However, section 2701 requires employees who have just cause protection to first complete any applicable probationary period. 30-A M.R.S.A. 2701 (Supp. 1991). Probation is not mentioned for officials. That is not surprising, if appointed "officials" are meant to be politically responsive. Appointment for a fixed term should not protect an official's wrongdoing, so a municipality's right to remove an official before his/her term is up, for cause, is not inconsistent with the concept of the politically responsive appointment. On the other hand, the concepts of probation and political responsiveness are inconsistent. Id. at 22-24. The hearing examiner also noted that in 1969, when the MPELRL was first enacted, both officials and employees were appointed to one-year terms. Id. at 23 fn. 10, citing 30 M.R.S.A. 2256 (Supp. 1970). The hearing examiner concluded that the Legislature did not intend to exclude every fixed-term appointment under section 962(6)(B), regardless of the type of position in question. Id. at 21. I find persuasive the Presque Isle hearing examiner's interpretation of section 962(6)(B) and agree that there must be some political responsiveness expected in the job at issue in order for the 962(6)(B) exclusion to apply. This political responsiveness requirement is inherent in the limitation of the exclusion to a person "appointed to office" and is consistent with the distinctions in Title 30-A between officials and employees. The political responsiveness requirement is in -19- addition to the previously-mentioned requirements that the appointment is made by the executive head or body, that it is for a specified term, and it is made pursuant to statute, ordinance or resolution. In the present case, the Employer contends that three of the positions proposed for inclusion in the Office and Clerical Employees Unit should be excluded on the basis of section 962(6)(B). The evidence regarding each of the positions will be assessed with respect to the four elements necessary to fit within this exclusion. The Employer argues that the position of Code Enforcement Officer should be excluded because the appointment was made by the Board of Selectmen, the appointment was for a specified term of one year, and the appointment was made pursuant to Title 30-A, section 2601-A. Section 2601-A states: Municipal officers may appoint code enforcement officers trained and certified in accordance with section 4451 to serve for fixed terms of one year or more, and may remove those code enforcement officers only for cause after notice and hearing. Compensation for code enforcement officers is determined by the municipal officers and paid by the respective municipalities. Code enforcement officers need not be residents of the municipality for which they are appointed. The Employer argues that section 2601-A indicates that a Code Enforcement Officer is a "municipal official" who is treated differently than municipal employees and is an official who fits squarely within the 962(6)(B) exclusion. The application of the 962(6)(B) exclusion to the Boothbay Harbor Code Enforcement Officer is no different than the situation the hearing examiner faced in the 1992 Unit Determination in Presque Isle. In that case, the hearing officer -20- relied on Title 38, section 441(1), which states: 1. Appointment. In every municipality, the municipal officers shall annually by July 1st appoint or reappoint a code enforcement officer, whose job may include being a local plumbing inspector or a building inspector and who may or may not be a resident of the municipality for which he is appointed. The municipal officers may appoint the planning board to act as the code enforcement officer. The municipal officers may remove a code enforcement officer for cause, after notice and hearing. This removal provision shall only apply to code enforcement officers who have completed a reasonable period of probation, as established by the municipality pursuant to Title 30-A, section 2601. If not reappointed by a municipality, a code enforcement officer may continue to serve until a successor has been appointed and sworn. In deciding that Presque Isle's Code Enforcement Officer did not fit within the section 962(6)(B) exclusion, the hearing examiner noted that the requirement of completing a probationary period is inconsistent with a true one-year appointment and that "the concept of probation and the concept of political responsiveness or loyalty through the mechanism of a fixed-term appointment are inimical." Presque Isle, No. 92-UD-10, at 26. The same statutory language in Title 38, section 441(1) is in effect today. The enactment of 30-A M.R.S.A. 2601-A in 1993 does not negate the applicability of an established probationary period to a code enforcement office nor does it in any way transform the position into an "office" within the meaning of 962(6)(B). Just as the hearing office did in Presque Isle, I conclude that the Code Enforcement Officer is not excluded from collective bargaining on the basis of 962(6)(B). The Employer also contends that the Bookkeeper/Deputy Treasurer/Assistant Tax Collector should be excluded from collective bargaining because the position is covered by the 962(6)(B) exclusion. The Employer argues that the primary function of that position is that of Deputy Treasurer. Relying on Title 30-A, section 2603, the Employer argues that the appointment was made by the executive body or head, it was made -21- for a specified term of one year, and it was made pursuant to a statute, ordinance or resolution. It is clear that the appointments were made for a specified term of one year. The statute under which this appointment was made states, in full: 2603. Deputy officials The clerk, treasurer and collector of a municipality may each appoint in writing one or more qualified persons as deputies. 1. Sworn and oath recorded. Before assuming the duties of office, the deputy must be sworn and the fact of the oath recorded as provided in section 2526, subsection 9. 2. Term; duties. The deputy serves at the will of the appointing official. The deputy may perform any of the duties of office prescribed by the appointing official. 3. Bond liability. The appointing official and the surety on the official's bond are liable for all acts and omissions of the official's deputy. 4. Absence. If the clerk, treasurer or tax collector fails to do so, the municipal officers may appoint a deputy to act during any absence. Regarding the third piece of the 962(6)(B) exclusion, confirmation by the Selectmen satisfies the degree of importance and formality necessary for the requirement that the appointment be made by the executive head or body of the employer. See, Teamsters Local Union No. 48 and City of Saco, No. 80-UD-34, slip op. at 5 (Me.L.R.B. June 20, 1980) (confirmation by the city council, "whether by 'resolution' or act of other terminology" satisfies comparable requirement in 962(6)(D)). With respect to the final requirement for a 962(6)(B) exclusion, the evidence does not support a conclusion that the Deputy Treasurer or the Deputy Tax Collector are offices for which the Town needs to have political responsiveness. The Town Manager, acting in her capacity as Treasurer and Tax Collector, -22- made the appointments because her insurance company required that she appoint deputies. She believed that she would be negligent in her duties if she did not make the appointments. This is not the type of evidence that suggests they are offices reflecting a need for political responsiveness. Similarly, the actual job duties of the Deputy Treasurer and Deputy Tax Collector do not appear to include the level of discretion one would normally associate with a position that must be politically responsive. The Town contends that the primary function of the Bookkeeper/Deputy Treasurer/Assistant Tax Collector position is that of Deputy Treasurer. Employer's Brief at 2. In describing the function of the Deputy Treasurer, the Town Manager emphasized that the Deputy Treasurer was responsible for managing the Town's cash flow and investments but later admitted that there were various specific policies established by the Selectmen under which the Deputy Treasurer had to operate. While the duties of the Deputy Treasurer involve various financial or accounting skills, they do not appear to include the amount of discretion or the impact on policy associated with an office expected to be politically responsive. Even if the only function of the Bookkeeper/Deputy Treasurer/Assistant Tax Collector position were the Deputy Treasurer function as the Town argues, I cannot conclude that it is the type of position contemplated by the 962(6)(B) exclusion and therefore will not exclude it. For the same reasons, I conclude that the position of Deputy Tax Collector/Secretary is not excluded from collective bargaining under section 962(6)(B). Those functions of the job related to the Deputy Tax Collector role are clerical functions rather than policy making or discretionary functions. The evidence does not support a conclusion that the nature of the position is one requiring political responsiveness. Office and Clerical Employees Unit, Confidential Employees -23- The Town also contends that the Deputy Tax Collector/ Secretary and the Administrative Assistant are "confidential" employees and should be excluded from collective bargaining on the basis of section 962(6)(C). Section 962(6)(B) excludes 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. The parameters of this exclusion have been well-established for a number of years and are aptly summarized by the following: Some general principles have been established for determining whether a position is confidential. First, employees who have been permanently assigned to collective bargaining or to render advice on a regularly assigned basis to management personnel on labor relations matters are confidential employees. State of Maine and MSEA, No. 82-A-02, slip op. at 10, 6 NPER 20-14027 (Me.L.R.B. June 2, 1983) (Interim Order). The term "labor relations matters" does not refer to contract administration, but rather contemplates "the strategic and tactical considerations involved in negotiating collective bargaining agreements." Id., slip op. at 7. An information provider is not a confidential employee. State of Maine and MSEA, No. 78-A-09, slip op. at 8 (Me.L.R.B. Mar. 2, 1979) . . . . Finally, current duties, not duties projected for the future, must be the basis for a finding of confidentiality. MSAD No. 14 and East Grand Teachers Assoc., No. 83-A-09, slip op. at 10, 6 NPER 20-14036 (Aug. 24, 1983). AFSCME and Town of Sanford, No. 92-UD-03, slip op. at 37 (Me.L.R.B. Feb. 21, 1992), aff'd, No. 92-UDA-03 (Me.L.R.B. May 7, 1992). The Board has also held that "[i]n many if not most cases, 'confidential' supervisory employees need access to at least one 'confidential' clerical employee, to carry out their 'confidential' duties." Id. quoting State of Maine, No. 82-A-02, slip op. at 28 (Me.L.R.B. June 2, 1983). In the present case, Deborah Sample holds the position of Deputy Tax Collector/Secretary to the Town Manager. The employer -24- argues that as Secretary to the Town Manager, Ms. Sample's duties "necessarily imply a confidential relationship" within the meaning of section 962(6)(B). There are two existing bargaining units in Boothbay Harbor for which the Town Manager is an integral part of the negotiating team: The Police Department Unit and the Water District Unit. The Secretary to the Town Manager is required to type correspondence of a confidential nature and information pertaining to the employer's collective bargaining proposals with respect to both of these bargaining units as a necessary part of her job duties. These are clearly the type of issues contemplated by the confidential exclusion. The Union suggests that the Secretary to the Town Manager should not be excluded as a confidential employee because the only collective bargaining information to which the Secretary has been exposed is related to the Police and Water District Units, not the Clerical and Office Employees Unit, so there is no danger of a conflict in loyalties. This distinction has no bearing on the issue because the statute precludes me from including a confidential employee in any bargaining unit. Section 966(1) provides, in part, that when there is a dispute over whether a position is included in the bargaining unit: the executive director or his designee shall make the determination, except that anyone excepted from the definition of public employee under section 962 may not be included in a bargaining unit. The statute is clear: when a person is found to be a confidential employee, that person "may not be included in a bargaining unit"--any bargaining unit. See, e.g., Teamsters Union Local 340 and Town of Kittery, No. 90-UD-02 (Me.L.R.B. Nov. 22, 1989) (holding that because a secretary was a confidential employee under 962(6)(C), she could not be placed in a bargaining unit). Therefore, because the position of Secretary to the Town Manager is a confidential employee within the meaning of 962(6)(C), it may not be included in a bargaining unit. -25- The Town argues that the Administrative Assistant should also be excluded from collective bargaining under the confidential employee exclusion. In State of Maine, the Board noted that, "in many if not most cases, 'confidential' supervisory employees need access to at least one 'confidential' clerical employee, in order to carry out their 'confidential' duties." State of Maine, No. 82-A-02, at 28 (June 2, 1983) (because Superintendent was only marginally involved in the last round of negotiations, confidential status was not appropriate for his secretary). Clearly, as a member of the negotiating team for the Police Department, the Chief of Police has significant involvement in formulating the employer's collective bargaining positions, policies and strategies. The evidence shows that the Administrative Assistant, Georgette Carignan, serves as his confidential secretary and has typed and otherwise had access to confidential documents such as notes and memos regarding the employer's bargaining positions and policies. I conclude, therefore, that the Administrative Assistant must be excluded from the unit pursuant to section 962(6)(C). Office and Clerical Employees Unit, Community of Interest The fundamental purpose of the bargaining unit is to strengthen the bargaining position of the employees as a group and not weaken it. In unit determination matters, therefore, the Board's goal is to make sure the employees have a substantial mutual interest in wages and other terms and conditions of employment. Lewiston Firefighters Association, 354 A.2d 154, 161 (Me. 1976). In evaluating the presence or absence of community of interest in matters subject to collective bargaining, the Board requires, at a minimum, assessment of the following eleven factors: (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) similarity in the qualifications, skills and training of employees; (6) frequency -26- 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 employer's organizational structure. (Board Rule 1.11(F)). Of these eleven factors, most support the conclusion that the positions in the proposed Clerical and Office Employees Unit share the necessary community of interest. Generally, six out of the first seven factors and the eleventh factor clearly support a finding of community of interest. With respect to the remaining four factors the evidence is either insufficient or not dispositive. While there are some very specific areas in which there are differences or there is an absence of evidence either way, none are of the sort that would result in weakening the unity and bargaining strength of the employees. Overall, I find that the evidence supports a finding of community of interest among the positions in the Office and Clerical Employees Unit. The employer's primary argument against finding a community of interest is the fact that the jobs in question are not interchangeable. Employer's Brief at 6. The concept of "community of interest" does not require that the work performed by the various employees be identical. As the Executive Director of the Board noted in a previous case: In comparing the nature of the work being performed by the various classifications under consideration, the essence or basic type of the functions being performed is far more important than the details of each position's work responsibilities. Inherent in the existence of separate job classifications is a difference in the specific work assignment of each classification; however, such differences do not preclude the inclusion of various classifications in the same bargaining unit. Auburn Education Association/MTA/NEA and Auburn School Committee, No. 91-UD-03, slip op. at 11 (Me.L.R.B. Feb. 27, 1991). -27- In the present case, the evidence presented shows that all of the positions perform different types of administrative work primarily in an office environment. The fact that the Deputy Treasurer may be very knowledgeable about financial transactions or that the Code Enforcement Officer is the only one in the group with expertise in the applicable codes or with enforcement powers does not mean there is no similarity in the nature of work performed. The second factor, common supervision and determination of labor relations policy, also supports a finding of community of interest. All of the positions are subject to the policies described in the Personnel Manual and all report directly to the Town Manager. Regarding the scale and manner of determining earnings, there was no evidence presented regarding the wages paid to each employee. The process of determining wage increases, however, is described in the Personnel Manual as the same for all and, with the exception of the CEO, they are all paid on an hourly basis. There was no evidence presented suggesting that a disparity in wage scales would destroy any existing community of interest or that the CEO's status as a salaried employee is a significant detraction from a community of interest. I conclude that, on balance, there was not enough evidence regarding this factor to make a determination on whether it supports or detracts from a community of interest. The fourth factor, similarity in benefits, hours and other terms and conditions of work, clearly supports a finding of community of interest. All of the positions in question have the same benefits, the same work week and essentially the same conditions of work. The only difference is that the CEO is required to conduct field inspections and is occasionally required to work evenings to attend planning board meetings. The employer suggests that the fifth factor, the difference -28- in the qualifications, skills and training required of these positions, is significant and precludes a community of interest finding. It is true that the Deputy Treasurer position requires some specialized knowledge of financial transactions and the Code Enforcement Officer similarly requires specialized knowledge of the building codes and land use regulation. The CEO must also be certified. However, the certification requirement is not sufficient to destroy the otherwise similar requirements for these positions. Indeed, all of the job descriptions submitted indicate the identical requirements of high school graduation supplemented by specialized courses and related experience or any equivalent combination of experience and training. Overall, I conclude that this factor supports a community of interest. The sixth and seventh factors, frequency of contact or interchange among the employees and geographic proximity, both strongly support a finding of community of interest as they all work in the same office. The eighth and tenth factors are not at issue here because there is no history of collective bargaining for these positions and the union is interested in representing all of the positions in question. The evidence presented on the desires of the affected employees regarding the appropriateness of the unit was not convincing either way because it was difficult to conclude that the sentiments expressed related to the appropriateness of the unit, as opposed to the desirability of a particular bargaining agent. The eleventh factor, the employer's organizational structure, supports a finding of community of interest as all of the employees are part of the Town's administrative offices. The community of interest factors referred to in Rule 1.11(F) have been considered. They establish that the -29- petitioned-for unit, with the exception of the two excluded positions, is an appropriate unit for purposes of collective bargaining. Public Works Unit, Department Head With respect to the Unit Determination Petition for the Public Works Department, the Employer claims that the Road Foreman is excluded from the definition of public employee under section 962(6)(D) and, therefore, may not be included in the bargaining unit. Section 962(6)(D) excludes from coverage of the Act any person "[w]ho is a department head or division head appointed to office pursuant to statute, ordinance or resolution for an unspecified term by the executive head or body of the public employer." As previously noted, exceptions to the definition of public employee must be narrowly drawn to avoid undermining the purpose of the Act of providing public employees the right to join unions and bargain collectively. See, e.g., State of Maine, No. 82-A-02, slip op. at 6 (Me.L.R.B. June 2, 1983). Evaluating whether a particular employee is a department or division head involves two separate inquiries: "1) whether the employee is the administrator of the department or division, and 2) whether the employee is 'appointed to office pursuant to statute, ordinance or resolution for an unspecified term by the executive head or body of the public employer,' as specified in Section 962(6)(D)." Teamsters Local 48 and Boothbay Harbor Water System, No. 82-UD-29, slip op. at 6 (Me.L.R.B. May 11, 1982). With respect to the first inquiry, there are generally three types of job functions performed in a department: day-to-day rank-and-file work; supervision of other employees; and formulation and administration of department policies and practices, i.e., management of the department. The Board described how the section 962(6)(D) exclusion fits in that framework with the following: -30- Our cases establish that for an employee to be a "department head" within the meaning of Section 962(6)(D), the employee's primary responsibility must be that of managing or directing the affairs of the department, as opposed either to acting as a supervisor or to performing the day-to-day work of the department. For example, in Teamsters Local 48 and City of Portland, [No. 78-UD-39 , slip op. at 2 (Me.L.R.B. Sept. 13, 1978)], the hearing examiner declared 12 employees to be Section 962(6)(D) division heads because they were "responsible for the day-to-day administration" of their divisions, and because their principal duties were those of "formulating and administering division policies and practices." On the other hand, in Teamsters Local 48 and Town of Bar Harbor, [No. 80-UD-09, slip op. at 3 (Me.L.R.B. Nov. 15, 1979)], a Treatment Plant Operator who was responsible for the day-to-day operation of the treatment plant and who performed such administrative duties as setting the work schedules of other employees, arranging for the purchase of equipment and supplies, and submitting a budget to the town manager, was found not to be a department head because, among other things, the employee "spent the major portion of his time performing the same work as other operating employees." See also Teamsters Local 48 and Boothbay Harbor Water System, [No. 82-UD-29, slip op. at 6-8 (Me.L.R.B. May 11, 1982)] (Foreman who performed various administrative duties was not an administrator because "on balance the primary function of the Foreman's position is to act as a supervisor"). Our cases thus require hearing examiners, when presented with evidence showing that an employee performs both administrative duties and supervisory or rank-and-file duties, to decide whether the primary duties of the position are those of an administrator or those of a supervisor or a rank-and-file employee. Teamsters Local Union No. 48 and Town of Wells, No. 84-A-03, slip op. at 6-7, 6 NPER 20-15012 (Me.L.R.B. Apr. 11, 1984), aff'd sub nom. Inhabitants of the Town of Wells v. Teamsters Local Union No. 48, CV-84-235 (Me. Super. Ct., Yor. Cty., Feb. 28, 1985). The inquiry into the appointment process required by the 962(6)(D) exclusion is usually easy to answer when there is a statute, ordinance or provision of a city charter governing the appointment of a particular department head. See, e.g., Sanford, No. 92-UD-03, at 29-36. Even in cases where no ordinance -31- governed the appointment, one hearing examiner concluded that the involvement of two Selectmen in the interview and appointment process and the confirmation of the appointment by the Board of Selectmen satisfied the "degree of importance and formality needed to satisfy the Act's [appointment] requirement." AFSCME Council 93 and Town of Paris, No. 97-UD-14, slip op. at 11 (Me.L.R.B. Oct. 1, 1997); see also, City of Saco, No. 80-UD-34, slip op. at 5 (confirmation by City Council would satisfy requirement); Sanford, No. 92-UD-03, slip op. at 33 (where Selectmen made the appointment of CEO prior to adoption of charter, "degree of importance and formality" implied in section 962(6)(D) met even though no statute, ordinance or resolution specifically authorized appointment). On the other hand, there must be some greater significance to the appointment than the general hiring process. Bangor Education Association and Bangor School Committee, No. 80-UC-02 (Me.L.R.B. Nov. 16, 1979) ("Election" of Director of Title I by School Committee not sufficient for 962(6)(D) exception where no statute, ordinance or resolution was evident and all teachers were "elected" in same manner); Boothbay Harbor Water System, 92-UD-09, at 7 fn. 4 (appointment must be formal and cannot "merely be the result of the informal hiring process"). In the present case, there is insufficient evidence to support a conclusion that the Public Works Foreman was "appointed to office pursuant to statute, ordinance or resolution" as required by section 962(6)(D). The employer did not produce any statute, ordinance or resolution specifically authorizing the appointment of the Public Works Foreman. There are only two pieces of evidence that might conceivably be considered an ordinance or resolution under which the Public Works Foreman was appointed. The first is section 3-5 of the Boothbay Harbor Code entitled "Appointment of officers" which states, "All officers provided by law and not required to be elected shall be appointed by the Selectmen." The second piece of evidence is section 2-4 of the Personnel Manual which requires all department head -32- appointments to be confirmed by the Selectmen.[fn]4 The evidence is clear that the Public Works Foreman was hired by the Town Manager. No evidence was presented even suggesting that the Public Works Foreman was appointed by the Selectmen or that his appointment was confirmed by the Board of Selectmen pursuant to section 3-5 of the Town Code or section 2-4 of the Personnel Manual. Although the Board's unit determination procedures are not adversarial, Board Rule 1.11(E) states that "[e]ach party bears the responsibility of producing evidence to support its contentions" regarding the proposed unit. I conclude that the Public Works Foreman was not appointed pursuant to statute, ordinance or provision of charter as required by 962(6)(D) and therefore is not excluded from collective bargaining on that basis. Public Works Unit, Community of Interest The employer argues, in the alternative, that Mr. Holton is a supervisor who should not be included in the same unit with the rank-and-file employees. Inherent in that argument is the contention that the supervisory functions create a conflict of interest with the rank-and-file employees. Before addressing this potential conflict of interest, I will first consider whether a community of interest exists between the Public Works Foreman and the three other Public Works Department employees who are all in the Operator/Truck Driver/Laborer classification. The duty and necessity of the hearing examiner to determine whether a community of interest exists was described aptly by the Board with the following: 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 ____________________ 4 It is not clear that the Boothbay Harbor's Personnel Manual can be considered a "statute, ordinance or resolution" for the purposes of 962(6)(D) and I am making no judgment on that issue. -33- 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 Brewer, No. 79-A-01, slip op. at 4 (Me.L.R.B. Oct. 17, 1979). As previously mentioned, it is necessary to assess the eleven factors contained in Rule 1.11(F) in evaluating whether a community of interest exists. Considering these eleven factors will highlight whether there are any differences likely to result in divergent objectives or expectations at the bargaining table. Regarding the first factor, similarity in the kind of work performed, the evidence is clear that the Public Works Foreman and the Public Works Operators both spend a substantial part of their work day performing the same type of work maintaining the town roads and parks. The fact that the Foreman also performs various administrative tasks related to the public works function does not negate the overall similarity in the operational tasks performed. The second factor, common supervision and determination of labor relations matters, also supports a finding of a community of interest with the Operators. All of the positions are subject to the policies set forth in the Personnel Manual and all report to the Town Manager, either directly or through one level of supervision. As with the other unit, there was not enough evidence presented regarding the scale and manner of determining earnings to tip the balance one way or the other. Although both the Foreman and Operator positions are paid on an hourly basis, there -34- is no evidence regarding the wages paid nor any indication that the wages are either similar or significantly different. The manner of determining merit increases is spelled out in the Personnel Manual and applies to both positions. The fourth factor, similarity in benefits, hours and other terms and conditions of work, strongly supports a finding of community of interest. Both of the positions have the same benefits, the same work schedule, the same weekend assignments and the same conditions of employment. The only difference is that the Foreman is provided with a Town vehicle which he is allowed to drive home at night, a single item that does not detract from the community of interest. The employer has emphasized the differences in skills and training of the Foreman compared to Operators. The Foreman has an associate's degree in civil engineering and has extensive training in surveying techniques. There was no dispute that the Foreman possesses various skills regarding surveying and drainage systems not possessed by the other employees. It was not clear, however, that the specific skills and training possessed by the current Foreman were actually requirements or qualifications necessary for the job, as opposed to the particular attributes of the successful candidate. In any event, the Foreman possess a commercial driver's license, like the Operators, and operates the same machinery as the Operators. The fact that the Foreman has additional skills and training does not mean that interests of the Foreman at the bargaining table would be vastly different from those of the Operators. Overall, this factor provides support for a finding of community of interest. The sixth and seventh factors, frequency of contact and geographic proximity, strongly support a finding of community of interest. All of the Public Works Department employees meet daily in the Foreman's office at the town garage, often work together, and usually return to the garage for their breaks and lunch. -35- The eighth and tenth factors are not at issue here because there is no history of collective bargaining for these positions and the Union is interested in representing all of the positions. The ninth factor, the desires of the affected employees, will not be considered because only one person in the proposed unit testified on this matter. Finally, the eleventh factor, the employer's organizational structure, supports a finding of a community of interest as all of the positions are in the same functional unit. Having reviewed all of the community of interest factors referred to in Rule 1.11(F), I conclude that the Public Works Foreman shares a community of interest with the other position in the Public Works Department, the Operator/Truck Driver/Laborers. I must now consider whether the Public Works Foreman possesses supervisory duties that create such conflicts so as to preclude placement in the same unit as the rank-and-file employees. Public Works Unit, Supervisory Conflicts Although department heads are excluded from collective bargaining under the MPELRL, supervisors do have collective bargaining rights and may be included in bargaining units with subordinate employees. The Board has explained the issues surrounding unit placement of supervisors with: 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 fragment- ation, of small bargaining units, we have approved of the creation of such separate supervisory units. Maine School Administrative District No. 14, supra, at 12-13; Maine School Administrative District No. 43 and Maine -36- 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. Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, No. 85-A-01, slip op. at 8 (Me.L.R.B. Feb. 6, 1985). Thus, 966(1) helps the hearing examiner to minimize potential conflicts of interest in the bargaining unit by identifying situations where these supervisory conflicts may arise. The relevant portion of 966(1) states: 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. The focus of this three-part test is to determine whether the supervisor exercises a level of control over employment-related issues that would likely result in a conflict of interest. See Richmond Employees Association and Town of Richmond, No. 94-UD-09, slip op. at 30 (Me.L.R.B., Apr. 26, 1994). Based on the record, I conclude that the principal function of the Public Works Foreman does not create the sort of conflict justifying exclusion from the Public Works Department Unit. With respect to the first prong of the test, 966(1) requires me to consider whether the principal function of the -37- position involves management control duties such as scheduling, assigning and overseeing and reviewing the work of subordinate employees. The evidence shows that the Foreman spends the majority of his time working alongside the other department employees performing the substantive work of the department. He is also responsible for scheduling, assigning, overseeing and reviewing the work of the Department employees to some extent, but I cannot conclude that these constitute his principal function. The degree of responsibility that he holds is more in line with the activities of a working supervisor responsible for coordinating the work of a team. See, e.g., Winthrop School Department Food Service Employees, UPIU and Winthrop School Department, No. 97-UD-11 (Me.L.R.B. Aug. 27, 1997) (neither main site manager nor satellite managers have as their principal functions any significant degree of management control duties); Teamsters Local Union No. 48 and Van Buren Light and Power District, No. 85-UD-14 (Me.L.R.B. Jan. 25, 1985) (line foreman's duties of assigning, overseeing and reviewing work of employees was not so different from subordinates' duties so as to justify exclusion from unit). The Board's long-standing policy is to include working foremen in rank-and-file units. Council 74, AFSCME and Bangor Water District, No. 80-UD-01, slip op. at 7 (Nov. 30, 1979). Of the time that the Foreman spends on work that is not the manual work of the department, the work is related to supervisory functions and administrative tasks more reflective of his tech- nical expertise than supervisory or management control. For example, some of the time he spends in office work is to initiate purchase orders, keep track of expenditures on his computer and open bids. These are administrative tasks that, while essential to the effective operation of the department, are not closely linked to control over employment-related issues. The second prong of the test to determine whether a supervisory position should be excluded from a unit examines -38- whether the supervisor performs duties that are "distinct or dissimilar" from the duties of the supervised employees. As another hearing examiner noted, this criterion was not intended to include any dissimilar duties: [D]uties contemplated by the "distinct and dissimilar" criterion include those in connection with hiring (or making recommendations), transfers, layoffs and recalls, and promotions -- duties that substantially align the interests of the supervisor with the interests of the employer and cause conflicts of interest. State of Maine and Maine State Employees Association, No. 91-UC-04, slip op. at 15 (Me.L.R.B. Apr. 17, 1991) (Foreman's new computer responsibilities do not affect the alignment of interests). In the present case, the fact that the Public Works Foreman performs surveying, engineering tasks, administrative functions related to budgeting, purchasing and preparation for bids is not relevant to whether the position should be excluded from the unit. See, e.g., Winthrop, No. 97-UD-11, slip op. at 15 (recordkeeping and fiscal responsibilities are not "distinct and dissimilar" duties within the meaning of 966(1)); Lubec Education Association and M.S.A.D No. 19, No. 83-UD-17, slip op. at 8 (Me.L.R.B. Apr. 13, 1983) (Head Bus Driver's responsibilities of preparing and submitting budget and ordering supplies up to $500 per purchase not dissimilar duties). The only evidence presented regarding duties relevant to this criterion was testimony regarding the Highway Foreman's involvement in hiring Public Works Department employees. See, Lubec, slip op. at 8 (Head Bus Driver's participation in hiring process is distinct and dissimilar within the meaning of 966(1)). Based on the testimony presented and the provisions in the Personnel Manual, I conclude that the Public Works Foreman has input into hiring decisions but does not have final authority for making hiring decisions. Because the Personnel Manual -39- provides that layoffs and reinstatement rights are determined by departmental seniority, there is no room for discretion in that regard that could cause conflicts. Furthermore, there is only one classification subordinate to the Foreman's position, so he has no opportunity to affect promotions. Given all of the issues involved in analyzing the second prong of the 966(1) test, I conclude that the mere participation of the Public Works Foreman in the hiring process is not the level of involvement that creates the kind of conflict of interest justifying exclusion from the unit. With respect to the third prong of the test to determine whether a supervisor should be excluded from the subordinates unit, there was no evidence that the Public Works Foreman has ever had a need to exercise judgment in handling grievances or disciplinary matters. There was conflicting testimony regarding whether the Foreman actually possessed this authority.[fn]5 Similarly, there was no evidence that the Foreman established or participated in establishing performance standards for his crew or took corrective measures to implement those standards. In fact, the only subordinate employee testifying indicated that he had never had a performance evaluation conducted by the Foreman in his eight months of employment, even though the Personnel Manual indicates that an evaluation was due before the expiration of the 6-month probationary period. Furthermore, no evidence was presented by the Town Manager that the Foreman had conducted any formal performance evaluations on the subordinate employees. It is clear that the Public Works Foreman does have some supervisory responsibilities. He assigns and oversees the work of other members of the department and is involved in the hiring process. He has not, however, exercised any authority over grievance or disciplinary matters, nor has he been involved with the development or implementation of performance standards. I ____________________ 5 I make no finding on the issue of the Foreman's authority to discipline. -40- conclude that he does not exercise the type of management control that affects the employment of his subordinates to the extent that creates a conflict of interest. Even if I believed that these limited supervisory duties could create a conflict of interest with the subordinate employees in the unit, I do not think that would mandate the exclusion of the Foreman from the unit. Resolution of these issues requires a balancing of interests. On the one hand, the MPELRL guarantees the same rights to supervisors as to subordinate employees. On the other, collective bargaining will not be effective when there are substantial differences in objectives among the members of a unit. As previously mentioned, the purpose of analyzing the nature of a supervisor's duties is to "minimize potential conflicts of interest." Penobscot Valley Hospital, No. 85-A-01, slip op. at 8. It is not necessary for the hearing examiner to eliminate all conflicts. Given the limited supervisory duties involved, the balance of interests does not warrant the exclusion of the Public Works Foreman from the unit. Furthermore, creating a supervisory bargaining unit consisting of only one person would be contrary to the Board's long-standing policy against the proliferation of small bargaining units. The Board has explained the rationale for this policy with: "Small bargaining units must be bargained for and serviced just as do 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." Maine School Administrative District No. 14 and East Grand Teachers Assoc., No. 83-A-09, slip op. at 13 (Me.L.R.B. Aug. 24, -41- 1983), quoting with approval Teamsters Local Union No. 48 and Bucksport School Dept., No. 80-UD-19, slip op. at 3 (Me.L.R.B. Mar. 13, 1980). The Board has held that Section 966(1) requires the hearing examiner to consider as "other criteria" the non- proliferation policy. Id. Consideration of this policy supports my conclusion that the Public Works Foreman should be included in the Public Works Department bargaining unit. APPROPRIATE UNIT DETERMINATION On the basis of the parties' stipulations, findings of fact made by the hearing examiner, and the foregoing discussion, and pursuant to the provisions of 26 M.R.S.A. 966, I conclude that the following two units are appropriate for the purposes of collective bargaining: Office and Clerical Employees Unit, Case No. 99-UD-03 INCLUDED: Assessor's Clerk/Asst. Tax Collector, Bookkeeper/Deputy Treasurer/Asst. Tax Collector, Code Enforcement Officer. EXCLUDED: Deputy Tax Collector/Administrative Secretary, Administrative Assistant and all other employees of the Town of Boothbay Harbor. Public Works Department Unit, Case No. 99-UD-05 INCLUDED: Public Works Foreman, Truck Driver/ Operator/Laborer. EXCLUDED: All other employees of the Town of Boothbay Harbor. Dated at Augusta, Maine, this 20th day of January, 1999. MAINE LABOR RELATIONS BOARD /s/________________________ Lisa Copenhaver Attorney Examiner The parties are hereby advised of their right to appeal this report to the Maine Labor Relations Board pursuant to 26 M.R.S.A. -42- 968(4) (Supp. 1998). To initiate such an appeal, the party seeking appellate review must file a notice of appeal with the Board within fifteen (15) days of the date of issuance of this report. See Board Rules 1.12 and 7.03 for requirements. -43-