STATE OF MAINE                        MAINE LABOR RELATIONS BOARD
                                      Case No. 03-UD-07
                                      Issued:  March 13, 2003 

__________________________
                          )
AMERICAN FEDERATION OF    )        
STATE, COUNTY AND         )
MUNICIPAL EMPLOYEES,      ) 
COUNCIL 93,               )
                          )
             Petitioner,  )
                          )       UNIT DETERMINATION REPORT
     and                  )
                          )
TOWN OF DEXTER,           )
                          )
             Respondent.  )
__________________________)



                       PROCEDURAL HISTORY

     This unit determination proceeding was initiated on
November 7, 2002, when Betty L. Burns, Staff Representative for
the American Federation of State, County and Municipal Employees,
Council 93 ("AFSCME") filed a petition for unit determination and
bargaining agent election with the Maine Labor Relations Board
("Board").  The petition sought a determination whether a unit
should be created consisting of all full-time and regularly-
scheduled part-time employees in the following positions:  Police
Sergeant, Police Officers, Librarian Assistants, Truck Driver/
Laborer, Truck Driver/Equipment Operator, Truck Driver/Mechanic,
Truck Driver/Foreman, Building Maintenance/Parks, EMT, Welfare
Clerk, Deputy Clerk and Secretary/Dispatcher.  The Town of Dexter
("Town" or "Employer") filed a timely response to the petition. 
In its response, the Town agreed that a unit consisting of the
following regular full-time and regular part-time employees was
appropriate:  Building Maintenance and Parks/Assistant, Public
Works/Truck Driver-Equipment Operator, Public Works/Truck Driver-
Mechanic, Public Works/Truck Driver-Laborer, Human Services/

                              [-1-]
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Welfare Clerk, General Administration/Deputy Clerk, Ambulance/
EMT-Driver, Police Officer, Police Department/Secretary-
Dispatcher, and Assistant Librarian.  The Town responded that the
Police Sergeant and the Truck Driver Foreman should be excluded
as supervisors within the meaning of 26 M.R.S.A.  966(1).
      A unit determination hearing notice was issued on
December 16, 2002, and was posted for the benefit of affected
employees.  The hearing was conducted on February 5, 2003. 
AFSCME was represented by Ed Willey, Maine Coordinator.  The Town
was represented by Thomas C. Johnston, Esq.  The parties were
afforded full opportunity to examine and cross-examine witnesses,
to present evidence and to make argument.  The following
witnesses were presented by the Town:  Police Sergeant Jim
Emerson, Foreman Jasper Hatch, and Town Manager Robert Simpson. 
AFSCME did not present any additional witnesses.  The parties
submitted written argument, postmarked February 24, 2003.

                          JURISDICTION
                                
     The jurisdiction of the hearing examiner to hear this matter
and to make an appropriate unit determination lies in 26 M.R.S.A.
 966.

                          STIPULATIONS

     1.  The American Federation of State, County and Municipal
Employees, Council 93 ("AFSCME") is an employee organization
within the meaning of 26 M.R.S.A.  962(2) and the prospective
bargaining agent for the Dexter general government bargaining
unit.
     2.  The Town of Dexter 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
AFSCME's petition.

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     4.  The following employees are "public employees" as
defined by 26 M.R.S.A.  962(6):  Ambulance/EMT-Driver,
Ambulance/EMT, Ambulance/Driver, Assistant Librarian, Building
Maintenance & Parks/Assistant, General Administration/Deputy
Clerk, Human Services/Welfare Clerk, Police Officer, Police
Department/Secretary-Dispatcher, Public Works/Driver-Equipment
Operator, Public Works/Driver-Mechanic, Public Works/Driver-
Laborer, Police Sergeant and Public Works Foreman.
     5.  The parties agree that the following positions share a
community of interest and therefore comprise an appropriate unit
for purposes of collective bargaining:  Ambulance/EMT-Driver,
Ambulance/EMT, Ambulance/Driver, Assistant Librarian, Building
Maintenance & Parks/Assistant, General Administration/Deputy
Clerk, Human Services/Welfare Clerk, Police Officer, Police
Department/Secretary-Dispatcher, Public Works/Driver-Equipment
Operator, Public Works/Driver-Mechanic, Public Works/Driver-
Laborer.
     6.  The parties agree that the following positions should be
excluded from the Dexter general government bargaining unit: 
Reserve Police Officer, Seasonal Public Works/Driver, Per Diem
Ambulance/EMT-Driver and all other employees of the Town of
Dexter not listed in Stipulation Number 4.
     7.  The only issue raised by this case is whether the
position of Police Sergeant and Public Works Foreman are
"supervisory positions" within the meaning of 26 M.R.S.A.
 966(1). 
     8.  The parties agree that if the positions of Police
Sergeant and Public Works Foreman are found not to be 
"supervisory positions" within the meaning of 26 M.R.S.A.
 966(1), the positions share a community of interest with the
other positions in the Dexter general government bargaining unit
and should be included in that unit.

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     9.  In the event that the positions of Police Sergeant and
Public Works Foreman are placed in a separate supervisory
bargaining unit, AFSCME wishes to participate in an election for
that unit.

                            EXHIBITS
                                
     The following exhibits were admitted without objection:
          
Employer No. 1      Town of Dexter Personnel Policy, Section 2,
                    Employment Categories
                    
Employer No. 2      Job description, Police Sergeant

Employer No. 3      Job description, Foreman

Employer No. 4      Town of Dexter Personnel Policy, Section 20,
                    Grievance Procedure
                                
                                
                        FINDINGS OF FACT

Police Sergeant

     1.  The Dexter Police Department consists of six full-time
employees:  the Police Chief, the Sergeant, the Secretary/
Dispatcher, the Corporal and two Police Officers.  About eight
reserve officers are also employed in the department.
     2.  The Dexter Police Department provides coverage for the
Town 24 hours per day, seven days per week, on a three-shift
schedule.
     3.  The Police Chief, the Sergeant and the Secretary/
Dispatcher all work a regular "day" schedule, Monday to Friday. 
The three remaining full-time Police Officers are scheduled to
work the remaining evening and night shifts and on the weekends. 
The Police Officers working these evening, night and weekend
shifts are assigned to work alone.  One reserve officer works a
regular shift on Sunday mornings; otherwise, reserve officers are
only used to fill in for absent full-time Police Officers.

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     4.  The Sergeant has worked for the Town for 21 years.  He
was first hired as a Police Officer and was promoted to Sergeant. 
He has worked as Sergeant for 14 years.
     5.  The Sergeant spends most of his work time performing the
same type of patrol duties as the other Police Officers.  He
responds to calls and patrols in the police cruiser.  The Police
Chief spends much more of his day working at the police
department office and attending meetings; he spends relatively
little of his time performing patrol duties.  The Secretary/
Dispatcher (also a certified Police Officer) works all day at the
police department office and does not perform regular patrol
duties.
     6.  The Sergeant is second in the police department chain-
of-command.  When the Police Chief is absent, the Sergeant acts
in his stead.  The Police Chief takes approximately five weeks of
vacation per year.  In the past year, the Police Chief has also
taken several weeks of sick time.  The Police Chief and the
Sergeant try not to take vacation at the same time.  
     7.  The Police Chief attends policy-setting meetings, such
as department head meetings with the Town Manager and budget
meetings.  The Sergeant has rarely, if ever, attended meetings
like this.  The Sergeant has very little contact with the Town
Manager, even when the Police Chief is on vacation.  The Sergeant
does not attend state police organizational meetings.
     8.  The Police Chief creates and fills the work schedule for
the police department.  If a Police Officer is absent and needs
to be replaced (usually by a reserve officer), the Police Officer
finds his own replacement or the Sergeant or the Secretary/
Dispatcher make calls off the reserve officer list to find
replacements.
     9.  The Police Officers working on the evening, night and
weekend shifts work very independently, dealing with issues as
they arise on their respective shifts.  Specific work is 

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sometimes assigned to a Police Officer; for instance, a complaint
might be best investigated in the evening when witnesses are home
from work.  In these cases, either the Police Chief or the
Sergeant will assign the work to the Police Officer.  The
Sergeant occasionally reviews written reports completed by the
Police Officers.
     10.  If a Police Officer needs back-up or extra coverage, he
can contact the Dispatcher directly for such coverage.  In some
situations, a Police Officer will call the Sergeant for approval
for back-up or with some other question.  The Sergeant is "on-
call" for such questions.  For instance, one Police Officer
called the Sergeant to ask whether he could use his personal
vehicle to respond to a call.  The fact that such calls are first
directed to the Sergeant is a matter of protocol; the unspoken
directive of the department is that the Police Chief should not
be "bothered" with such calls.  However, the Police Chief is
always contacted when any serious situation arises.
     11.  On several occasions, the Sergeant has been the
"officer in charge" at serious crimes scenes or serious safety
situations, with the ability to call in other officers.  
     12.  The Police Chief sets the performance standards for all
Police Officers, including the Sergeant.  The Police Chief writes
the personnel evaluations for all police department employees. 
The Police Chief occasionally seeks input from the Sergeant
regarding the performance of other Police Officers.
     13.  The Police Chief handles discipline of police
department employees.
     14.  The Police Chief has authority to discharge any police
department employee, in keeping with the Town personnel policies
and in consultation with the Town Manager.  The Sergeant would
not be involved in any discharge.
     15.  The Town maintains a grievance procedure in its
personnel policy (Employer Exh. No. 4).  The first "step" of the 

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procedure directs a grieving employee to attempt a verbal
agreement with his/her supervisor or appropriate department head. 
In the case of the police department, the supervisor is the
Sergeant and the department head is the Police Chief.  After
this, a written grievance can be pursued through three more steps
(to the department head, to the personnel advisory board/Town
Manager, and to the Town Board of Appeals).  This grievance
procedure has almost never been used, and it has never been used
by an employee of the police department.
     16.  The Sergeant is in charge of seeing that training is
scheduled for Police Officers.  The Sergeant is not a certified
trainer and does not do the training himself.  If the training
costs money or requires absence from the job, the Police Chief
must approve the training.  The Sergeant and the other Police
Officers participate in on-the-job training of any new Police
Officer (such as having the new officer drive around with an
experienced officer).
     17.  The Police Chief reviews employment applications and
has sole authority to hire new employees for the police
department.  The Police Chief might ask the Sergeant or the
Police Officers about a candidate.
     18.  When the Police Chief is not at work and the Sergeant
acts in his stead, the day-to-day job of the Sergeant does not
change much.  The Sergeant signs the hours for the weekly
payroll.  If any major problems or issues arise (budget,
discipline, etc.), the Sergeant refers such matters to the Town
Manager or awaits the return of the Police Chief.

Public Works Foreman

     19.  The Dexter Public Works Department consists of the
Public Works Director ("PW Director"), the Foreman and four full-
time public works employees--one Truck Driver/Mechanic, one 

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Truck Driver/Equipment Operator, and two Truck Driver/Laborers.
     20.  The present Foreman has worked for the public works
department for 15 years.  He has been Foreman for about seven
years.
     21.  The PW Director makes all the initial decisions
regarding what construction and repair projects are needed, "lays
out" the projects, and prioritizes the projects.  Either the PW
Director or the Foreman makes the decision which employee to
assign to which project. 
     22.  The PW Director is in charge of hiring for the
department. The PW Director might ask the Foreman his opinion
about an applicant if the Foreman knows the applicant.  The PW
Director has sole authority to carry out any formal discipline. 
The PW Director performs annual evaluations of all employees,
including the Foreman.
     23.  The PW Director has authority to discharge any public
works employee, in keeping with the Town personnel policies and
in consultation with the Town Manager.  The Foreman would not be
involved in any discharge.
     24.  The PW Director creates and fills the PW department
work schedule.  All employee requests regarding the schedule are
handled by the PW Director.
     25.  Due to the small size of the public works department,
all employees including the PW Director actively work on
constructions projects, truck maintenance and plowing.  The
Foreman is a working foreman who spends most of his time working
on projects, plowing, and doing the same type of work as the
other PW employees.  The Foreman makes sure that the right
material and equipment are available and on the job site to
perform a project.  The PW Director also spends time performing
work on projects, including on all major construction projects. 
Some small jobs (like road patching) are assigned to one or more 

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public works employees who work without either the PW Director or
the Foreman on the job.
     26.  When the Foreman is working on a project, he is
considered in charge of the project, in the absence of the PW
Director.
     27.  The Foreman has authority to give instructions to other
employees on a project.  For instance, he might speak to an
employee who is not wearing proper safety equipment or to an
employee who is slacking off on a job.  The Foreman brings any
more significant discipline issues to the PW Director for him to
handle.
     28.  Both the PW Director and the Foreman may be involved in
training a new public works employee, such as riding with a new
employee to test his truck driving skills.
     29.  In the winter, one of the main jobs of the PW
Department is plowing and maintaining roads.  The PW Director,
the Foreman, and the other public works employees all have a
regularly-assigned plow run.  During a storm, the PW Director
receives the calls regarding road conditions and makes additional
assignments as needed.  The PW Director sometimes hands this task
over to the Foreman.
     30.  When the PW Director is absent (such as during his
vacation), he leaves a list of projects to be completed in his
absence.  The Foreman is in charge in the absence of the PW
Director and makes work assignments from this list.  
     31.  The PW Director uses a town pickup truck to ride around
and check construction projects and problem areas.  If the PW
Director is absent, the Foreman performs this function.  If the
Foreman sees an area of concern, he will bring it to the Town
Manager's attention or wait until the PW Director returns to
bring it to his attention.
     32.  When the PW Director is absent, the Foreman usually 

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meets with the Town Manager each day to see if any problems need
to be addressed (something the PW Director usually does).  The
Foreman also signs the hours of the crew for the weekly payroll
if the PW Director is absent.
     33.  Under the Town grievance procedure, the supervisor is
the Foreman and the department head is the PW Director.  This
grievance procedure has almost never been used, and it has never
been used by an employee of the public works department.

                           DISCUSSION
                                
     The sole issue presented by this case is whether the Police
Sergeant and Foreman exercise sufficient supervisory authority,
as defined in 26 M.R.S.A.  966(1), that they should be excluded
from a bargaining unit containing employees whom they supervise. 
     Unlike the National Labor Relations Act, the Municipal
Public Employees Labor Relations Law grants supervisors
collective bargaining rights and permits the inclusion of
supervisors in bargaining units of subordinate employees in
certain circumstances.  In Penobscot Valley Hospital and Maine
Federation of Nurses and Health Care Professionals, No. 85-A-01,
slip op. at 8 (MLRB Feb. 6, 1985), the Board stated:

     Section 966(1) does not require the exclusion of
     supervisory employees from bargaining units composed of
     the employees whom they supervise but relegates the
     decision of the supervisory 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, 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. . . .  The purpose of
     creating separate supervisory employee bargaining units
     is to minimize potential conflicts of interest within
     bargaining units, between supervisors and their
     subordinate employees, as well as to lessen conflicts

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     of loyalty for supervisors between duty to their
     employer and allegiance to fellow unit employees.

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.

The focus of this three-part test is to determine whether the
supervisor exercises a level of control over employment-related
issues that would likely result in a conflict of interest.  See
Richmond Employees Ass'n and Town of Richmond, No. 94-UD-09, slip
op. at 30 (MLRB Apr. 26, 1994).  The hearing examiner will
briefly discuss each prong of the three-part test contained in
 966(1), and then apply each prong to the Police Sergeant
position, then to the Public Works Foreman position.

Police Sergeant
     Under the first prong of the test outlined in  966(1), the
hearing examiner must evaluate whether the principal functions of
the Sergeant position involve scheduling, assigning, overseeing
or reviewing the work of subordinate employees.  The Police Chief
schedules all subordinate employees, including the Sergeant.
Employees most often used as substitute officers are the reserve 

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officers, who are not included in the proposed bargaining unit.  
Both the Police Chief and the Sergeant might make assignments to
a Police Officer - to perform an investigation on that officer's
shift, for instance.  However, such assignments occur
infrequently.  The Police Officers work alone on evening, night
and weekend shifts and, of necessity, work very independently. 
This fact greatly reduces any risk of conflict that might arise.[fn]1  
The Sergeant is, by department protocol, the first to be called
with questions from the Police Officers.  However, these calls
occur rather infrequently and involve relatively minor questions;
the Sergeant refers serious concerns and issues to the Police
Chief.  The Sergeant performs very little in the way of either
overseeing or evaluating the work of the Police Officers.  The
Police Chief has sole authority to perform job evaluations,
including for the Sergeant. 
     The employer emphasized that when the Police Chief is
absent, the Sergeant acts in his stead.  This might happen as
much as five weeks of the year while the Police Chief is on
vacation, and was increased last year due to the illness of the
Police Chief.[fn]2  The responsibilities of the Sergeant increase 
when the Police Chief is absent (for example, the Sergeant is in
charge of signing hours for payroll).  But it was clear that true
authority continues to rest with the Police Chief even when he is
absent.  Any major problems or issues on the force await the
return of the Police Chief, or are forwarded to the Town Manager.
     In addition, the supervisory duties performed by the 
____________________

     1 The fact that the police officers work with such independence
is a relevant factor in evaluating the first prong of  966(1).  See
Ellsworth Fire Fighters Ass'n and City of Ellsworth, No. 91-UD-19
(MLRB Aug. 2, 1991) (deputy fire chief and lieutenant included in the
same bargaining unit as subordinate fire fighters; fire fighters
functioned independently).

     2 There was no testimony regarding the nature of the illness or
whether this level of absence will continue into the future.

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Sergeant do not constitute the principal functions of his
position.  The Sergeant performs a minimal amount of real
supervisory duties, and spends "nearly his whole day" performing
the same type of day-to-day police duties as the other officers
[Tr. at 31].  The duties of his position are very similar to the
duties of supervisors in numerous Board cases where the
supervisor has been included in the same bargaining unit as
subordinate employees.  See, e.g., Richmond Employees Ass'n and
Town of Richmond, No. 94-UD-09, slip op. at 31 (MLRB Apr. 26,
1994) (highway foreman performs duties similar to subordinates
during "majority of his workday"); AFSCME Council 93 and City of
Saco, No. 93-UC-02, slip op. at 19 (MLRB Dec. 10, 1992)
(recycling foreman spends eighty percent of workday performing
work identical to subordinates); and Teamsters Local No. 48 and
Town of Pittsfield, No. 81-UD-09, slip op. at 2 (MLRB Jan. 15,
1981) ("vast majority" of police sergeant's time devoted to
regular patrol work).  In summary, supervisory duties do not
constitute the principal function of the Sergeant's position
here.
     The second prong of the test in  966(1) requires that the
hearing examiner evaluate whether the Sergeant performs duties
that are "distinct and dissimilar" from the duties performed by
the employees that he supervises.  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 (MLRB
Apr. 17, 1991).  The Sergeant does not have significant authority
in any of these areas--hiring, promoting, transferring and the 

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like.  All authority in these areas, as well as the authority to
suspend, discharge or lay off, is held by the Police Chief and
the Town Manager.
     As to the third prong of the test outlined in  966(1), the
Sergeant has a very limited role in adjusting grievances.  The
employer's written grievance policy (although virtually never
used) states that a grieving party shall attempt to reach a
verbal agreement with his/her supervisor or the appropriate
Department Head.  If a verbal agreement cannot be reached, a
written grievance can then be pursued through three steps,
beginning with a written grievance addressed to the Department
Head.  The portion of the process calling for an attempted verbal
agreement between the supervisor (Sergeant) or the Department
Head (Police Chief) seems a statement of the obvious--employees
should attempt to resolve informally their grievances prior to
initiating a formal written grievance.  Particularly considering
that an employee can approach either the Sergeant or the Police
Chief with a concern under this policy, it cannot be found that
the Sergeant has real authority to "adjust grievances."  The
Police Chief, not the Sergeant, establishes performance standards
for the Police Officers.  The Sergeant has a very limited role in
taking corrective actions to implement performance standards.  As
discussed more fully above, the Sergeant might speak to a Police
Officer about a performance issue but any real "discipline" is
forwarded to the Police Chief for his action.
     In summary, an evaluation of the criteria of  966(1) shows
that the Sergeant position exercises limited supervisory
authority that could place him in conflict with the Police
Officers, and he spends comparatively little time performing
supervisory functions.  He exercises no authority in many areas
(such as hiring, discharging, evaluating, and adjusting
grievances) that would lead to conflict with the Police Officers. 
The Police Officers function quite independently on their shifts 

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and the Sergeant has limited opportunity to oversee and supervise
their work in any fashion that could lead to conflict. 
Therefore, the hearing examiner concludes that the Sergeant does
not exert such extensive supervisory authority to warrant his
placement in a separate bargaining unit.

Public Works Foreman
     Considering the first portion of the test outlined in
 966(1) (whether the principal functions of the Foreman position
involve scheduling, assigning, overseeing or reviewing the work
of subordinate employees), the PW Director schedules all public
works employees.  The PW Director prioritizes the public works
projects and makes employee assignments along with the Foreman. 
The Foreman has a limited role in making assignments during the
winter, such as during snow storms when the PW Director turns
over coverage issues to the Foreman.  Unlike the Police Officers,
the PW employees function independently only on limited
occasions, such as when they are assigned to patch roads.  More
often, either the PW Director or the Foreman are on-site making
sure that materials and equipment are on site and that work in
being performed properly.  In this oversight role, the Foreman
might, for instance, remind an employee to put on his safety vest
or instruct an employee on the proper way to do a job.  However,
the PW Director always maintains the ultimate authority to
enforce on-the-job standards by the use of discipline and
evaluations.  The Foreman has no real role in either of these
areas and agreed that he would refer any real performance
problems on the job to the PW Director. 
     Much like the Sergeant, the Foreman is "in charge" in the
absence of the PW Director, either at a job site or when the PW
Director is on vacation or otherwise absent.  When the PW
Director is absent, the responsibilities of the Foreman increase
(for example, the Foreman will meet with the Town Manager daily

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to see if there are any new public works problems that need to be
addressed).  Just as in the police department, however, true
supervisory authority continues to rest with the PW Director even
when he is absent.  Any major problems or issues in the public
works department await the return of the PW Director, or are
forwarded to the Town Manager.
     The supervisory duties performed by the Foreman do not
constitute the principal functions of his position.  The Foreman
performs a minimal amount of real supervisory duties, and spends
the "majority" of his day performing the same type of day-to-day
public works duties as the other employees [Tr. at 64].  The job
description for the Foreman describes the primary duty of the
position as a "working foreman" [Exh. No. 3].  The Board has long
found that the principal functions of "line" or "working" foremen
are not supervisory and that such foremen may be included in the
bargaining unit with those employees whom they supervise, without
undue conflict.  See e.g. Winthrop School Department Food Service
Employees, UPIU and Winthrop School Department, No. 97-UD-11,
slip op. at 13 (MLRB Aug. 27, 1997) (neither main site manager
nor satellite managers have as their principal functions any
significant degree of management control duties); Teamsters
Local Union No. 48 and Van Buren Light and Power District,
No. 85-UD-14, slip op at 8-9 (MLRB 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); and Council 74, AFSCME and Rockland Waste Water
Treatment Facility, No. 82-UD-03, slip op. at 3-4 (MLRB Aug. 12,
1981) (head mechanic spends one-half of his time operating lathe
machine tool).  Considering both the type of supervisory
functions the Foreman performs and the amount of time he spends
performing them, the principal function of the position is not
the performing of supervisory tasks as outlined in the first 

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prong of  966(1).
     The Foreman performs no duties that are "distinct and
dissimilar" from the duties performed by the supervised
employees, the second prong of the  966(1) test.  The Foreman
does not have significant authority in the areas of hiring,
promoting, transferring and the like.  All authority in these
areas, as well as the authority to suspend, discharge or lay off,
is held by the PW Director and the Town Manager.
     As to the third prong of the test outlined in  966(1), the
Foreman has the same limited role in adjusting grievances under
the town grievance policy as the Sergeant, discussed above.  The
PW Director, not the Foreman, establishes performance standards
for the public works employees and has the only substantial
authority (through discipline and evaluations) to take corrective
actions to implement those performance standards.
     In summary, an evaluation of the criteria of  966(1) shows
that the Foreman position exercises limited supervisory authority
that could place him in conflict with the public works employees,
and he spends comparatively little time performing supervisory
functions.  He exercises no authority in many areas (such as
hiring, discharging, evaluating, and adjusting grievances) that
would lead to conflict with the other employees.  Therefore, he
may be placed in the same bargaining unit as those employees whom
he supervises.
     This conclusion is supported strongly by the Board's policy
against the proliferation of small bargaining units, particularly
the formation of one- and two-member supervisory units.  The
Board's policy has rather 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 Ass'n, No. 84-A-05, slip op. at 4 (MLRB May 30, 1984). 
The rationale underlying the Board's policy against non-
proliferation is as follows:

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     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.  

MSAD No. 43, slip op. at 4, 5.  The Board has also found that the
" . . . creation of a single-member bargaining unit may well
impede the individual, placed therein, from securing the free
exercise of his collective bargaining rights, in contravention of
the spirit and intent of Section 963 of the Act."  MSAD No. 14
and East Grand Teachers Ass'n, No. 83-A-09, slip op. at 13 (MLRB
Aug. 24, 1983), citing Town of Sabattus and Teamsters Local Union
No. 48, No. 82-A-01, slip op. at 4 (MLRB Sept. 17, 1981).  Based
upon this non-proliferation policy, supervisors who exercise
greater supervisory functions than the Sergeant and the Foreman
under consideration here exercise have been included in a
bargaining unit with their subordinates.[fn]3
     For all of the reasons stated above, the hearing examiner
finds that the duties of the Sergeant and the Foreman do not
create such supervisory conflict that they should be placed in a
separate two-person bargaining unit.  As the employer has
stipulated that the Sergeant and the Foreman share a community of
interest with the other positions in the Dexter general 

____________________

     3 See, e.g., Lubec Education Association, MTA/NEA and MSAD No. 19
Board of Directors, No. 83-UD-17 (MLRB 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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government unit, these two positions should be included in that
unit.

                           CONCLUSION

     On the basis of the foregoing facts and discussion and
pursuant to the provisions of 26 M.R.S.A.  966, the petition for
unit determination filed on November 7, 2002, by Betty L. Burns
on behalf of the AFSCME, Council 93 is granted.  The following
described unit is held to be appropriate for purposes of
collective bargaining:

     INCLUDED:  Ambulance/EMT-Driver, Ambulance/EMT, Ambulance/
                Driver, Assistant Librarian, Building Maintenance
                & Parks/ Assistant, General Administration/Deputy
                Clerk, Human Services/ Welfare Clerk, Police
                Officer, Police Sergeant, Police Department/
                Secretary-Dispatcher, Public Works/Driver-
                Equipment Operator, Public Works/Driver-Mechanic,
                Public Works/Driver-Laborer, and Public
                Works/Foreman.

     EXCLUDED:  Reserve Police Officer, Seasonal Public
                Works/Driver, Per Diem Ambulance/EMT-Driver and
                all other employees of the Town of Dexter.

A bargaining agent election for this unit will be conducted
forthwith.

Dated at Augusta, Maine, this 13th day of March, 2003.

                                MAINE LABOR RELATIONS BOARD



                                /s/_________________________
                                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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