PROCEDURAL HISTORY
                                
     This unit determination proceeding was initiated on April 1,
2010, when James E. Carson, president of Teamsters Union Local
340 ("Teamsters" or "Union"), filed a Petition for Unit
Determination and Bargaining Agent Election with the Maine Labor
Relations Board ("Board" or "MLRB").  This Petition requested a
determination that the following employees of the Town of South
Berwick ("Town" or "Employer") constituted an appropriate
bargaining unit within the meaning of 26 M.R.S.A.  966(1) and
(2):  Accountant/Deputy Treasurer, Deputy Tax Collector/Personnel
Benefits Administrator, Town Clerk, Assessing Agent, Code
Officer/Plumbing Inspector/Health Officer (hereafter referred to
as the Code Enforcement Officer), Director of Planning and
Economic Development, and Police Lieutenant.  Linda D. McGill,
Esq., filed a timely response to the petition on behalf of the
Town on April 21, 2010.  The Town objected to the inclusion of
the following positions in the unit:  Town Clerk, Code Enforce-
ment Officer, Assessing Agent, and Police Lieutenant.
     On June 3, 2010, a prehearing conference by telephone was
held in this matter.  Subsequent to the conference, the parties
reached an agreement that the position of Police Lieutenant could
be placed in the bargaining unit.  After due notice, an 

[end of page 1]

evidentiary hearing on the unit determination petition was held
by the undersigned hearing examiner on June 10, 2010, at the
Board's hearing room in Augusta, Maine.  Sylvia Hebert, Teamsters
Business Agent, appeared on behalf of the Union.  David Burke,
Chairman of the Town Council of South Berwick, appeared on behalf
of the Town.  The Union presented as its witnesses:  Barbara
Bennett, Town Clerk; Joseph Rousselle, Code Enforcement Officer;
and Craig Skelton, Assessing Agent.  Mr. Burke presented brief
testimony on behalf of the Town.  The parties were given the
opportunity to examine and cross-examine witnesses and to offer
evidence.  The parties presented oral argument at the conclusion
of the hearing.
                    
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 (2).  The subsequent references
in this determination are all to Title 26, Maine Revised Statues
Annotated.
 
                          STIPULATIONS
                                
     The parties stipulated to the following facts:

1.   The Teamsters Union Local 340 is a public employee
     organization that seeks to become the bargaining agent for
     the employees in the proposed bargaining unit, within the
     meaning of 26 M.R.S.A.  962(2).
2.   The Town of South Berwick is a public employer within the
     meaning of 26 M.R.S.A.  962(7).
3.   The parties agree that the following positions comprise an
     appropriate unit for purposes of collective bargaining:
     Accountant/Deputy Treasurer, Deputy Tax Collector/Personnel
     Benefits Administrator, Director of Planning and Economic
     Development, and Police Lieutenant.

[end of page 2]

4.   The Employer objects to the inclusion of the Town Clerk in
     the bargaining unit on the basis that the Town Clerk is a
     "department head" within the meaning of 26 M.R.S.A. 
      962(6)(D) and therefore not a public employee, as defined.
5.   If the attorney examiner finds that the Town Clerk is not a
     "department head," then the Employer agrees that the
     position may be included in the bargaining unit.
6.   The Employer objects to the inclusion of the Code
     Enforcement Officer in the bargaining unit on the basis that
     the Code Enforcement Officer is a "department head" within
     the meaning of 26 M.R.S.A.  962(6)(D) and therefore not a
     public employee, as defined.
7.   If the attorney examiner finds that the Code Enforcement
     Officer is not a "department head," then the Employer agrees
     that the position may be included in the bargaining unit.
8.   The Employer objects to the inclusion of the Assessing Agent
     in the bargaining unit on the basis that the position does
     not share a community of interest with the other positions
     in the bargaining unit, on the basis that the position is
     shared with the Town of North Berwick.
                                
                            EXHIBITS
                                
     The following exhibits were offered into evidence without
objection:

     Employer-1     Portions of Article II and III of the Town of
                    South Berwick ordinances

     Union-1        Town Clerk job description

     Union-2        Barbara Bennett letter of employment, June 8,
                    1996

     Union-3        Police Lieutenant job description

     Union-4        Christopher Burbank letter of employment,
                    September 27, 1993


[end of page 3]

     Union-5        Code Enforcement Officer job description

     Union-6        Joseph Rousselle letter of employment, 
                    July 9, 2001   

     Union-7        Assessing Agent job description

     Union-8        Craig Skelton letter of employment, 
                    February 5, 2007

     Union-9        Agreement between Town of South Berwick and   
                    Town of North Berwick regarding employment of 
                    Assessing Agent, September 20, 2005


                        FINDINGS OF FACT

1.   The executive body of the Town of South Berwick is the five-
     person Town Council.  Pursuant to the Town Charter, the Town
     Manager is appointed by the Town Council and serves at the
     will of the Council.  The Town Manager is the administrative
     head of the Town and is responsible to the Council for the
     administration of all departments assigned to him.
2.   The purpose of the position of Town Clerk is to " . . .
     provide administrative and supervisory work in the
     administration of federal, state and local statutes, the
     maintenance of official municipal records, the issuing of
     various licenses and documents, administration of motor
     vehicle registrations and renewals and the administration of
     fair and accurate elections" (Union Exh. No. 1).
3.   The Town Clerk also serves as secretary to the Town Council.
4.   The present Town Clerk, Barbara Bennett, has served in her
     position for 14 years.  Article IV, Sec. 3-29 of the Town
     Ordinance provides that the Town Clerk is the head of the
     Department of Records.
5.   The Town Clerk works on a full-time basis.  She supervises
     two Customer Service Representatives (CSRs), both of whom
     work part-time (16 and 26 hours per week, respectively).  

[end of page 4]

     The Town Clerk and the two CSRs all perform similar
     "counter" work equally; that is, all three help citizens
     complete transactions with the Town, such as paying taxes,
     registering vehicles, and buying licenses.
6.   The Town Clerk recommended the CSRs for hire.  The Town
     Manager has the ultimate authority to hire and fire
     employees.  The Town Clerk writes an annual performance
     evaluation for the CSRs.  She has occasionally been involved
     in discipline of a CSR.  She also sets the schedules for the
     CSRs.
7.   The Town Clerk was hired by the Town Manager, as reflected
     in a letter dated June 18, 1996 (Union Exh. No. 2).  In the
     letter, Ms. Bennett was advised that she would be sworn in
     before she assumed her duties, and that she would serve a
     six-month probationary period.
8.   Sometime after Ms. Bennett was hired as the Town Clerk, the
     Town Council affirmed the list of municipal officials that
     would be serving for the coming year.  The list of these
     officials included, amongst other positions, the Town Clerk
     and the Code Enforcement Officer.  This "affirmation" has
     not necessarily been done on an annual basis; it has not
     been done in the last ten years or so.
9.   The Town Clerk helps to create the budget for the work of
     her office, such as estimating the cost of elections
     (election workers, printing) and the cost of supplies.  She
     provides or forwards this information to the Deputy
     Treasurer who "works up" the numbers for the budget.  The
     Town budget is created and presented by the Town Manager to
     the Town Council.  The Town Clerk is present at budget
     meetings in order to answer questions about her budget
     needs.
10.  Many of the functions of the Town Clerk's office (such as
     elections and vehicle registration) must be carried out in 

[end of page 5]

     accordance with state law, state regulation and town
     ordinance.  The Town Clerk creates and implements some
     policies regarding the operation of the office.
11.  The Town Clerk spends the majority of her time
     (approximately two-thirds to three-quarters) performing the
     day-to-day functions of the office, such as vehicle
     registration, record maintenance and other service to the
     public.  The office is a very busy one with a small staff
     which makes this a necessity.  The Town Clerk spends only a
     minimal amount of time supervising the CSRs or performing
     management functions.
12.  The purpose of the position of Code Enforcement Officer
     ("CEO") is to " . . . perform administrative, supervisory,
     and inspection work related to the enforcement and
     interpretation of the state building code, the local zoning
     ordinances, Shore Land Zoning Ordinance and other applicable
     regulations" (Union Exh. No. 5).
13.  The decisions of the CEO are appealable to the Town Zoning
     Board of Appeals, and it is part of the CEO's job to appear
     before the Board as part of any appeal.
14.  The present CEO, Joseph Rousselle, has served in his
     position for 9 years.  Article II, Sec. 3-21 of the Town
     Ordinance provides that the head of the Department of Code
     Enforcement is the CEO.
15.  The CEO works on a full-time basis.  The only other employee
     in the Code Enforcement Department is an Administrative
     Assistant who works half-time for the CEO and half-time for
     the Town Assessing Agent.  The CEO is the only person
     performing the "front line" work needed of his position
     (i.e., performing building and plumbing inspections, issuing
     permits, etc.).  The CEO also occasionally performs this
     same type of work for other area towns when their CEO's are
     on vacation or otherwise unavailable.

[end of page 6]

16.  The Town Manager hired the Administrative Assistant who
     works half-time for the CEO; the CEO was not involved in
     that decision.  The CEO is involved in the annual perform-
     ance evaluation given to the Administrative Assistant.
17.  The CEO was hired by the Town Manager, as reflected in a
     letter dated July 9, 2001 (Union Exh. No. 6).  In the
     letter, Mr. Rousselle was advised that he would serve a six-
     month probationary period and that he was expected to
     complete the Maine State Code Enforcement Training and
     Certification program within the first year of his
     employment.
18.  State law provides that municipal officers may appoint code
     enforcement officers trained and certified in accordance
     with state law to serve for fixed terms of one year or more,
     and may remove those code enforcement officers only for
     cause after notice and hearing.  30-A M.R.S.A.  2601-A.
19.  The CEO was sworn in by the Town Clerk on more-or-less an
     annual basis for the first several years of his employment. 
     In recent years, he has not been sworn.  He has also been
     sworn in by the clerks of other towns where he serves as an
     occasional fill-in CEO.
20.  The CEO is unaware of any involvement by the Town Council in
     his hire, or in confirming his hire.
21.  The CEO helps to create the budget for the work of his
     office and for the Zoning Board of Appeals, such as
     estimating the cost of payroll, mileage and supplies needed. 
     One year, the CEO sought to have the cost of a new vehicle
     placed in the budget.  The CEO supplies the budget infor-
     mation to the Town Manager who creates and presents the
     budget to the Town Council.  The CEO is present at budget
     meetings in order to answer questions about his budget
     needs.
22.  Many of the functions of the code enforcement office must be
     
[end of page 7]

     carried out in accordance with state law, state regulation
     and town ordinance.  The CEO creates and implements some
     policies regarding the operation of the office; he has, for
     instance, streamlined some form documents used in the
     office.
23.  The CEO spends the majority of his time (approximately 80
     percent) performing the day-to-day functions of the office,
     such as performing building and plumbing inspections,
     issuing permits, and consulting with residents and
     contractors about shoreland zoning.  He is the only town
     employee qualified to do this work.  The CEO spends only a
     minimal amount of time supervising the Administrative
     Assistant or performing management functions.
24.  The purpose of the position of Assessing Agent is to be    
     " . . . responsible for the appraisal and assessment of all
     real and personal property within the Town, to prepare
     warrants for the assessment and collection of taxes to raise
     town revenues and to provide for the administration of the
     assessment process, records, and budget.  The work involves
     some fieldwork in the review of new and existing properties,
     analyzing and responding to abatement applications,
     responding to taxpayer and customer inquiries, supervision
     of a small staff, and defending assessments before the Board
     of Assessment review and other applicable courts and boards"
     (Union Exh. No. 7).
25.  The Assessing Agent is employed pursuant to an agreement
     between the towns of South Berwick and North Berwick dated
     September 20, 2005.  The purpose of the agreement is for the
     two towns (in which the town council/selectmen legally serve
     as the assessors) to share 60/40 the services of a qualified
     assessor to assist them in their duties.  Relevant
     provisions of the agreement include: 

[end of page 8]


               the Assessing Agent works three days in South
               Berwick and two days in North Berwick, on 
               average, each week;
                        
               the Assessing Agent is an employee of South
               Berwick for administrative purposes and must
               comply with all personnel policies of South
               Berwick;
           
               the Town of North Berwick reimburses the Town   
               of South Berwick each year for 40 percent of 
               costs of employing the Assessing Agent  
               (including wages, benefits, training,      
               membership dues, etc.);
          
               the Assessing Agent is hired upon approval of  
               the Town Manager of each town and the confir-
               mation of the Municipal Officers in each town.
           
               the Assessing Agent may be discharged for cause    
               " . . . after a joint meeting of the Municipal
               Officers of the [towns] to discuss the issue    
               of termination and the majority vote of each
               Council/Board acting independently";
          
               either town may terminate the sharing agreement
               with 180 days' notice prior to the last day of 
               the other town's fiscal year; in this case, the
               employment of the Assessing Agent " . . . shall
               terminate upon termination of this agreement,
               provided either municipality may thereafter hire   
               the Assessing Agent as its employee."
          
26.  The present Assessing Agent, Craig Skelton, has served in
     this position pursuant to the two-town agreement since
     February, 2007.  The Town Managers of both towns were
     involved in interviewing Mr. Skelton.  Mr. Skelton's
     employment was confirmed by letter to him from the Town
     Manager of South Berwick, dated February 5, 2007 (Union Exh.
     No. 8).  In the letter, Mr. Skelton was advised that he
     would serve a six-month probationary period.  The letter
     further stated:  "As we discussed you shall be an employee
     of the Town of South Berwick.  Per the agreement we have
     entered into dated September 20, 2005, 40 percent of your 

[end of page 9]

     time will be spent in North Berwick.  If the Town of North
     Berwick chooses at any time not to share your services, you
     will remain an employee of the Town of South Berwick."
27.  Minutes from the February 12, 2007, meeting of the South
     Berwick Board of Assessors (the Town Council) state that the
     Board unanimously voted to confirm the appointment of Mr.
     Skelton.
28.  The Assessing Agent is primarily supervised by the Town
     Manager of South Berwick, although he is also under the
     supervision of the Town Manager of North Berwick when he is
     performing services for that Town.  The South Berwick Town
     Manager completes the annual performance evaluation for  
     Mr. Skelton, after receiving input from the North Berwick
     Town Manager.
29.  Mr. Skelton receives all the same benefits as other South
     Berwick employees pursuant to the town's personnel policy. 
     In the past year, North Berwick budgeted for a COLA increase
     for their portion of the cost of Mr. Skelton's employment,
     in anticipation that South Berwick would be giving its
     employees a COLA increase.  However, South Berwick deter-
     mined not to give its employees a COLA, and therefore Mr.
     Skelton was not given a COLA.
 
                           DISCUSSION

     The two issues presented in this matter are (1) whether the
positions of Town Clerk and Code Enforcement Officer are
"department heads" within the meaning of 26 M.R.S.A.  962(6)(D)
and therefore not public employees who may be included in the
South Berwick professional bargaining unit, and (2) whether the
position of the Assessing Agent shares a community of interest
with the other positions in the bargaining unit as the position
is "shared" 60/40 with the Town of North Berwick.  These issues
will be addressed, in turn, below.

[end of page 10]

Whether either the Town Clerk or the CEO are "department heads"
     
     Section 962(6)(D) provides that a "public employee" means
any employee of a public employer, except any person 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.  In addition, the
employees' 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
either the Town Clerk or the CEO were appointed as required by
the exception.  Second, the hearing examiner will discuss whether
either position can be considered a "department head" based on
their actual duties.
     The "appointment" requirement of the department head
exclusion actually has four requirements:  the department head
must be "appointed to office," the appointment must be pursuant
to a statute, ordinance or resolution, the appointment must be
for an unspecified term, and the appointment must be made by the
executive head or body of the public employer.  There must be
some greater significance or formality to "appointments" than is
the case with the general hiring process.  See Teamsters Local
340 and Presque Isle, No. 92-UD-10 (MLRB Aug. 18, 1992) (when
city charter gives the city council discretion to make one-year
appointments to all employment positions in city, this is at odds
with the intent of the MPELRL).  In the vast majority of Board
cases on this issue, the department head was appointed by or at
least confirmed by the selectmen or city council.  See, e.g.,
AFSCME Council 93 and Town of Sanford, No. 92-UD-03 (MLRB 
Feb. 21, 1992), aff'd, 92-UDA-03 (MLRB May 7, 1992) (appointed by
selectmen); Teamsters Local Union No. 48 and Town of Wells, No.
84-A-03, slip op. at 6-7 (MLRB Apr. 11, 1984), aff'd sub nom. 

[end of page 11]

Inhabitants of the Town of Wells v. Teamsters Local Union No. 48,
CV-84-235, York Sup. Ct. (Feb. 28, 1985) (appointed by
selectmen).  The Board has made clear that if the statute,
ordinance, or resolution relied upon by the employer to establish
appointment requires confirmation by the executive body, then
evidence of confirmation by the executive body is required;
further, the confirmation step in the appointment process is what
distinguishes the appointment of department heads from ordinary
hires.  Town of Topsham and District Lodge #4, IAMAW, No. 02-UCA-01 
(MLRB Aug. 29, 2002) (evaluating the failure of the employer,
a town that had adopted the Town Manager Plan, to produce
evidence that the town clerk's appointment was confirmed by the
selectmen).
     Article I, Sec. 2 of the Charter for the Town of South
Berwick[fn]1 makes clear that the Town Council is the "executive
body" of the town:

     The administration of all the fiscal, prudential and
     municipal affairs of said town, with the government
     thereof, except the general management, care, conduct
     and control of the schools of said town, and also
     except as otherwise provided by this charter, shall be
     and are vested in one body of 5 members, which shall
     constitute and be called the town council . . . . 

     1  The Employer did not actually articulate which "statute,
ordinance or resolution" upon which it was relying to support its
argument that these two positions were appointed.  The Employer's sole
documentary evidence was a two-page portion of town ordinances which
contained contradictory information on this question (e.g., the head
of the Department of Records is identified as the Town Clerk who is
"appointed by the Town Manager and serve [sic] at its pleasure;" the
Town Clerk is also identified as a Town Council appointment who serves
at the pleasure of the Town Council).  Given this paucity of evidence,
it would be possible to determine that the Employer has not met its
responsibility of producing evidence to support its contention. 
Instead, the hearing examiner reviewed the Town Charter in order to
attempt to resolve this contradiction; she advised the parties in
writing that she would take official notice of the Town Charter, and
received no objections to this notification.

[end of page 12]

The Town Manager is appointed by the town council and is the    
" . . .  administrative head of the town and shall be responsible
to the town council for the administration of all departments
assigned to him" (Article III, Sec. 1 of the Charter).  Article
III, Sec. 3 of the Charter further provides that "All statutory
officers and department heads, other than those listed in Article
II, section 3, subsection I [Town Manager and Town Attorney]
shall be appointed by the town manager, subject to confirmation
by the town council, and the same shall be subject to removal for
just cause."  Town ordinances provided by the Employer ( 3-20,
3-29) identify the Town Clerk as the head of the Department of
Records and the CEO as the head of the Department of Code
Enforcement.  Finally, neither the Charter nor the ordinances
refer to a specific period of appointment (e.g., a one-year term
of appointment); therefore, appointments are for an unspecified
period.[fn]2
     Based upon this review of Town Charter and ordinances,
department heads (including the Town Clerk and the CEO) are
appointed by the Town Manager, subject to confirmation by the
Town Council (the executive body of the Town of South Berwick),
for an unspecified term.  Pursuant to Topsham, therefore, evi-
dence that the appointments of the two positions were confirmed
by the Town Council would be essential to meeting the appointment
requirement of the "department head" exception.

     2  The Charter provides only that the department heads are
subject to removal for just cause.  In addition, the two positions at
issue here were advised that they were required to serve a six-month
probationary period.  Both of these facts support a conclusion that
the appointment, if properly made, was for an unspecified period. 

     3  State law regarding the appointment of CEO's who are trained
and certified provides that the appointment be made by "municipal
officers," elsewhere defined as the selectmen or councillors of a
town.  See 30-A M.R.S.A.  2001(10), 2601-A.  While, again, not
offered by the Employer as the legal authority for appointment, these
state laws further supports a finding--for the CEO--that the town
council was required to make or at least confirm the appointment. 

[end of page 13]

     The Employer did not provide any evidence that the
appointment of the Town Clerk and CEO was confirmed by the Town
Council, as required by the Town Charter.  Such evidence might
have included minutes from a relevant Town Council meeting, or
other resolution (Union Exhibit No. 8 contained such evidence
regarding the appointment of the Assessing Agent).  Both the Town
Clerk and the CEO testified that they were hired by the Town
Manager with no (known) involvement by the Town Council.  The
letters of employment from the Town Manager sent to both
incumbents in these positions make no reference to their
appointment or confirmation of appointment by the Town Council.
The only evidence regarding the possible appointment by the
Council was provided by the Town Clerk (the Council secretary)
who testified:

     When I first started working for the town, in one of
     the June council meetings there was generally a list
     provided for the council that basically listed all of
     the municipal officials, and they just affirmed that
     those were the municipal officials for the upcoming
     year.  That hasn't been done I'm going to say for 
     maybe 10 years. 

Transcript at 10.

This was scant evidence that the Town Council confirmed the
appointment of the Town Clerk (and even more scant regarding any
confirmation of the CEO, who has been employed by the Town less
then 10 years).  In conclusion, if the determination whether
these position are "department heads" truly turned on the
appointment issue, the hearing examiner would find, supported by
the Board's reasoning in Topsham, that the Town has failed in its
responsibility to produce evidence that the appointments were
made pursuant to statute, ordinance or resolution.  However, the
question of whether either position functions as a department
head is so clear that the appointment question can remain 


[end of page 14]

unresolved.
     The inquiry of whether a position is a "department head"
must focus on the actual job duties or functions of the position,
not the job title alone or its placement on the employer's
organizational chart.  In interpreting the (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, 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. 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 

[end of page 15]

     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.  
     By "primary function" the Board has made clear that it means
how much time the position spends performing administrative
duties, as opposed to supervising or performing day-to-day
duties.  In Town of Wells, for instance, the Board found that a
code enforcement officer's enforcement and licensing duties were
far more significant in terms of the employee's "time and effort"
than were his administrative duties.[fn]4  It is likely for this
reason that "department heads" as defined have been found
employed by larger municipalities or other public employers, as
it is within these larger entities that management function of a
department is genuinely given over to department heads, and
department heads actually spend the majority of their day as an
administrator or manager.  See, e.g., Maine State Employees
Association and State of Maine Judicial Department, No. 98-UC-01
(Jan. 21, 1998); Teamsters Local 48 and City of Portland, No. 78-UD-39 (MLRB Sept. 13, 1978).
     In the present matter, both the Town Clerk and the CEO spend
the great majority of their time performing the day-to-day or
"front line" functions of the duties of their respective
departments.  In the case of the Town Clerk, despite having two
part-time employees also performing the "counter" work for the
town office, the sheer amount of counter work requires the Town 

     4  The hearing examiner could find no Board cases in which Code
Enforcement Officers have been found to be department heads. 
Teamsters Local Union No. 48 and Town of Wells, supra (and cases 
cites therein); AFSCME Council 93 and Town of Sanford, No. 92-UD-03 
(Feb. 21, 1992).

[end of page 16]

Clerk to spend the majority of her time performing the same work
as these employees.  In the case of the CEO, he is the only
employee in his "department" who does the day-to-day enforcement
work and he is the only one qualified to do the work.  Both the
Town Clerk and the CEO spend a small amount of their time
supervising employees (directing, doing performance evaluations,
and the like).  However, this supervisory work does not make them
a department head.  The only true "department head" functions
either of these positions perform (budget work, creating policies
for the operation of their departments) make up a very small part
of their time on the job.  In neither case could it be determined
to be the "primary function" of their job.
     For these reasons, the hearing examiner finds that neither
the Town Clerk nor the CEO are "department heads" within the
meaning of  962(6)(D).  Pursuant to the stipulations entered
into by the parties, the employer agrees that both positions
should therefore be part of the proposed professional bargaining
unit.     

Whether the Assessing Agent shares a community of interest with
the other positions in the proposed unit

     As the Law Court has recognized, there are two fundamental
purposes of the MPELRL:  to protect employees' right to self-
organization and to promote the voluntary adjustment of their
terms of employment.  Lewiston Firefighters Ass'n, Local 785,
IAFF v. City of Lewiston, 354 A.2d 154, 160 (Me. 1976).  Coherent
bargaining units with a clear and identifiable community of
interest are essential to both of these objectives.  The
requirement that the hearing examiner examine the extent of the
community of interest was explained by the Board over 20 years
ago, and is still valid today:
     
     Title 26 M.R.S.A.  966(2) requires that the hearing
     examiner consider whether a clear and identifiable 

[end of page 17]

     community of interest exists between the positions in
     question so that potential conflicts of interest among
     bargaining unit members during negotiations will be
     minimized.  Employees with widely different duties,
     training, supervision, job locations, etc., will in
     many cases have widely different collective bargaining
     objectives and expectations.  These different
     objectives and expectations during negotiations can
     result in conflicts of interest among bargaining unit
     members.  Such conflicts often complicate, delay and
     frustrate the bargaining process.

AFSCME and City of Brewer, No. 79-A-01, slip op. 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. 
Chap. 11,  22(3) of the Board Rules.
     In the present matter, the Assessing Agent clearly shares a
community of interest with the other and varied positions already
in the proposed bargaining unit, considering most of the
community of interest factors listed above--including, but not
limited to, similarity in kind of work, scale and manner of
determining earnings, similarity in employment benefits, 
similarity of qualifications, and frequency of contact or inter-
change.  In addition, the Assessing Agent testified that he
wishes to be part of the bargaining unit (desires of the affected 

[end of page 18]

employee).
     The Employer's argument that the Assessing Agent does not
share a community of interest rests entirely on the fact that his
employment is "shared" with the Town of North Berwick pursuant to
an agreement between the two towns.  Despite the existence of
this agreement (and the fact that the Assessing Agent works two
days per week in North Berwick), South Berwick maintains
effective control over most of the terms and conditions of
employment that are the usual subject of collective bargaining. 
The agreement provides that the Assessing Agent is "an employee
of the Town of South Berwick for administrative purposes and
shall comply with all of the provisions contained within the Town
of South Berwick's personnel policy."  In regards to all the
usual "money" issues that are part of negotiating a collective
bargaining agreement (wages, benefits, vacation and medical
leave, training costs, etc.), the Assessing Agent is treated no
differently than any other employee of South Berwick.  By terms
of the agreement, North Berwick has effectively ceded its
authority over these issues in order to obtain the part-time
services of the Assessing Agent:  If the Town of South Berwick
and the Union negotiated for higher wages for this position, or
the cost of benefits increases, the Town of North Berwick must
either pay 40 percent of the costs per the agreement or decide to
terminate the agreement.[fn]5  The Town of South Berwick has
advised the Assessing Agent that if North Berwick chooses not to
share in his services, he would remain an employee of South
Berwick.  Therefore, in most matters relating to terms and
conditions of employment, the Assessing Agent is an employee of
South Berwick and shares a strong community of interest with the
other 

     5  This conclusion is also supported by the uncontradicted
testimony of the CEO that North Berwick budgeted to pay his COLA as a
South Berwick employee, even though such was not budgeted for other
North Berwick employees.

[end of page 19]

positions in the unit.
     One aspect of the Assessing Agent's employment, however, is
different from other South Berwick employees.  Per the two-town
agreement, the Assessing Agent may be terminated for cause 
" . . . after a joint meeting of the Municipal Officers of the
municipalities to discuss the issue of termination and the
majority vote of each Council/Board, acting independently."  No
matter what process the Town currently offers to other employees
prior to discharge, such process would obviously not involve the
participation of a separate employer (North Berwick), as it would
for the Assessing Agent.  Does this fact make the Assessing Agent
so unique that he no longer shares a sufficient community of
interest with the other positions to enable them to bargain
together?  The hearing examiner concludes that it does not sig-
nificantly undermine the community of interest that the Assessing
Agent already shares with the other positions in the unit.
     First, this discharge provision has never been utilized, and
the witnesses were clearly unsure how the process would actually
work.  On its face, the agreement provides that to discharge the
Assessing Agent requires the vote of both the Town Council of
South Berwick and the Selectmen of North Berwick.  If either
municipal body votes not to discharge the Assessing Agent, the
agreement seems to provide that he will not be discharged (the
option of terminating the agreement is still available to either
town).  One could say that the Town of South Berwick has ceded
some authority in a decision to discharge the Assessing Agent to
North Berwick, as it cannot discharge the Assessing Agent on "its
own."  This places the Assessing Agent in a unique position vis-
a-vis other employees in the bargaining unit, which the parties
may choose to make the subject of negotiations.[fn]6  However,
this 

     6  For example, if the collective bargaining agreement contained
a post-discharge grievance process including a step to be presented to
the Town Council, the unique position of the Assessing Agent--who can

[end of page 20]

distinction does not seem to be an insurmountable barrier to
collective bargaining.
     Second, it is not unknown for an employer with organized
employees not to be in complete control of every term and
condition of employment for those employees.  For instance,
public sector employers may receive grants that fund work of some
employees from "outside" sources that may end after a period of
time or be dependent upon the quality of the work being
performed.  The Board has not found this fact to require
employees funded in this manner to be excluded from collective
bargaining.  See, e.g., Teamsters Local 340 and City of Presque
Isle, 92-UD-10, at 32 (MLRB Aug. 18, 1992) (secretary working in
a job funded by a grant has reasonable expectation of employment
and placed in municipal employee unit); AFUM and University of
Maine, 77-UD-02, at 6-9 (MLRB Aug. 4, 1978) (soft-money non-
tenure track faculty were regular employees and placed in full-
time faculty unit).  In a similar vein, the National Labor
Relations Board (NLRB) found in Management Training Corporation,
317 NLRB 1355 (1995), that it is proper to exert jurisdiction
over employers who do not have control of all terms and
conditions of employment of its employees (in that case, a
private company that contracted with the U.S. government to
operate a job corps center), rejecting its previous line of cases
that required an assessment of such an employer's ability to
engage in "meaningful" bargaining before exerting jurisdiction. 
The NLRB reasoned:

     " . . . [W]e think that whether there are sufficient
     employment matters over which unions and employers can
     bargain is a question better left to the parties at the
     bargaining table and, ultimately, to the employee
     voters in each case. . . .  [B]y requiring the employer 


only be discharged following the vote of the Town Council--may require
different process.  Such matters would be up to the parties to
determine and to negotiate.

[end of page 21]

     to have control of economic terms before it would
     assert jurisdiction, the Board seems to have made a
     judgment, either directly or indirectly, that not only
     were certain contract terms of higher priority than
     others, but that such terms must be a part of contract
     negotiations.  This, we think, amounts to the Board's
     entrance into the substantive aspects of the bargaining
     process which is not permitted . . . ."

Management Training Corp., at 1355, 1358.[fn]7    
     Likewise in the present matter, the Town of South Berwick is
in control of many--if not most--of the terms and conditions of
the Assessing Agent's position.  The two-town contract may raise
concerns that the parties will wish to address at the bargaining
table (and the employees in the unit may wish to consider when
deciding whether to elect a bargaining agent).  But it would be
an error and premature to use this fact to find that the
Assessing Agent lacks such a community of interest with his
fellow South Berwick employees that he should be denied the right
--which he clearly has as a public employee--to be represented by
a labor organization for purposes of collective bargaining.   
For these reasons, the hearing examiner finds that the Assessing
Agent shares a community of interest with the other positions in
the proposed bargaining unit within the meaning of  966(2).

                      CONCLUSION AND ORDER

     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 April 1, 2010, by James E. Carson on 

     7  This case was extensively and favorably cited in MSEA and
Maine Judicial Department, No. 99-UD-04 (MLRB Nov. 30, 1998).  In that
case, the hearing examiner dismissed the claim that employees of a
temporary agency ("Manpower") who worked for the Maine Judicial
Department were within the jurisdiction of the MLRB, not the NLRB,
rejecting any attempt to "split" jurisdiction on the premise that the
temporary agency controlled some terms and conditions of employment
and the Maine Judicial Department controlled others.

[end of page 22]


behalf of the Teamsters is granted.  The following described unit
is held to be appropriate for purposes of collective bargaining:

     INCLUDED: Accountant/Deputy Treasurer, Deputy Tax       
               Collector/Personnel Benefits Administrator,   
               Director of Planning and Economic    
               Development, Police Lieutenant, Town Clerk,   
               Code Enforcement Officer, and Assessing  
               Agent.
     
     EXCLUDED: All other employees of the Town of South Berwick.

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

     
Dated at Augusta, Maine, this 16th day of July, 2010.

                                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.
     

[end of page 23]