PROCEDURAL HISTORY


     These unit determination proceedings were initiated on May 3,
2013, when Traci Place, business agent for the Teamsters Local
Union No. 340, filed two Petitions for Unit Determination and
Bargaining Agent Election with the Maine Labor Relations Board
("MLRB," or "Board") regarding Van Buren's Highway Mechanic,
Highway Driver/Equipment Operator, Assistant Waste Water Superin-
tendent, Recycling Center Director, Wastewater Superintendent, and
Highway Director, and their proposed placement for purposes of
collective bargaining in a unit to be called the "Public Works
Unit"; and for determinations regarding Van Buren's Assessor's
Agent, Deputy Clerk, Recreation Director, Bookkeeper, and Economic
Development Director, and their proposed placement for the
purposes of collective bargaining in a unit to be called the
"General Government Unit" pursuant to 26 M.R.S. § 966(2) of the
Municipal Public Employees Labor Relations Law.  On May 16, 2013,
Michael Bouchard, Chairman of Van Buren's Town Council, filed
timely responses to the petitions on behalf of Van Buren.  In
those responses, Mr. Bouchard asserted and that the Recycling 

[end of page 1]

Center Director, Waste Water Superintendent, and Highway Director
were appointed by the Town Council within the meaning of 26 M.R.S. 
§ 962(6)(D) and, therefore, were excluded from the definition of
"public employee"; and that all of the General Government
employees in the petition were appointed by the Town Council
within the meaning of 26 M.R.S. § 962(6)(D) and, therefore, were
also excluded from the definition of "public employee." 
Individuals excluded from the statutory definition of "public
employee" cannot be included in a bargaining unit pursuant to Sec.
966(1).  
     Hearing notices were issued on June 18, 2013, and posted for
the information of the affected employees.  The hearing was
conducted on August 6, 2013.  The Teamsters Local Union No. 340
was represented by Traci Place.  Van Buren was represented by Town
Council member William Smith, Esq.  The parties were afforded the
full opportunity to examine and cross-examine witnesses, and to
present evidence.  The following witnesses were presented at
hearing:  for the Teamsters and the proposed Public Works Unit,
Rick Sirois, Van Buren's Wastewater Supervisor; Joey Dumond, the
Town's Recycling Supervisor; and Michael Roy, the Highway
Department Supervisor.  For the proposed General Government Unit,
Colby Doody, the Assessor's Agent; Daniel LaPointe, the Director
of Economic and Community Development; Nicholas Hale, the
Recreation Director; and Kristen Streck, the Bookkeeper, Town
Clerk, General Government Department Head, Registrar of Voters,
and Acting Town Manager, appeared.  Van Buren presented no
witnesses of its own.  Following the conclusion of the hearing,
the parties agreed that they would submit briefs 20 days after
receipt of the hearing transcript.  The transcript was provided to
the parties on August 15, 2013, and briefs filed on September 4,
2013.

[end of page 2]

                           JURISDICTION
     Jurisdiction of the executive director of the MLRB or his
designee to hear these matters and make determinations lies in 26
M.R.S. § 966(1).  Any subsequent statutory references in this
report are all to Title 26 of the Maine Revised Statutes unless
otherwise noted.

                             EXHIBITS
     The following exhibits were admitted without objections of
the parties:

     A-1:      Unit Determination Petition for the Public Works 
               Unit, filed May 3, 2013.

     A-2:      Response to Public Works Unit Determination
               Petition, dated May 16, 2013.      

     A-3:      Notice of Hearing for Public Works Employees Unit,
               dated June 18, 2013. 
           
     A-4:      Unit Determination Petition for the General
               Government Employees Unit filed May 3, 2013.

     A-5:      Response to General Government Unit Determination
               Petition, dated May 16, 2013.

     A-6:      Notice of Hearing for General Government Unit       
               Employees Unit, dated June 18, 2013.     

     J-1:      Van Buren Town Charter (Revised November 8,
               2011) 

     J-2:      Town of Van Buren Personnel Policies (12/27/2010)

     J-3:      Job descriptions, Public Works Department Unit:
               Recycling Director, Wastewater Supervisor, and
               Highway Department Supervisor.

     J-4:      Job descriptions, General Government Department 
               Unit:  Deputy Assessor, Town Clerk, Recreation 
               Director, Economic Development Director, and
               Bookkeeper. 

[end of page 3]

     J-5:      26 M.R.S. § 962             

     U-1:      List of designated Municipal Appointments dated
               June 26, 2013
     
     U-2:      Teamsters and City of Presque Isle, No. 92-UD-10
               (MLRB Aug. 18, 1992)

     E-1:      October 19, 2011, memo from Thomas R. Cannon 
               regarding appointment of Kristen Streck as
               the General Government Department Head

     E-2:      June 13, 2012, Emergency Town Council meeting
               notes 

     E-3:      Van Buren 2012-2013 budget proposal
          

                         FINDINGS OF FACT

     1.  The Town of Van Buren operates under a representative town
meeting form of government, as established in the Town charter
adopted in November 8, 1983.  Article III ("Town Council") of the
charter states:

     Sec. 313. GENERAL POWERS AND DUTIES

     The Council shall have the power to:

        A.  Appoint and remove for cause after hearing, the 
            Town Manager, and Department Head, and any town 
            official serving in an appointed position, unless
            provided otherwise by State or Federal law.  All
            appointments shall be made annually in July unless
            otherwise provided for in Maine Revised Statutes. 

     2.  Exhibit U-1, a June 26, 2013 memorandum from Town Manager
Thomas R. Cannon to the Town Council, contains a list of desig-
nated appointed Town positions.  Of the ones at issue in these
petitions, only the "wastewater collector," "road commissioner,"
and "registrar of voters" are on the on the Town Manager's list. 

     3.  Van Buren's Town charter, Article IX, sets forth general

[end of page 4]

provisions regarding its administrative organization, and states:

     A.  Creation of Departments: The Town Council by ordinance,
         may establish town departments, offices and agencies 
         in addition to those created by this Charter and may
         prescribe the functions of departments, offices and 
         agencies.  No function assigned by this Charter to a
         particular department, office or agency may be discon- 
         tinued or, unless this Charter specifically so provides,
         assigned to any other department, office, or agency.

     4.  Annual budgets for departments are proposed by department
heads and submitted to the Town Manager.  The Town Manager reviews
the requested allotments and may revise or change them before
submitting a proposed budget to the Town Council.  The Town Council
reviews the budget prepared by the Town Manager and adopts it after
the chance to make amendments.  The Budget and Advisory Committee
(BAC), made up of Van Buren registered voters, then reviews the
completed proposed Town budget and submits its recommendation to
the Town Council.  The Council submits the proposed budget to a
Town Meeting with or without any recommended changes, but the BAC's
recommendations are provided as a commentary to the Town meeting. 
Appropriations for the budget are made at the Town meeting by
majority vote for warrant articles for each office, department, or
agency as published on the warrant.

     5.  On December 27, 2010, the Van Buren Town Council approved
the Town of Van Buren Personnel Policies, which was last reviewed
for revision on May 14, 2012.  The handbook includes policies and
procedures for discipline in Article VII, which states, in part, in
the introductory section: 

       To insure the equitable processing of disciplinary 
     actions the Town Manager will be responsible for the 
     proper handling of such matters, including the assurance 
     that employee rights are protected, and that appropriate
     action is taken when circumstances warrant.  Supervisory

[end of page 5]
     
     personnel shall consult with the Town Manager prior  
     to the implementation of discipline when practical.  
     No employee shall be terminated without the consent of 
     the Town Manager.

     6.  The handbook does not include job descriptions for Van
Buren personnel. The job descriptions admitted into evidence at
hearing and used in these unit determinations were provided by the
parties as joint exhibits 3 and 4. 

     7.  Joey Dumond has been Van Buren's recycling director for
over seven years and earned $29,129.60 in 2012.

     8.  Mr. Dumond recalls being appointed to his position by the
Town Council, but is not sure it has been on a yearly basis.
 
     9.  The written job description for the recycling director
contains the following:

  Nature of work:
     
  This is [sic] supervisory/working position involving the   
  operation of the recycling facility, the maintenance of all
  operational records, assisting in the practical work at the
  station, dealing with rubbish haulers and waste disposal
  services, and supervising the staff.  Work is performed
  under the general supervision of the Town Manager in 
  accordance with established procedures and routines.

Essential Duties and Responsibilities:
Examples of Work (Illustrative Only)

Supervises the staff of the recycling facility.

Maintains records of Department operation, and schedules
delivery and removal of storage containers.

Operates the facility equipment including the forklift
and cardboard baler and knuckle boom.

Prepares and administers yearly operating budget.

[end of page 6]

Assists citizens in the correct disposal of refuse materials.

Writes and updates solid waste ordinances, and oversees
enforcement.

Meets with citizen groups explaining formulates [sic] and
advocating recycling.

Ensures all safety procedures are followed in the operation of the
recycling facility.

Performs maintenance on facility equipment.
Performs related work as required.


Requirements of Work:


Ability to maintain the recycling facility in accordance with
rules and regulations.

Knowledge of the operation and maintenance of mechanical equipment
together with the ability to make repairs and adjustments and to
do necessary servicing work.

Ability to supervise and direct the work of other staff.
Knowledge of hazards and applicable safety rules and regulations
in equipment operation.

Ability to operate and service equipment skillfully and safely.

Ability to understand and carry out oral instructions and to work
independently in the performance of routine duties.

Ability to establish and maintain effective working relationships
with the public and other Town employees.

Ability to maintain records of facility operation.
Knowledge of solid waste and recycling management.

Training and Experience Required:

High school graduate or GED, plus experience in the operation or
maintenance of a town dump or transfer station, or any equivalent
combination of experience and training.

[end of page 7]

     10.  Rick Sirois has worked at Van Buren's wastewater plant
for sixteen years and has been its supervisor for four years.  He
earned $41,159.00 in 2012.

     11.  Mr. Sirois testified that he remembered being appointed
by the town council, but when asked if it was annually, stated,
"[t]his would be the first time I hear[d] this." 
 
     12. The written job description for the wastewater supervisor 
contains the following:

Nature of Work:

This is responsible technical and administrative work in    
directing the operations of the Waste Water Treatment Facility.  

Employee of this class is responsible for directing the work and
administration of a municipal wastewater treatment facility.  Work
involves responsibility for the technical aspects of plant
operations, compliance with state and federal operating
regulations, and responsibility for the maintenance of the plant
and underground sewer system.  Work is performed with considerable
independence under the direction of the Town Manager.

Essential Duties and Responsibilities:
Examples of Work (Illustrative Only):

Performs all aspects of chemical testing done at the Treatment
Plant.

Is responsible for preparing all required reports to local, state
and federal officials, detailing plant operation and compliance
with regulations.

Prepares and submits a proposed yearly operating budget, controls
expenditures throughout the year, and makes recommendations to the
Town Manager on revenues and expenditures.

Oversees and participates in the installation and inspection of
new sewer lines.

Performs the installation, maintenance and repair of the physical
plant and all equipment.

[end of page 8]

Reviews and approves the design of sewer extensions proposed by
others and coordinates financial and construction arrangements.

Ensures that the Plant's plans and records are maintained and up
to date.

Analyze, evaluate and monitor daily operation and maintenance
procedures.

Acts as the Department's representative to the public to a
day-to-day basis and handles all non-routine customers or public
concerns.

Coordinates appropriate activities with State DEP, EPA and other
state and federal agencies.

Performs other duties as required.

Requirements of Work:

Extensive knowledge of the methods, procedures and practices in
the operation of a wastewater treatment plant.  Thorough knowledge
of State and federal laws and regulations affecting the treatment
and collection of sanitary sewage.

Thorough knowledge of the methods, materials and practices
essential to the maintenance and repair of sanitary sewers and
treatment plants.

Thorough knowledge of the processes and equipment involved in
wastewater treatment, including the basic chemical,
bacteriological and biological processes.

Ability to communicate effectively orally and in writing.

Training and Experience Required:

Experience in the operation of a wastewater treatment facility; or
any equivalent combination of experience and training.

Must possess a valid Class III Treatment Plant Operator's license.

Must possess valid Class II motor vehicle operator's license.

     12.  Michael Roy has worked for Van Buren's highway/public
works department for 28 years and has been its foreman for twelve
years.  Mr. Roy earned $38,521.60 in 2012.

[end of page 9]

     13.  Mr. Roy recalls being appointed as the highway
supervisor/department head by the Town council, but not on a
yearly basis since his first appointment.

     14. The written job description for the highway department
supervisor contains the following:

Nature of work:
This is [sic] supervisory/working position with a group of workers
and equipment operators engaged in highway construction and
maintenance operations.
Employee of this class supervises and assists crews that
frequently include equipment operators, truck drivers, mechanics
and laborers.  Work of this class involves snow removal and
sanding, road construction, and the scheduling, coordinating and
supervision of various work performed in the Highway Department. 
This employee is further responsible for checking work performed
by subordinates, to ensure that streets are made according to
prescribed lines and grades.  Work is reviewed through daily
contact with and regular reports to the Town Manager.

Essential Duties and Responsibilities:
Examples of Work (Illustrative Only):

Supervises a crew of equipment operators and truck drivers in 
snow removal and sanding of Town streets and municipal parking
lots.

Supervises a crew of equipment operators and truck drivers in the
maintenance of municipal streets, parks and cemeteries, and other
municipal facilities.

Responsible for maintaining storm drainage system above and below
ground, when required.

Inspects work to ensure conformance with given engineering
specifications and standards, and makes necessary adjustments in
assignments and methods to correct deficiencies.

Supervises and assists in repairing streets and sewer basins,
placing and rolling asphalt, repair of ditches and culverts and
related activities.

Supervises the maintenance and repair of municipal vehicles.

[end of page 10]

Schedules work assignments, conducts evaluations and discipline
matters, and is responsible for keeping all related work records.

Prepares the departmental budget and oversees departmental
purchases and bills.

Prepares all equipment and material bids, evaluates bids and makes
purchases or recommendations for purchase.

Performs other duties as required.

Requirements of Work:

Thorough knowledge of materials, methods and techniques commonly
used in street, sidewalk activities.

Thorough knowledge of the hazards and applicable safety
precautions of the work.

Thorough knowledge of the operation of construction equipment such
as trucks and loaders used in road construction work, and the
ability to supervise and direct the activities of employees
engaged in the operation and maintenance of such equipment.

Ability to lay out, direct and supervise the work of a crew and
equipment operators performing semi-skilled road construction
activities to obtain efficient results.

Ability to assist crews in the completion of projects and regular
tasks.

Ability to understand and follow complex oral and written
directions.

Ability to establish and maintain harmonious relationships with
employees and the public, and to effectively obtain satisfactory
work output.

Ability to keep records and prepare reports.

Ability to supervise and assist as necessary, the general
maintenance of all public work equipment.

Physical strength and agility sufficient to perform the work of
the class.

[end of page 11]

Training and Experience Required:

Extensive experience as a labor foreman on major road
construction, or any equivalent combination of experience and
training.

Extensive experience in snow removal and sanding techniques.

Extensive experience in all aspects of equipment operation.

Extensive experience in storm drainage systems installation and
repairs.

Experience in engineering standards and blueprint specifications.

Experience in supervisory oversight.

Must possess valid Class II motor vehicle operator's license and
be insurable under the Town's vehicle insurance coverage.

     15. At the time of the hearing, Colby Doody had been Van
Buren's deputy assessor for approximately one year.  He is the
only person working as an assessor of real and personal property
in Van Buren, and works under the Board of Assessors, which is
comprised of the members of the Town council.  Mr. Doody earned
$31,009.22 in 2012.

     16. There was no evidence presented that Mr. Doody was
appointed as the deputy assessor by the Town council.

     17. The written job description for the deputy assessor
contains the following:
  
  Nature of work:

  This is specialized technical work in the valuation and
  assessment of real and personal property. 

  Employee of this class is responsible for appraising and
  assessing real and personal property for taxation within the 
  Town, and for assisting in administration and maintenance of
  all records necessary to administer the assessment program.
  
[end of page 12]

  Work involves extensive fieldwork in the review [sic] existing
  and new properties.  Employee is required to exercise
  considerable independent judgment in administering the 
  assessment program within general policy guidelines and is
  subject to specific state laws and regulations under guidance
  of the Town Assessors.

  Essential Duties and Responsibilities:

  Appraises residential and commercial properties; special 
  rights and interests; personal property; and public utility
  equipment and properties.

  Assists in the maintenance and reviews of official maps, 
  transfers, and other records maintained in the assessment
  office; makes and enters computation valuations and other
  data in valuation commitment books; determines the valuations
  to be placed on new, renovated, and existing property based on
  changing market value.

  Develops and administers a program for the collection of 
  sales, cost, income, and other economic and social data 
  affecting property values; prepares appraisal and other 
  reports as necessary.

  Maintenance of all property cards and files on all Town
  properties and updates tax books.
   
  Performs extensive measurement and inspecting of all 
  buildings; compares with previous information to determine
  whether changes have been made in violation of building
  requirements.

  Answers calls and inquiries made by banks, lawyers, citizens
  and other parties.

  Performs other duties as required.

  Requirements of Work:

  Knowledge of the principles, methods, and techniques of real
  and personal property assessment.  Working knowledge of the
  charter provisions, ordinances, and general laws governing
  real and personal property, assessment, and statutory
  exemptions.

  Ability to analyze factors which may influence the value of
  
[end of page 13]

  property and to exercise judgment in determining property 
  values and changes in city structures and physical 
  properties.  Ability to plan and organize the maintenance
  of assessment and property records to facilitate the
  preparation of varied assessment roles and reports.

  Ability to establish and maintain effective working
  relationships with taxpayers, the general public, employees,
  and other departments.

  Knowledge of building construction methods and architecture, 
  Town planning and real estate laws, Town zoning and tax
  policy, and the mechanics of real estate sale and finance.
  Familiar with computer operation and utilization.

  Considerable knowledge of the geographic layout of the Town.

  Training and Experience Required:

  Experience in real and personal property assessment work
  involving appraisal and evaluation of land and buildings;
  satisfactory completion of a course leading to certification
  in real property appraisal, or graduation from an accredited
  college program specializing in property assessment, business
  or policy administration; or an equivalent combination of
  experience and training.

  Must possess a valid Maine State Drivers license.

     18.  Daniel LaPointe has held the position of director of
economic and community development for the Town of Van Buren for
fifteen years.  Mr. LaPointe earned $41,288.01 in 2012.

     19.  Although he has had one Town employee and people
participating in the State Workforce Program who worked in his
office previously, he is the only person in his department at the
present time.

     20.  Mr. LaPointe testified that he was first hired as a
Contractor by the Town council but is not aware of being appointed
or re-appointed by the Town Council.  Mr. LaPointe considers the
Town Manager his supervisor.

[end of page 14]

     21.  The written job description for the economic development
director contains the following:

  Nature of work:

  This is a supervisory/working position responsible for           
 administrative and specialized technical work in the economic     
 development program.

  Employee of this class is responsible for maintaining an         
  economic development program to encourage community improvement  
  activities.  Employee has responsibility for the development and 
  initiation of the Town's Economic Development and Industrial     
  Development Programs.  Work includes supervising staff,          
  planning, coordinating and implementing economic development     
  projects.  Work is performed under the general supervision of    
  the Town Manager and is evaluated through observation, reports   
  and results obtained.

  Essential Duties and Responsibilities:
  Examples of Work (Illustrative Only):

  Maintains liaison with various State and federal agencies;       
  coordinates projects with other agencies such as FHA HUD, Maine  
  State Planning Office, Regional Planning Commission, and Maine   
  State Housing Authority.  Closely works with other local         
  agencies such as Chamber of Commerce, Main St. Main, Revolving   
  Loan and Van Buren Economic Development Corporation in fostering 
  community coordination in economic development.

  Prepares and administers departmental budget; supervises         
  departmental personnel; monitors project budgets.  Prepares      
  grant proposals and applications, contracts and other necessary  
  documents as may be required for acquisitions, demolitions,      
  public works, and public services.

  Prepares reports such as grant progress and performance, housing 
  assistance plans, financial assessments, and project budgets.

  Performs public relations activities for specific projects such  
  as holding press conferences, conducting public meetings,        
  speaking to civic organizations.

  Conducts special projects and studies such as industrial         
  development proposals as requested by the Town Manager.

[end of page 15]

  Performs other duties as required.

  Requirements of Work:

  Thorough knowledge of the federal grant process from application 
  to evaluation.

  Knowledge of the laws and regulations pertaining to community    
  development programs.

  Ability to express ideas effectively both orally and in writing.

  Ability to analyze community improvement needs and to plan and   
  coordinate community development activities.

  Ability to establish and maintain effective working            
relationships with State and federal agencies, other agencies,     
Town officials, employees and the general public.

  Ability to direct, supervise and motivate staff.

  Training and Experience Required:

  Considerable experience in community development including       
  administrative responsibility; graduation from a four-year       
  college or university, preferably with a specialization in       
  community development or a related field; or an equivalent       
  combination of experience and training.

     22.  Nicholas Hale has held the position of recreation
director for the Town of Van Buren for two years.  Mr. Hale earned
$22,850 in 2012 for working a 35-hour week.

     23.  There was no written or testimonial evidence that 
Mr. Hale was appointed to his position.

     24.  Mr. Hale works 35 hours a week and typically supervises
seasonal, part-time staff in the summer and winter months to cover
recreational programs that are offered.  When school is in
session, the part-time staff may decrease to "one or two, or
possible even zero."
     
[end of page 16]

     25.  Mr. Hale develops the programs to be offered with the
input of a recreation committee.

     26.  The written job description for the recreation director
contains the following:

  Nature of work:

  This is a supervisory/working position, involving planning and   
  direction of municipal recreation programs.

  Employee of this class is responsible for developing and         
  administering community, cultural, recreational and other        
  leisure time activities on a year-round basis in addition to     
  coordinating the work of staff, handling publicity and public    
  relations, scheduling events, maintenance of facilities and      
  equipment, maintaining and processing program records and        
  reports.  Work is performed under the supervision of the Town    
  Manager.

  Essential Duties and Responsibilities:

  Develop the overall municipal recreation program and prepare     
  rules and regulations governing each activity.  Compile periodic 
  summary reports of recreational activities.

  Maintain facilities, equipment and supervise seasonal personnel  
  who perform maintenance and program activities at various        
  recreational facilities.

  Evaluate the adequacy of existing facilities and develop plans   
  for alteration and expansion of areas.

  Supervise all seasonal recreational personnel.  Maintain time    
  and personnel records on all seasonal employees.  Maintain       
  activity and attendance reports.

  Prepare budget requests for various recreational requirements.

  Prepare correspondence and communicate recreational activities 
  and meet with social, civic and community groups explaining      
  recreational programs and stimulate public interest.

  Perform other duties as required.
     

[end of page 17]

  Requirements of Work:

  Plans, develops, administers and supervises a wide variety of    
  recreation activities and the operation of Town recreation       
  facilities.  Directs and assists in the maintenance and upkeep   
  of municipal facilities, recreation areas, and the ice arena.

  Prepares proper records of personnel and equipment needs;        
 requisitions supplies, equipment and materials.  Plans            
 department budgets and oversees the control of expenditures.

  Responsible for supervision of recreation department seasonal    
  employees.  Develops training procedures and evaluates           
  personnel.  Prepares news releases and publicity for program     
  activities.

  Prepares reports of departmental activities for the Town         
  Manager, Town Council, and Town Recreation Advisory Board.       
  Evaluates recreational needs, activities and facilities, making  
  recommendations for improvements, changes, expansions and        
  reductions.  Promotes interest in Town programs through          
  correspondence and the media.  Coordinates Town program with     
  other area activities.

  Instructs seasonal employees on policy matters and on method and 
  procedures which are to be followed in carrying out the various  
  activities, maintains activity and attendance reports and        
  compiles annual reports of recreation programs and activities.

  Training and Experience Required:

  Progressive experience in recreation leadership in a supervisory 
  capacity and graduation from a four-year college with            
specialization in recreation leadership and management; or any     
equivalent combination of experience and training.


     27.  At the time of hearing, Kristen Streck was the Town
Clerk for Van Buren.

     28.  According to Section 203 of the Town charter, the Town
Clerk is elected each year at the annual Town meeting for a term
of one year.   

[end of page 18]

     29.  The written job description for the Town Clerk contains
the following:

  Nature of Work:

  Employee of this class is responsible for the preparation and    
  maintenance of official documents; supervision of elections;     
  issuance of various licenses and permits; recording of various   
  documents; and preparation of reports.  Work is performed in     
  accordance with the Town ordinances and State and federal laws   
  with a high degree of independence and general supervision from  
  the Town Manager.

  Essential Duties and Responsibilities:
  Examples of Work (Illustrative Only):

  Validates official documents, oversees posting of official       
  notices and advertisements, records papers with federal and      
  state government as received.

  Issues various licenses such as marriage, hunting, fishing and   
  dog licenses, and maintains all related records.

  Maintains records of births, deaths, marriages, burials and      
  sends copies of monthly reports to the State of Maine Office of  
  Vital Statistics; issues certified copies of same.

  Prepares monthly reports on Inland Fisheries & Wildlife and      
  other required office activity.

  Administers all elections including scheduling and appointing b  
  ballot clerks; orders and prepares ballots; issues absentee      
  ballots; processes and records ballots and reports election      
  results and accepts voter registration.

  Collects monies and answers inquiries at Town Office.

  Administers all "oaths of office;" maintains terms of office for 
  boards/committees.

  Performs other duties as required.
                    
  Requirements of Work:

[end of page 19]


  Thorough knowledge and understanding of the State statutes       
  relating to the duties and responsibilities of town and city     
  clerks.

  Thorough knowledge of modern office procedures, practices and    
  equipment.

  Ability to establish and maintain effective working              
 relationships with other Town officials, employees and the        
 general public.

  Ability to rapidly acquire and assimilate knowledge of the       
  provisions of the Town ordinances and state regulations relating 
  to the operation of the office and Town government, and ability  
  to communicate this to office staff and the public.

  Proficiency in the use of the adding machine and typewriter.

  Ability to maintain records and prepare reports.

  Ability to plan, assign and supervise the work of subordinates.

  Ability to use the computer system to conduct business and       
  maintain records.

  Training and Experience Required:

  High school graduation and experience in work involving the      
  maintenance and preparation of records supplemented by courses   
  in business education or office procedures; or any equivalent    
  combination of experience and training.  Must be able to obtain  
  certificate as a municipal clerk.

     30.  At the time of hearing, Kristen Streck also held the 
position of the Town bookkeeper.

     31.  The written job description for the bookkeeper contains
the following:

  Nature of work:

  This is responsible fiscal, clerical and accounting work in the  
  maintenance and preparation of Town financial records.

[end of page 20]
  
  Employee of this class is responsible for the performance of     
  varied accounting and clerical assignments involving the         
  application of bookkeeping skills for the town books and         
  accounts.  Work is performed under the supervision of the Town   
  Manager and involves a considerable range of accounting, payroll 
  and related processes and includes the operation of a computer   
  and other business machines.  Employee follows established       
  procedures and regulations but must exercise judgment and        
  initiative.  Work is checked by observation, verification,       
  internal controls, and through fiscal audits.

  Essential Duties and Responsibilities:
  Examples of Work (Illustrative Only):

  Processes and prepares payroll for Town; prepares payroll        
  related reports such as FICA, state and federal withholding      
  payments; maintains departmental records, and issues pay checks.

  Receives and processes invoices for payment and purchase orders, 
  prepares checks and maintains related records.

  Prepares reports for unemployment, Social Security, and the      
  Maine Public Employee Retirement System (MainePERS).

  Oversees preparation of daily cash reports, bank deposits and    
  reconciliation of bank statements.

  May review source documents such as vouchers, invoices, cash     
  receipts, purchase orders, and master file lists for             
 completeness and accuracy.

  May periodically review account records and subsequent computer  
  printouts to balance accounts and to identify suspense items or  
  delinquent accounts for further action.

  Verifies and reconciles errors on computer printouts to maintain 
  proper account records.  Prepares input forms to reconcile       
  errors and adjustments.

  Prepares and maintains files on all vendors doing business with  
  the Town.  

  Prepares a monthly report of each Town account and its           
  appropriations and spending balances.

  Performs other duties as required.

[end of page 21]  

  Requirements of Work:

  Knowledge of bookkeeping principles and procedures, particularly 
  as applied to governmental accounting and computers.

  Knowledge of modern office practices, procedures and equipment.

  Ability to exercise judgment and initiative in analyzing and     
  evaluating accounting problems and in developing or recommending 
  modifications and improvements in existing account procedures.

  Ability to analyze cash flow and investments.

  Ability to perform complex accounting work accurately and        
  rapidly.

  Ability to establish and maintain effective working              
  relationships with other Town officials, employees and the       
  general public.

  Training and Experience Required:

  Considerable experience in bookkeeping and accounting procedures 
  of a progressively responsible nature involving a complete       
  computer system; high school graduation including or            
supplemented by two years of a course in accounting and general    
commercial subjects, or any equivalent combination of experience   
and training.

     32.  Ms. Streck was appointed as the General Government
Department Head on October 25, 2011.  No written job description
for that position was entered into evidence prior to or at
hearing.

     33.  Ms. Streck testified that her primary duties as General
Government Department Head include carrying out the regular day-
to-day affairs of the department.  She also acts as a go-between
with the Town Manager and the three deputy clerks so that work is
divided up; works with the Town manager on a budget for the
General Government Department; and provides input on personnel
questions affecting her division (i.e., sitting in on interviews
and making recommendations on hiring; scheduling vacation time). 

[end of page 22]

     34.  Ms. Streck has also been appointed as the registrar of
voters by the Town Council. 

     35.  Additionally, Ms. Streck has been appointed as the Acting
Town Manager, a position she would have to fill in the case where
the Town Manager was incapacitated or unavailable for some reason.

                         DISCUSSION                               

     The issues presented by this case are whether Van Buren's
Deputy Clerk/Bookkeeper, Recreation Director, Assessor's Agent,
and Economic Development Director should be recognized and
included for the purposes of collective bargaining in the proposed
"General Government Unit" pursuant to 26 M.R.S. § 966(1) as
petitioned for by the Teamsters; and whether Van Buren's Highway
Mechanic, Highway Driver/Equipment Operator, Assistant Waste Water
Superintendent, Recycling Director, Wastewater Superintendent, and
Highway Director should be recognized and included for the
purposes of collective bargaining in the proposed "Public Works
Unit," pursuant to 26 M.R.S. § 966(1), as also petitioned for by
the Teamsters.   
     Van Buren argues that the General Government unit
determination petition should be denied because three of the
positions included in the petition- the deputy assessor, the
economic development director, and the recreation director- are
appointed and, therefore, excluded from the definition of "public
employee" pursuant to 26 M.R.S. § 962(6)(D).  In addition, Van
Buren argues that the Town clerk is elected and, therefore,
excluded as a "public employee" pursuant to M.R.S. § 962(6)(A);
and that the bookkeeper position, which shares a position with the
Town Clerk, head of General Government, and Acting Town Manager,
necessarily shares a confidential relationship with the Town 

[end of page 23]

Manager and, therefore, exempts that position from "public
employee" status pursuant to 26 M.R.S. § 962(6)(C). 
     Finally, Van Buren argues that three of the positions in the
proposed Public Works Department Unit- the Recycling Director, the
Waste Water Superintendent, and the Highway Director- should be
excluded because they are appointed department heads and, thus,
excluded from the definition of "public employee" pursuant to 26
M.R.S. § 962(6)(D).    
     Section 962(6) of the Municipal Public Employees Labor
Relations Law provides:

     6. Public employee.  "Public employee" means any employee of
a public employer, except any person:

     A.   Elected by popular vote; or
     B.   Appointed to office pursuant to statute, ordinance 
          or resolution for a specified term of office by the
          executive head or body of the public employer, except
          that appointees to county offices shall not be 
          excluded under this paragraph unless defined as a 
          county commissioner under Title 30-A, section 1302; or
     C.   Whose duties as deputy, administrative assistant or
          secretary necessarily imply a confidential relationship
          to the executive head, body, department head or division
          head; or
     D.   Who is a department head or division head appointed 
          to office pursuant to statute, ordinance or resolution 
          for an unspecified term by the executive head or body 
          of the public employer[.]
 
Exclusionary designation precludes inclusion in any bargaining
unit.  26 M.R.S. § 966(1).  Van Buren claims the Section D
exemption for all of the positions in both petitions. 
Establishing such exclusionary status requires Van Buren to
demonstrate that these positions are appointed pursuant to
statute, ordinance, or resolution for an unspecified term by the
executive head or body of the public employer; and that the
employees in these positions function as the head of a department 

[end of page 24]

or division within Van Buren's workplace.  Teamsters Union Local
340 and Town of South Berwick, No. 10-UD-09 at 7 (MLRB July 16,
2010).
     Exclusions from coverage of the Act are narrowly drawn and
strictly construed.  "The statute is remedial in nature and
therefore the exclusions must be narrowly drawn to effectuate the
fundamental purpose of the statute."  Granite City Employees
Association and City of Hallowell, No. 01-UD-04 at 15 (May 23,
2001), citing State of Maine and MSEA, No. 82-A-02, First Interim
Order, slip op at 6 (MLRB June 2, 1983).  
     Four requirements must be met in order to meet the
"appointment" requirement of the department head exclusion: the
department head must be appointed to office; the appointment must
be pursuant to a statute, ordinance, or resolution; the appoint-
ment must be for an unspecified term; and the appointment must 
be made by the executive head or body of the public employer. 
Appointments require greater significance or formality than 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 the city, practice is at odds with the intent of the
MPELRL).  In the vast majority of Board cases addressing appoint-
ments, 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)(appointment by selectmen); Teamsters
Local Union 48 and Town of Wells, No. 84-A-03, slip op. at 6-7
(MLRB Apr. 11, 1984), aff'd. sub nom. 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 also made
clear that if the statute, ordinance, or resolution the employer
relies upon to establish appointment requires confirmation by the 

[end of page 25]

executive body, evidence of confirmation by the executive body is
required.  That confirmation 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).  
     In this case, Van Buren produced no documentary evidence or
testimony of its own to support its claim that six out of the
seven employees were appointed pursuant to Sec. 313(A) of the Town
Charter, which requires that department head appointments occur
annually.  Testimony by the employees did not support the claim
that the Charter's requirement had been fulfilled either:  the
recycling director recalls being appointed to his position by the
town council, but was not sure it was on a yearly basis; the
wastewater plant manager remembered being appointed to his
position, but not yearly; the highway/public works supervisor
remembers being appointed by the town council, but not yearly;
there was no evidence presented at all regarding the appointment
of the assessor's agent; the director of economic and community
development doesn't remember ever being appointed by the Town
Council; and there was no testimonial or other evidence that the
recreation director was ever appointed to his position.  The 
June 26, 2013 memorandum from Town Manager Thomas Cannon to the
Town Council regarding municipal appointments only furthers
confusion about "manager" position appointments because it only
identifies the wastewater collector, road commissioner, and
registrar of voters as "designated appointed positions."  Based on
the record, it appears that although Van Buren's Town Charter
requires annual appointment of department heads, Van Buren has not
complied with this requirement for the positions of wastewater
superintendent, recycling director, highway department supervisor,
assessor's agent, economic and community development director, and
recreation director.  These positions, therefore, do not meet the 

[end of page 26]

appointment requirement of Sec. 962(6)(D) of the MPELRL.  See,
e.g., Presque Isle at 19 (Hearing officer has no choice but to
interpret the charter and any other statute, ordinance or
resolution upon which the [Town] relies in making its assertions.)
     The remaining employee, Kristen Streck, was elected by
popular vote by Van Buren residents as the Town Clerk.  Further,
unlike the other "department heads" Van Buren claims to have
appointed, Ms. Streck was, in fact, appointed as the General
Government Division Head on October 19, 2011, apparently for an
indefinite period of time.  Because of her position as Town Clerk,
Ms. Streck is exempt from being considered as a public employee
under Sec. 962(6)(A) of the statute because she is an elected
official.  Additionally, Ms. Streck's appointment as the head of
the General Government Division exempts her from "public employee"
status pursuant to Sec. 962(6)(D).  Based on both of these
exemptions, I find that Ms. Streck is not a public employee under
the MPELRL.  Therefore, she will not be included in the proposed
General Government Bargaining Unit.
     Under the MPELRL, a determination of whether a position is a
"department head" depends on the employee's actual job duties and
functions of the position rather than the job title alone.  In
interpreting the Sec. 962(6)(D) exclusion, the Board has looked at
the three types of job duties normally inherent in a department or
division:  day-to-day, rank-and-file work; supervision of other
employees; and management of the department, which includes
formulating and administering department policies and practices. 
The Board has found that the "primary function" of the department
head position must be in managing and directing the affairs of the
department, not performing the everyday work for which the
department is responsible:

     Our cases establish that for an employee to be a
     "department head" within the meaning of Section

[end of page 27]

     962(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, Unit Determination Report at 2 (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, Unit 
     Determination Report at 3 (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, Unit Determination
     Report at 6-8 (May 11, 1982) (Foreman who performed
     various administrative duties was not an administrator
     because "on balance the primary function of the 
     Foreman's position is to act as a supervisor").  Our
     cases thus require hearing examiners, when presented
     with evidence showing that an employee performs both
     administrative duties and supervisory or rank-and-file
     duties, to decide whether the primary duties of the 
     position are those of an administrator or those of a
     supervisor of a rank-and file employee.  

Town of Wells, No. 84-A-03, slip op. at 6-7. True department heads
as defined by the Act have been more often found employed by
larger municipalities or other public employers because within
these larger entities, management functions of a department are
genuinely given over to department heads, who actually spend the
majority of their day as administrators or managers.  See, e.g.,
Maine State Employees Association and State of Maine Judicial
Department, No. 98-UC-01 (MLRB Jan. 21, 1998). 

[end of page 28]

     Pursuant to the MPELRL, supervisors have collective
bargaining rights while department heads do not.  Section 966(1)
of the Act lists some of the factors that must be considered in
order to determine whether an employee is a supervisor who may be
placed in a supervisory unit.  The relevant portion of Sec. 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, 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.

"Clearly, more than mere supervisory duties must be performed by
an individual before that person can be considered a department
head, otherwise section 966(1) would be meaningless."  AFSCME
Council 93 and Town of Paris, No. 97-UD-14 at 12- 13 (Oct. 1,
1997).  See also Sanford at 29. ("[A] true department or division
head does not simply coordinate, oversee and supervise a
program.")(citing Bangor Education Association and Bangor School
Committee, No. 80-UC-02, slip op at 8 (Me.L.R.B. Nov. 16, 1979).
          
     Recycling Director
     In the present matter, the recycling director, Joey Dumond,
by written job description and his own testimony, performs
extensive hands-on work by operating and maintaining the town's
solid waste and recycling facility under the general supervision
of the town manager.  Mr. Dumond has only one part-time assistant
to help him with his work.  Although Mr. Dumond prepares the 

[end of page 29]

budget for the operation of the plant for presentation to the Town
Manager, performs necessary record-keeping, and writes and
oversees enforcement of solid waste ordinances, it is clear that
his is a "supervisory/working position" that requires operation of
facility equipment, including the forklift, cardboard baler, and
knuckle boom, and that he assists citizens in the correct disposal
of refuse materials.  On balance, the recycling director is not
what one could consider to be a department head because he does
not spend the majority of his day as an administrator or a
manager.  The written job description as well as the fact that 
Mr. Dumond must carry out his work by himself more than half the
time make it clear that the primary function of the recycling
director is to carry out the substantive responsibilities of the
recycling facility, not management functions contemplated by the
Sec. 962(6)(D) exclusion.  For these reasons, I find that the
recycling director is not a department head within the meaning of
Sec. 962(6)(D) of the MPELRL.  Therefore, the recycling director
is a "public employee" within the meaning of the Act.

     Wastewater Plant Supervisor
     Rick Sirois is Van Buren's wastewater plant supervisor.  
Mr. Sirois is licensed to operate the facility as a Class III
operator.  Mr. Sirois carries out his responsibilities with
considerable independence and works under the direction of the
Town Manager.  The one other wastewater plant employee is a
laborer who is licensed at a Class II level.  Because he has a
higher licensure level, Mr. Sirois assumes more responsibility for
the operation of the wastewater plant.  His major focus is the
physical operation of the plant, including maintenance of the
plant and underground sewer system; chemical testing at the
treatment plant; overseeing and participating in the installation
and inspection of new sewer lines; performing the installation, 
     
[end of page 30]

maintenance, and repair of the physical plant and all equipment;
and analyzing, evaluating, and monitoring daily operation and
maintenance procedures.  His position also requires him to
complete necessary paperwork for local, state, and federal
agencies.  If components of the facility need to be replaced, 
Mr. Sirois makes recommendations to the Town Manager, who then
takes the recommendations to the Town Council; if the
recommendation is agreed upon, engineers design and complete the
project, and Mr. Sirois oversees the project.  In sum, the primary
function of the wastewater plant supervisor is the day-to-day
operation of the plant, not the type of management contemplated by
the Sec. 962(6)(D) exception.  Based on the evidence in the
record, I find that the wastewater plant supervisor is not a
department head within the meaning of 962(6)(D) because he spends
"the major portion of his time performing the same work as [the]
other operating employee[]."  Teamsters Local 48 and Town of Bar
Harbor, No 80-UD-09, slip op. 3 (MLRB Nov. 15, 1979).  Therefore,
the wastewater plant supervisor is a "public employee" within the
meaning of the Act.
  
     Highway Department Supervisor
     Michael Roy is the highway department supervisor for Van
Buren, which is described as a "supervisory/working position" in
the job description provided by the parties.  His work is reviewed
through daily contact and regular reports to the Town Manager. 
Mr. Roy is engaged in highway construction and maintenance,
including supervising and assisting in repairing streets and sewer
basins, placing and rolling asphalt, repair of ditches and
culverts, sanding and snow removal.  He is responsible for
maintaining the storm drainage system above and below ground, and
supervises the maintenance and repair of municipal vehicles.  His
supervisory duties include scheduling work assignments, conducting 

[end of page 31]

evaluations and discipline matters, and keeping work-related
records.  Although he spends some of his time supervising other
highway department workers, Mr. Roy, as his job description
states, is a working supervisor rather than a department head as
contemplated by the Sec. 962(6)(D) exception and is a "public
employee" within the meaning of the Act.

     Deputy Assessor
     At the time of the hearing, Colby Doody was the deputy
assessor for the town of Van Buren.  The deputy assessor is
responsible for appraising and assessing real and personal 
property for taxation within the town, and for assisting in
administration and maintenance of all records necessary to
administer the assessment program.  As mentioned above, there was
no evidence presented at hearing that Mr. Doody was appointed to
his position.  Mr. Doody is the only assessor for the town, so he
is a one-person "department" who operates under the guidance of
the Town Assessors.  There is no evidence in the record to support
Van Buren's argument that Mr. Doody formulates assessing policies. 
Rather, Mr. Doody testified that he works within Title 36 on
predetermined forms designed by the State.  The deputy assessor is
a "public employee" within the meaning of the Act.

     Economic Development Director
     The overall job description for the economic development
director includes responsibility for planning, coordinating,
implementing, and maintaining economic development projects and
whose work is performed under the general supervision of the Town
Manager.  Although the job description for this position refers 
to it as a "supervisory/working" position responsible for
administrative and specialized technical work in the economic
development program, Daniel LaPointe is the only employee of this 

[end of page 32]

department.  Since he is the sole employee of the department and
is responsible for carrying out all of its functions, he does not
function as a "department head" as contemplated by Sec. 962(6)(D). 
Based on the record presented, I find that the economic
development director is not a department head within the meaning
of Sec. 962(6)(D).  For these reasons, the economic development
director is a "public employee" within the meaning of the Act.
 
     Recreation Director
     The recreation director is described as a "supervisory/
working position" that involves planning and direction of
municipal recreation programs.  The recreation director develops
and administers recreational and leisure activities on a
year-round basis, coordinates the work of staff, schedules events,
maintains facilities, and processes program records and reports. 
Depending on the time of year, the recreation director may be the
only person providing services to the community, or he may be
providing services and supervising seasonal, part-time employees. 
For instance, when school is in session, he may have no employees,
while in the summer there may be as many as four seasonal
employees.  Given that the recreation director is the only full-
time, permanent position within the recreation department, I find
that the recreation director is not a department head within the
meaning of Sec. 962(6)(D) of the MPELRL.  For that reason, he is a
"public employee" within the meaning of the Act.

Community of Interest Factors
     Section 966(2) of the MPELRL requires the hearing examiner to
determine appropriate bargaining units for the public employer
unit.  In order to do so, the hearing examiner must consider, at a
minimum, the following factors set forth in the Board's Rules and
Procedures:

[end of page 33]
     
     (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 of
          employees;

     (6)  Frequency of contact or interchange among the employees;

     (7)  Geographic proximity;

     (8)  History of collective bargaining;

     (9)  Desire of the affected employees;

     (10) Extent of union organization; and

     (11) The employer's organizational structure.

MLRB Rules and Procedures, Chapter 11, Section 22(3).  Here, the
Teamsters are seeking two separate units--a General Government Unit
to consist of the deputy assessor, the economic development
director, and the recreation director;1[fn]1  and a Public Works
Unit to consist of the recycling director, the wastewater
superintendent, the assistant wastewater superintendent, the
highway director, the highway mechanic, and the highway
driver/equipment operator.2 {fn]2  It is well established that the
hearing examiner's duty is to "determine whether the unit proposed
by the petitioner is an appropriate one, not whether the proposed
unit is the most appropriate unit."  Town of Yarmouth and Teamsters
Local Union No.

     1 I have already excluded the Town Clerk/bookkeeper from the General Government
Unit.
     2 As stated earlier, Van Buren objects to the placement of the recycling director,
wastewater supervisor, and highway department supervisor in the unit because of their
status both as appointees and department heads.

[end of page 34]
____________________ 
1 I have already excluded the Town Clerk/bookkeeper from the General Government Unit.
2 As stated earlier, Van Buren objects to the placement of the recycling director,
wastewater supervisor, and highway department supervisor in the unit because of their
status both as appointees and department heads.




48, No. 80-A-04, slip op. at 4 (Me.L.R.B. June 16, 1980).  The
employees' right to self-organization is best protected when their
judgment on the appropriate unit is respected, as long as the
positions share the community of interest required by 966(2).  
See Portland Administrative Employees Ass'n and Portland
Superintending School Committee, No. 87-UD-14, slip op. at 28 
(Me. L.R.B. Oct. 27, 1986, aff'd, No. 87-A-03 (Me.L.R.B. May 29,
1987)(examination of the bargaining unit proposed by the employer
not proper until the bargaining unit proposed in the Union's
petition has been considered and rejected).
 
Proposed Public Works Unit

     Regarding the first community-of-interest factor, although
the wastewater positions perform the same types of work and the
highway positions perform some of the same types of work, the
recycling director does not perform similar kinds of work. 
However, bargaining units have been approved by the Board with
similarly divergent positions, depending on a consideration of the
other community of interest factors.  Educational support units in
school units, for instance, often contain positions with duties as
varying as those under consideration here.  In East Grand
Teachers' Ass'n/MTA/NEA and MSAD No. 14 Board of Directors, No.
92-UD-01 (Me.L.R.B. Oct. 1, 1991), a unit was approved which
consisted of such divergent positions as teachers' aides, school
secretaries, the food service director, bus drivers, and
custodians.  In that case, the hearing examiner noted that the
nature of work performed is important in fashioning a coherent
bargaining unit, but that factor is "by no means dispositive." 
East Grand Teachers' at 23.  See also Lubec Education
Ass'n/MTA/NEA and MSAD and No. 19 Board of Directors, No. 83-UD-17
(Me.L.R.B. Apr.13, 1983) (approving unit which included teachers' 
aides, secretaries, cooks plant operator, bus drivers, and 

[end of page 35]

custodians).  All of these school positions, though not the same,
serve the common function of supporting the educational process.
Similarly, Van Buren's employees here all serve its Town members
in the delivery of public works services.  Therefore, while the
positions in this proposed unit are dissimilar, units with
positions that are just as dissimilar have been approved,
depending on a review of other community of interest factors.
     The second community-of-interest factor is common supervision
and determination of labor relations policy.  All of the positions
are supervised by the Town Manager.  The Town Personnel Policy
allows what it terms the "Non-Disciplinary Actions" of counseling,
verbal warning, and written reprimand to be carried out by
supervisors.  However, "Disciplinary Actions" including temporary
relief from duty, suspension, disciplinary demotion, and
removal/discharge from employment can only occur after a review
and action by the Town Manager.  Based on these facts, there is
common supervision in the proposed bargaining unit.
     Evidence regarding scale and manner of determining earnings,
the third community-of-interest factor, indicate that, to at least
some extent, earnings are related to number of years served with
the Town.  In 2012, the proposed Public Works Unit positions
earned: $29,129.60 for the full-time recycling director, who has
served seven years with the Town; $41,159.00 for the full-time
wastewater supervisor, who has served sixteen years with the Town,
four years as a supervisor; and $38,521.60 a week for the
full-time highway director, who has served twelve years with the
Town, four years as a supervisor.  Qualifications and training of
the employees (factor number five) depends on the work performed. 
The job descriptions for the Public Works positions, as opposed to
those for the General Government positions, ask for a high school
diploma or experience in the field rather than a particular
academic achievement.
     
[end of page 36]

     Benefits for Van Buren employees (factor number four) are
available to all regular, full-time employees.  Hours of work are
set by the various departments to "provide the greatest service to
the public and best meet departmental operating requirements, as
well as within the confines of each department's operating
budget."  Town of Van Buren Personnel Policies, Article IV,
Section 5.1.  Therefore, community-of-interest factor four is met.
     There is no evidence that community-of-interest factor six,
frequency of contact or interchange among the supervisors, has
been met in this case.  All of the proposed public works unit
supervisors work in a facility or in the field.  The same can be
said for factor seven, geographic proximity.  None of these
positions offers the opportunity for working in close proximity
with one another.  
     With respect to factor eight, the proposed Public Works unit
supervisors have no history of collective bargaining.  While this
could negate the finding of a community of interest, the
petitioner presented a sufficient showing of interest for this
proposed unit with the petitions.  Even though the true desires of
the affected employees cannot be tested until an election is held
(factor nine), the showing of interest demonstrated ample evidence
of a desire among these employees to organize.
     There are presently two units organized by the Teamsters in
Van Buren, the police department unit and the ambulance unit
(factor ten).  The addition of the proposed units could make four
units represented by the Teamsters in Van Buren, representing many
of the Town's eligible employees in separate, appropriate
bargaining units.  
     The final community-of-interest factor (factor eleven) is the
employer's organizational structure.  In this case, the Town
Council has created departments whose supervisors are supervised
by the Town Manager.  As set forth in the Findings, however, some 

[end of page 37]

of these "departments" consist of one employee (the economic
development director, for instance).  For that reason, the
employer's organizational structure does not appear to be key to 
a finding of community of interest.

Proposed General Government Unit

     The positions in the proposed General Government Unit, like
those in the proposed Public Works Unit, are diverse and do not
perform similar types of work.  As already stated, however, the
Board has approved bargaining units with diverse positions
depending on a review of the other community of interest factors. 
East Grand Teachers' Ass'n, 92-UD-01 at 23.
     Common supervision and determination of labor relations
policy is the second community-of-interest factor.  Two of the
three positions at issue are supervised by the Town Manager, while
the deputy assessor works under the guidance of the Town
Assessors.  The Town Personnel Policy includes the same
"Non-Disciplinary Actions" and "Disciplinary Actions" that require
review and action by the Town Manager as set forth in the "Public
Works" section, above, which indicates common overall supervision
in the bargaining unit.
     In the proposed General Government Unit, the scale and manner
of determining earnings, the third community-of-interest factor,
indicate that to at least some extent, earnings are related to
academic expectations and numbers of years served with the Town. 
In 2012, the proposed General Government Unit positions earned:
$31,009.22 for the full-time deputy assessor, who has served one
year with the Town; $41,288.01 for the full-time economic
development director, who has served fifteen years with the Town;
and $22,850.00 for a 35-hour week for the recreation director, who
has served two years with the Town.  Factor five, the 

[end of page 38]

qualifications and training for the three positions in the
proposed General Government Unit, request achievement of a four-
year college degree for the deputy assessor, economic development
director, and the recreation director.
     Community-of-interest factor four is met because all full-
time Van Buren employees are eligible for benefits provided by the
Town.  In addition, hours of work are similar (7 a.m. - 4 p.m.;  
8 a.m. - 5 p.m.), though not exactly the same.  
     Factor six, frequency of contact or interchange among the
positions, does not appear to be present here.  All of the
proposed General Government Unit positions work in the field or in
separate offices.  Whether or not they share geographic proximity
by having offices in a central Town building was not raised at
hearing, so no finding can be made on factor seven.
     It is quite clear that the proposed General Government Unit
has no history of collective bargaining.  However, the petitioner
presented a sufficient showing of interest with the petition.  As
stated above, the true desires of the affected employees (factor
nine) cannot be tested until an election is held, but the showing
of interest indicates evidence that there is a desire among these
employees to organize.
     As also stated above, Van Buren currently has two units
organized by the Teamsters, the police department unit and the
ambulance unit (factor ten).  The two additional units, as
proposed by the petitions, could place many of the Town's eligible
employees in separate, appropriate units. 
     Factor eleven, the final community-of-interest factor, is the
employer's organization structure.  Van Buren has created
departments whose supervisors are supervised by the Town Manager. 
However, in the proposed General Government Unit, the positions
are essentially one-person "departments."  For purposes of a
community of interest analysis, I make no finding on this factor.

[end of page 39]
     
     In conclusion, several of the factors support a finding that
the employees in the proposed bargaining units share a community
of interest with each other.  These include common supervision and
determination of labor relations policy; similarity in the scale
and manner of determining earnings; similarity in employment
benefits, hours of work and other terms and conditions of
employment; similarity in the qualifications and training of
employees; history of collective bargaining; and desires of the
affected employees.  The factors that militate against finding a
community of interest include similarity in the kind of work
performed; frequency of contact or interchange among the
employees; and geographic proximity.  
     It is noteworthy that Van Buren did not challenge at hearing
or in its post-hearing brief that a community of interest exists
among the members of each of the proposed units.  In approving the
two units as petitioned for by the Teamsters, I look to Board
precedent that strongly favors the rights of public employees to
organize and petition for bargaining units they believe will best
represent their needs.  On balance, I conclude that the
classifications in both bargaining units created in this unit
determination report share a clear and identifiable community of
interest and are appropriate for purposes of collective
bargaining.   

 
                               ORDER

     On the basis of the foregoing facts and discussion, and
pursuant to the provisions 26 M.R.S. § 966(2), the following
described units are held to be appropriate for purposes of
collective bargaining:

[end of page 40]


GENERAL GOVERNMENT UNIT 

     INCLUDED:  Deputy Assessor, Economic Development Director, 
                Recreation Director

     EXCLUDED:  Town Clerk, Bookkeeper, General Government Division
                Head; all other employees of the Town of Van Buren

PUBLIC WORKS UNIT

     INCLUDED:  Recycling Director, Wastewater Supervisor,
                Assistant Wastewater Superintendent, Highway
                Department Supervisor, Highway Mechanic, Highway
                Driver/Equipment Operator

     EXCLUDED:  All other employees of the Town of Van Buren

     Bargaining agent elections for these units will be conducted
forthwith. 

Dated at Augusta, Maine, this 10th day of December, 2013.

                                   MAINE LABOR RELATIONS BOARD



                                   /s/___________________________
                                   Gwendolyn D. Thomas
                                   Hearing Examiner

                    


     The parties are hereby advised of their right, pursuant to 
26 M.R.S. § 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 issuance of this report.  See
Chapter 10 and Chapter 11(30) of the Board Rules.

[end of page 41]