Affirmed by Board, Case No. 15-UDA-01, December 18, 2014.

 

	  
	 PROCEDURAL HISTORY

	This unit determination proceeding was initiated on 
October 30, 2013, when Sylvia Hebert, a Staff Representative for 
the American Federation of State, County, and Municipal Employees 
("AFSCME," or "Union"), filed a Petition for Unit Determination 
with the Maine Labor Relations Board ("Board" or "MLRB").  
The Petition seeks to create a bargaining unit composed of the 
Transfer Station Assistant Manager, Transfer Station Attendant, 
Cemetery Sexton/Animal Control Officer/Administrative Assistant, 
Town Clerk/Registrar, Maintenance Man, Collections Clerk, and 
Finance Officer.  Readfield ("the Town"), the respondent in this 
case, filed its timely response to the petition on November 15, 
2014.  The Town opposes the Union's petition on the grounds[fn]1 that 
the Town Clerk is not a "public employee" within the meaning of 
26 M.R.S.  § 962(6)(B); even if the Town Clerk is a "public 
employee" within the meaning of  § 962(6)(B), she nevertheless is 
a Department Head and must be excluded pursuant to 26 M.R.S. 
 § 962(6)(D); the Board Secretary position should be excluded as a 
confidential position pursuant to 26 M.R.S.  § 962(6)(C); two
	
1 The Town also originally opposed the petition on the ground that the showing 
of interest was not sufficient.  The MLRB determined that the showing was 
sufficient for the proposed unit, and that finding was not contested.

[end of page 1]

proposed classifications are improper and based on inaccurate 
descriptions; and there is not a sufficient community of interest 
among the positions to warrant a finding that the proposed unit is 
appropriate.
 
	On April 4, 2014, a unit determination Notice of Hearing was 
issued and posted for the benefit of affected employees.  The 
original hearing was postponed at the request of one of the 
parties, and a Revised Notice of Hearing dated May 5, 2014, 
setting the hearing date for June 18, 2014, was issued and posted 
for the benefit of affected employees.  A unit determination 
hearing was held in front of the hearing examiner on June 18, 
2014, at the Maine Labor Relations Board.  The Union was 
represented by Sylvia Hebert, Staff Representative for AFSCME, and 
the Town was represented by Matthew Tarasevich, Esq.  The parties 
were afforded the full opportunity to examine and cross-examine 
witnesses and to present evidence.  Robin Lint, Deborah Nichols, 
Theresa Shaw, Karen Petersen, and Mark Birtwell testified on 
behalf of the Union.  Stephan Pakulski testified on behalf of the 
Town.  At the conclusion of the hearing, the parties were given 
the chance to give a closing statement, but chose to submit 
closing argument two weeks after they receive the transcript.  
 
JURISDICTION
 
	Jurisdiction of the hearing examiner over this matter, 
including the ability to make a unit determination, is pursuant to 
26 M.R.S.A.  § § 966(1) and 966(2).

EXHIBITS
 
	The following exhibits were offered and admitted into the 
record:
 
	A-1:  Petition for Unit Determination filed October 30, 2013

[end of page 2]

A-2:  Response to Unit Determination filed November 15, 2014
A-3:  Notice of Hearing dated April 4, 2014 setting the
      Hearing for Friday, May 9, 2014

A-4:  Revised Notice of Hearing dated May 5, 2014 setting
      the hearing for Wednesday, June 18, 2014

J-1:  Job Descriptions [Primary position title in bold]:
      Town Clerk/Registrar/Deputy Tax Collector/Deputy 
        Treasurer/FOAA Officer
      Board Secretary
      Finance Officer/Deputy Treasurer/Deputy Clerk/Deputy Tax
        Collector/Deputy Registrar
      Collection Clerk/Deputy Registrar/Deputy Treasurer/Deputy
        Clerk/Deputy Tax Collector
      Head of Maintenance (formerly Foreman)
      Transfer Station Attendant
      Readfield Cemetery Sexton
      Assistant Transfer Station Manager
      Animal Control Officer/Constable
      Lakes Region Mutual Aid Fire Departments' Administrative 
        Assistant
      Readfield Groundskeeper (part-time, temporary, seasonal)

J-2:  Calendar Year 2013 Payroll Record for Karen B. Peterson,  	
      with notation of total hours worked in particular job
      categories and percentage of total work time in each area.
 	
J-3:  FY-2015 Budget Payroll Allotments by Position to be worked
      by employee Karen B. Peterson

E-1:  Select Board Minutes
E-2:  Pay Records
E-3:  Appointment Notices
E-4:  Town of Readfield Personnel Policy
 
STIPULATIONS OF THE PARTIES
 
     1)  The Town of Readfield is a public employer within the 
meaning of 26 M.R.S.A.  § 962(7).
     2)  AFSCME is a public employee organization which is 
eligible to become a bargaining agent as defined in 26 M.R.S.A. 
 § 962(2).

[end of page 3]

     3)  The public access officer, referred to as "FOAA Officer" 
in the petition, is not a separate job classification; rather, it 
is a job duty that can be assigned by the Town to an employee, 
including a union employee, and the Town has the right and the 
discretion in the future to assign that function to whomever it 
might need, depending upon a change in town manager status or 
other circumstances.  No such change is anticipated at this time. 
  
FINDINGS OF FACT AND DISCUSSION
 
     An appropriate bargaining unit consists of positions whose 
incumbent employees share a clear and identifiable community of 
interest.  Readfield is typical of many small Maine towns: the 
same individual may occupy more than one position, but some 
positions are eligible for inclusion in a bargaining unit and some 
are not.  This situation gives rise to the question of whether an 
individual who occupies both an eligible and an exempt position 
may be included in any bargaining unit.  The response provided by 
the statute is that "anyone [any person] excepted from the 
definition of public employee under section 962 may not be 
included in a bargaining unit."  26 M.R.S.A.  § 966(1).  Thus, the 
Hearing Examiner's job is to analyze each position with respect to 
the statutory exemptions; if the position is exempt, the employee 
must be excluded from a bargaining unit even if that employee 
holds another position that is not exempt. 
 
     The issues presented in this unit determination case are:
  
     1)  Is the Town Clerk in Readfield "appointed to office," 
within the meaning of 26 M.R.S.A.  § 962(6)(B), and may not be 
included any bargaining unit for that reason?

     2)  Is the Town Clerk in Readfield a department head, 
within the meaning of 26 M.R.S.A.  § 962(6)(D), and may not be 
included in any bargaining unit for that reason?

[end of page 4]
   
     3)  Is the Board Secretary a "confidential" employee, 
within the meaning of 26 M.R.S.A.  § 962(6)(C), and may not be 
included in any bargaining unit for that reason?

     4)  Can the fact that the Finance Officer serves as the
acting town manager when the Town Manager is away serve as the 
reason for excluding that position from any bargaining unit?

     5)  Do the positions proposed for inclusion in a single 
bargaining unit share a clear and identifiable community of 
interest, such that the resulting unit would be appropriate for 
purposes of collective bargaining?
 
     The Municipal Public Employees Labor Relations Law, (the 
"Act"), 26 M.R.S.A.  § 961, et seq., was enacted to improve the 
relationship between public employers and their employees by 
providing a uniform system through which public employees can 
decide whether to be represented by a labor organization in 
collective bargaining.  The Act mandates that it covers all 
municipal employees except for those explicitly excluded from the 
statutory definition of :public employee."  The Board has held 
that the language of each exclusion must be carefully and narrowly 
construed to avoid undermining the purpose of the Act.  State of 
Maine and Maine State Employees Association, No. 82-A-02, at 6 
(June 2, 1983).

  1.  Is the Town Clerk in Readfield "appointed to office" within   
      the meaning of 26 M.R.S.A.  § 962(6)(B)?

     Section 962(6)(B) of the Act exempts from the definition of 
"public employee" and, hence from the coverage of the Act,  

     ... any person ...[a]ppointed to office pursuant to statute, 
     ordinance or resolution for a specified term of office by 
     the executive head or body of the public employer.

[end of page 5]
 
     Over the years, hearing examiners have wrestled with the 
meaning of the word "appointed" that is found in  § 962(6)(B) as 
well as in the department-head exclusion in paragraph (D).  See, 
Town of Topsham and Local S/89 District Lodge #4, International 
Association of Machinists and Aerospace Workers, No. 02-UC-01, at 
16-17 (May 9, 2002).  In the appeal of Topsham, the Board reversed 
the hearing examiner's conclusion that appointments in a town 
operating under a "Town Manager Plan" necessarily required 
confirmation by the board of selectmen.  The Board instead held 
that in such a system, "the town manager is the executive head and 
the selectmen the executive body of the town."  Topsham, No.02-UCA-01, 
at 5 (Aug. 29, 2002), aff'd, No. AP-02-68 (Me. Super. Ct., 
Ken. Cty., Mar. 20, 2003).
 
     Title 30-A M.R.S.A., chapter 123, sub-chapter 2 contains the 
statutory provisions under which municipalities may adopt and 
operate under the Town Manager Plan.  Section 2631, sub- § 2 
contains a general description of town government under the Plan, 
as follows:

     2.  Government.  The government of each town under this 
     subchapter shall consist of a town meeting, an elected 
     board of selectmen, an elected school committee, an 
     appointed town manager and any other officials and 
     employees that may be appointed under this subchapter, 
     general law or ordinance.  Other town officials may be 
     elected by ballot, including, but not limited to, 
     moderator, assessors, overseers of the poor, clerk and 
     treasurer.  The election of officials at the last annual 
     town meeting shall require that those town offices 
     continue to be filled by election until the town 
     designates otherwise. (emphasis added).
 
Section 2636 of the Town Manager Plan Law provides that town 
managers:
 
     6.  Appoint town officials.  Unless otherwise provided by 
     town ordinance, shall appoint, supervise and control all 

[end of page 6]

     town officials whom the municipal officers are required by 
     law to appoint, except members of boards, commissions, 
     committees and single assessors; and appoint, supervise 
     and control all other officials, subordinates and 
     assistants, except that the town manager may delegate this 
     authority to a department head and report all appointments 
     to the board of selectmen;

     Neither party sought introduction of the Readfield Town 
Charter into the record.  What is in the record is the Town of 
Readfield Personnel Policy. (Amended & Adopted 06/13/2013).  
This document contains the recitation that it was adopted by 
the Readfield Select Board and I hold that it constitutes an 
"ordinance or resolution," within the meaning of  § 962(6)(B) of 
the Act.  The policy does not mention the appointment or hiring of 
a Town Clerk nor does it determine a term of office for the Clerk.  
In the present case, the record is clear that the Town Manager 
appointed the Town Clerk.  In the absence of a controlling Town 
ordinance or resolution, I conclude that the Town Clerk was 
appointed to office by the Town Manager, pursuant to the 
provisions of 30-A M.R.S.A.  § 2636 cited above.  
 
     As directed by the Board in Topsham, No. 02-UCA-01, at 7-9, I 
must now examine the "statute, ordinance or resolution," pursuant 
to which the appointment of the Town Clerk was made, to determine 
whether the remaining element required for a  § 962(6)(B) 
exclusionary designation--a specified term of office--has been 
met.  As there was no Town ordinance or resolution addressing the 
term of office for the Town Clerk, the general provision of 30-A 
M.R.S.A.  § 2601 (2) applies.[fn]2  That subsection states that "unless 

2 Title 30-A  § 2601.  Appointment and term of officials; generally
	1.  Appointment of officials and employees.  Except where specifically 
provided by law, charter or ordinance, the municipal officers shall appoint all 
municipal officials and employees required by general law, charter or ordinance 
and may remove those officials and employees for cause, after notice and 
hearing.
	2.  Term of officials.  Unless otherwise specified, the term of all 
municipal officials is one year.

[end of page 7]

otherwise specified, the term of all municipal officials is one 
year."  
 
     The uncontroverted evidence in the record is that, since 
initially re-hired 11 years ago, the incumbent Town Clerk has been 
re-appointed annually.[fn]3  The incumbent Clerk's annual appointments 
have been memorialized by written certificates of appointment, 
signed by the Town Manager, and including an oath of office.  
I conclude that the Town Clerk is appointed to office by the 
executive head of the Town for a specified term of office.  
Consequently, the Town Clerk is excluded from the statutory 
definition of public employee pursuant 26 M.R.S.A.  § 962
(6)(B) and cannot be included in any bargaining unit.  26 M.R.S.A.  § 966(1).
 
  2.  Is the Town Clerk in Readfield a department or division head  
      appointed to office within the meaning of 26 M.R.S.A.  § 962
      (6)(D)?

     Given that the Town Clerk is excluded under  § 962(6)(B) as an 
appointed official, it is not necessary to make a determination on 
the status of the same position under the department head 
exclusion.  I will, however, go ahead and make my determination as 
it will be a quick analysis.  Unlike the statutory authority for a 
town manager to appoint town officials, the Town Manager Plan Law 
requires that a town manager's department-head appointments be 
confirmed by the select board.  30-A M.R.S.A.  § 2636 (5).  No 
evidence was presented that the Town Clerk's appointment was ever 
ratified by the Select Board in this case.  Thus, the Town Clerk 
is not eligible for an exclusionary designation pursuant to
26 M.R.S.A.  § 962 (6)(D).
 
  3.  Is the Board Secretary a "confidential" employee, within the
      meaning of 26 M.R.S.A.  § 962(6)(C)?

3 The Town Clerk also testified that her predecessor was appointed annually 
during that person's 25-year tenure as the Town Clerk.

[end of page 8]

     Section 962(6)(C) of the Act excludes from the definition of 
covered public employees,

     . . . any person [w]hose duties as deputy, administrative 
     assistant or secretary necessarily imply a confidential 
     relationship to the executive head, body, department head 
     or division head.
 
The Board bases exclusionary designations on the actual job duties 
of a position, not speculative duties or assignments that the 
employer has planned for the person in the future.  Maine State 
Employees Association and County of York, No. 04-UD-04, at 19 
(Mar. 30, 2004); aff'd, No. 04-UDA-01 (Oct. 8, 2004).  Here, the 
Secretary attends all Select Board meetings and prepares the 
required minutes and records of Board votes. The Board Secretary 
testified, however, that she had been in the position for four 
years and had never been invited to attend an executive session.
 
     The exception for confidential employees is not intended to 
exclude employees with access to information legitimately 
considered confidential for other purposes.  For the purposes 
of Maine's collective bargaining statute, the confidential 
information must have a labor relations nexus above and beyond  
contract administration.  The exclusion is warranted for those 
employees who, as an inherent part of their job responsibilities, 
have access to the employer's bargaining positions, before that 
information is disclosed at the bargaining table, and who assist 
and act in a confidential capacity with persons who formulate or 
determine the employer's bargaining positions or strategy. See, 
e.g., MSEA and York County, No. 04-UD-04, at 21.
  
     In the instant case, the Board Secretary has not been asked 
to attend executive sessions of the Select Board during her four 
years in the position.  There was no evidence in the record that 

[end of page 9]

the secretary had access to the Town's bargaining positions or 
strategies.  This is not surprising, as there was no evidence that 
any other employees in the Town are represented by a bargaining 
agent--something that typically precedes the creation of 
confidential labor relations information within the scope of the 
labor nexus test.  I conclude that the Board Secretary is not a 
confidential employee within the meaning of  § 962(6)(C), and is 
eligible for inclusion in a bargaining unit.
 
  4.  Can the fact that the Finance Officer serves as the acting
      town manager when the Town Manager is away serve as the 
      reason for excluding that position from any bargaining unit?
 
     The evidence in the record is that the Town Manager usually 
takes two-week vacations at least once and usually twice a year.  
In addition, the Town Manager was absent from the Town for 
approximately one month twice over a 6-year period.  During each 
of these absences, the Town Manager has designated the Finance 
Officer to serve as the Acting Town Manager, the nomination was 
confirmed by the Select Board as required by 30-A M.R.S.A.  § 2634, 
and the Finance Officer received additional pay while in the 
acting capacity.  The evidence is clear that the primary functions 
of the position of the Finance Director are administrative 
functions and not managing and directing the affairs of the Town 
of Readfield.  The question presented is whether the occasional 
status as "Acting Town Manager" justifies exempting the Finance 
Director from the protections of the Act.
 
     Similar circumstances were considered by the hearing examiner 
in MSEA and York County, where the employer argued that, since the 
deputy registers of deeds and probate filled-in for absent 
registers, the deputies should be exempt from the coverage of the 
Act as department heads. MSEA and York County, 04-UD-04, at 17-20.  
In determining whether a position should be excluded from the 

[end of page 10]

definition of public employee, the hearing examiner needs to focus 
on the duties of the position itself while understanding that, for 
instance, a deputy department head might reasonably be required to 
act in the place of the department head, including signing 
documents, attending meetings normally attended by the department 
head, and assuming a larger supervisory role in the department 
head's absence.  Such temporary assignments do not alter the 
responsibility of the department head to manage and direct the 
affairs of the department, even if they are on vacation or are on 
leave for some other personal reason.  Citing relevant Board 
precedent, the hearing examiner in York County stated:
 
     The Board has found that assigning an employee on a 
     temporary basis to an excludable position does not justify 
     excluding that employee's normal or original position from 
     a bargaining unit.  Maine Dept. of Public Safety and MSEA, 
     No. 83-UC-45 and 91-UC-45, slip op. at 28  (MLRB Feb. 4, 
     1994),aff'd, No. 94-UCA-01 (MLRB July 1, 1994); Maine 
     Dept. of Transportation and MSEA, No. 83-UC-36, slip op. 
     at 42 (MLRB Apr. 11, 1986) (applying this principle to 
     temporary assignments lasting as much as one year). 

MSEA and York County, No. 04-UD-04, at 20.  Applying this 
precedent, the hearing examiner concluded that a deputy register 
of deeds, who acted in place of the register who had been 
completely absent from the workplace for 11 months, was not, by 
virtue of that fact, a department head within the meaning of  § 962 
(6)(D) of the Act.  As noted above, the Board affirmed this 
decision.  Applying the same reasoning here, the position of 
Finance Officer is not excluded from the coverage of the Act by 
virtue of serving as the Acting Town Manager and is therefore a 
public employee eligible for inclusion in a bargaining unit. 
  
[end of page 11]


Community of interest analysis
 
	In order to constitute a bargaining unit which is appropriate 
for purposes of collective bargaining, the several positions 
involved in the proposed unit must share a clear and identifiable 
community of interest.  26 M.R.S.A.  § 966 (2).  It is well 
established that the Hearing Examiner's duty is to determine 
whether the proposed bargaining unit is an appropriate unit, not 
the most appropriate unit.  See Town of Yarmouth and Teamsters 
Local Union No. 48, No. 80-A-04, at 4 (June 16, 1980), and 
Portland Superintending School Committee v. Portland 
Administrative Employee Assoc., No. 87-A-03 (May 29, 1987), 
affirming No. 86-UD-14.
  
     There was some confusion when the petition was filed as to 
how to properly label the positions proposed to be included.  
These issues have been clarified and I hold that the positions in 
the proposed bargaining unit in this case are:  Collections Clerk 
[Deborah Nichols, incumbent], Board Secretary [Deborah Nichols, 
incumbent], Finance Officer [Teresa Shaw, incumbent], Head of 
Maintenance [Mark Birtwell, incumbent], Assistant Transfer Station 
Manager [Glen Hawes, incumbent], Transfer Station Attendant 
[Michael Moranger, incumbent], Sexton [Karen Peterson, incumbent], 
Animal Control Officer [Karen Peterson, incumbent], Lakes Region 
Mutual Aid Fire Departments' Administrative Assistant [Karen 
Peterson, incumbent], and Reserve Office Administrative, 
Maintenance, and Transfer Station Employee [Karen Peterson, 
incumbent].  The factors used in evaluating the requisite 
community of interest are set forth in Chapter 11,  § 22(3) of the 
Board's Rules and Procedures.  The facts in the record relating to 
each factor are set forth below. 
 
[end of page 12]	

     1. Similarity in the kind of work performed
     There are two distinct types of work performed by the 
employees proposed to be included in the single bargaining unit.  
The work of the Head of Maintenance, Assistant Transfer Station 
Manager, Transfer Station Attendant, Sexton, Animal Control 
Officer, Fire Department Administrative Assistant, and Reserve 
Office Administrative, Maintenance and Transfer Station Employee 
is primarily physical or manual in nature, with varying amounts 
of record-keeping and other administrative tasks also required.  
The work of the Collections Clerk, Board Secretary, and Finance 
Officer is almost exclusively administrative in nature, with 
minimal physical requirements.  
 
     2. Common supervision and determination of labor relations 
        policy.

	All employees are supervised directly by the Town Manager, 
including supervision performed in the Town Manager's added 
responsibilities as Road Commissioner and Transfer Station 
Director.  The labor relations policies for all of the employees 
is determined by the Select Board and are included in the Town 
of Readfield Personnel Policy.
 
     3. Similarity in the scale and manner of determining earnings

     All employees are compensated on an hourly basis.  See, TYPES 
OF EMPLOYMENT, TIME KEEPING, and WORK WEEK/OVERTIME articles of 
the personnel policy.  Individual employee compensation is set 
annually by the Select Board to coincide with the beginning of the 
town's fiscal year, after they receive "a lump sum recommendation 
on compensation from the Town Manager."  See, COMPENSATION article 
of the personnel policy.  This demonstrates a similarity in the 
manner of determining earnings.  The hourly compensation rates for 
the ACO and for the Finance Officer are part of the record; 
however, those for the other employees are not.  From the evidence 

[end of page 13]

in the record it is not possible to determine the range from the 
lowest to the highest-paid employee.	 
  
     4.  Similarity in employment benefits, hours of work and other
     terms and conditions of employment

     Only the ACO, Head of Maintenance, and Transfer Station 
employees receive a clothing allowance.  All of the employees at 
issue are entitled to the following benefits as defined in the 
personnel policy:  leave without pay, bereavement leave, course 
reimbursement, family medical leave, family military leave, income 
protection plan, jury duty leave, paid holidays, Legislative 
leave, library card, life insurance, medical & dental insurance, 
mileage reimbursement, military leave, professional dues, 
retirement plan, sick leave, vacation, witness leave, and paid 
storm days and delays.
  
     The evidence regarding the hours of work for each 
classification was somewhat ambiguous.  The Town Manager testified 
that the transfer station schedule is as follows.  The facility is 
closed Sundays and Mondays.  Tuesdays, Wednesdays, and Fridays it 
is open from 11:00 a.m. to 6:00 p.m.; Thursdays it is closed to 
the public, but open to commercial haulers from 8:00 a.m. to 3:00 
p.m.; and on Saturdays it is open from 8:00 a.m. to 4:00 p.m.  
Only the transfer station employees work this schedule.  The town 
office is open to the public at 8:30 a.m., four days per week and 
the Collections Clerk and Finance Officer work that schedule.  
On days when she performs janitorial work at the town office, the 
Sexton starts work at "7-ish," in order to complete the cleaning 
duties before the public arrives and so as not to interfere with 
the work of the three town office administrative employees.  
In addition to her regularly-scheduled work as Sexton, Fire 
Department Administrative Assistant and general reserve employee 

[end of page 14]

(assisting virtually all of the employees in the other 
classifications), the ACO responds to citizen animal calls 24/7.
  
     Overall, there is a similarity in employment benefits and 
hours of work, with all working day shifts (and an occasional 
citizen animal complaint).  The only notable difference in terms 
and conditions of employment are those related to manual versus 
office work, such as the clothing allowance.
 
  5. Similarity in the qualifications, skills and training of
  employees

     The minimum educational requirement for all of the employee 
positions at issue is graduation from high school.  The Finance 
Officer position is the only one for which a four-year degree (in 
accounting) is mentioned as a minimum educational qualification 
in the position description; however, a high school diploma and 
"significant practical experience in accounting practices, or any 
equivalent combination of experience and training" may be 
substituted for the degree requirement.  
  
	Most of the positions involve some kind of State 
certification or licensure.  The Collections Clerk serves as a 
Deputy Town Clerk and received the training to qualify to become 
a certified town clerk through attendance at training sponsored 
by the Maine Municipal Association ("MMA").  The Finance Officer 
received training in budgeting through MMA.  These training 
opportunities were conducted off-site.  The Fire Department 
Administrative Assistant, along with the Finance Officer and the 
Collections Clerk, attended on-site computer training presented 
by MMA.
  
     Others gained the training from various State agencies in 
order to obtain certification required or helpful to perform 

[end of page 15]

their respective job duties.  The Head of Maintenance received 
instruction as a local project administrator and "a lot" of   
other training from the Maine Department of Transportation.  
The Maintenance employee also received OSHA 10 training from the 
Maine Department of Labor, Bureau of Labor Standards ("BLS") while 
employed with the Town of Wayne and received individual training 
on using RSMS, computerized road maintenance scheduling software, 
from a Readfield resident.  The transfer station employees, 
including Ms. Peterson when she was the Transfer Station 

Attendant, received training necessary for certification as a 
Transfer Station Operator from the Maine Department of 
Environmental Protection.  The Animal Control Officer and 
Mr. Birtwell, as the Alternate Animal Control Officer, have 
completed the Basic Animal Control 24-hour course at the Maine 
Criminal Justice Academy.  The Lakes Region Mutual Aid Fire 
Departments' Administrative Assistant has received training and 
instruction in OSHA record-keeping requirements from BLS. 
  
     While each position requires some sort of specialized 
training, in all instances it is the sort of instruction that can 
be gained through seminars and other short-duration programs, 
supplemented by on-the-job experience.  Any difference in scope 
of training required is minimal and does not create a divergence 
of interests among the employees.

     6. Frequency of contact or interchange among the employees.

	The Collections Clerk and the Finance Officer work in the 
same area in the town office and work together with frequent 
contact and interchange.  The Head of Maintenance and the ACO 
share an office in another part of the town office and have 
frequent contact with each other.  The ACO fills in in the 
administrative area of the town office as required, constituting 
approximately 3 percent of her work time, and also spends about 

[end of page 16]

5 percent of her work time filling in at the transfer station.  
The town maintenance building is located on the grounds of the 
transfer station; so, while not actually performing transfer 
station tasks, the Head of Maintenance has casual contact with the 
transfer station employees in addition to any interchange he may 
have with them when he performs maintenance and repair of transfer
station equipment.  The transfer station employees work at the 
same facility and are in constant interchange, working together.  
No evidence was presented regarding the contact or interchange, 
if any, between the town administrative staff and the transfer 
station employees.  
 
     7. Geographic proximity.

     The employees involved in this case have three distinct work 
sites.  The Collections Clerk and the Finance Officer work at the 
town office, as do the ACO and Head of Maintenance, albeit in a 
different part of the town office.  The Head of Maintenance and 
the Sexton work in the field all over town, with the former 
working on town roads and plowing and sanding town parking lots 
and the latter working on town cemeteries and performing 
maintenance work in all town buildings.  The transfer station 
employees work exclusively at that location and the ACO/Sexton and 
the Head of Maintenance also perform some work there.  There was 
no evidence suggesting that these different work locations created 
any divergent or conflicting interests with respect to terms and 
conditions of employment.
  
     8. History of collective bargaining

     There is no evidence in the record regarding any collective 
bargaining history.
 
     9. Desires of the affected employees

[end of page 17]

	The employees who testified at the unit determination 
proceeding, the Collections Clerk, the Finance Officer, the ACO/ 
Sexton/Fire Department Administrative Assistant, and the Head of 
Maintenance, all expressed a desire to vote on whether to be 
represented for purposes of collective bargaining.
 
     10. Extent of union organization

     The Union seeks to represent a group of full-time public 
employees employed by the Town.  There was no evidence presented 
regarding whether the Town has any other employees, and, if so, 
whether they are organized.
 
     11. Employer's organizational structure

     The record established that the Town Manager is the executive 
head of the Town, who is the direct supervisor for all of the 
persons in the positions at issue in the Union's petition, either 
in his capacity as Town Manager, as the Transfer Station Manager, 
or as the Road Commissioner.  The Town's administrative functions, 
including maintaining voter registrations, creating and 
maintaining vital records, issuing various licenses, collecting 
taxes, and maintaining the accounting system, are performed by the 
appointed Town Clerk and two employees, the Finance Officer and 
the Collections Clerk, who work together performing these tasks 
and are assisted by the ACO on an as-needed basis.  The Head of 
Maintenance and the ACO/Sexton maintain the Town's buildings and 
properties directly or by supervising the work of part-time 
seasonal employees or contractors.  The transfer station is a 
separate self-contained facility.  The Town once had a public 
works department for which the Head of Maintenance worked as 
foreman, but now contracts for that work under the general 
direction of the Town Manager, as Road Commissioner, and close 
monitoring by the Head of Maintenance.  

[end of page 18] 
  
     SUMMARY: Community of interest evaluation and conclusion
  
     After reviewing the evidence in the record concerning the 
eleven community-of-interest factors, I conclude that the 
petitioned-for bargaining unit is an appropriate bargaining unit.  
The evidence supports my finding of strong similarities with 
respect to the majority of community of interest factors, 
including factors number 2 (common supervision and determination 
of labor relations policy), number 3 (manner of determining 
earnings), number 4 (employment benefits, hours), number 5 
(qualifications, skills, and training), and number 11 
(organizational structure).  There are some unknowns within these 
factors, such as the scale of earnings, and whether there are 
terms and conditions of employment related to the manual work 
beyond a clothing allowance.  Two of the factors, number 8 
(history of collective bargaining), and number 11 (extent of 
unionization) have a neutral effect on the analysis.  The three 
remaining factors, number 1 (similarity in the type of work), 
number 6 (frequency of contact and interchange), and number 7 
(geographic proximity) are all related to the office work/manual 
labor distinction.  While these factors militate somewhat against 
finding an overall community of interest among the positions in 
the petitioned-for bargaining unit, I conclude that any potential 
divergence in interests is speculative and not demonstrated by the 
evidence.  The petitioned-for bargaining unit is what the 
employees believe will best achieve their objective in exercising 
their representational and bargaining rights.  I conclude that the 
bargaining unit as proposed is an appropriate bargaining unit.[fn]4

4 The showing of interest submitted by the Union with the petition 
has been examined based on the positions included in this unit determination and is 
sufficient to warrant a secret ballot election.

[end of page 19]

ORDER

     On the basis of the foregoing facts and discussion and 
pursuant to the provisions of 26 M.R.S.A.  § 966, the following 
described unit is held to be appropriate for purposes of 
collective bargaining:

     INCLUDED:  Collections Clerk, Board Secretary, Finance        
                Officer, Head of Maintenance, Assistant Transfer 
                Station Manager, Transfer Station Attendant,
                Readfield Cemetery Sexton, Animal Control Officer,  
                Lakes Region Mutual Aid Fire Departments'
                Administrative Assistant, and Reserve Office
                Administrative, Maintenance, & Transfer Station 
                Employee.       

     EXCLUDED:  Town Clerk and all other employees of the Town 
                of Readfield.

     A bargaining agent election for this unit will be conducted 
forthwith.
     
Dated at Augusta, Maine, this 19th day of September, 2014.

                                MAINE LABOR RELATIONS BOARD



                                /s/_____________________________
                                Marc P. Ayotte
                                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 20]