STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 01-UD-04 Issued: May 23, 2001 _________________________ ) GRANITE CITY EMPLOYEES ) ASSOCIATION, ) ) Petitioner ) ) UNIT DETERMINATION REPORT and ) ) CITY OF HALLOWELL, ) ) Respondent ) _________________________) PROCEDURAL HISTORY This unit determination proceeding was initiated on February 2, 2001, when Richard D. Mersereau, a representative of the Granite City Employees Association ("Association"), filed a Petition for Unit Determination and Bargaining Agent Election with the Maine Labor Relations Board ("Board" or "MLRB").[fn]1 This Petition requested, in part, a determination that the following employees of the City of Hallowell ("City") constituted an appropriate bargaining unit within the meaning of 26 M.R.S.A. 966 and Chap. 11, 22 of the Board Rules: City Clerk, City Treasurer, Deputy Clerk, Police Officers, Highway Foreman, Highway Workers, Janitor and Code Enforcement Officer. [fn]2 The City filed a timely response to this Petition on February 20, 2001. ____________________ 1 On February 1, 2001, J. Michael Huston, the Hallowell City Manager, filed a Petition for Unit Determination, Unit Merger and/or Election, and Unit Clarification. In a letter dated February 2, 2001, the Board advised Mr. Huston of various insufficiencies with this Petition. Mr. Huston later advised the Board that he did not intend to amend his petition, and wished to have the Board process the Association's Petition instead. Therefore, the City's Petition was effectively dismissed in accordance with Chap. 11, 9(4) of the Board Rules. 2 The parties have since agreed that one of the employees designated as a "Police Officer" in the original Petition is the "Deputy Police Chief" and that the "Highway Workers" are properly designated as "Equipment Operators" or "Laborers." [-1-] _________________________________________________________________ On March 22, 2001, a prehearing conference was held in this matter. A Prehearing Conference Memorandum and Order was issued on March 23, 2001, which delineated the issues as agreed to by the parties and which identified all witnesses and exhibits. This Memorandum and Order is incorporated by reference into this decision. Prior to the unit determination hearing being held on April 4, 2001, the parties met with the hearing examiner to explore the possibility of settlement, to refine the exhibit list and to formulate stipulations of fact. HEARING After due notice, an evidentiary hearing on the unit determination petition was held by the undersigned hearing examiner on April 4, 2001, at the Board's hearing room in Augusta, Maine. Richard D. Mersereau appeared on behalf of the Association. Robert J. Stolt, Esq., appeared on behalf of the City. No one requested to intervene in the matter. The Association presented as its witnesses: Eric Nason, Deputy Police Chief; Robert Rayot, Highway Foreman; Deanna Hallett, City Clerk; and Dawna Doyon, City Treasurer. The City presented as its witnesses: Rod Myrick, Police Chief; and J. Michael Huston, City Manager. The parties were given the opportunity to examine and cross- examine witnesses and to offer evidence. The parties agreed to file post-hearing briefs in lieu of oral argument, which briefs were filed with the Board simultaneously on April 20, 2001. EXHIBITS The following exhibits were offered by the Association without objection by the City, and were admitted into the record: P-1 Charter of the City of Hallowell P-2 Revised Code of Ordinances, City of Hallowell (1997)(portions) -2- _________________________________________________________________ P-3 City of Hallowell Personnel Regulations [the City supplied the Hearing Examiner with a complete set of these Regulations after the hearing] P-3A Current Compensation Schedule for employees P-4 Rules and Regulations of the Hallowell Police Department P-5 Deputy Chief job description P-8 Treasurer/Deputy Tax Collector job description P-9 Section 9-181 Revised Code of Ordinances, City of Hallowell (Code Enforcement Officer powers and duties)[excluding handwritten comments on document] P-10 Deputy City Clerk job description The Association withdrew its offer of P-6 (Highway Foreman job description) and P-7 (City Clerk job description), as these were draft or proposed documents, never finalized. The City offered no exhibits. STIPULATIONS The parties agreed to the following factual stipulations on the record: 1. The Granite City Employees Association ("GCEA") is a public employee organization that seeks to become the bargaining agent for the employees in the proposed bargaining unit, within the meaning of 26 M.R.S.A. 962(2). 2. The City of Hallowell is a public employer within the meaning of 26 M.R.S.A. 962(7). 3. There is neither a contract bar nor an election bar to the GCEA's petition. 4. Prior to this petition, none of the employees proposed for inclusion in the unit has been the subject of a unit determination. 5. On September 14, 1990, the following documents were filed with the Maine Labor Relations Board ("MLRB") regarding the Hallowell Public Works Employees Assocation: Agreement on Appropriate Bargaining Unit (MLRB Form 1) and Voluntary -3- _________________________________________________________________ Recognition Form (MLRB Form 3). 6. On May 6, 1992 the MLRB certified that as a consequence of a decertification election among the employees of the Hallowell Public Works Employees Association, no representative was elected. 7. None of the exceptions to the definition of "public employee" found in 26 M.R.S.A. 962(6) apply to the following positions at issue: Deputy Clerk, Code Enforcement Officer, Janitor, Deputy Police Chief, Police Officer, Highway Foreman, Equipment Operator, Highway Laborer. 8. This case does not raise the question of whether the unit should include professional and non-professional employees in the same unit, within the meaning of 26 M.R.S.A. 962(5). 9. In the event that the proposed unit is not found to be appropriate, the GCEA wishes to participate in an election in the unit or units found to be appropriate. JURISDICTION The jurisdiction of the hearing examiner to hear this matter and to make a unit determination lies in 26 M.R.S.A. 966(1) and 966(2). FINDINGS OF FACT General findings 1. The executive body of the City is the City Council and the Mayor, all elected officials. The City Council and Mayor appoint a variety of officers in the City pursuant to Article VI, Section 1(a) of the City Charter including: the City Manager, the City Clerk, the City Treasurer, and the Code Enforcement Officer. 2. Pursuant to Article VI, Section 3(b) of the City Charter, all appointive officers (except the City Manager and -4- _________________________________________________________________ other officers not relevant here) are appointed to terms of one year. They are re-appointed at the beginning of January, each year. 3. Most employees in the proposed bargaining unit work in the City Hall building. Working on the first floor of the City Hall are the Police Chief, Deputy Police Chief, the three full- time Police Officers, the Code Enforcement Officer and the Janitor. Working on the second floor of the City Hall are the City Manager, City Clerk, City Treasurer, and the Deputy City Clerk. 4. The highway employees (Highway Foreman, two Equipment Operators and one Laborer) work out of the public works garage, which is located about one mile from City Hall. 5. All of the employees at issue have frequent social and professional contact at work. All of the employees who work at the City Hall see each other several times per day, and have frequent need to discuss issues related to City business. The Highway Foreman has a mailbox at the City Hall, and goes there at least once per day. The Highway Foreman has at least daily contact with the City Manager about City business, and also frequent contact with the police department about various problems and City projects. The other public works employees have the least frequent contact with the City Hall employees -- perhaps a few times per week. 6. Section 2-421 of the Revised Code of Ordinances identifies the following departments and heads within the city: Office of the Treasurer, headed by the City Treasurer; Police Department, headed by the Chief of Police; Fire Department, headed by the Fire Chief; Office of Code Enforcement, headed by the Code Enforcement Officer; Department of Public Works, headed by the City Manager; and Office of General Assistance, headed by the General Assistance Administrator. Regarding the "departments" relevant to this Petition, only the police and the -5- _________________________________________________________________ public works departments employ more than one employee. 7. Article VI, Section 6 of the City Charter provides that the City Manager is the administrative head of the City and responsible only to the City Council for the administrative management of all departments of the City. Article XV of the Personnel Regulations provides that a regular employee may be suspended, dismissed or demoted by a department head, but only with the approval of the City Manager. Regular employees can be disciplined for cause; cause to be determined by the City Manager. 8. The City maintains position classifications and pay grades based on longevity for each of the positions at issue; these are contained in Article III and Article IV of the Personnel Regulations. Yearly cost-of-living increases are generally voted upon by the City Council. The positions at issue have the following grades and current ranges: Highway Foreman (Grade 17), $27,059 - $36,757; Code Enforcement Officer (Grade 15), $24,425 - $32,686; Deputy Police Chief and City Treasurer (Grade 14), $23,227 - $30,890; Police Officer (Grade 13), $22,030 - $29,094; Equipment Operator (Grade 12), $20,953 - $27,418; City Clerk (Grade 11), $19,875 - $25,862; Laborer (Grade 9), $17,959 - $22,868; and Deputy Clerk (Grade 7), $16,283 - $20,354. All positions at issue are paid on an hourly basis, except for the Code Enforcement Officer, who is salaried. 9. All positions at issue are offered the same benefits by the City: retirement, medical and dental insurance, life insurance and disability income. All of the positions at issue are offered the same holidays, and vacation and sick leave accrual. 10. All of the employees testifying claimed interest in joining an employee organization, and indicated a similar interest amongst the employees not at the hearing to testify. The Deputy Police Chief is the President of the GCEA; the Highway -6- _________________________________________________________________ Foreman is the Vice President of the GCEA. 11. Section 2.4 of the Personnel Regulations provides that all persons appointed, promoted or transferred within the City shall serve a probationary period of six months, except police officers who must serve a probationary period of one year. Probationary employees may be removed at any time during the period without cause and without the right to file a grievance as provided in the Regulations. 12. Section 13.9 of the Personnel Regulations provides that employees are required to respect the confidential nature of sensitive information learned in the course of their work (including, but not limited to, information about labor relations, personnel actions, and welfare recipients). This prohibition applies during the City employment, and any time after termination as well. Findings regarding the Deputy Police Chief 13. The Deputy Police Chief has been an employee of the City for 12 years. He has served as Deputy for five years. 14. Some time after his hire as Deputy, the Deputy Police Chief was given a written job description, which accurately reflects his duties (P-5). 15. The Deputy Police Chief is required to have three years' experience as a police officer, an Associate's Degree or any equivalent combination of experience and training. The Deputy Police Chief must be a graduate of the Maine Criminal Justice Academy. The police officers must become a graduate of the MCJA within the first year of their employment. 16. The police department provides coverage to the City 24 hours per day, pursuant to a long-standing schedule. There is a police officer assigned to cover each eight-hour shift. The Police Chief works a regular schedule, 8:00 a.m. to 5:00 p.m., -7- _________________________________________________________________ Monday to Friday. The Deputy Police Chief works 8:00 a.m. to 4:00 p.m., Mondays, Wednesdays and Thursdays; he works 4:00 p.m. to midnight on Tuesdays and Fridays. The full-time police officers and some part-time reserve officers cover the remainder of the weekly schedule. 17. The Deputy Police Chief fulfills all of the duties of a police officer during his shift; that is, he is the sole duty officer on the five shifts he works during the week, with similar responsibilities to the police officers assigned to their individual shifts. 18. The Police Chief created a master work schedule that does not change much from week to week. The Deputy Police Chief is sometimes called upon to change the schedule, such as filling shift vacancies. 19. The Deputy Police Chief is the "first line" supervisor of the police officers. He can reprimand officers either orally or in writing about their job performance, although this has rarely in fact occurred. The Deputy Police Chief usually refers all discipline matters to the Police Chief. The Police Chief has authority to discipline police officers. If such discipline involved suspension or discharge, the Police Chief would refer the matter to the City Manager. 20. The Deputy Police Chief is responsible for evaluating the police officers on a yearly basis, with the Police Chief reviewing and signing off on the evaluation. However, the Deputy Police Chief has not, in fact, written any job evaluations of the police officers. The Police Chief has found that written evaluations are not really needed. 21. The Deputy Police Chief spends little time in direct supervision of the police officers (perhaps ten percent of his time). His primary job duties are criminal investigation, and other routine police work. -8- _________________________________________________________________ 22. Both the Deputy Police Chief and the Police Chief may give out special assignments to the police officers. 23. Police officers are hired upon recommendation of an "oral board" made up of Council members, citizens, etc. The Deputy Police Chief has little input in the hiring of police officers. The Deputy Police Chief interviews and recommends reserve officers for hire. The Police Chief and City Manager are ultimately responsible for the hiring of reserve officers. 24. The Deputy Police Chief assumes the duties of the Police Chief in his absence. 25. The Deputy Police Chief has "on-call" responsibility. He is the first to be called if there is a major accident or other incident that the police officers cannot handle by themselves. The Police Chief may eventually also be called in such cases. 26. The Police Chief is responsible for training patrol officers, but the Deputy Police Chief may recommend to the Chief what training is needed. 27. If a police officer came to the Deputy Police Chief with a personnel concern, he would refer it to the Police Chief. Findings regarding the Highway Foreman 28. The Highway Foreman has been employed in that position for about four years. He has been employed by the City for about nine years. 29. Other employees of the Public Works Department include two full-time equipment operators and one part-time laborer. Occasionally, additional part-time help is employed during the summers. 30. All of the full-time Public Works employees work from 7:00 a.m. to 3:30 p.m., Monday to Friday. Additional overtime -9- _________________________________________________________________ hours are worked during the winter. 31. The Highway Foreman was hired into this position by the City Manager, after review by an "oral board" made up of Council members, citizens, etc. The Highway Foreman is supervised by the City Manager who, pursuant to the City Charter and the Revised Code of Ordinances, is the Street Commissioner and ultimately responsible for street maintenance. The Highway Foreman usually meets daily with the City Manager to discuss projects and, sometimes, personnel issues. 32. There is no written job description for the Highway Foreman position. 33. The Highway Foreman generally supervises the day-to-day operations of the Public Works Department. He schedules the other employees and assigns work to them. The Highway Foreman is supposed to complete monthly reports about the work of the department for the City Manager. The Highway Foreman completes time cards for the department employees. 34. The Highway Foreman spends most of his time (at least 80 percent) working along-side the employees of the Public Works Department, and doing the same work that they do (equipment operation, road repair, etc.). 35. The Highway Foreman supervises the Public Works Department employees primarily by orally advising them when they are doing things wrong. He has made some "spur of the moment" discipline decisions, such as sending an employee home who came to work intoxicated. If the Highway Foreman has any more serious discipline problems with his crew, he refers such problems to the City Manager, who is empowered to administer discipline up to discharge. The Highway Foreman does not complete written evaluations of the Public Works Department employees. 36. The Highway Foreman generally establishes and implements -10- _________________________________________________________________ performance standards for the public works employees on the job. 37. The Highway Foreman suggests people to be hired in the department, particularly the summer help. The City Manager makes the final decisions on hiring. 38. The Highway Foreman suggests to the City Manager when projects need to be contracted out. He has recommended certain contractors in the past, and has reviewed bids with the City Manager. 39. The Highway Foreman buys supplies for the department up to $75. Costlier items must be approved by the City Manager. 40. The job qualifications for the Highway Foreman are similar to that for the crew: a high school diploma and a commercial driver's license. The Foreman position requires more experience than the crew members. Findings regarding City Clerk 41. The City Clerk has been a full-time City employee since 1976. The incumbent has served in the position of City Clerk since 1984, having been re-appointed on a yearly basis in January of each year. 42. The City Clerk also serves in several other capacities for the City, including deputy tax collector and cemetery clerk. 43. Pursuant to Section 2-701 of the Revised Code of Ordinances, the City Clerk performs duties prescribed by City Council or the City Manager and shall generally do and perform all duties and exercise all powers by law vested in a town or city clerk. 44. Pursuant to Section 2-702 of the Revised Code of Ordinances, the City Clerk is the clerk of the municipal officers (defined as the Mayor and Council). The City Clerk takes minutes -11- _________________________________________________________________ of the City Council meetings, except executive sessions, where no minutes are kept. The City Clerk also can act as secretary to various Boards in the City. 45. The City Clerk served no probation period after her initial appointment in 1984. If a new City Clerk was to be appointed, that person would need to serve a probation period in keeping with the current Section 2.4 of the Personnel Regulations. 46. The City Clerk works 8:00 a.m. to 3:00 p.m., Monday to Friday. The Deputy City Clerk works 9:00 a.m. to 5:00 p.m. 47. The day-to-day duties of the City Clerk include performing customer service at the public desk located in the City Hall (taking taxes, issuing licenses, etc.), answering telephones and maintaining the City records. 48. The City Clerk is considered the secretary of the City Manager. However, the City Manager does almost all of his own word processing, on a personal computer that is not networked with the computers of the other City Hall employees. The City Clerk does almost all of his filing. The City Manager handled his own word processing for matters related to the present petition. 49. The City Clerk appoints a Deputy City Clerk, pursuant to Maine state law and Section 2-703 of the Revised Code of Ordinances. Her decision to hire the present Deputy City Clerk was reviewed by the City Manager. The City Manager serves as the de facto supervisor of the Deputy City Clerk. Findings regarding the City Treasurer 50. The City Treasurer has served in the position since her hire in September 1999. She has been re-appointed to the yearly position twice since her initial hiring, in January, 2000, and in January, 2001. She was hired by the City Manager and the Mayor. -12- _________________________________________________________________ 51. When the City Treasurer was hired, she was advised that she would serve a six-month probation period. 52. Pursuant to Section 3-401 of the Revised Code of Ordinances, the City Treasurer performs duties as prescribed by the City Council or the City Manager. Her described duties are contained in Section 3-402 - 3-416 and include keeping the City's financial records, receiving bills and accounts, presenting bills incurred to the City Council, signing warrants, preparing a monthly report of expenditures and appropriations for the Mayor and City Council, and issuing quitclaim deeds upon payment of taxes. Article VII of the City Charter also describes duties of the City Treasurer. 53. The day-to-day duties of the City Treasurer include many of those also performed by the City Clerk and the Deputy Clerk, such as performing customer service at the public desk located in the City Hall and answering telephones. She performs general bookkeeping tasks, such as accounts payable and receivable, sends out tax bills, and does the payroll. 54. The City Treasurer works 8:00 a.m. to 5:00 p.m., Monday to Friday. 55. The City Treasurer has a written job description (P-8). This description provides that the City Treasurer's supervisor is the City Manager. DISCUSSION The parties agreed at the prehearing conference that the following issues were to be addressed in the present unit determination report: (1) Are the positions of City Clerk and City Treasurer excluded from the definition of "public employee" -13- _________________________________________________________________ pursuant to 26 M.R.S.A. 962(6)(B) ("appointed to office")?[fn]3 (2) Are the positions of City Clerk and City Treasurer excluded from the definition of "public employee" pursuant to 26 M.R.S.A. 962(6)(C) ("confidential")? (3) Are the positions of Highway Foreman and Deputy Police Chief "supervisors" within the meaning of 26 M.R.S.A. 966(1), and therefore excluded from the bargaining unit with those employees they supervise, or placed in a separate bargaining unit? (4) Do the positions comprising the proposed bargaining unit (City Clerk, City Treasurer, Deputy Clerk, Code Enforcement Officer, Janitor, Deputy Police Chief, Police Officers, Highway Foreman, Equipment Operators, and Highway Laborer) share a community of interest within the meaning of 26 M.R.S.A. 966(2) and Chap. 11, 22(3) of the Board Rules? In this report, the hearing examiner will address the issues in the order as described above. Employees appointed to office - City Clerk and City Treasurer The employer argued that both the City Clerk and the City Treasurer should be excluded from the bargaining unit pursuant to 26 M.R.S.A. 962(6)(B). This issue was preserved by the City for review, both at the prehearing conference and by the stipulations entered into by the parties at the hearing. Section 962(6)(B) excludes from the definition of "public employee" 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. As a preliminary matter, regarding this as well as the other exclusions argued by the City, it is important to note that the ____________________ 3 During the hearing and in its post-hearing brief, the City raised the issue whether the Code Enforcement Officer also should be excluded from the definition of "public employee" pursuant to 26 M.R.S.A. 962(6)(B)("appointed to office"). -14- _________________________________________________________________ statutory exclusions from collective bargaining must be strictly construed. The statute is remedial in nature and therefore the exclusions must be narrowly drawn to effectuate the fundamental purpose of the statute. State of Maine and MSEA, 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 at least three 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); Town of Thomaston and Teamsters Local Union 340, No. 90-UC-03, slip op. at 15-17 (Me.L.R.B. Feb. 22, 1990). Article VI, Sections 1 and 3 of the City Charter provide that both the position of City Clerk and City Treasurer are appointed by the Mayor and the City Council; the appointments are for the terms of one year. There seemed to be no dispute that the Mayor and the City Council constitute the executive body of the City, judging by the powers and duties granted to them by Article II and Article III of the City Charter. The City Manager, for instance, while possessing many responsibilities and duties, is also appointed by the Mayor and the City Council (although he does not serve for a set term, and can be removed only for cause after six months of service). Therefore, both the City Clerk and the City Treasurer were appointed pursuant to statute for a specified term by the executive body of the City. The issue remains, however, whether either the position of City Clerk or City Treasurer can be considered an "office" within the meaning of 962(6)(B), for only those persons "appointed to office" must be excluded under this provision (emphasis added). Two hearing examiners in the past have been required to discern the meaning of this term in cases involving towns where a large -15- _________________________________________________________________ number of municipal employees were appointed on a yearly basis. In Teamsters Union Local 340 and City of Presque Isle, No. 92-UD-10 (Me.L.R.B. Aug. 18, 1992), the hearing examiner considered whether the positions of city clerk, treasurer, tax collector, code enforcement officer, assessor, general assistance administrator, emergency management director, and animal control officer, all appointed by the city for yearly terms, should be excluded under 962(6)(B). The hearing examiner questioned whether the legislature intended to exclude all fixed-term appointees, no matter what the nature of their position: [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, slip op. at 21. While finding that neither the MPELRL nor its legislative history casts light upon the definition of the term "office," the hearing examiner considered other provisions in state law to determine that "office" means more than "employment" in any position appointed for a fixed term.[fn]4 The hearing examiner concluded that "appointed to office" indicated that a person was appointed to a ____________________ 4 The hearing examiner looked to the following provisions of municipal law: (1) both police and constables may be appointed for fixed terms under state law, but are both clearly able to organize for purposes of collective bargaining; (2) certain positions are referred to as "officials" in Title 30-A, such as Clerks, Treasurers, Tax Collectors and members of the Boards of Assessors; (3) both "officials" and "employees" may be removed for cause after notice and hearing, while only "officials" are described as serving a fixed term, pursuant to 30-A M.R.S.A. 2601; (4) just-cause hearings need only be offered to municipal "employees" who have served a probation period pursuant to 30-A M.R.S.A. 2701; (5) parallel provisions of the other state labor relations laws have been interpreted to exclude only positions demanding loyalty or political responsiveness. -16- _________________________________________________________________ "core municipal position," a position " . . . high enough in municipal government for political responsiveness to be expected, either through election or through fixed-term appointment." Presque Isle, slip op. at 23, 25. With this reasoning, the hearing examiner refused to exclude the code enforcement officer, the animal control officer, the general assistance administrator and the emergency management director. In Teamsters Union Local No. 340 and Town of Boothbay Harbor, Nos. 99-UD-03, 99-UD-05 (Me.L.R.B. Jan. 20, 1999), another hearing examiner refused to exclude a code enforcement officer, a deputy treasurer and a deputy tax collector, although all were appointed for fixed terms, finding the reasoning in Presque Isle to be persuasive. The present matter is significantly different from either Presque Isle or Boothbay Harbor, however. The City here does not appoint a large number of employment-like positions to fixed terms. Most of the positions appointed under the City Charter are for volunteer posts, or posts carrying perhaps a small stipend (Board of Planning and Zoning, Superintendent of the Cemetery, and the like). Therefore, the general concern expressed in Presque Isle that a municipality could undermine the right to collective bargaining by extensive appointment powers is not in evidence here. In addition, the hearing examiner was unable to find any Board decisions in which the positions of City Clerk or City Treasurer have not been excluded under 962(6)(B). In Presque Isle, for instance, despite the extensive discussion of the meaning of the exclusion, the positions of City Clerk, Treasurer and Tax Collector were all excluded without further discussion about the nature of their positions. In Town of Thomaston and Teamsters Local Union No. 340, No. 90-UC-03 (Me.L.R.B. Feb. 22, 1990), where the purpose of the exclusion was described as " . . . allowing the town to maintain an element of political responsiveness in certain town positions," the Town Clerk was found "clearly" to be excluded under 962(6)(B), in -17- _________________________________________________________________ dicta. Thomaston, slip op. at 17.[fn]5 If the concept of "core municipal officer" is a valid one, it is difficult to think of positions that are more "core" to municipal government than the positions of City Clerk and City Treasurer. A review of state municipal law strongly suggests that both of these positions are properly deemed to be appointed to an "office." First, both the position of the Clerk and the Treasurer are required by state law to perform certain unique duties for the municipality. A municipal Clerk is required by state law to provide a variety of core functions for the municipality in the conduct of elections, election recounts, and the conduct of town meetings. See 30-A M.R.S.A. 2501(1), 2524, 2528, 2530-A, 2531-A, 2553, 2554 . A Clerk may appoint one or more deputies or assistants, who shall perform any duties of the office prescribed by the Clerk, and who serves at the will of the Clerk. See 30-A M.R.S.A. 2603, 2654. A Clerk may be required to be bonded, and the surety on the bond extends to any deputies or assistants. See 30-A M.R.S.A. 2603, 2651, 2654. When a municipal Treasurer is qualified and chosen, the Clerk must send the name of the Treasurer to the Treasurer of State; the Treasurer of State will not send money to a municipality until receiving the name of the Treasurer. See 30-A M.R.S.A. 5602. The Treasurer's powers of disbursement are strictly limited by statute. For instance, a Treasurer may only disburse money on the authority of a warrant for the purpose, affirmatively voted and signed by a majority of the municipal officers; written policies allowing the disbursement of ____________________ 5 In Thomaston, the hearing examiner dismissed the town's unit clarification petition because there were no "changed circumstances" to support the petition. The petition sought, in part, to exclude the position of Town Clerk, although the town had agreed in contract negotiations to include the position in the bargaining unit. Though dismissing the petition, the hearing examiner went on to determine the "likely outcome" of arguing that the position of Town Clerk would be excluded under 962(6)(B) in the event the town properly filed a petition in the future. Slip op. at 15. -18- _________________________________________________________________ employee's wages and municipal education costs must be filed annually with the Town Clerk and the Treasurer; accounts or claims must be itemized and declared public records. See 30-A M.R.S.A. 5603, 5604. The Treasurer also plays a role in a variety of procedures defined by state law, including enforcing tax liens, selling real estate for taxes, and collecting and paying taxes. See 36 M.R.S.A., 752, 758, 759, 942, 944, 1487, 1489, 1076, 1078. A Treasurer must be bonded and, like a Clerk, may appoint a deputy who serves at her will; the surety of the bond extends to any deputies. See 30-A M.R.S.A. 2603, 5601. Second, the language of various provisions of the state municipal law strongly suggests that both the Clerk and the Treasurer are considered "officials" of a municipality. 30-A M.R.S.A. 2001(11) defines a "municipal official" as any elected or appointed member of municipal government. 30-A M.R.S.A. 2601 allows municipal officers (defined as the mayor and councilors of a city in 30-A M.R.S.A. 2001) to appoint all municipal "officials" and "employees"; the term of municipal "officials" (only) is limited to one year, unless otherwise specified. Certain positions must be elected (such as school committee members); there appears to be no other limit on what "officials" or "employees" can be appointed. However, 30-A M.R.S.A. 2526 describes the choice and qualifications of town "officials"; mentioned in this section are Selectmen and Overseers, Assessors, Road Commissioners, Treasurers and Tax Collectors, and Clerks. Only the Clerk, Treasurer and Collector of a municipality are empowered to appoint deputy "officials." These deputies serve at the will of the appointing "official" and may perform any duties of "office" prescribed by the "official." -19- _________________________________________________________________ 30-A M.R.S.A. 2603.[fn]6 Therefore, state law supports a finding that both the City Clerk and the City Treasurer hold an "office," and that it was this type of position that the Legislature intended to exclude by enacting 962(6)(B). The Petitioner argued that "full time employees" who do not perform "policy formation, public responsibility or personnel management" should not be excluded from the benefits of collective bargaining merely because they are appointed to office; if this were the law, the Petitioner argued, would not all appointed Clerks and Treasurers be excluded? Association's Brief at p. 9. As stated above, the hearing officer could not find any unit report of the Board in which the positions of Clerk and Treasurer were not excluded. Municipalities may agree to include such positions in a bargaining unit, but may also seek to exclude them under the law, if they seek the exclusion in a proper and timely fashion. That was precisely the issue presented in Town of Thomaston, supra. It would be a mistake, this hearing officer believes, to refuse to exclude a position under 962(6)(B) only on the basis that the day-to-day duties of that position seem somewhat mundane, or do not include policy- making functions or the like. Carried too far, such reasoning would result in the exclusion of virtually no appointed officials, which cannot have been the intent of the Legislature. Finally, the hearing examiner raised the issue of whether a person appointed for office for a year who is also required to serve a six-month probation period can be said to have been "Appointed to office . . . for a specified term of office . . ." as defined by 26 M.R.S.A. 962(6)(B). In the present case, the ____________________ 6 The Maine Supreme Judicial Court has also described the position of treasurer as a "public officer" or as holding an "office." Inhabitants of Rumford v. Inhabitants of Upton, 95 A. 226, 229 (Me. 1915); Monticello v. Lowell, 70 Me. 437, 438 (Me. 1879). -20- _________________________________________________________________ City Treasurer was required to serve a probation period when she was first appointed in 1999; she has since been re-appointed to office in 2000 and 2001. Section 2.4 of the Personnel Regulations provides that all persons appointed within the City must serve a six-month probationary period. The City Clerk did not serve a probationary period, but this appears to be due to the fact that her original appointment pre-dated the Personnel Regulations. The City made some effective arguments on this point,[fn]7 but still avoided addressing the core contradiction in making an appointive official serve a probationary period. While it may be true, for instance, that the City Treasurer has no "just cause" protection against any decision by the City not to re-appoint her, and she can have no realistic expectation of long-term employment simply because she served a probationary period, she does have just cause protection against her removal from office during each of her appointed terms. This is so both under state law [30-A M.R.S.A. 2601(1)] and under Article VI, Section 3 of the City Charter, which provides for the removal of an appointive officer only upon written charges after a public hearing. A probationary period is more than simply an "effective management principle," as described by the City; it means that a person serving such a period can be removed without cause or process. This is a contradiction. Both the City of Presque Isle and the Town of Boothbay Harbor decisions discuss the contradiction of an appointed official serving a probationary period. For instance, the Presque Isle hearing examiner noted that under 30-A M.R.S.A. 2601(1) both officials and employees may be removed for cause after notice and hearing, while under 30-A M.R.S.A. 2701, just cause protection is only accorded to municipal employees after they have served a probationary period. The hearing examiners in ____________________ 7 The City made these arguments regarding the Code Enforcement Officer only, although as will be discussed later in the decision, the issue of whether the Code Enforcement Officer should be excluded as an appointed officer is no longer properly before the hearing examiner. -21- _________________________________________________________________ both decisions cited the requirement of serving a probationary period as a factor in determining that certain positions -- such as a code enforcement officer -- should not be excluded under 962(6)(B). While this hearing examiner agrees that the serving of a probationary period is a valid factor in determining whether or not a person was appointed to office for a specified term, she does not believe that this can be the sole basis of the decision. Here, the hearing examiner is considering two positions which were excluded by the hearing examiner in Presque Isle without further discussion.[fn]8 Various provisions of state law, already cited, provide an independent basis for finding that both the City Clerk and City Treasurer hold an "office," which cannot be said for all of the positions the hearing examiners refused to exclude in Presque Isle and Boothbay Harbor. The reality of present municipal government may be that persons appointed to positions like that of the City Clerk and City Treasurer are appointed over and over again, if only to limit the need for orientation and training every year.[fn]9 The fact that a municipality hopes to re-appoint such positions for years may make the serving of a probationary period seem logical to the municipality. Nevertheless, a person serving an appointment for one year can never expect or legally demand re-appointment, and serving a probationary period does not alter this fact. Particularly after the first year of service, as has now passed with the City Treasurer, the probationary period she served has _____________________ 8 It was unclear from the Presque Isle decision whether either the city clerk, treasurer or tax collector, all excluded, served probationary periods or not. 9 The fact that a person is re-appointed to successive terms, or that a municipality hopes to re-appoint them to successive terms, does not alter the meaning or purpose of the exclusion. As the hearing examiner stated in Town of Thomaston, the fact that a person is reappointed to successive terms is irrelevant to the issue whether that person should be excluded under 962(6)(B); a "desire for continuity does not undercut the presumed purpose of the exclusion . . . ." Town of Thomaston, slip op. at 17. -22- _________________________________________________________________ no continuing meaning that the hearing examiner can discern. The City Treasurer is in the same position as the City Clerk now -- both are appointed to what can justly be called "offices" and they are both only appointed for one-year terms. For all of these reasons, the hearing examiner finds that both of these positions must be excluded under 962(6)(B). Employees appointed to office - Code Enforcement Officer During the hearing, the employer raised the issue whether the Code Enforcement Officer (hereinafter "CEO") should also be excluded as an appointed position pursuant to 26 M.R.S.A. 962(6)(B). The hearing examiner finds that the employer has waived this issue, and that the employer stipulated to the fact that the CEO was a "public employee" within the meaning of 962(6). During the prehearing conference, the City Manager represented to the hearing examiner that the City was arguing only that the City Clerk and the City Treasurer were excluded from the definition of "public employee" pursuant to 962(6)(B).[fn]10 This fact is reflected in the Prehearing Conference Memorandum and Order. Further, the parties were advised in the Order that " . . . any parties wishing to alter or add to the above-described list of issues, witnesses or exhibits must give notice to the hearing officer and the opposing party no later than Friday, March 30, 2001, and show cause why such alteration or addition should be allowed." Order at pp. 3-4 (emphasis added). The employer did not raise this additional issue until the course of the hearing on April 4, 2001. More importantly, the City (represented at this point by Mr. Stolt) stipulated to the following fact, prior to the ____________________ 10 The City Manager represented the City at the prehearing; he advised the hearing examiner that Robert J. Stolt, Esq., would represent the City at the hearing. -23- _________________________________________________________________ hearing: 7. None of the exceptions to the definition of "public employee" found in 26 M.R.S.A. 962(6) apply to the following positions at issue: Deputy Clerk, Code Enforcement Officer, Janitor, Deputy Police Chief, Police Officer, Highway Foreman, Equipment Operator, Highway Laborer (Emphasis added). The City cannot now be heard to claim that it is unable to "waive" a statutory exclusion. Hearing examiners in the past have been required to interpret the meaning of various terms in the 962(6)(B) exclusion, such as the meaning of appointed to "office," as more fully discussed above.[fn]11 Obviously, if determinations regarding such exclusions were so unambiguous, hearings such as this one would be unnecessary. Given this, the City was well within its right and authority to determine which of the positions at issue were arguably excluded under 962(6)(B) and which were not. Because the City has represented that the exclusion of the CEO was not an issue in this matter and has stipulated that none of the exceptions to the definition of "public employee" apply to the CEO, the CEO will be included in the bargaining unit. Confidential employees The City argued that both the City Clerk and the City Treasurer are excluded from the definition of "public employee" as they are both confidential employees within the meaning of 26 M.R.S.A. 962(6)(C), with duties "intimately entwined" to the ____________________ 11 The meaning of each element of 962(6)(B) has been the subject of dispute in one decision or another. For instance, in Page v. Stewart, No. CV-86-663 (York.Sup.Ct., April 22, 1988), the Court resolved the issue whether the Tax Assessor was appointed by the "executive head or body of the employer." Slip op. at 6-7. In Presque Isle, the hearing examiner was called on to determine whether certain positions at issue were appointed pursuant to "statute, resolution or ordinance." Slip op. at 17-21. -24- _________________________________________________________________ collective bargaining process.[fn]12 Because the hearing examiner has already found that both of these positions should be excluded under 26 M.R.S.A. 962(6)(B), it is unnecessary to determine whether they are also excluded under this provision. However, the hearing examiner will briefly discuss this exclusion, in order to ensure the completeness of this decision, in the event of an appeal. Section 962(6)(C) 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. This provision excludes certain employees directly involved in formulating labor relations policy as well as certain clerical employees. The parameters of this exclusion have been summarized as follows: 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. 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 held that "[i]n many if not most cases, 'confidential' supervisory employees need access to at least one 'confidential' clerical employee, in order to carry out their ____________________ 12 The City also argued in its brief that more employees should be excluded as confidential employees, stating that the Clerk and Treasurer "and/or at least one Deputy or Assistant" should be excluded under this provision. City's Brief at 4. Again, the hearing examiner will not consider issues beyond those clearly delineated in the Prehearing Conference Memorandum and Order, which was based upon the City's representations at this prehearing conference. -25- _________________________________________________________________ 'confidential' duties." State of Maine, No. 82-A-02 (Interim Order), slip op. at 28. However, this decision was rendered nearly 20 years ago, prior to the present state of technology which enables many confidential employees to efficiently handle most of their own correspondence and reports. As a hearing examiner has more recently suggested regarding the Board's position on the need for confidential clerical assistance: The Board's position . . . is a statement of fact rather than a statement of policy. It is simply a recognition that confidential supervisory employees may need a confidential clerical support person. It does not suggest that the confidential supervisory employees has any particular entitlement to a confidential clerical support person. Lewiston Food Service Manager Ass'n/MEA/NEA and Lewiston School Committee, No. 99-UD-10, slip op. at 24-25 (Me.L.R.B. May 27, 1999). Each case must be determined on the facts, and a review of the particular relationship between the confidential supervisory employee and the clerical assistant. See e.g., Lincoln Sanitary District and Teamsters Union Local 340, No. 92-UC-02, slip op. at 16 (Me.L.R.B. Nov. 17, 1992)(where Superintendent prepared all of his own confidential documents, there was no current need for confidential clerical support). Here, the City has had a limited history of collective bargaining. From about 1990-1992, a bargaining unit for the public works employees existed; it is unclear whether a contract was ever ratified for this unit. No witness could recall if negotiations occurred and, if they occurred, whether any employees were permanently assigned to collective bargaining or to render advice to management personnel on labor relations matters. The City Clerk testified that she recalled having no role in any negotiations at that time, even though she was the City Clerk during that time period as well. If a bargaining agent is elected for this unit, it will be entirely a matter of speculation as to what roles the City Clerk or the City Treasurer -26- _________________________________________________________________ might serve in future negotiations. Decisions on whether to exclude a particular position from a bargaining unit must be based on actual job duties and not on projections of future duties, as that would be too speculative to serve as the basis for excluding a position. Auburn Firefighters Ass'n and City of Auburn, No. 83-A-07, slip op. at 7, 6 NPER 20-15003 (Me.L.R.B. Dec. 5, 1983). If the City finds the need to assign confidential bargaining duties to either the City Clerk or the City Treasurer in future collective bargaining, the employer can make such an assignment, admonishing the employee that such duties are confidential. The employer can then file a petition for unit clarification, where actual duties (not speculative future duties) can be reviewed. In conclusion, while this issue is moot as both the City Clerk and the City Treasurer have been found to be excluded under 962(6)(B), the hearing examiner would not find that either position should be excluded as "confidential" within the meaning of 962(6)(C). Supervisory employees The City argued that both the Deputy Police Chief and the Highway Foreman are employees with sufficient supervisory authority to create conflicts within the bargaining unit if they were to be included in the same unit as those employees whom they supervise. The City urged that these two employees be placed in a separate supervisory bargaining unit. Unlike the National Labor Relations Act, the MPELRL grants supervisors collective bargaining rights and permits the inclusion of supervisors in bargaining units of subordinate employees. In Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, No. 85-A-01, slip op. at 8, 8 NPER ME-16011 (Me.L.R.B. Feb. 6, 1985), the Board stated: Section 966(1) does not require the exclusion of supervisory employees from bargaining units composed of -27- _________________________________________________________________ the employees whom they supervise but relegates the decision of the supervisory employee's unit status to the sound discretion of the hearing examiner. MSAD No. 14 and East Grand Teachers Association, MLRB No. 83-A- 09, slip op. at 12 (Aug. 24, 1983). Except in instances where the resulting one- or two-member supervisory unit would contravene our policy of discouraging the proliferation, through fragmentation, of small bargaining units, we have approved the creation of such separate supervisory units. . . . Section 966(1) gives guidance to the hearing examiner in identifying situations where conflicting interests and loyalties 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 or 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. Under the first prong of the test outlined in 966(1), the hearing examiner must evaluate whether the principal functions of the two positions in question involve scheduling, assigning, overseeing or reviewing the work of subordinates. The Deputy Police Chief (or "Deputy") has a role in scheduling the police officers. Although the testimony of the Deputy and the Police Chief (or "Chief") seemed somewhat confused on this point, a fair reading was that a "master" schedule was created by the Chief, but the Deputy handles requests for changes to the schedule. Each officer assigned to a shift (including the Deputy on his shifts) handles the usual work that might arise on that shift; either the Deputy or the Chief might make special assignments to -28- _________________________________________________________________ the police officers. The ability of the Deputy to oversee or review the work of the police officers is limited by the fact that he works on his shifts alone, as the police officers work on their shifts alone. Theoretically, the Deputy might evaluate the performance of the police officers, with the review of the Police Chief. However, the Deputy Police Chief has not in fact performed any written evaluation of the officers in his five years of employment as Deputy. Most importantly, these types of supervisory duties are not the "principal function" of the Deputy's job. The principal function of his job is day-to-day police work and criminal investigations. The Highway Foreman ("Foreman") has somewhat more supervisory control over the highway crew than the Deputy Police Chief has over the police officers, due to the fact that the Highway Foreman works alongside his crew. He schedules the highway crew and assigns work to the crew. He reviews their work on a day-to-day basis. The Highway Foreman has also not performed any "official" evaluations of the crew members. Any supervisory functions that the Foreman performs, however, take up a limited portion of his time. The principal function of his job is to perform the same tasks as the crew, such as equipment operations and laboring. The second prong of the test in 966(1) requires that the hearing examiner evaluate whether the Deputy Police Chief or the Highway Foreman perform duties that are "distinct and dissimilar" from the duties performed by any employees that they supervise. This requirement has been described as: [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 [with other employees]. State of Maine and MSEA, No. 91-UC-04, slip op. at 15 (Me. L.R.B. -29- _________________________________________________________________ Apr.17, 1991). The Deputy Police Chief has virtually no role in the hiring of police officers, which is performed by an oral board and the Town Manager. The Deputy recommends reserve officers for hire, but this is irrelevant here as the reserve officers will not be part of the bargaining unit. The Deputy plays no role in decisions to lay off, promote, and the like. The Deputy performs some duties singular to his position, such as being "on-call" for officers who are handling major accidents or other incidents. However, this is not the type of "distinct and dissimilar" duties which would cause conflicts of interest with the subordinate officers. The Highway Foreman recommends employees for hire, particularly part-time summer help. He is otherwise similarly situated to the Deputy Police Chief in the limited nature of his role in performing the type of job duties to be considered in the second prong of 966(1). The duties that make the Highway Foreman's job distinct from the highway crew -- completing monthly reports, making small department purchases, recommending outside contractors -- also are not the type of duties which would cause conflicts of interest with the highway crew. Consequently, neither the Deputy Police Chief nor the Highway Foreman perform duties which are "distinct and dissimilar" from those employees who are subordinate to them, as that phrase has been interpreted. As to the third prong of the test outlined in 966(1), neither the Deputy Police Chief nor the Highway Foreman play any significant role in adjusting grievances or enforcing personnel policies. Such matters must be taken up with the Police Chief (in the case of police officers), or with the City Manager (in the case of the highway employees). Both the Deputy Police Chief and the Highway Foreman have a limited, day-to-day role in enforcing personnel standards and neither has any significant role in establishing those standards. Any major discipline (written warning to discharge) to be meted out to police officers -30- _________________________________________________________________ is left to the Police Chief, along with the City Manager. Any major discipline (written warning to discharge) to be meted out to highway workers is left to the City Manager. Clearly, the true supervisor of the police department is the Police Chief (with input from the City Manager) and the true supervisor of the highway crew is the City Manager.[fn]13 The Deputy Police Chief and the Highway Foreman are, in the hierarchy of this City, "lead persons" or "working supervisors." The Board has consistently found that such positions may remain in the bargaining unit with subordinate employees because the occupants of those positions lack sufficient authority to make decisions in the interest of the employer which may adversely impact upon the employment interests of their subordinates. See Teamsters Local Union No. 48 and Van Buren Light and Power District, No. 85-UD-14 (Me.L.R.B. Jan. 25, 1985) (duties of line foreman who assigns, oversees and reviews work of employees determined as a whole not to be so distinct and dissimilar from those performed by supervised employees to warrant exclusion from proposed unit); Teamsters Local Union No. 48 and Town of Pittsfield, No. 81-UD-09 (Me.L.R.B. Jan. 15, 1981) (sergeant position found to be "working supervisor" where supervisory duties were limited and undemanding and where vast majority of time was devoted to regular patrol work). In conclusion, the Deputy Police Chief and the Highway Foreman are involved in only limited supervisory functions, as those functions are described in 26 M.R.S.A. 966(1). These positions do not involve the type of management control duties that are likely to create conflict of interests or loyalties if they were to be included in a bargaining unit with subordinate employees. Consequently, there is no need to exclude them from such a unit. ____________________ 13 The City Manager is the Street Commissioner. Chapter 6 of the Revised Code of Ordinances describes fully his role in administering the operations of the public works department. -31- _________________________________________________________________ Even if the hearing examiner were to determine that the Deputy Police Chief and the Highway Foreman should be excluded from a bargaining unit including their subordinates due to the nature of their supervisory duties, the Board's policy against the proliferation of small bargaining units would, nevertheless, require their inclusion in the unit. The Board's policy has been to "include supervisor positions in rank-and-file units rather than establish small, separate supervisory bargaining units." MSAD No. 43 and MSAD No. 43 Teachers Association, No. 84-A-05 slip op. at 4 (Me.L.R.B. May 30, 1984). The rationale underlying the Board's policy against non-proliferation is as follows: 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. 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. Id., slip op. at 4, 5. The Board has held that Section 966(1) requires the hearing examiner to consider as "other criteria" the non-proliferation policy. MSAD No. 14 and East Grand Teachers Ass'n, No. 83-A-09, slip op. at 13 (Me.L.R.B. Aug. 24, 1983). Based upon this non-proliferation policy, the Board has included supervisors in a bargaining unit with their subordinates who exercise greater supervisory functions than the two positions at issue here exercise.[fn]14 ____________________ 14 See, e.g., Lubec Education Ass'n, MTA/NEA and MSAD No. 19 Board of Directors, No. 83-UD-17 (Me.L.R.B. Apr. 13, 1983) where a head bus driver/custodian was included in the unit due to the Board's policy against over fragmentation of units, although the position's supervisory duties included scheduling, assigning, reviewing and overseeing work of employees, submitting a budget for salaries and supplies, ordering supplies up to $500, interviewing and participating in the hiring of subordinates, adjusting grievances, applying personnel policies and participating in the formulation of job descriptions and performance criteria. -32- _________________________________________________________________ For all of these reasons, the hearing examiner concludes that the positions of the Deputy Police Chief and the Highway Foreman should be included in the bargaining unit created by this report, despite any supervisory duties of their respective positions. Community of Interest The issue now remains whether the members of the proposed bargaining unit, except for the positions excluded by this decision (the City Clerk and the City Treasurer), share a community of interest. With these positions excluded, the positions at issue are now: Deputy Clerk, Deputy Police Chief, Police Officers, Highway Foreman, Equipment Operators, Laborer, CEO, and Janitor. As the Law Court has recognized, there are two fundamental purposes of the MPELRL: to protect employees' right to self- organization and to promote the voluntary adjustment of their terms of employment. Lewiston Firefighters Ass'n, Local 785, IAFF v. City of Lewiston, 354 A.2d 154, 160 (Me. 1976). Coherent bargaining units with a clear and identifiable community of interest are essential to both of these objectives. The requirement that the hearing examiner examine the extent of the community of interest was explained by the Board over 20 years ago, and is still valid today: Title 26 M.R.S.A. 966(2) requires that the hearing examiner consider whether a clear and identifiable community of interest exists between the positions in question so that potential conflicts of interest among bargaining unit members during negotiations will be minimized. Employees with widely different duties, training, supervision, job locations, etc., will in many cases have widely different collective bargaining objectives and expectations. These different objectives and expectations during negotiations can result in conflicts of interest among bargaining unit members. Such conflicts often complicate, delay and frustrate the bargaining process. -33- _________________________________________________________________ AFSCME and City of Brewer, No. 79-A-01, slip op. at 4, 1 NPER 20- 10031 (Me.L.R.B. Oct. 17, 1979). In determining whether employees share the requisite "community of interest" in matters subject to collective bargaining, the following factors, at a minimum, must be considered: (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 among the employees; (6) frequency of contact or interchange among the employees; (7) geographic proximity; (8) history of collective bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the employer's organizational structure. Chap. 11, 22(3) of the Board Rules. An important issue in the present case is that the Petitioner seeks a "wall-to-wall" unit including most employees of the city, even though some perform significantly different jobs. In response, the City requests that at least three units should be formed: a police unit, a public works unit, and a general or administrative unit.[fn]15 It is well-established that the hearing examiner's duty is to "determine whether the unit proposed by the petitioner is an appropriate one, not whether the proposed unit is the most appropriate unit." Town of Yarmouth and Teamsters Local Union No. 48, No. 80-A-04, slip op. at 4 (Me.L.R.B. June 16, 1980). In that case, the union petitioned for one unit and the employer responded that two units, based on divisional lines, would be more appropriate because two other units in the town were already based on divisional lines. Noting ____________________ 15 The City also requested that a supervisory unit be formed. However, the hearing examiner has already found that the Deputy Police Chief and the Highway Foreman properly belong in a unit with those employees whom they supervise. -34- _________________________________________________________________ that each petition "must be judged on its own merits," the Board stated: Moreover, adoption of the Town's position that all bargaining units of Town employees must follow divisional lines would violate the employees' guaranteed right to full freedom in the exercise of their representational and bargaining rights. Town of Yarmouth, 80-A-04, slip op. at 4, citing 26 M.R.S.A. 963 and 966(2) and Lewiston Firefighters Ass'n, Local 785, IAFF, 354 A.2d at 160-161. The employees' right to self- organization is best protected when their judgment on the appropriate unit is respected, as long as the positions share the community of interest required 966(2). See Portland Administrative Employees Ass'n and Portland Superintending School Committee, No. 86-UD 14, slip op. at 28 (Me.L.R.B. Oct. 27, 1986), aff'd, No. 87-A-03 (Me.L.R.B. May 29, 1987)(examination of the bargaining unit proposed by the employer not proper until the bargaining unit proposed in the Union's petition has been considered and rejected). With this guidance in mind, the hearing examiner will address the community of interest factors, in turn, below. (1) (Similarity of work): The Petitioner conceded at the hearing and in its brief that the positions at issue do not perform similar kinds of work. However, the Board has recognized that "similarity of work" does not mean identical work. As the executive director has noted in a previous decision, Auburn Education Ass'n/MTA/NEA and Auburn School Committee, No. 91-UD- 03, slip op. at 11 (Feb. 27, 1991): 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 -35- _________________________________________________________________ preclude the inclusion of various classifications in the same bargaining unit. The hearing officer notes that bargaining units have been approved by the Board with similarly divergent positions, depending on a consideration of the other community of interest factors. In school units, for instance, educational support units often contain positions with duties as varying as those under consideration here. In East Grand Teachers' Ass'n/MTA/NEA and MSAD No. 14 Board of Directors, No. 92-UD-01 (Me.L.R.B. Oct. 1, 1991), a unit was approved which consisted of such divergent positions as teachers' aides, school secretaries, the food service director, bus drivers and custodians. In that case, the hearing examiner noted that the nature of work performed is important in fashioning a coherent bargaining unit, but that factor is " . . . by no means dispositive." East Grand Teachers' Ass'n/MTA/NEA, slip op. at 23. See also Lubec Education Ass'n/MTA/NEA and MSAD No. 19 Board of Directors, No. 83-UD-17 (Me.L.R.B. Apr. 13, 1983) (approving unit which included teachers' aides, secretaries, cooks, plant operator, bus drivers and custodians). These types of school positions all serve the common function of supporting the educational process, but it can likewise be said here that the City employees all serve to make smooth the operations of the City for its citizens. The Board has approved similar "wall-to-wall" units in municipalities and municipal departments, as well. See AFSCME Council 93 and Town of Sanford, No. 92-UD-03 (Feb. 21, 1992) (approving unit which included the planning director, the assessor, the code enforcement officer, the director of highways and sanitation, and the deputy fire chief); Bangor Firefighters Ass'n, Local 772 and City of Bangor, No. 89-UD-06 (Me.L.R.B. Jan. 26, 1989) (approving the accretion of a mechanic to a unit consisting of firefighters, dispatchers and inspection officers). Therefore, while the positions in this proposed unit are dissimilar, units with positions that are just as dissimilar have been approved, depending on a review of the other community of -36- _________________________________________________________________ interest factors. (2) (Common supervision): The City Manager is the ultimate supervisor of all the positions at issue. Pursuant to Article VI, Section 6 of the City Charter, he is the "administrative head of the City" and "responsible only to the City Council for the administrative management of all departments of the City." He is the direct supervisor of the City Hall employees (CEO, deputy clerk, and janitor)[fn]16 and, as the Street Commissioner, he is the direct supervisor of the public works employees (Highway Foreman, Equipment Operators, and Laborer). As Street Commissioner, the City Manager has general supervision over and administers the operations of the public works department. The Police Chief is the department head of the police department. However, it is the City Manager, with the advice and consent of the City Council, who appoints all regular and reserve police officers. The Police Chief testified that he would allow the City Manager to handle all serious discipline within the police department. The provisions on disciplinary action in the Personnel Regulations also make clear that the City Manager is the ultimate supervisory authority over all of the positions at issue, including the police officers. Article XV of the Personnel Regulations provides that a regular employee may be suspended, dismissed or demoted by a department head (like the Police Chief), but only with the approval of the City Manager. Regular employees can be disciplined for cause; cause to be determined by the City Manager. ____________________ 16 The CEO is appointed by the City Council and the Mayor and may be removed by the Council upon written charges after hearing, pursuant to Article VI, Section 3(d) of the City Charter. The Deputy Clerk serves at the will of the Clerk, pursuant to 30-A M.R.S.A. 2603(2). While the legal authority to remove the CEO or the Deputy Clerk rests with others, provisions of the City Charter and the Personnel Regulations clearly contemplate that the City Manager will have an important role in any discharge, even from these positions. The factor requiring "common supervision and determination of labor relations policy" encompasses more than the ultimate authority to discharge. In every other regard, the City Manager is the day-to-day supervisor of both the CEO and the Deputy Clerk. -37- _________________________________________________________________ Therefore, there is common supervision of the employees in the proposed bargaining unit. (3) (Similarity in scale of earnings): As part of its Personnel Regulations, the City has already adopted position classifications and pay grades for all the positions at issue. The lowest paid position at issue (deputy clerk) is pay grade 7; the highest paid position at issue (Highway Foreman) is pay grade 17. Article IV of the Personnel Regulations also provides for a compensation schedule for each of these pay grades, with steps depending on years of service. Comparing the first step for each grade, the current annual salary range for the positions at issue is from $16,283 to $27,059 (See P-3A). All positions are paid on an hourly basis, except for the CEO, who is salaried. While this is a fairly broad range of salaries, the scale and manner of determining earnings is uniform for all positions. This same type of compensation schedule could be a negotiated article in a collective bargaining agreement. Therefore, any differences in individual wage levels should not lead to conflicts within the unit. (4) (Benefits, hours and other terms): The hours of work differ amongst the positions, most notably for the police officers who perform shift work on a 24-hour-per-day schedule. However, all of the positions, with the exception of the janitor who works 20 hours per week, work a full-time schedule of at least 37.5 hours per week. More importantly, the benefits and other terms of employment, from health benefits to vacation accrual, are uniform for all positions under the Personnel Regulations. (5) (Qualifications, skills and training): The Petitioner also conceded in its brief that the positions have different qualifications, skills and training. At a minimum, all positions appear to require a high school diploma or equivalent. The Deputy Police Chief and the police officers must be graduates of -38- _________________________________________________________________ the Maine Criminal Justice Academy. All the positions require experience or skills relevant to their respective positions. This is to be expected, considering the "wall-to-wall" nature of the unit proposed. However, as already discussed in subsection (1) regarding similarity of work performed, such units have been approved in the past, if this reflects the wishes of the employees involved. (6) (Frequency of contact among employees): The employees who work in City Hall have frequent contact with each other. The public works employees are in a separate facility, although not located at a significant distance from City Hall. The Highway Foreman, particularly, has frequent contact with the City Hall employees as he maintains a mailbox there and has daily contact with the City Manager. There is frequent need for the employees to have professional contact as well, such as between the public works employees and the police, on matters relating to traffic and the like. The employees with the least frequent contact are the City Hall employees with the equipment operators and the laborer. However, even these highway department employees go to the City Hall a few times each week. Therefore, a sufficient opportunity for interchange exists between the employees here. (7) (Geographic proximity): All of the employees work in the City Hall, or at the nearby public works garage. (8) (Collective bargaining history): The public works employees were briefly organized in the early 1990s. It is unknown whether a collective bargaining agreement was ever ratified for this unit. There is no other history of collective bargaining amongst these employees. Therefore, this factor neither supports nor refutes a finding of community of interest. (9) (Desires of employee): All of the employees testifying expressed an interest in joining the bargaining unit and engaging -39- _________________________________________________________________ in collective bargaining with the City. The Petitioner has also presented an extensive showing of interest with the Petition. Obviously, the true desires of the employees cannot be tested until an election is held, but there is considerable evidence of desire amongst these employees to organize. (10) (Extent of organization): There is presently no union organization amongst City employees. However, the Granite City Employees Association itself has already exhibited a considerable level of organization resulting in the present petition. The Deputy Police Chief and the Highway Foreman identified themselves as the President and Vice President, respectively, of this Association. (11) (Employer's organizational structure): The City, having relatively few employees, does not have a highly formal structure. While the Revised Code of Ordinances identifies certain "departments" within the city, many of these "departments" are a department consisting of one employee (the Office of Treasurer, and the Office of Code Enforcement, for instance). Without such obvious divisions, the employer's organizational structure has little relevance in determining community of interest. The Board has found that any requirement that bargaining units must follow the divisional lines would violate the employees' guaranteed right to full freedom in the exercise of their representational and bargaining rights. Town of Yarmouth and Teamster Local Union No. 48, No. 80-A-04, slip op. at 4. The City has requested that as many as four bargaining units be established here -- supervisory, public works, police and administrative employees. This would result in units all consisting of two or three employees each. While such units might fall along de facto divisional lines within the City, this type of division would surely run contrary to the Board's policy against proliferation of small units, discussed previously. -40- _________________________________________________________________ In conclusion, many of the factors support a finding that the employees in the proposed bargaining unit share a community of interest with each other. The factors which militate against a finding of community of interest (such as similarity of kind of work performed and similarity in qualifications, skills and training) exist because these employees have petitioned for a "wall-to-wall" unit for the City. In approving the unit as petitioned for by these employees, the hearing examiner relies particularly on Board precedent that strongly favors the rights of public employees to organize and to petition for a unit which they believe will best represent their bargaining needs. ORDER On the basis of the foregoing facts and discussion and pursuant to the provisions of 26 M.R.S.A. 966, the following described unit is held to be appropriate for purposes of collective bargaining: INCLUDED: Deputy City Clerk, Code Enforcement Officer, Janitor, Deputy Police Chief, Police Officers, Highway Foreman, Equipment Operators and Laborer. EXCLUDED: City Clerk, City Treasurer and all other employees of the City of Hallowell. Dated at Augusta, Maine, this 23rd day of May, 2001. MAINE LABOR RELATIONS BOARD ________________________________ Dyan M. Dyttmer Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4), to appeal this report to the Maine Labor Relations Board. To initiate such an appeal, the party seeking appellate review must file a notice of appeal with the Board within fifteen (15) days of the date of issuance of this report. See Chapter 10 and Chap. 11 30 of the Board Rules. -41- _________________________________________________________________