STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 06-UD-10
Issued: June 12, 2006
__________________________
)
AFSCME COUNCIL 93, )
)
Petitioner, )
)
and ) UNIT DETERMINATION REPORT
)
CITY OF SOUTH PORTLAND, )
)
Respondent. )
__________________________)
PROCEDURAL HISTORY
This unit determination proceeding was initiated on
February 13, 2006, when Barbara Libby for the American Federation
of State, County, and Municipal Employees Council 93 ("AFSCME
Council 93" or "union") 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 consisting of the following South Portland Library positions
should be created: Library Aide, Library Page, Head of
Circulation, Library Assistant II, Custodian, Young Adult
Librarian, Head of Technical Services, Assistant to Children's
Librarian, and Children's Librarian. The City of South Portland
("city" or "employer") filed a timely response to the petition,
agreeing to most of the unit as proposed by the union, but
arguing that the Head of Circulation, Children's Librarian, and
Head of Technical Services should be excluded as managerial
positions with supervisory authority over other positions in the
proposed bargaining unit, within the meaning of 26 M.R.S.A.
966(1).
A unit determination hearing notice was issued on March 7,
2006, for a hearing scheduled for April 4, 2006, and this notice
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was posted for the benefit of affected employees. At the request
of the union, the hearing was continued, and a new unit
determination hearing notice was issued on March 31, 2006, for a
hearing scheduled for April 26, 2006, and this notice was also
posted for the benefit of affected employees.
An evidentiary hearing on the unit determination petition
was conducted by the undersigned hearing examiner on April 26,
2006, at the Board's hearing room in Augusta, Maine. The union
was represented by Erin Goodwin, Esq. The town was represented
by Mary Kahl, Esq. The town presented as its witnesses: Marian
Peterson, Executive Director of the library, and Kevin Davis,
Branch Services Manager. The union presented as its witnesses:
Marie Chenevert, Head of Circulation; Tom Werley, Children's
Librarian; and Charlotte Spear, Head of Technical Services. The
parties were afforded full opportunity to examine and cross-
examine witnesses, to present evidence and to make argument. The
parties presented oral argument at the conclusion of the hearing.
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(1) and 966(2). The subsequent references in this report
are all to Title 26, Maine Revised Statutes Annotated.
STIPULATIONS
1. The American Federation of State, County and Municipal
Employees ("AFSCME") is an employee organization within the
meaning of 26 M.R.S.A. 962(2).
2. The City of South Portland 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. All of the employees in the proposed unit are "public
employees" as defined by 26 M.R.S.A. 962(6).
5. The parties agree that the following positions share a
community of interest and therefore comprise an appropriate unit
for purposes of collective bargaining: Library Aide, Library
Page, Library Assistant I, Library Assistant II, Custodian,
Secretary II, and Outreach Librarian.
6. The parties agree that if the positions of Head of
Circulation, Head of Technical Services, Children's Librarian,
and Young Adult Librarian are found to be "supervisory positions"
within the meaning of 26 M.R.S.A. 966(1), the positions shall
be placed in their own supervisory bargaining unit.
7. In the event that the positions of Head of Circulation,
Head of Technical Services, Children's Librarian, and Young Adult
Librarian are placed in their own supervisory bargaining unit,
AFSCME wishes to participate in an election for that unit.
EXHIBITS
The following exhibits were offered by the city without
objection by the union, and were admitted into the record:
Exhibit No. Title/Description
City Exh. No. 1 South Portland Public Library
Organization Chart
City Exh. No. 2 Job Description - Head of Circulation
Dept.
City Exh. No. 3 Job Description - Library Assistant II-2
City Exh. No. 4 Job Description - Library Assistant II-1
City Exh. No. 5 Job Description - Library Aide
City Exh. No. 6 Job Description - Library Page
City Exh. No. 7 Job Description - Outreach Librarian
City Exh. No. 8 Job Description - Children's Librarian
City Exh. No. 9 Job Description - Library Assistant I
Children's Room
City Exh. No. 10 Job Description - Head of Technical
Services
City Exh. No. 11 Job Description - Library Assistant I -
Technical Services Dept.
City Exh. No. 12 Job Description - Library Branch Manager
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City Exh. No. 13 Job Description - Library Assistant II
City Exh. No. 14 Job Description - Custodian
City Exh. No. 15 List of Library employees - pay
grade/step
The union did not offer exhibits into the record.
FINDINGS OF FACT
1. The South Portland Public Library maintains two
branches, a main facility and a branch facility, located in
different areas of the city.
2. The head of the library is the Executive Director.
In the library's organizational chart, the following positions
report directly to the Executive Director: the Head of
Circulation, the Children's Librarian, the Young Adult Librarian,
the Head of Technical Services, the Branch Services Manager (who
is the head of the branch facility), and the Secretary II. The
Executive Director reports directly to the City Manager.
3. The library employs approximately 25 full-time and part-
time employees. All of these employees, except for the Executive
Director and the Branch Services Manager, are hourly employees,
paid at pay grades/steps pursuant to the City's personnel
policies. The Executive Director and the Branch Services Manager
are the only salaried library employees.
4. The Head of Circulation, the Children's Librarian, the
Young Adult Librarian, and the Head of Technical Services are all
currently paid at the same hourly pay grade and step ("I-9").
All of the remaining hourly library employees are paid at lower
pay grades.
5. The Executive Director and the Branch Services Manager
are the only library employees involved in setting library
budgets.
6. The Head of Circulation has been employed by the library
for 28 years. She has served as the Head of Circulation for ten
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years.
7. The Head of Circulation works 37.5 hours per week (full
time). She supervises 11 circulation desk employees: two full-
time Library Assistant II's, four half-time Library Aide I's,
three Library Pages (working 11 hours per week each), one
Outreach Librarian (working 12 hours per week), and one
Custodian.
8. The Head of Circulation is responsible to develop and
conduct a complete program of library services for adult library
patrons. She administers circulation department procedures,
supervises staff, and develops policies and rules as needed to
assure smooth operation of all loaning. She trains and prepares
employees who work at the circulation desk.
9. The Head of Circulation writes the yearly employment
evaluation of all the circulation desk employees whom she
supervises. The Executive Director reviews and signs the yearly
evaluations, thereby giving them final approval. Employees who
are given satisfactory employment evaluations are moved up one
step within their pay grade, pursuant to the City's personnel
policies.
10. The Head of Circulation oversees the day-to-day
functioning of the circulation desk during the hours that she
works. The circulation desk employees require minimal
supervision.
11. The circulation desk employees have generally assigned
tasks. For instance, the Library Assistant II's handle the
checking in and out of material. One of the Library Assistant
II's particularly deals with overdue materials; one of the
Library Assistant II's particularly deals with computer and
technology issues for patrons. The Library Aide I's handle the
checking in and out of material, return materials within the
library, process mail, and answer the telephone. The Library
Pages return materials within the library. The Outreach
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Librarian contacts and takes materials to shut-ins.
12. The Head of Circulation spends a significant part of
her work hours performing the same or similar duties as the
employees whom she supervises perform.
13. The Head of Circulation oversees scheduling for the
circulation desk employees. This is a "set" schedule which
changes when the library institutes summer hours, and then
changes again for winter hours. The Head of Circulation approves
vacation time for circulation desk employees. She calls in
substitute employees, or has other employees call them, when
there are unexpected absences that cannot be covered by regular
library employees.
14. The Head of Circulation has never disciplined an
employee. She has sometimes informally mediated conflicts
between employees. It is unclear what her role is, if any, in
meting out discipline pursuant to the City's personnel policies.
The Head of Circulation would refer any serious discipline issue
to the Executive Director, if such ever occurred.
15. The Children's Librarian has been employed by the
library in that position for 12 years.
16. The Children's Librarian works 37.5 hours per week
(full-time). He supervises the only other children's section
employee, a Library Assistant I (working 37.5 hours per week).
Their work hours in the children's section largely overlap.
17. The children's section is a separate section of the
main branch of the library. The Children's Librarian and the
Library Assistant I each maintain a separate desk in the
children's section. They do not check materials in or out, as
all circulation is done through the main circulation desk.
18. The Children's Librarian is responsible to provide and
promote library services and programs especially geared to the
interests of children, and to maintain a welcoming environment
for patrons in the children's section of the library.
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19. The Children's Librarian and the Library Assistant I
(who has been employed by the library longer than the Children's
Librarian) have generally divided the tasks of maintaining the
collection and programming in the children's section. For
instance, they each oversee a separate part of the collection.
They each oversee certain aspects of the children's section
programming (story time, puppet shows, etc.), and also perform
some programming together.
20. The Children's Librarian writes the yearly employment
evaluation of the Library Assistant I whom he supervises. The
Executive Director reviews and signs the yearly evaluation,
thereby giving it final approval.
21. The Children's Librarian oversees the day-to-day
functioning of the children's section of the library. The
Library Assistant I requires minimal supervision.
22. The Children's Librarian and the Library Assistant I
have worked the same schedule for the 12 years that the
Children's Librarian has been employed. There has been no need
for the Children's Librarian to "set" a work schedule, per se.
The Library Assistant I checks with the Children's Librarian when
she wishes to take vacation time. If there is not enough
coverage for the children's section, the Children's Librarian
will check with the Head of Circulation to see if circulation
desk employees can cover the section.
23. The Children's Librarian has never disciplined the
Library Assistant I. It is unclear what his role is, if any, in
meting out discipline pursuant to the City's personnel policies.
The Children's Librarian would refer any serious discipline issue
to the Executive Director, if such ever occurred.
24. The Children's Librarian spends a significant part of
his work hours performing the same or similar duties as the
Library Assistant I.
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25. The Head of Technical Services has been employed by the
library for 21 years. She has held the position of Head of
Technical Services for the past 13 years.
26. The Head of Technical Services works 37.5 hours per
week (full time). She supervises the only other technical
services employee, a Library Assistant I (working 30 hours per
week). Their work hours largely overlap.
27. The Head of Technical Services is responsible to
catalog all materials and media in the main and the branch
library, to order all books and media selected by the relevant
committee or employee, and to plan for computer technology needed
by the library.
28. The Head of Technical Services and the Library
Assistant I have generally divided the tasks of cataloging. The
Head of Technical Services catalogs all non-fiction and media;
the Library Assistant catalogs all fiction.
29. The Head of Technical Services writes the yearly
employment evaluation of the Library Assistant I whom she
supervises. The Executive Director reviews and signs the yearly
evaluation, thereby giving it final approval.
30. The Head of Technical Services oversees the day-to-day
functioning of the technical services section of the library.
The Library Assistant I requires minimal supervision.
31. The Head of Technical Services and the Library
Assistant I have worked the same schedule for several years
without significant variation. There has been no need for the
Head of Technical Services to "set" a work schedule, per se. The
Library Assistant I checks with the Head of Technical Services
when she wishes to take vacation time.
32. The Head of Technical Services has never disciplined
the Library Assistant I. It is unclear what her role is, if any,
in meting out discipline pursuant to the City's personnel
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policies. The Head of Technical Services would refer any serious
discipline issue to the Executive Director, if such ever
occurred.
33. The Head of Technical Services spends a significant
part of her work hours performing the same or similar duties as
the Library Assistant I.
34. In the library's organizational chart, the Young Adult
Librarian is placed on the same "level" as the Head of
Circulation, the Children's Librarian, and the Head of Technical
Services. The Young Adult Librarian works 22 hours per week.
She oversees the library collection geared towards this age
group. She also oversees programming for numerous middle school
students who frequent the library from after school until 5:00
p.m. each day. She does not supervise any employees.
35. A hiring committee is convened when a library position
needs to be filled. The Executive Director always sits on the
hiring committee, usually joined by two other employees. The
hiring committee interviews candidates and makes recommendations
for hire. The Executive Director has final hiring authority.
The Executive Director usually accepts the recommendation of the
hiring committee, but is not required to do so. For instance,
the Executive Director did not accept the hiring committee's
recommendation when selecting the incumbent for the Branch
Services Manager position.
36. In the event that a library employee were to be
discharged, the Executive Director would make this recommendation
to the City Manager, who has final authority regarding employee
discharge.
DISCUSSION
The primary issue presented by this case is whether three
library positions--the Head of Circulation, the Children's
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Librarian, and the Head of Technical Services--exercise
sufficient supervisory authority over other library employees, as
defined in 26 M.R.S.A. 966(1), that they should be excluded
from the proposed bargaining unit described in Stipulation Number
5.[fn]1 In addition, the hearing examiner will consider whether a
community of interest exists among these three supervisory
positions and the employees in the proposed unit.
Unlike the National Labor Relations Act, the Municipal
Public Employees Labor Relations Law ("MPELRL") 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
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1 The city argued that a fourth position, the Young Adult
Librarian, should also be excluded from the proposed bargaining unit
due to her supervisory duties, although the city did not raise this
argument in its response to the petition. The city presented minimal
evidence and testimony regarding this position. There was no dispute,
however, that this position does not supervise any employees. Because
of this, it is impossible to conclude that the principal functions of
the position are characterized by performing supervisory duties, as
described in 966(1). The fact that this position is at the same
"level" in the library organizational chart as the other three
positions at issue does not make the position a supervisory one.
Therefore, the hearing examiner finds that the Young Adult Librarian
should not be excluded from the proposed bargaining unit on the basis
that she exerts supervisory authority over bargaining unit employees,
within the meaning of 966(1).
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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
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).
Under the first prong of the test outlined in 966(1), the
hearing examiner must evaluate whether the principal functions of
the three positions at issue involve scheduling, assigning,
overseeing or reviewing the work of the employees supervised. Of
the three positions, the Head of Circulation supervises by far
the most employees--she supervises 11 employees, while the other
two positions only supervise one employee each. The Head of
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Circulation is in charge of scheduling the circulation desk
employees. This is, by and large, a perfunctory task utilizing a
long-standing schedule. She approves vacation time, though this
seems to be the source of little conflict. The Head of
Circulation assigns and oversees the work of the circulation desk
employees. This does not entail, however, a tremendous amount of
time or vigilance on the part of the Head of Circulation,
according to her credible testimony. This may be due to a
variety of factors, including the fact that some of the tasks
performed by the positions are routine and the fact that certain
circulation desk positions have taken on discrete and autonomous
tasks (such as the Library Assistant II who deals with computer
problems, an area in which the Head of Circulation has little
expertise). The Head of Circulation writes and signs the annual
evaluations for the circulation desk employees. It is note-
worthy, however, that the Executive Director signs and gives
final authorization to all annual evaluations.
The Head of Circulation exercises the kind of supervisory
authority mentioned in the first prong of 966(1), all of which
may lead to conflicts between her and the circulation desk
employees. However, the issue remains whether these supervisory
duties constitute the principal function of her position. One
gauge of whether supervisory duties are the principal function of
a position is the amount of time the supervisor spends on such
duties. The more time a supervisor spends actively assigning and
overseeing work of subordinates, the more likely it is that
conflicts may arise. 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
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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). The Head of Circulation spends the
majority, perhaps the vast majority, of her work day performing
the same type of work as the other circulation desk employees.
She spends little time actively assigning and overseeing the work
of her subordinates, most of whom work in an independent and/or
routine fashion. While the writing of yearly evaluations can be
the source of supervisor-supervisee conflict, the final
authorization of the evaluation is given by the Executive
Director.[fn]2 Considering both the type of supervisory functions
the Head of Circulation performs and the amount of time she
spends performing them, the principal function of the position is
not the performing of supervisory tasks as outlined in the first
prong of 966(1).
The same is even more easily concluded regarding the
Children's Librarian and the Head of Technical Services
positions. The supervisory duties of these positions are very
similar to those of the Head of Circulation: utilizing a set
work schedule, dividing work tasks with subordinates, exerting
relatively minimal supervision, and signing yearly evaluations
without final approval. In the case of these two positions,
however, the time spent supervising is even less than that spent
by the Head of Circulation, as both the Children's Librarian and
the Head of Technical Services supervise only one employee each.
The principal function of their positions is not performing
supervisory tasks. Just like the Head of Circulation, these
supervisors are very akin to a "line foreman" or a "working
supervisor," the kind of position that the Board has long found
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2 Indeed, as will be further discussed in the remainder of the
report, all three of the supervisory employees perceive and conduct
themselves as if the Executive Director is the "true" supervisor of
all of the library employees.
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may be included in the same bargaining unit as subordinates.[fn]3
The second prong of the test in 966(1) requires that the
hearing examiner evaluate whether the Head of Circulation, the
Children's Librarian, and the Head of Technical Services perform
duties that are "distinct and dissimilar" from the duties
performed by the employees whom 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 (MLRB
Apr. 17, 1991). All three of the positions at issue are eligible
to sit upon hiring committees (usually made up of the Executive
Director and two other employees), but these committees are not
made up exclusively of supervisors. Further, the committee only
makes a recommendation, while the Executive Director makes the
final decision. Other hearing examiners have found that having
input in hiring decisions is not sufficient to create supervisory
conflict under this second prong of 966(1). Teamsters Local
No. 340 and Town of Boothbay Harbor, No. 99-UD-03, 05, slip op.
at 38-30 (MLRB Jan. 20, 1999)(public works foreman's participation
in hiring process, budgeting, purchasing, and preparing bids do
not create the type of conflict contemplated by this provision).
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3 See Teamsters Local Union No. 48 and Van Buren Light and Power
District, No. 85-UD-14 (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); Teamsters Local
Union No. 48 and Town of Pittsfield, supra (sergeant position found to
be "working supervisor" where supervisory duties were limited and
undemanding and where majority of time was devoted to regular patrol
work).
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There was no evidence that any of the three positions at issue
has any authority at all regarding employee promotions,
transfers, layoffs, or recalls. Therefore, none of the three
positions perform the type of distinct and dissimilar duties
which require that they be placed in a separate bargaining unit.
As to the third prong of the test outlined in 966(1), the
Head of Circulation, the Children's Librarian, and the Head of
Technical Services have no role in adjusting employee grievances,
applying personnel policies, or taking corrective measures to
implement performance standards. None of the three employees are
familiar with their role, if any, under the city's personnel
policies or disciplinary procedures. None has ever administered
any discipline to an employee. All believe that such matters
would have to be "handled" by the Executive Director. All three
employees have a de facto role in establishing performance
standards for employees (i.e., setting up or participating in
setting up expectations for their particular area of the
library). Without more, however, these supervisors do not have
the type of authority as described in the third prong that leads
to undue supervisory conflict.
In summary, an evaluation of the criteria of 966(1) shows
that the Head of Circulation, the Children's Librarian, and the
Head of Technical Services exercise only a limited amount of
supervisory authority that could place them in conflict with the
employees whom they supervise. They spend relatively little time
performing these functions. They exercise little or no authority
in many areas (such as hiring and discharging, meting out
discipline, and adjusting grievances) that would lead to
conflict. While this conclusion is a somewhat "closer case" for
the Head of Circulation, due to her supervision of 11 employees,
the hearing examiner concludes that none of the three positions
at issue exerts such extensive supervisory authority to warrant
their placement in a separate bargaining unit.
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This conclusion is supported strongly by the Board's policy
against the proliferation of small bargaining units, particularly
the formation of small 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:
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, supra, slip op. at 4, 5. Based upon this non-
proliferation policy, supervisors have been included in a
bargaining unit with their subordinates who exercise far greater
supervisory authority than the three positions at issue here
exercise. See, e.g., MSAD No. 14 and East Grand Teachers Ass'n,
No. 83-A-09 (MLRB Aug. 24, 1983) (including principal in unit of
certified teachers); Lubec Education Ass'n and MSAD No. 19 Board
of Directors, No. 83-UD-17 (MLRB Apr. 13, 1983) (including head
bus driver with significant supervisory authority in unit with
educational support staff). Considering both the provisions of
966(1) and the Board's non-proliferation policy, the Head of
Circulation, the Children's Librarian, and the Head of Technical
Services should not be excluded from the bargaining unit
consisting of the library employees.
Finally, the issue of whether the four positions--the Head
of Circulation, the Children's Librarian, the Head of Technical
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Services and the Young Adult Librarian (previously found to have
no supervisory duties warranting exclusion)--share a community of
interest with the other non-salaried library employees must be
briefly addressed. While the parties would not stipulate to the
existence of a community of interest, no evidence was provided to
undermine the natural conclusion that all four of these positions
share a commonality with the positions in the agreed-to
bargaining unit.
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.
See Chap. 11, 22(3) of the Board Rules.
Bearing in mind that the parties have already stipulated
that the majority of the library positions at both the main and
the branch libraries, both full and part-time, share a community
of interest, it is easily concluded that the four positions at
issue share a community of interest with the unit as well. As
previously described, the four positions spend a majority of
their time performing the same work as other library employees.
All of the positions in the proposed unit are ultimately
supervised by the Executive Director. All positions are paid
hourly, work similar hours, and are provided similar employment
benefits (as near as can be determined from the evidence
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provided). The positions require a variety of qualifications,
skills and training--a fact not unusual in a "wall-to-wall" unit.
See Granite City Employees and City of Hallowell, No. 01-UD-04,
slip op. 34-36 (MLRB May 23, 2001)(discussing the common function
of positions in wall-to-wall units). The positions work in two
physical locations but, especially in each location, have
significant opportunity for interchange. The three employees
testifying at the hearing expressed a desire to be in the same
bargaining unit as the employees whom they supervise. In the
library's organizational structure, the proposed unit would
encompass all non-salaried library employees (all employees
except the Executive Director and the Branch Services Manager).
For all of these reasons, the hearing examiner concludes
that the positions of Head of Circulation, Children's Librarian,
Young Adult Librarian, and Head of Technical Services share a
community of interest with the remainder of the non-salaried
library employees and should be included in a bargaining unit
with them.
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 February 13, 2006, by Barbara Libby
on behalf on AFSCME Council 93 is granted. The following
described unit is held to be appropriate for purposes of
collective bargaining:
INCLUDED: Head of Circulation, Children's Librarian, Young
Adult Librarian, Head of Technical Services,
Library Aide, Library Page, Library Assistant I,
Library Assistant II, Custodian, Secretary II,
and Outreach Librarian.
EXCLUDED: All other employees of the South Portland Public
Library.
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A bargaining agent election for this unit will be conducted
forthwith.
Dated at Augusta, Maine, this 12th day of June, 2006.
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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