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-]
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     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)

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     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

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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

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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

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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

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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.,

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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.

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    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

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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

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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

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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.

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    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"

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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").

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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

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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.

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"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-
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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-
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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.

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     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.

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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.

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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

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     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

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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.

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     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-
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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-
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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-
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     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.
     
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