STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Case No. 08-UC-02
Issued: July 23, 2008
AFSCME COUNCIL 93
Petitioner,
and
TOWN OF SANFORD
Public Employer.
UNIT CLARIFICATION REPORT
PROCEDURAL HISTORY
This unit clarification proceeding was initiated on
February 14, 2008, when James Beaulieu, staff representative of
AFSCME Council 93 ("AFSCME" or "Union"), filed a Petition for
Unit Clarification with the Maine Labor Relations Board ("Board")
for a determination whether the position of General Assistance
Director should be included in the Town of Sanford general
services bargaining unit pursuant to 26 M.R.S.A. § 966(3) of the
Municipal Public Employees Labor Relations Law. On February 29,
2008, Bryan M. Dench, Esq., filed a timely response to this
petition on behalf of the Town of Sanford ("Town" or "Employer").
A hearing was initially scheduled in the matter to be held May 8,
2008; this hearing was postponed at the request of the Employer.
The hearing was rescheduled and a hearing notice was issued on
May 13, 2008, and posted for the information of affected
employees. The hearing was conducted on June 17, 2008.
AFSCME was represented by Erin L. Goodwin, Esq. The Town was
represented by Mr. Dench. The parties were afforded full
opportunity to examine and cross-examine witnesses, and to
present evidence. The following witnesses were presented at the
hearing: for AFSCME, Cathy McDermott, former Caseworker,
[end of page 1]
Elizabeth O'Connor, Administrative Assistant and unit chair,
Ronni Lynn Champlin, Finance Director, and Diane Gerry, General
Assistance Director; for the Town, Mark Green, Town Manager.
The party representatives submitted written closing arguments
following the conclusion of the hearing. The briefing schedule
was complete on July 1, 2008.
JURISDICTION
The jurisdiction of the executive director or his designated
hearing examiner to hear this matter and make a determination lies
in 26 M.R.S.A. § 966(1) and (3). The subsequent references in
this report are all to Title 26, Maine Revised Statutes Annotated.
EXHIBITS
The following administrative exhibits were introduced without
objection of the parties:
Exhibit No. Title/Description
A-1 February 14, 2008 unit clarification petition
filed by AFSCME
A-2 Response to petition filed by Town of Sanford
A-3 May 8, 2008 Notice of Hearing
A-4 June 17, 2008 Notice of Hearing
The following AFSCME exhibits were introduced without
objection of the Town:
U-1 Collective bargaining agreement, effective
July 1, 2007, to June 30, 2010
U-2 Employment opportunity posting, part-time
general assistance caseworker, posted January
30, 2008
U-3 Job description, general assistance caseworker
(adopted January 7, 1997)
U-4 Town of Sanford employment application
The following Town exhibits were introduced without
objection of AFSCME:
[end of page 2]
E-1 Employment opportunity posting, general
assistance director, posted January 30, 2008
E-2 Job description, general assistance director
E-3 Job description, general assistance director,
adopted November 1, 1986
E-4 Job description, general assistance director,
revised August 8, 1995
FINDINGS OF FACT
1. AFSCME is the certified bargaining agent for the general
services bargaining unit in the Town of Sanford, within the
meaning of § 962(2).
2. The Town of Sanford is a public employer within the meaning
of § 962(7).
3. The Town of Sanford general services bargaining unit was
created in 1987, following the filing of a unit
determination and bargaining agent election petition filed
by AFSCME. The petition sought the creation of a bargaining
unit for clerical, technical and supervisory positions
employed by the Town of Sanford in the following positions:
Assistant Engineer, Code Enforcement Officer, General
Assistance Director, Housing Inspector/Rehabilitation
Specialist, Research Assistant, Recreation Coordinator,
Garage Maintenance Supervisor, Assistant Director of
Highways and Sanitation, Deputy Town Clerk, Parks
Supervisor, Executive Secretaries, Office Manager, Civil
Emergency Preparedness Director, Airport Maintenance
Supervisor, Computer Operator, Engineering Aide, Clerk
Typists, Infirmary Aides, Assistant Clerk, Custodian, and
Animal Control Officer.
4. The Town of Sanford and AFSCME filed an Agreement on
Appropriate Bargaining Unit on February 10, 1987.
Pursuant to this agreement, the following positions were
included in the unit: Assistant Engineer, Housing Inspector/
Rehabilitation Specialist, Research Assistant, Recreation
[end of page 3]
Coordinator, Assistant Director of Highways and Sanitation,
Parks Supervisor, Executive Secretary (except as excluded),
Airport Maintenance Supervisor, Engineering Aide, Clerk
Typist, Kitchen Aide, Resident Aide (1st, 2nd, and 3rd
shifts), Relief Aide, Assistant Clerk, Custodian, Animal
Control Officer, Cook, Assistant Cook, Planner, Bookkeeper,
Administrative Assistant, Lead Assistant Clerk, and Main-
tenance Worker. The following positions were excluded from
the unit: Executive Secretary to the Town Administrator,
Executive Secretary to the Director of Public Works, Execu-
tive Secretary to the Director of Highways and Sanitation,
Executive Secretary to the Fire Department, Cemetery Super-
visor, Cemetery Laborer, Code Enforcement Officer, General
Assistance Director, Deputy Town Clerk, Office Manager,
Civil Emergency Preparedness Director, and all other
employees of the Town of Sanford.
5. On March 24, 1987, AFSCME was certified as bargaining agent
for the general services bargaining unit following election.
6. The most recent contract negotiations for this unit were
concluded in early fall, 2007. Two collective bargaining
agreements ("CBA's") were ratified on October 30, 2007, one
agreement for the period July 1, 2006 to June 30, 2007, and
one agreement for the period July 1, 2007, to June 30, 2010.
7. Part of the most recent contract negotiations included
disputes regarding the addition and deletion of certain job
titles in the Recognition article of the CBA. The issue of
whether the position of General Assistance Director should
be included in the bargaining unit was not raised during the
most recent contract negotiations.
8. Article 1 - Recognition, in the current 2007-2010 CBA,
recognizes AFSCME as the exclusive representative of the
following positions in the general services bargaining unit:
Clerk Typist, Assistant Clerk, Lead Assistant Clerk,
[end of page 4]
Custodian, Administrative Assistant, Human Resource
Assistant, Case Worker, Computer Systems Operator, Computer
Programmer/Analyst Bookkeeper, Field Inspector, Assessor's
Assistant, Airport Maintenance Supervisor, Park Supervisor,
Garage Maintenance Supervisor, Recreation Coordinator,
Building Maintenance Supervisor, and Programmer.
9. In 1991, AFSCME filed a unit determination and bargaining
election petition for a Town of Sanford supervisory
bargaining unit for the following positions: Planning
Director, Assessor, Code Enforcement Officer, Finance
Director/Compensation Manager, General Assistance Director,
Director of Recreation and Public Property, Director of
Highways and Sanitation, Boarding Home Administrator, Deputy
Police Chief, Police Captain, Deputy Fire Chief, Office
Manager (Police), and Executive Secretaries.
10. A unit determination hearing regarding the supervisory
bargaining unit was conducted. A unit determination report
(Case No. 92-UD-03) was issued on February 21, 1992.
Pursuant to the report, the following positions were
included in the unit: Planning Director, Assessor, Code
Enforcement Officer, Finance Director/Compensation Manager,
General Assistance Director, Director of Highways and
Sanitation, Boarding Home Administrator, Fire Deputy Chief,
and Fire Division Chief. Pursuant to the report, the
following positions were excluded from the unit: Director
of Recreation and Public Property, Police Deputy Chief,
Police Captain, Office Manager (Police), Executive Secretary
to the Town Administrator, Executive Secretary to the
Director of Public Works, and Executive Secretary to the
Fire Department. Both AFSCME and the Town of Sanford
appealed this unit determination report to the Board; the
Board affirmed the report (Case No. 92-UDA-03, issued May 7,
1992).
[end of page 5]
11. On June 30, 1992, AFSCME was certified as bargaining agent
for the supervisory bargaining unit following election.
12. In 1997, certain employees in the supervisory bargaining
unit filed a decertification petition with the Board. On
October 7, 1997, AFSCME was decertified as bargaining agent
for the supervisory bargaining unit following election.
13. The position of General Assistance Director ("GA Director")
has existed since at least the formation of the general
services bargaining unit. A job description for the GA
Director was adopted on November 1, 1986, and revised on
August 8, 1995 (Employer Exh. Nos. 3 and 4). A more recent
job description was created in 2008 when the department was
reorganized and a new full-time GA Director was hired
(Employer Exh. No. 2). The portion of the job description
entitled "nature of work" has not changed significantly
since the initial job description.
14. When the general services bargaining unit was created in
1987, the GA Department consisted of a full-time GA Director
and two full-time clerk-typists. All three positions worked
in a separate office in the town hall.
15. One of the clerk-typists, Catherine McDermott, was hired in
1990. At the time of Ms. McDermott's hire, the GA Director
served both as GA Director and as a nurse at a boarding home
operated by the town. At that time, the position of GA
Director consisted of some management/supervisory functions
(developing and administering the department budget;
representing the department at selectmen and town meetings;
developing and maintaining liaisons with the state and other
agencies and organizations; hiring, training, and evaluating
department employees; disciplining employees; scheduling
employees; and approving overtime) as well as some casework
functions (taking applications, interviewing clients,
performing investigations related to the applications,
[end of page 6]
making determinations regarding the applications, and making
referrals to other agencies and organizations when
appropriate). At some point, the Town ceased the operation
of the boarding home, and the nurse function of the GA
Director position was no longer needed.
16. From the time of her hire in 1990 until the time of her
separation in 2008, Ms. McDermott performed the duties of a
Caseworker. Her job title was changed from Clerk Typist to
Caseworker in 1997, following a grievance she filed
regarding her title and job description. The other Clerk
Typist in the GA Department remained in that position; she
did some casework, but primarily handled vouchers, receipts
and other related paperwork.
17. In her job as Caseworker, Ms. McDermott handled a variety of
functions related to the taking and processing of applica-
tions for general assistance. She developed numerous
contacts within the state Department of Health and Human
Services, and area agencies and organizations, in order to
make referrals. She occasionally represented the Town at
fair hearings (hearings to consider the appeal of appli-
cants, conducted by a fair hearing officer). She gathered
information for the monthly GA report that the Town was
required to file with the State. Because of her years of
experience, she worked quite independently and with minimal
supervision.
18. During her years of employment, Ms. McDermott worked for
five different GA Directors. She helped train the GA
Directors who were hired following her hire, as well as
other new employees hired into the GA Department. On two
occasions, Ms. McDermott served as acting GA Director, once
when the Town was "between" GA Directors and once when the
GA Director was on maternity leave.
19. Around 1998, the GA Director employed at the time was
[end of page 7]
separated from employment; there were some allegations of
fraud relating to her separation. The State found the Town
to be "out of compliance" with GA regulations. At that
time, the Town decided to give the management/supervisory
duties of the GA Director position to the Finance Director,
Ronni Lynn Champlin. Ms. Champlin continued to perform
these twin roles for the Town for the next nine years.
20. Ms. Champlin's office was not physically located in the GA
Department office, where the Caseworker and the Clerk Typist
continued to work. During the time that Ms. Champlin was
the GA Director, she performed a minimal amount of casework
compared to the former GA Directors (who actively performed
casework alongside the Caseworker). Ms. Champlin took
applications only in cases where applicants were agitated or
angry, or had a conflict of interest with the Caseworker.
Ms. Champlin represented the Town in all fair hearings
during her tenure. She signed the GA vouchers and checked
all applicant files, occasionally verifying information as
needed. She prepared and submitted the GA Department
budget, and represented the GA Department at department head
meetings, Town council meetings, and town meetings. She
approved payroll and purchase orders for the GA Department.
She handled a variety of supervisory functions related to
the GA Department employees (in addition to her two Finance
Department employees): approved overtime and comp time,
resolved grievances pursuant to the step process of the
CBA, approved vacation time, and meted out discipline.
Ms. Champlin did not conduct performance evaluations of the
GA Department employees because it was not the practice of
the Town to conduct annual evaluations after an employee
passed probation.
21. Ms. Champlin spent about 30 percent of her time performing
the GA Director position during the nine years that she
[end of page 8]
performed this job in addition to her usual job as Finance
Director. Both Ms. Champlin and the Town Manager believed
that the two positions were too much for one person to
perform, although nothing was done to alter the situation
until 2008.
22. In the past ten years, the amount of GA distributed in the
Town has decreased, from approximately $500,000 per year to
$200,000 per year. In large part, this has been due to more
restrictive eligibility criteria. In the months prior to
the present hearing, there was a slight increase in the
number of GA applications, possibly related to high fuel
costs.
23. In late 2007, the Clerk Typist employed in the GA Department
died. At this point, the Town Manager decided to reorganize
the department, in part to relieve the Finance Director from
having two positions, in part to address the fact that the
number of GA applicants and the GA funds distributed had
decreased, and in part to increase the anti-poverty
functions of the department. The Town Manager decided to
hire a full-time GA Director, to change the full-time Clerk
Typist into a part-time Caseworker position, and to
eliminate the Caseworker position. Ms. McDermott was
advised in early 2008 of the planned reorganization and the
elimination of her position.
24. In the 2008 job posting and job description for the GA
Director position, it states that "graduation from a 4-year
accredited college program in social work or related field
preferred." The Town Manager wanted to require a 4-year
degree for the position, but decided not to require this so
that Ms. McDermott (who does not have a 4-year degree) could
compete for this job. Ms. McDermott applied for the GA
Director job, but the Town Manager selected Diane Gerry, an
applicant with a 4-year degree, for the position. Ms. Gerry
[end of page 9]
began her employment as GA Director on April 16, 2008.
25. The Town hired the part-time Caseworker in March 2008, prior
to hiring the GA Director. Ms. McDermott was part of the
hiring committee for the part-time Caseworker.
26. The new GA Director is paid $47,000 per year on a salaried
basis.
27. Since Ms. Gerry began her employment, she has been spending
approximately 50 percent of her time taking GA applications
and performing related casework duties, as well as training
the part-time Caseworker to perform this function. At the
time of this hearing, Ms. Gerry was performing all the
casework herself because the part-time Caseworker had not
yet been fully trained. Even when the Caseworker is trained
and taking and processing GA applications herself, it will
continue to be part of the GA Director's job to continue to
perform some casework function.
28. Part of Ms. Gerry's job is to supervise the part-time
Caseworker, in the same manner and performing the same
supervisory duties that have always been required of the GA
Director position. Part of Ms. Gerry's job is also to
continue to perform the same management duties that have
always been required of the position (budget creation and
implementation, attending department head and town council
meetings, etc.). The Town Manager has instructed Ms. Gerry
that he particularly wishes her to get involved with
community groups and organizations that work to decrease
the poverty of the community, and to make the GA Department
more "high profile" in fighting poverty. Since her hire,
Ms. Gerry has been developing contacts and attending
meetings to fulfill this goal.
29. Ms. Gerry has decreased the hours during which "walk in" GA
applications can be taken at the town office; it is now from
9:00 a.m. to 1:00 p.m., Monday to Friday.
[end of page 10]
30. Ms. Gerry does not wish her position to be placed in the
general services bargaining unit; she wishes to be
unrepresented for purposes of collective bargaining.
31. The recent reorganization of the GA Department has resulted
in some personnel savings for the Town, primarily from the
elimination of health insurance benefits for the part-time
Caseworker position.
32. The positions in the general services bargaining unit all
require a high school degree; none of the positions require
a 4-year college degree.
33. The positions in the general services bargaining unit are
all paid on an hourly basis.
34. Several positions in the general services bargaining unit
are supervisory positions, including the airport maintenance
supervisor (supervises one position), the park supervisor
(supervises three positions), and the garage maintenance
supervisor (supervises four-five positions). The positions
supervised by these supervisory positions are also in the
general services bargaining unit.
SUMMARY OF ARGUMENTS
The Union, as moving party, argues that all jurisdictional
prerequisites for a unit clarification petition are present in
this matter; specifically, the Union argues that circumstances
have changed since the formation of the bargaining unit in that a
new full-time GA Director was hired in 2008, replacing the
previous circumstance of the Finance Director performing the
functions of the job along with her regular position. Further,
the Union argues that the newly-filled GA Director position
primarily performs the functions of the previous Caseworker
position (now eliminated), demonstrating that the GA Director
position shares a community of interest with the positions in the
general services bargaining unit and should be placed in that
[end of page 11]
unit. The Town argues that the Union has not established changed
circumstances, in that the GA Director position has existed since
the creation of the general services bargaining unit and has
always been excluded from that unit because the position is one
of the Town's department heads. The Town further argues that the
Union could have, but did not, raise the issue of placing the GA
Director position in the unit prior to the conclusion of the
parties' most recent negotiations. Finally, the Town argues that
the GA Director position does not share a community of interest
with the positions presently in the unit.
DISCUSSION
Section 966(3) of the Municipal Public Employees Labor
Relations Law provides:
3. Unit clarification. Where there is a
certified or currently recognized bargaining
representative and where the circumstances surrounding
the formation of an existing unit are alleged to have
changed sufficiently to warrant modification in the
composition of that bargaining unit, any public
employer or any recognized or certified bargaining
agent may file a petition for a unit clarification
provided that the parties are unable to agree on
appropriate modifications and there is no question
concerning representation.
There is no dispute that three of the four requirements of
§ 966(3) are present here; namely, that AFSCME is the certified
bargaining agent for the general services bargaining unit, that
no question exists concerning representation, and that the
parties have been unable to reach agreement on the issue of
whether the position of GA Director should be part of the
bargaining unit. The parties do not agree, however, whether the
fourth requirement of § 966(3) is present; that is, whether the
circumstances surrounding the formation of the bargaining unit
have changed sufficiently to warrant modification of the unit.
The requirement for changed circumstances is a "threshold
[end of page 12]
question" in a unit clarification proceeding. MSAD No. 14 and
East Grant Teachers Association, No. 83-A-09, at 7 (MLRB Aug. 24,
1983). "The petitioner in unit clarification proceedings bears
the burden of alleging the requisite change and, further, of
establishing the occurrence of said change in the unit then at
issue." State of Maine and MSEA, No. 82-A-02, at 16 (MLRB
June 2, 1983)(Interim Order). The present matter is perhaps a
perfect illustration of the importance that the moving party
establish changed circumstances in order to support a unit
clarification petition. Here, the general services bargaining
unit is a unit of long-standing duration. The position of GA
Director has existed in some form at least since the inception of
this unit. The GA Director was specifically excluded from this
unit when it was created, and was specifically included in a
supervisory unit that existed for about five years. The parties
have successfully negotiated several collective bargaining
agreements for the general services bargaining unit. There was
no evidence that the Union has ever, since the inception of the
unit, attempted to include the GA Director in the unit.[fn]1 It
is therefore incumbent upon the Union to demonstrate what changed
circumstances have occurred since the negotiation of the last CBA
which would require the mid-term placement of the GA Director
position into the unit.
The Union argues that the recent hiring of a full-time GA
Director constitutes the requisite changed circumstances:
While the Town argues that the position isn't newly
created, the record reflects that the position of
General Assistance Director hasn't been filled since
the Finance Director assumed some of the Department
Head functions of the position some years ago. The
Director testified that while she performed some
1 The parties are obviously aware that the positions in the unit
are a permissive subject of collective bargaining; the placement of
certain positions (though not the GA Director position) was part of
the most recent negotiations completed in the fall, 2007.
[end of page 13]
casework in that capacity it only amounted [to] a small
percentage of her workweek. The newly created position
of General Assistance Director is not a supervisory
Department Head but rather, absorbs most of the
functions of the former full-time AFSCME caseworker
position.
Union's Brief, at 1-2.
The parties presented a considerable amount of evidence regarding
the GA Director position over the years: three job descriptions
(1986, 1995, 2008), the testimony of Ms. McDermott (who worked
under several GA Directors, but who was not employed at the
inception of the bargaining unit), and the testimony of Ms.
Champlin and Ms. Gerry (who have held the position under its most
recent two permutations). All of the evidence supported a
conclusion that the GA Director position has consistently
required the performing of three functions over the years:
management, supervisory, and casework. The amount of time
devoted to each of these functions has sometimes changed, but not
the requirement of performing all three functions. For instance,
in the years before Ms. Champlin added the duties of the position
to her position as Finance Director, the various GA Directors
performed many of the same casework functions as the Caseworker
performed. When Ms. Champlin took over the duties, she performed
only a minimal amount of casework owing to the undisputed fact
that she added the duties of this job to her other job. When the
Town Manager reorganized the GA Department and hired a full-time
GA Director in 2008, the amount of casework that the position
performed increased (and will undoubtedly again decrease to some
extent as the new part-time Caseworker is trained). In many
ways, the position as it currently exists is more like the
position as it existed at the time of the formation of the
bargaining unit than it was when Ms. Champlin held it. The only
"changes" recently made to the GA Director position can therefore
be summarized as follows: an individual has again been hired to
[end of page 14]
perform the position full-time and the amount of casework per-
formed has increased from the time Ms. Champlin performed the
duties of the position. Are these the type of "changed circum-
stances" that can properly support a unit clarification petition?
To answer this question, the facts of this case should be
contrasted with the most obvious case in which changed circum-
stances are normally found -- when a new job classification is
created following the conclusion of negotiations. The Board has
consistently held that the creation of a new job classification
meets the requirements of changed circumstances, as it is
impossible to consider the bargaining unit status of a position
before it exists. MSEA and State of Maine Department of Inland
Fisheries and Wildlife, Nos. 83-UC-43 and 91-UC-11, at 8 (MLRB
May 4, 1993). The trail of job descriptions for the GA Director
position and, more importantly, the various people over the years
who have been hired and performed the job, belie any argument
that the position of GA Director is a "new" position.[fn]2
A change in the duties of a position can also support a
finding of "changed circumstances." However, a review of cases
involving this type of situation reveal that the change in duties
must be substantial, and also pertinent to raising a question of
unit placement. For instance, in Maine Maritime Academy and
MSEA, No. 03-UCA-01 (MLRB May 15, 2003), the Board found that
when a significant new area of management duties was assigned to
the Commandant/Port Captain and that the position also began
reporting directly to the Academy President, this supported a
conclusion that changed circumstances had occurred; in addition,
2 In the Unit Determination Report that created the supervisory
bargaining unit in 1992, the hearing examiner examined in detail
whether this GA Director position was an appointed position pursuant
to the Town Charter, and also whether the position functioned as a
true "department head" within the meaning of § 962(6)(D). AFSCME,
Council 93 and Town of Sanford, No. 92-UD-03, at 34-35 (MLRB Feb. 21,
1992), aff'd, 92-UDA-03 (MLRB May 7, 1992). Clearly, this is not a
new position.
[end of page 15]
the changes were pertinent to the employer's argument that the
position was statutorily excluded and therefore should be removed
from the bargaining unit. In MSAD No. 14 and East Grand Teachers
Ass'n, No. 83-A-09 (MLRB Aug. 24, 1983), the Board found that
when a teaching principal's teaching duties were significantly
decreased and his supervisory and management duties increased,
this supported a conclusion that changed circumstances had
occurred; in addition, the changes were pertinent to the
employer's argument that the supervisory nature of the job
required the principal's removal from the certified professionals
bargaining unit. In Lincoln Sanitary District and Teamsters
Local 340, No. 92-UC-02 (MLRB Nov. 17, 1992), the hearing
examiner found that when a secretary was newly assigned the duty
to type documents related to the employer's negotiation
strategies, this supported a conclusion that changed circum-
stances had occurred; in addition, the changes were pertinent to
the issue whether the position was "confidential" and therefore
should be removed from the bargaining unit.
These cases can be contrasted with cases in which changes in
the duties of the position were not found to support a conclusion
of changed circumstances because the changes were insignificant
and/or not pertinent to the issue of statutory exclusion or unit
placement. In City of Bath and AFSCME, Council 74, No. 81-A-02
(Dec. 15, 1980), the Board found insufficient changes to support
a unit clarification when the City created a new communications
department, created a supervisor of dispatchers, and added fire
and ambulance calls to the work of the dispatchers, who had
previously dispatched police exclusively. The Board noted that
despite the increase and change in certain duties, the dis-
patchers continued to perform the same primary function that they
performed when the bargaining unit in question was created; the
Board noted that such "minor" changes "hardly amount" to the
sufficient change in circumstances required by § 966(3). City of
[end of page 16]
Bath, at 5. In Portland Public Library Staff Association and
Portland Public Library, No. 88-UC-03 (June 2, 1988), the hearing
examiner considered a variety of changes to three positions: the
positions were renamed, the positions absorbed the duties of an
eliminated administrative position, and certain public affairs
duties performed by the positions were curtailed. The hearing
examiner found that no changed circumstances were established as
the "character" of the positions in question remained "basically
unchanged" since the negotiation of the parties' most recent CBA.
Portland Public Library, at 12. Finally, in State of Maine and
MSEA, No. 91-UC-02 (MLRB Apr. 17, 1991), the hearing examiner
determined that a variety of changes to the positions of auto
mechanic foreman did not amount to "changed circumstances,"
thereby allowing her to consider whether the positions should be
placed in a supervisory bargaining unit. Some of the changes
included decreased front-line responsibilities, increased
supervisory duties (but of the type that the position was
"supposed to be doing" according to the job description), and
increased computer-related duties. The hearing examiner found
these changes not significant enough and also not relevant to the
issue of placement in a supervisory unit.
In the present matter, the hearing examiner finds that the
"changes" to the GA Director position that occurred upon the
reorganization of the GA Department in 2008 and the hiring of
Ms. Gerry are insignificant when considering the duties that the
position has always performed; further, the changes are not
pertinent to any argument that this position should now (after
over 20 years) be considered for placement in the general
services bargaining unit during the term of the collective
bargaining agreement. It is true that the GA Director is now
performing more casework than Ms. Champlin did, an obvious
consequence of the fact the GA position is a full-time position
again and the fact that the Town Manager has greatly reduced
[end of page 17]
front-line staffing in the GA Department. Clearly, the present
GA Director has absorbed some of the work of the Caseworker whose
job was eliminated, but this does not make the GA Director
position simply a Caseworker position. Since the GA Director
position has always required the performance of casework, an
increase in casework for the position is an insignificant change
as it relates to unit placement, and therefore cannot support a
finding of changed circumstances. The fact that the GA Director
position was for years a full-time position, then became
(effectively) a part-time position performed by Ms. Champlin, and
has again become a full-time position, also does not support a
finding of changed circumstances, as it reflects no true change
in the duties of the position.
In summary, while the duties of the GA Director position
have changed somewhat over the years, as has the time devoted to
each of the core functions of the position (management, super-
visory, and casework), the essence or primary functioning of the
position has not changed since the formation of the bargaining
unit. The decision in 2008 to change the position back to a
full-time one and the hiring of a new employee to fill the
position are not the type of "changed circumstances" which can
support a petition to review the unit placement of the position,
mid-term, within the meaning of § 966(3).
As the hearing examiner has concluded that "changed
circumstances" were not established here, it is not necessary to
address the remainder of the Town's arguments. For the com-
pleteness of the decision, however, the hearing examiner will
briefly address whether the Union established that the GA
Director position shared a community of interest with the
positions currently in the general services bargaining unit.
Section 966(2) requires that the hearing examiner consider
whether a clear and identifiable community of interest exists
between the positions in question so that potential conflicts of
[end of page 18]
interest among bargaining unit members during negotiations will
be minimized. AFSCME and City of Brewer, No. 79-A-01, at 4,
1 NPER 20-10031 (MLRB Oct. 17, 1979). In determining whether
employees share the requisite "community of interest" in matters
subject to collective bargaining, the following factors, at a
minimum, must be considered: (1) similarity in the kind of work
performed; (2) common supervision and determination of labor
relations policy; (3) similarity in the scale and manner of
determining earnings; (4) similarity in employment benefits,
hours of work and other terms and conditions of employment; (5)
similarity in the qualifications, skills and training among the
employees; (6) frequency of contact or interchange among the
employees; (7) geographic proximity; (8) history of collective
bargaining; (9) desires of the affected employees; (10) extent of
union organization; and (11) the employer's organizational
structure. See Chapter 11, § 22(3) of the Board Rules.
The Union depended heavily here on its argument that the GA
Director position was merely the Caseworker position with a new
job title and, as such, clearly belonged in the bargaining unit
where the Caseworker position had always been placed. This
argument was ultimately not persuasive: the GA Director position
has always performed casework of varying amounts and, to the
extent the position performs casework, it is very similar to the
Caseworker position. However, it is also true that the position
requires the performing of a variety of other management and
supervisory duties, as evidenced by the fact that Ms. Champlin
spent about 30 percent of her time primarily performing this part
of the GA Director position along with her Finance Director
position duties. Since the inception of the bargaining unit,
there has always been a Caseworker position in the unit and there
has always been a separate GA Director position not in the unit.
The fact that the GA Director performs and has always performed
casework is simply insufficient to establish community of
[end of page 19]
interest, under the facts presented here.
There was a paucity of evidence presented on most of the
community of interest factors. The only concrete connection
between the GA Director position and some of the positions in the
general services bargaining unit is that some "working" super-
visors, like the Garage Maintenance Supervisor, are included in
the unit. However, the working supervisors in the unit are not
department heads and, in fact, report to department heads, while
the GA Director is a department head. On the other hand, there
was enough evidence presented to conclude that certain community
of interest factors do not support a finding that the GA Director
position should be placed in the unit. These factors include the
following:
Similarity in scale and manner of determining earnings --
The GA Director is paid $47,000 per year on a salaried
basis. This was her starting salary at the time of her
hire. All of the positions in the unit are paid on an
hourly basis. The highest hire rate under the collective
bargaining agreement for the period ending June 30, 2008
(exempt employees, pay grade 7) amounts to about $37,000 per
year.
Similarity in qualifications, skills and training -- The
2008 job description for the GA Director provides that a
4-year college degree in social work or related field is
preferred. The Town Manager testified that the Town did not
require a degree for the position in part to allow Ms.
McDermott to vie for the position (which was credible in
light of the fact that the 1995 revised job description
required the position to have a 4-year degree). All of the
positions in the general services bargaining unit require a
high school diploma only.
History of collective bargaining -- The history strongly
supports a finding of no community of interest, as the GA
[end of page 20]
Director position existed at the inception of the unit,
though was specifically excluded from the unit by agreement
of the parties. The position was determined by Unit
Determination Report to be appropriate for inclusion in a
separate supervisory bargaining unit that existed for about
five years.
Desires of the affected employee -- Ms. Gerry does not wish
her position to be in the bargaining unit.
Extent of union organization -- Assuming that the GA
Director is a public employee within the meaning of § 962(6)
(and the Town did not argue here that she was not a public
employee), the history of bargaining demonstrates that
certain supervisory employees were appropriately placed in a
separate bargaining unit at one time. However, this unit no
longer exists, and placing only the GA Director in the
general services bargaining unit but not comparable posi-
tions in the Town undercuts the argument for this placement.
The employer's organizational structure -- No position
deemed a department head is in the general services
bargaining unit. The department heads are, in fact,
responsible to respond to step 2 grievances under Article 20
of the CBA for the unit (step 1 grievances are responded to
by "non-bargaining unit supervisors").
In summary, based on the evidence presented at the hearing, a
community of interest could not be found between the GA Director
position and the other positions in the bargaining unit, even if
the Union had established the existence of changed circumstances.
As a final note, the hearing examiner understands that the
2008 reorganization of the GA Department certainly placed a sig-
nificant and distressing burden on Ms. McDermott, when she was
relieved of her Caseworker position after many years of employment
and was not hired as the GA Director. It is early in the
[end of page 21]
reorganization of the department to determine whether the Town
Manager is correct in his estimation that the reduced staff can
provide adequate casework coverage and expand anti-poverty
efforts. However, there was no evidence that the decision to hire
a full-time GA Director and to reduce front-line staff was
motivated by any desire to deprive employees of their collective
bargaining rights; if there was, a unit clarification hearing was
not the proper forum to address such a complaint. Cf., MSAD No.
14 and East Grand Teachers Ass'n, supra [83-A-09], at 10; Lincoln Sanitary
District and Teamsters Local 340, supra,[92-UC-02] at 15 (suggesting that
position assignments made with the intent to exclude employees
from a bargaining unit may form the basis of a prohibited prac-
tice complaint). The facts here simply do not support placing the
GA Director position into a bargaining unit mid-term in the CBA,
when that position has been historically excluded from the unit.
CONCLUSION
On the basis of the foregoing facts and discussion, and
pursuant to 26 M.R.S.A. § 966(3), the Union's Petition for Unit
Clarification, seeking to add the GA Director position to the Town
of Sanford general services bargaining unit, is denied.
Dated at Augusta, Maine, this 23rd day of July 2008.
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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