STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 04-UD-01
Issued: November 24, 2003
__________________________________
)
DISTRICT LODGE #4, INTERNATIONAL )
ASSOCIATION OF MACHINISTS AND )
AEROSPACE WORKERS, )
)
Petitioner, )
) UNIT DETERMINATION REPORT
and )
)
TOWN OF WISCASSET, )
)
Respondent. )
__________________________________)
PROCEDURAL HISTORY
This unit determination proceeding was initiated on
July 17, 2003, when Brian Bryant, Directing Business
Representative of District Lodge #4, International Association of
Machinists and Aerospace Workers ("IAMAW" or "union"), filed a
Petition for Unit Determination and Bargaining Agent Election
with the Maine Labor Relations Board ("Board" or "MLRB"). This
Petition requested, in part, a determination that the following
employees of the Town of Wiscasset ("town") constituted an
appropriate bargaining unit within the meaning of 26 M.R.S.A.
966 and Chap. 11, 22 of the Board Rules: Town Clerk, Tax
Collector, Assessor, Code Enforcement Officer, Police Chief,
Recreation (three positions), and Dispatcher.[fn]1 The town
filed a timely response to this petition on August 1, 2003.
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1 After the filing of this petition, the parties agreed that the
Police Department Secretarial Position (called the "Dispatcher" in the
petition) should be added by agreement to the Town of Wiscasset
operations bargaining unit, an already-existing unit that is
represented by the IAMAW. Therefore, the bargaining unit placement of
this position need not be addressed in this report. The parties
agreed that the unit proposed in this petition will be called the Town
of Wiscasset general government bargaining unit.
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A hearing was first scheduled in this matter on September 8,
2003, with a hearing notice issued on August 18, 2003. This
hearing was postponed at the request of the union. A new hearing
was scheduled on October 9, 2003, with a hearing notice issued on
September 10, 2003.
An evidentiary hearing on the unit determination petition
was held by the undersigned hearing examiner on October 9, 2003,
at the Board's hearing room in Augusta, Maine. David Porter,
Grand Lodge Representative, appeared on behalf of the union.
David Barrett, Manager of Personnel Services and Labor Relations
for the Maine Municipal Association, appeared on behalf of the
town. The union presented as its witnesses: Joe Flanders, IAMAW
Business Representative; Susan Varney, Assessor; and Michael
Emmons, Police Chief. The town presented as its witnesses:
Susan Varney, Assessor; and Larry Cilley, Town Manager. The
parties were given the full opportunity to examine and cross-
examine witnesses and to offer evidence. The parties both
presented oral closing statements at the hearing.
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). The subsequent references in this report are all to
Title 26, Maine Revised Statutes Annotated.
EXHIBITS
The following exhibits were offered by the union without
objection by the town, and were admitted into the record:
U-1 Town Manager Plan Statute, 30-A M.R.S.A. 2631, et
seq.
U-2 March 23, 2001, Town of Wiscasset Official Ballot
U-3 September 23, 2002, letter from Barrett to Flanders
U-4 April 25, 2003, letter from Kinney to Flanders
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U-5 June 2, 2003, letter from Barrett to Ayotte
U-6 April 25, 2003, letter from Kinney to Ayotte
U-7 June 12, 2003, handwritten note from Cilley to Flanders
U-8 August 4, 2003, letter from Cilley to Flanders
U-9 August 27, 2003, letter from Barrett to Flanders
U-10 Waterfront Attendant job description
The following exhibits were offered by the town without
objection by the union, and were admitted into the record:
T-1 Collective bargaining agreement, Wiscasset police
department bargaining unit, effective January 1, 2003
to December 31, 2005
T-2 October 19, 1999, minutes of Selectmen's Meeting
STIPULATIONS
The parties agreed to the following factual stipulations on
the record:
1. Local S/89 District Lodge #4, International Association
of Machinists and Aerospace Workers (IAMAW) is a public employee
organization within the meaning of 26 M.R.S.A. 962(2).
2. The Town of Wiscasset 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
IAMAW's petition.
4. This petition 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(6).
5. The following positions in the proposed Wiscasset
general government bargaining unit are "public employees" as
defined by 26 M.R.S.A. 962(6): Town Clerk, Tax Collector, Code
Enforcement Officer, Program Director, Pool Director, and
Maintenance Director.
6. The following positions share a community of interest
and therefore comprise an appropriate unit for purposes of
collective bargaining: Town Clerk, Tax Collector, Code
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Enforcement Officer, Program Director, Pool Director, and
Maintenance Director.
7. The only issues raised by this case are (1) whether the
position of Police Chief is a "department head" within the
meaning of 26 M.R.S.A. 962(6)(D) and (2) whether the position
of Assessor is a "confidential" employee within the meaning of
26 M.R.S.A. 962(6)(C).
8. The Town Manager is the executive head of the Town of
Wiscasset.
9. If the position of Police Chief is found not to be a
"department head," the position shares a community of interest
with the other positions in the Wiscasset general government
bargaining unit and should be included in that unit.
10. If the position of Assessor is found not to be a
"confidential" employee, the position shares a community of
interest with the other positions in the Wiscasset general
government bargaining unit and should be included in that unit.
FINDINGS OF FACT
General findings
1. The town has operated under a town manager form of
government since March, 2001, when the citizens voted to adopt
this form of government. Under this form of government, the
citizens elect a board of selectmen and the selectmen hire a town
manager to oversee day-to-day functions of town government and
town employees. Prior to this, the Town was governed by an
elected board of selectmen, only.
2. The town's current Town Manager began serving in an
interim capacity in May, 2003, and was hired on a permanent basis
in August, 2003.
3. There are two bargaining units of public employees
currently organized in the town. One unit consists of Police
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Officers and Sergeants. The bargaining agent for this unit is
the American Federation of State, County and Municipal Employees
(AFSCME). The second unit consists of all non-supervisory
employees working in the highway department, the sewer treatment
plant, the transfer station, the town office janitorial/
maintenance department, and the town office secretary. The
parties refer to this unit as the "operations unit." The
bargaining agent for this unit is IAMAW.
4. The most recent collective bargaining agreement for the
police bargaining unit was negotiated in 2002. The current
agreement is effective from January 1, 2003, to December 31,
2005.
5. The first collective bargaining agreement for the
operations bargaining unit was negotiated in late 2002. The
parties utilized a mediator in December, 2002, and January, 2003.
The agreement was ratified in late January, 2003. The agreement
is effective from January 1, 2003, to December 31, 2004.
6. The town used two selectmen and the Maine Municipal
Association ("MMA") representative as its bargaining team for the
negotiations of these two collective bargaining agreements in
2002. In the case of each negotiation, the MMA representative
performed clerical duties, such as note-taking, for the town.
The MMA representative sometimes submitted proposals at the table
on behalf of the town that he wrote by hand. The MMA
representative also used MMA support staff for typing proposals
and letters for the town.
7. The Town Manager (the predecessor of the current Town
Manager) did not attend negotiation sessions for the town in
2002. The members of the town bargaining team met with the Town
Manager during strategy sessions, and sought his advice and input
on the negotiations. The Town Manager did not utilize any town
employee as support staff during the negotiations. The current
Town Manager was not involved in these strategy sessions because
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he was not employed by the town at the time.
8. The IAMAW filed a prohibited practice complaint against
the town with the Board in April, 2003. This complaint remains
unresolved. The town's correspondence in this matter has been
typed by MMA staff.
Findings regarding the Assessor
9. The present Assessor has been employed by the town for
26 years. She has served as the certified assessor agent for the
town for the last two years.
10. The primary duty of the Assessor is to perform property
assessments for the town. For approximately eight months of the
year the Assessor spends most of her work time performing
assessments. The Assessor has also acted as an office
supervisor, although she no longer directly supervises any
employees since the hiring of the Town Manager. The Town Clerk
is the Assessor's direct supervisor.
11. The Assessor also acts as secretary to the selectmen.
She attends selectmen meetings that are held every two weeks and
types the minutes. Once approved, the minutes are a public
record. She does not attend executive sessions of the selectmen;
no minutes are taken in the executive sessions.
12. The Town Manager types most of his own written
correspondence, or uses e-mail. The Assessor and the office
Secretary both occasionally type letters or other documents for
the Town Manager. For instance, the Assessor typed the original
draft of a job description for the waterfront attendant position
(Exh. U-10).
13. The Assessor has created personnel files for each of the
town employees. These files are placed in a locked file cabinet.
The Assessor has access to this cabinet.
14. The Assessor sometimes answers questions from other town
employees about benefits, such as health insurance. The Assessor
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is aware that it is a requirement of her job that she keep
confidential all personnel information to which she has access.
15. The Assessor and the Town Manager have occasionally
talked in private about the performance of other town employees.
16. The Assessor and the school Secretary share the duty of
typing documents relating to workers' compensation claims filed
by town employees.
17. The Assessor has not typed any correspondence or other
documents relating to collective bargaining, for either the
current or the former Town Manager.
18. The Town Manager does not have a locking file cabinet or
other place where he can keep confidential documents. He does
not have a password for his computer. However, the Assessor does
not use the Town Manager's computer and she does not go through
any files or documents that he maintains.
19. Some employees in the operations bargaining unit filed a
grievance about overtime pay. The Assessor gathered some
information about this grievance for the Town Manager, such as
checking the seniority dates of certain affected employees. She
did not type any correspondence or documents relating to this
grievance. She maintained a file relating to this grievance, by
placing paperwork into the file as directed by the Town Manager.
The Assessor, the Town Manager and the MMA representative have
also discussed the possible financial impact upon the town of the
grievance.
Findings regarding the Police Chief
20. The Police Chief has held his position for four years.
Because of military duty, the Police Chief was on a leave of
absence from his position from October 1, 2001, to April 1, 2003.
21. The Police Chief was appointed to his position by the
selectmen in October, 1999 (Exh. T-2) for an indefinite period.
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The Police Chief was appointed by the selectmen because at that
time the town had not yet adopted the town manager form of
government. The selectmen had direct hiring and firing authority
for all town employees.
22. The Police Officers (including the Police Chief) and
some other town officials are sworn into office at the beginning
of each calendar year. This is a yearly formality, not
indicating a yearly appointment.
23. The police department currently consists of the Police
Chief, one full-time Police Sergeant, three full-time Police
Officers, and a full-time Secretary-Dispatcher. There are also
nine Reserve Officers who also work as requested.
24. The Police Chief is regularly scheduled to work from
8:00 a.m. to 4:00 p.m., Monday to Friday. He performs regular
patrol duties, as needed, during his assigned shift. Another
full-time Police Officer is usually also assigned to work from
12:00 p.m. to 4:00 p.m., Monday to Friday.
25. The Police Sergeant performs some supervisory duties
such as scheduling the Police Officers, reviewing reports, and
assigning cases.
26. The Police Chief spends approximately 25 percent of his
time performing administrative and management functions. He
spends approximately 75 percent of his time working as a patrol
officer and supervising the other police department employees.
27. No regular performance evaluations are performed for the
police department employees.
28. Under the police department collective bargaining
agreement, the Police Chief may discipline police department
employees up to and including oral or written warnings,
disciplinary probation, or suspension. The police chief would
recommend discharge of a police department employee, if
necessary, to the Town Manager.
29. The Police Chief effectively performs all hiring for the
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police department. If a Police Officer vacancy must be filled,
the Police Chief would interview an applicant from a county
"pool" maintained by a law enforcement consortium, or he could
interview an applicant from his own reserve pool, at his
discretion. The Police Chief would perform any needed background
checks and would ultimately recommend an applicant for hire. The
Town Manager has ultimate hiring authority, but would hire the
applicant recommended by the Police Chief.
30. Under the police department collective bargaining
agreement, employees are to attempt to have their grievances
informally resolved by their immediate supervisor. If this does
not resolve a grievance, a formal written grievance is to be
directed to the Police Chief and, if not resolved at this level,
to the Board of Selectmen. If not resolved at this point, a
grievance may be taken to arbitration. Since the appointment of
the present Police Chief, no grievances have been filed by police
department employees.
31. Under the police department collective bargaining
agreement, the Police Chief investigates all citizen complaints
about Police Officers, creates an investigative report (if
necessary) and determines any discipline needed. If a Police
Officer does not agree with any discipline meted out, the Police
Officer may grieve the matter directly to the Board of Selectmen.
32. The Police Chief has attended executive sessions of the
Selectmen when police matters have been discussed.
33. The Police Chief is considered by the Town Manager to be
one of 12 department heads ("department leaders") in the town.
Other department leaders include the Assessor, the Treasurer, the
Code Enforcement Officer, the Superintendent of the waste water
facility, the Superintendent of the transfer station, the Road
Commissioner, and the Recreation Director. The employees who
are considered department heads have varying degrees of
managerial authority and supervisory responsibility. The Police
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Chief attends department leader meetings once a week with the
Town Manager.
34. Since the beginning of the Police Chief's employment,
the town has negotiated two collective bargaining agreements for
the police bargaining unit. The Police Chief was on military
leave when the present agreement (2003-2005) was negotiated.
The Police Chief was not on military leave when the previous
agreement was negotiated. He did not serve on the negotiating
team for the town for the previous agreement, but he occasionally
attended negotiation sessions. The team consulted with him
outside negotiation sessions about various issues, such as police
procedures. He had access to the town proposals during these
negotiations.
35. The Police Chief creates a budget for the police
department on a yearly basis. After creating a budget, the
Police Chief works with the Town Manager and the town budget
committee to "fine tune" the request. The police department
budget is then put out to vote at the annual town meeting.
36. The Police Chief created the operating procedures for
the town police department. These procedures were taken from a
"model" procedures manual, modified by the Police Chief to fit
the needs of the town and the department. The Police Chief sees
to it that the procedures are utilized and implemented by the
police department employees.
37. The Police Chief attends meetings of the Maine Police
Chiefs' Association, and district law enforcement meetings. The
Police Chief serves as an officer of the Maine Police Chiefs'
Association, in line to eventually be president of the
Association.
DISCUSSION
The parties agreed that the following positions share a
community of interest and should be placed in the proposed Town
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of Wiscasset general government bargaining unit: Town Clerk,
Tax Collector, Code Enforcement Officer, Program Director, Pool
Director, and Maintenance Director. The town argues that two
positions in the proposed unit, the Assessor and the Police
Chief, should be excluded on the grounds that the Assessor is a
"confidential" employee within the meaning of 962(6)(C) and
that the Police Chief is a "department head" within the meaning
of 962(6)(D). The town has agreed that if the hearing examiner
finds that either the Assessor or the Police Chief are not
excluded under these respective provisions, the positions share a
community of interest with the positions in the proposed general
government bargaining unit and should be placed in that unit.
Therefore, the only issues presented here are the statutory
exclusions which will be addressed, in turn, below.
Whether the Assessor is a confidential employee
The sole argument raised by the employer for excluding the
Assessor from the bargaining unit is that the position is
"confidential," and therefore not a "public employee" within the
meaning of the MPELRL. Section 962(6)(C) provides that "public
employee" means any employee of a public employer, except any
person:
C. Whose duties as deputy, administrative assistant or
secretary necessarily imply a confidential relationship
to the executive head, body, department head or
division head.
The exception for a confidential employee is not intended to
exclude all employees with access to information considered
"confidential" in other contexts. The Board has held:
Our standard for the exclusion of 'confidential'
employees is that those persons affected are employees
who are 'permanently assigned to collective bargaining
or to render advice on a regularly assigned basis to
management personnel on labor relations matters.'
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State of Maine and Maine State Employees Association,
[Report of Appellate Review of Unit Clarification
Report (Mar. 2, 1979)][No. 78-A-09], at 8. As we have noted above,
the 'labor relations' matters, in the foregoing
context, do not include contract administration actions
or duties. Applying Hendricks County, [454 U.S. 170,
102 S.Ct. 216, 70 L.Ed.2d 323 (1980)], to this context,
those employees who have, as part of their work
responsibilities, access to the employer's negotiations
positions, in advance of said positions being disclosed
at the bargaining table, and who, as an integral part
of their job duties, assist and act in a confidential
capacity with respect to persons who formulate or
determine the employer's bargaining positions or bar-
gaining strategy are 'confidential' employees . . . .
State of Maine and Maine State Employees Association,
No. 82-A-02, Interim Order, slip op. at 10 (MLRB June 2, 1983).
The purpose of this exclusion is to avoid situations where
employees would be faced with conflicts in loyalty in the
collective bargaining context between that owed to the employer
and that owed to the bargaining agent. The potential of such a
conflict may arise with employees who, as an inherent part of
their job duties, have access to the employer's collective
bargaining positions and strategies before they are presented at
the bargaining table. These collective bargaining ideas,
policies or positions, "if disclosed to the bargaining agent,
could provide the bargaining agent with unfair leverage or
advantage over the public employer." Town of Fairfield and
Teamsters Local Union No. 48, No. 78-A-08, slip op. at 3 (MLRB
Nov. 30, 1978).
In addition, 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 'confidential' duties." State of Maine and Maine State
Employees Association, No. 82-A-02, slip op. at 28. This
decision was rendered over 20 years ago, however, prior to the
present state of technology which enables many confidential
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supervisory 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 employee
has any particular entitlement to a confidential
clerical support person.
Lewiston Food Service Managers Association/MEA/NEA and Lewiston
School Committee, No. 99-UD-10, slip op. at 24-25 (MLRB May 27,
1999).
In the present matter, the Town Manager is most likely a
confidential employee. The town adopted a town manager plan less
than three years ago. The present Town Manager (employed since
May, 2003) has not been involved in collective bargaining because
collective bargaining agreements for both the police and
operations unit were ratified and in effect at the time of his
hire. The former Town Manager did not serve on the town's
negotiating team. The team consisted of the MMA representative
and two Selectmen. The negotiating team consulted with the
former Town Manager during negotiations and, presumably, he was
privy to the negotiation strategies and positions of the
employer. However, the role of the present Town Manager in
future collective bargaining is speculative at this point. On
the other hand, the present Town Manager serves as the ultimate
supervisor for all town employees, and is the ultimate hiring and
firing authority for all town employees. He is regularly and
permanently assigned to formulate and determine labor relations
policies for the town, and to render advice on labor relations
matters. The parties have also stipulated that he is the
"executive head" of the town, as defined in 626(6)(C).
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The question remains whether it is an inherent part of the
job duties of the Assessor to serve as a "confidential" clerical
to the Town Manager and, if so, whether she thereby has access to
the employer's collective bargaining positions and strategies
before they are presented at the bargaining table. The simple
answer to this question is that the Assessor does not serve in
this capacity since the present Town Manager has not yet been
involved in collective bargaining. Since his role in future
negotiations is speculative, even more speculative is the role of
the Assessor--whether she will perform any confidential clerical
duties that make her privy to the town's collective bargaining
strategies. In past years, the MMA representative (who has been
on the town's negotiating team) and his support staff have
performed any necessary clerical functions. The MMA
representative and his support staff have also performed all
clerical functions related to a recently-filed prohibited
practice complaint with the Board. The Assessor has never typed
documents relating to collective bargaining for the town. The
present Town Manager has performed much of his own clerical work
since his hiring. All of these factors make it clear that the
Assessor does not currently serve as a confidential clerical to
the Town Manager and, at this point, it is too early to speculate
whether she ever will.
The Board has long held that current duties, not duties
projected for the future, must be the basis for a finding of
confidentiality. MSAD No. 14 and East Grand Teachers
Association, No. 83-A-09, slip op. at 10 (MLRB Aug. 24, 1983);
AFSCME Council 93 and Town of Sanford, No. 92-UD-03, slip op. at
37 (MLRB Feb. 21, 1992), aff'd, No. 92-UDA-03 (MLRB May 7, 1992).
Therefore, the hearing examiner cannot find here that the
Assessor is a confidential employee based on the possibility that
she may serve in a confidential clerical fashion in the future.
If the Assessor's duties change in the future, the town is free
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to petition at that time for her exclusion from the unit.
Waterville Police Department and Teamsters Local Union No. 48,
No. 78-A-06, slip op. at 4 (MLRB Oct. 4, 1978).
None of the present clerical duties of the Assessor are
confidential duties, as that term has been defined by the Board.
She performs some personnel duties, such as placing paperwork in
personnel files, typing workers' compensation documents, and
answering benefits questions. All of these duties may make her
privy to certain confidential information about other town
employees, but not a "confidential" employee within the meaning
of 962(6)(C). See e.g. State of Maine and Maine State
Employees Association, No. 82-A-02, slip op. at 27 (maintaining
personnel files, handling worker's compensation claims,
maintaining seniority lists and sick time records are not
confidential functions); Winthrop School Department Food Service
Workers, UPIU and Winthrop School Department, No. 97-UD-11, slip
op. at 18 (MLRB Aug. 27, 1997) (having access to confidential
financial and personnel information not sufficient for
confidential exclusion). The Assessor has also long served as
the secretary for the Selectmen, typing minutes of the regular
meetings. She does not attend executive sessions where
confidential personnel matters may be discussed. The meeting
minutes are public documents, and thus not confidential even in
the traditional meaning of that term. Finally, the Assessor has
been involved in a limited way in a contract grievance filed by
some employees regarding overtime pay. She has checked seniority
dates and discussed with the Town Manager the financial impact
the grievance might have on the town budget. These kinds of
duties do not amount to " . . . the formulation, determination
and effectuation of the employer's employee relations policies."
State of Maine and Maine State Employees Association, No.
82-A-02, slip op. at 18. Handling of grievance files, and
similar contract administration duties, do not warrant exclusion
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as a confidential clerical employee. State of Maine and Maine
State Employees Association, No. 82-A-02, slip op. at 25.
Finally, the statutory language requires that the duties of
the position "necessarily imply" a confidential relationship.
Using this language, one hearing examiner denied the exclusion of
an employee who did not previously have a confidential
relationship with the employee's superior and who was given
minimal confidential secretarial duties. Lincoln Sanitary
District and Teamsters Union Local No. 340, No. 92-UC-02, slip
op. at 13-15 (MLRB Nov. 17, 1992). Similarly here, the Assessor
seems to have no particular confidential work relationship with
the Town Manager, nor does such a confidential relationship
naturally flow from her position. The Assessor's main job is to
perform property assessments. The Town Manager does much of his
own clerical work, only occasionally having either the Assessor
or the office Secretary perform some typing for him. Apparently,
this occasional typing is given to either employee on a random
basis. The Assessor has not been given any notable access to
confidential records, files or computer information maintained by
the Town Manager. Therefore, at this time, the Assessor's
position does not "necessarily imply" a confidential relationship
with the Town Manager.
For all of these reasons, the hearing examiner concludes
that the Assessor is not a "confidential" employee within the
meaning of 962(6)(C). As the parties have stipulated that the
Assessor shares a community of interest with the other positions
in the general government bargaining unit, the Assessor should be
included in that unit.
Whether the Police Chief is a department head
The sole argument raised by the employer for excluding the
Police Chief from the bargaining unit is that the position is a
"department head," and therefore not a "public employee" within
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the meaning of the MPELRL. Section 962(6)(D) provides that
"public employee" means any employee of a public employer, except
any person:
D. Who is a department head or division head appointed
to office pursuant to statute, ordinance or resolution
for an unspecified term by the executive head or body
of the public employer.
The exception, by its own terms, requires that the employee must
be appointed by the executive head or body of the employer, that
the appointment must be made pursuant to statute, ordinance or
resolution, and that the appointment be for an unspecified term.
In addition, the employee's duties must demonstrate that they
serve as the functional head of a department or division within
the employer's workplace. The hearing examiner will first
discuss whether the Police Chief was appointed, and then discuss
whether he serves as a functional department head.
The minutes of the Wiscasset selectmen's meeting of
October 19, 1999, state the following:
Bob Blagden made a motion to appoint Michael F. Emmons
Police Chief for the Town of Wiscasset. Bob Pontau
seconded the motion. Vote 3 - 0. (Will begin work on
11/1/99.) Bob introduced Michael and Rhonda, his wife.
Michael said that he is looking forward to the job and
appreciates the opportunity. They were both welcomed
to Wiscasset.
(Exh. No. T-2). This meeting occurred about two years before the
town adopted a town manager form of government. The Board of
Selectmen was clearly the "executive body" of the town of
Wiscasset at the time the Police Chief was appointed. Indeed, as
the MLRB has recently decided, even under a town manager form of
government, the Selectmen remain the "executive body," sharing
their executive authority with the Town Manager, the "executive
head." Town of Topsham and IAMAW, No. 02-UCA-01, slip op. at 7
(MLRB Aug. 29, 2002) (interpreting the state Town Manager Plan,
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30-A M.R.S.A. 2631 et seq.).
In selecting Mr. Emmons as the Police Chief, the selectmen
used the word "appointed" and acted by motion and vote. This is
the type of formal process, by an elected body, which the Board
has long found meets the definition of "appointment" under 962
(6)(D). See e.g. AFSCME Council 93 and Town of Sanford, No.
92-UD-03 (MLRB Feb. 21, 1992), aff'd, No. 92-UDA-03 (MLRB May 7,
1992) (Planning Director and Assessor appointed by Selectmen);
Teamsters Local Union No. 48 and Town of Wells, No. 84-UC-04
(MLRB Jan. 26, 1984), rev'd on other grounds, No. 84-A-03 (MLRB
Apr. 11, 1984) (Code Enforcement Officer appointed by Selectmen).
Confirmation by the Selectmen or City Council, at least, is
required to meet the "degree of importance and formality needed
to satisfy the Act's appointment requirement." AFSCME Council 93
and Town of Paris, No. 97-UD-14, slip op. at 11 (MLRB Oct. 1,
1997) (involvement of two Selectmen in the interview and
appointment process and confirmation by the Board of Selectmen
satisfies appointment requirement); Teamsters Local Union No. 48
and City of Saco, No. 80-UD-34, slip op. at 5 (MLRB June 20,
1980) (confirmation by City Council satisfies appointment
requirement).[fn]2
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2 An individual must be specifically appointed to an office under some
form of statute, ordinance or resolution, beyond a general grant of
hiring authority. See Town of Topsham and IAMAW, No. 02-UCA-01 (MLRB
Aug. 29, 2002), and cases cited therein at slip op. 10. Although there
was testimony here that the Selectmen had general hiring and firing
authority regarding town employees before the adoption of the town
manager form of government, this was the extent of evidence submitted
on this point (for instance, there was no evidence that the selectmen
voted on and appointed all town employees). In the same October 19,
1999, minutes, the selectmen also voted to appoint an individual to a
Community Advisory Panel for the decommissioning of Maine Yankee. Just
as in the recent case Maine Maritime Academy and Maine State Employees
Association, No. 03-UCA-01, slip op. at 7 (MLRB May 15, 2003), there is
no suggestion here that the employer is attempting to stretch the
meaning of "appointment" to exclude a position that would not normally
be excluded under the MPELRL.
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The selectmen appeared to have appointed the Police Chief
for an unspecified term. The minutes do not reflect that this
was an appointment for a year, or any other set period of time.
There was some evidence presented that some town employees (the
Police Chief, Police Officers, and some other town officials) are
sworn in on a yearly basis (Tr. at 60, 80, and 98). This seems
to be part of, or an extension of, the swearing in required of
town officials and deputies under Title 30-A M.R.S.A. 2526(9).
Without additional evidence, the hearing examiner cannot conclude
that this proves that the Police Chief only serves a yearly term
and that this swearing-in constitutes an official reappointment.
The Selectmen do not seem to be involved in this procedure and,
under the current town manager form of government, the Selectmen
would at least need to confirm the Police Chief on a yearly basis
if he was serving a specified term. Accord Town of Topsham and
IAMAW, No. 02-UCA-01, slip op. at 11 (in towns operating under
the town manager plan, a department head is not "appointed to
office" until and unless confirmation by the Board of Selectmen
has occurred).
The final issue that must be addressed regarding the
appointment is whether the Police Chief was appointed " . . .
pursuant to statute, ordinance or resolution." The town did not
submit any local ordinance regarding the appointment of the
Police Chief (if there is one), nor did the town point to any
provision of state law regarding the appointment of the Police
Chief. However, the Board has recently held that confirmation by
Selectmen of a position acts as a "resolution" serving to satisfy
this part of the appointment requirement:
Upon close examination, the cases indicate that the
involvement of the selectmen was not relied upon to
conclude that the appointment was made by the executive
head or body, but, rather, confirmation by the
selectmen served to satisfy the requirement that the
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appointment be "pursuant to statute, ordinance or
resolution." See, Teamsters and City of Saco, No.
80-UD-34, at 5 (June 20, 1980) (confirmation by city
council, "whether by 'resolution' or act of other
terminology," satisfies the required degree of
importance and formality associated with the phrase);
AFSCME and Town of Paris, No. 97-UD-14, at 11 (Oct. 1,
1997) (although no specific statute governs appointment
of road foreman, the fact that two selectmen were
involved in interview and the appointment was confirmed
by board satisfies the "degree of importance and
formality needed to satisfy the Act's [appointment]
requirement"), quoting Teamsters and City of Saco, No.
80-UD-34, at 5; Teamsters Local Union No. 48 and Town
of Lebanon, No. 86-UD-02, at 9 (Oct. 17, 1985)
(appointment by "resolve" of the board satisfies
requirement that appointment be pursuant to statute,
ordinance or resolution), appealed on other grounds,
No. 86-A-01 (Dec. 5, 1985), aff'd Inhabitants of the
Town of Lebanon v. Maine Labor Relations Board and
Teamsters Local Union No. 48, No. CV-85-656, Fra. Cty.
Super. Ct. (Feb. 3, 1987).
Town of Topsham and IAMAW, No. 02-UCA-01, slip op. at 7-8.
Likewise here, the actions of the Selectmen in appointing the
Police Chief serve to fulfill the requirement that he was
appointed pursuant to statute, ordinance or resolution.
Therefore, the appointment of the Police Chief fulfilled all of
the appointment requirements outlined in 962(6)(D).
The issue remains whether the Police Chief performs the
duties of a department head. This inquiry must focus on the
Police Chief's actual job duties or functions, not his job title
alone nor his placement on the employer's organizational chart.
In interpreting the 962(6)(D) exclusion, the Board has looked
at the three types of job duties normally inherent in a
department or division: day-to-day, rank-and-file work;
supervision of other employees; and formulating and administering
department policies and practices - management of the department.
The Board has found that the "primary function" of the position
must be in managing and directing the affairs of the department,
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in an analysis worth quoting at length:
Our cases establish that for an employee to be a
"department head" within the meaning of Section
962(6)(D), the employee's primary responsibility must
be that of managing or directing the affairs of the
department, as opposed either to acting as a supervisor
or to performing the day-to-day work of the department.
For example, in Teamsters Local 48 and City of
Portland, No. 78-UD-39, slip op. at 2 (MLRB Sept. 13,
1978), the hearing examiner declared 12 employees to be
Section 962(6)(D) division heads because they were
'responsible for the day-to-day administration' of
their divisions, and because their principal duties
were those of 'formulating and administering division
policies and practices.' On the other hand, in
Teamsters Local 48 and Town of Bar Harbor, No. 80-UD-09,
slip op. at 3 (MLRB Nov. 15, 1979), a Treatment
Plant Operator who was responsible for the day-to-day
operation of the treatment plant and who performed such
administrative duties as setting the work schedules of
other employees, arranging for the purchase of
equipment and supplies, and submitting a budget to the
town manager, was found not to be a department head
because, among other things, the employee 'spent the
major portion of his time performing the same work as
other operating employees.' See also Teamsters Local
48 and Boothbay Harbor Water System, No. 82-UD-29, slip
op. at 6-8 (MLRB May 11, 1982) (Foreman who performed
various administrative duties was not an administrator
because 'on balance the primary function of the
foreman's position is to act as a supervisor'). Our
cases thus require hearing examiners, when presented
with evidence showing that an employee performs both
administrative duties and supervisory or rank-and-file
duties, to decide whether the primary duties of the
position are those of an administrator or those of a
supervisor or a rank-and-file employee.
Teamsters Local Union No. 48 and Town of Wells, No. 84-A-03, slip
op. at 6-7.
It is also important to distinguish duties of an
administrator or a department head from duties as a supervisor.
Under the MPELRL, department and division heads are excluded from
collective bargaining but supervisors are not. The distinction
is not always an easy one to make, but it is critical.
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26 M.R.S.A. 966(1) sets out some of the criteria that are to be
considered when making a determination as to whether an employee
is a supervisor and therefore should not normally be placed in
the same unit as the employees he/she supervises:
In determining whether a supervisory position should be
excluded from the proposed bargaining unit, the
executive director or his designee shall consider,
among other criteria, if the principal functions of the
position are characterized by performing such
management control duties as scheduling, assigning,
overseeing and reviewing the work of subordinate
employees, or performing such duties as are distinct
and dissimilar from those performed by the employees
supervised, or exercising judgment in adjusting
grievances, applying other established personnel
policies and procedures and in enforcing a collective
bargaining agreement or establishing or participating
in the establishment of performance standards for
subordinate employees and taking corrective measures to
implement those standards.
Since supervisors have collective bargaining rights, these
criteria cannot be determinative of whether an employee is a
department head and therefore excluded from collective
bargaining. Teamsters Local No. 48 and Boothbay Harbor Water
System, No. 82-UD-29, slip op. at 7 (MLRB May 11, 1982). Stated
another way, a true department or division head does not simply
coordinate, oversee and supervise a program. Bangor Education
Association and Bangor School Committee, No. 80-UC-02, slip op.
at 8 (MLRB Nov. 16, 1979).
The rationale for excluding department heads from those
public employees having collective bargaining rights is not
specifically addressed in the statute. It is clear, however,
that to give a department head collective bargaining rights would
be tantamount to requiring the employer to bargain with itself.
As the hearing examiner in another unit determination case noted,
presumably the reason department heads are excluded from coverage
under the MPELRL is:
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. . . because in municipalities large enough to have
one or more true departments and even divisions within
departments, the chief administrator of the
municipality cannot possibly personally perform the
employee-related management functions that normally
fall to that position (and are not listed as simply
supervisory duties in 26 M.R.S.A. 966(1)) --
negotiation of collective bargaining contracts, hiring
and firing of staff, development and administration of
management policies and practices, etc.
AFSCME Council 93 and Town of Sanford, No. 92-UD-03, slip op.
at 31, fn. 6. The more time an employee spends in true
administrative and management tasks (as opposed to supervisory or
day-to-day tasks), the closer the identity of that person is to
the employer. The more time an individual spends in supervisory
and day-to-day tasks, the closer the identity of that employee is
to the rank-and-file and supervisory employees who are granted
collective bargaining rights under the MPELRL.
Here, the Police Chief performs many tasks associated with
the administration and management of the police department.
While the Town Manager has the ultimate hiring and firing
authority of town employees, it was clear from the testimony that
the Town Manager relies upon the Police Chief to make all such
employment decisions for his department. The Police Chief
performs all selection tasks for new Police Officers and
recommends all hires; the town manager's acceptance of his hiring
recommendations is pro forma. The Police Chief also maintains
all significant disciplinary authority over Police Officers under
the police department collective bargaining agreement. The
Police Chief developed and enforces department policies and
procedures. The Police Chief created and administers the police
department budget. The Police Chief also served in a significant
capacity in negotiating the first of two collective bargaining
agreements negotiated for the police department employees since
his appointment (the Police Chief was on military service leave
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for the negotiation of the second agreement). While he did not
serve on the negotiating team itself (the MMA representative and
two Selectmen served on the team), he was consulted by the team
and had access to town proposals, thus aligning him with the
management interests of the town. The Police Chief attends
weekly department head meetings with the Town Manager. The
Police Chief represents the town and the police department in
various capacities, such as on the Maine Police Chiefs'
Association. These are the types of duties often cited when a
position is found to be a department head. See e.g., Town of
Topsham and IAMAW, No. 02-UC-01, slip op. at 23-25 (MLRB May 9,
2002), aff'd on other grounds, No. 02-UCA-01 (MLRB Aug. 29, 2002)
(Fire Chief who created and enforced department operating
policies, created and administered budget, hired employees, and
represented town in his capacity before legislature and regional
organizations was department head); Maine State Employees
Association and State of Maine, Judicial Department, No. 98-UC-01
(MLRB Jan. 21, 1998) (CASA director who formulated and
administered program policies with considerable independence,
determined who was qualified to serve as volunteer, represented
the program before legislature and associations, created the
program budget and approved expenses, was department head);
Portland Administrative Employee Association and Portland
Superintending School Committee, No. 86-UD-14, slip op. at 18
(MLRB Oct. 27, 1986), aff'd on other grounds, No. 87-A-03
(May 29, 1987) (Director of Adult Education who set goals and
policies of program, had hiring and firing authority over most
staff, and who administered the program budget was department
head).
While the Town Manager is "over" the Police Chief in the
town hierarchy, it is clear that the Town Manager leaves the
administration and operation of the department to the Police
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Chief. This is particularly apt considering the unique public
safety aspects of running a police department. Some matters
under the police collective bargaining agreement (grievances,
citizen complaints) are resolved first by the Police Chief, and
then appealed directly to the Board of Selectmen with no
involvement of the Town Manager. This is not a case where the
true departmental authority rests with the Town Manager. Cf.
Teamsters Local No. 48 and Boothbay Harbor Water System, No.
82-UD-29 (MLRB May 11, 1982) (Town Manager and not the Water
System Foreman was the true administrator of the water system);
AFSCME Council 93 and Town of Paris, No. 97-UD-14 (MLRB Oct. 1,
1997) (Town Manager and not the Road Foreman was the true
administrator of the highway department).
The final question raised here was whether the "primary" or
"principal" function of the Police Chief is managing and
directing the affairs of the police department. The Police Chief
also spends some of his time supervising the Police Officers and
the department secretary. The time he spends on this function is
somewhat diminished by two facts. First, the Police Officers
often work on shifts by themselves, thus diminishing the amount
of "hands on" supervision that can be performed. Second, the
Police Sergeant also performs supervisory duties such as
scheduling, reviewing reports, and assigning cases. The Police
Chief also spends some of his time performing the same type of
patrol duties as the other police officers. For instance, he is
routinely scheduled as the only officer working patrol for about
half of his scheduled work time (four hours out of each eight-
hour shift). The Police Chief himself estimated that he spent
about 25 percent of his time on administrative and managerial
duties, and the remainder of his time on supervisory and patrol
duties. The Board and other hearing examiners have reviewed the
amount of time spent on administrative or managerial duties as
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well as the extent of those duties. See e.g., Teamsters Local
Union No. 48 and Town of Wells, No. 84-A-03, slip op. at 8 (MLRB
Apr. 11, 1984) (Code Enforcement Officer's enforcement and
licensing duties were far more extensive in terms of "time and
effort" than the minimal administrative duties he performed);
AFSCME Council 93 and Town of Paris, No. 97-UD-14 (MLRB Oct. 14,
1997) (Town Manager did not give Road Foreman very much real
authority in managing department; Road Foreman spent 90 percent
of his time performing highway labor duties). Here, while the
Police Chief does not spend the majority of his time on
administrative and managerial duties, the time he spends on such
duties is significant. The duties are extensive and essential to
the functioning of the police department. Considering both the
time the Police Chief spends on managerial duties and the nature
and extent of those duties, the hearing examiner finds that the
principal or primary function of the Police Chief is the
management of the department. The Police Chief is a "department
head" within the meaning of 962(6)(D), and, excluded from the
definition of "public employee" in the MPELRL, may not be
included in a bargaining 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 July 17, 2003, by Brian Bryant on
behalf of the IAMAW is granted in part and denied in part. The
following described unit is held to be appropriate for purposes
of collective bargaining:
INCLUDED: Town Clerk, Tax Collector, Code Enforcement
Officer, Assessor, Program Director, Pool
Director, and Maintenance Director
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EXCLUDED: Police Chief and all other employees of the
Town of Wiscasset.
A bargaining agent election for this unit will be conducted
forthwith.
Dated at Augusta, Maine, this 24th day of November, 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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