Aff'd in part, Searsport and Laborer's Local 327, No. 17-UDA-01, October 20, 2016.

 

 

	  PROCEDURAL HISTORY

     This unit determination proceeding was initiated on April 7, 
2016, when Mr. Devin Mayo, Regional Organizer for the Laborers' 
International Union of North America, Local 327 ("Union"), filed a 
petition for unit determination and bargaining agent election with 
the Maine Labor Relations Board ("Board") seeking the creation of a 
bargaining unit consisting of the following classifications of 
employees of the Town of Searsport:  Waste Water Treatment Chief 
Operator and Operator; Public Works Foreman, Equipment Operator/ 
Driver, Building/Grounds Maintenance, Transfer Station Attendant, 
and Police Patrol Officer.  The petition was filed pursuant to 
§ 966 (1) and (2) of the Municipal Public Employees Labor Relations 
Law ("Act"), 26 M.R.S. § 961 et seq.  The Town of Searsport "Town") 
filed a timely response to the petition on April 22, 2016.  The 
Town objected to the granting of the relief sought because:  1) the 
position of Public Works Foreman is a department head, within the 
definition of 26 M.R.S. § 962 (6)(D) and cannot be included in any 
bargaining unit; 2) the Chief Operator of the Waste Water Treatment 
Plant is appointed to office for a specified term, within the 
meaning of 26 M.R.S. § 962 (6)(B) and cannot be included in any 
bargaining unit; 3) the Transfer Station Attendant is a part-time 

[end of page 1]


employee and should be excluded from the unit; and 4) the Police 
Patrol Officers do not share a community of interest with the other 
employees and should constitute a separate bargaining unit. 

     Due notice having been given, an evidentiary hearing on the 
petition was held at the Board hearing room in Augusta, Maine, 
on June 1, 2016.  Mr. Mayo appeared on behalf of the Union and 
John K. Hamer, Esq., appeared on behalf of the Town.  Prior to 
commencement of the formal hearing, the following exhibits were 
admitted into evidence:

     Joint Exhibit A: Public Works Director Job Description 
                      (old and new)
     Joint Exhibit B: WWTP Chief Operator Job Description 
     Joint Exhibit C: Annual Appointments (2009-2016)  
                      (WWTP Superintendent)
     Joint Exhibit D: Town Organizational Chart 
     Joint Exhibit E: Minutes Town Selectmen's Meeting 
                      March 21, 1995
     Joint Exhibit F: Title 30-A M.R.S. §§ 2601 and 2636
     Joint Exhibit G: Searsport Personnel Policy, § 2

In addition, the Town withdrew its objection to the Transfer 
Station Attendant (presently vacant) being included in the 
employees' bargaining unit.

	The Union presented Christopher E. Tucker, Lead Organizer, as 
its only witness.  The Town's sole witness was Town Manager James 
S. Gillway.  The parties were given the opportunity to examine and 
cross-examine witnesses, offer evidence, and present post-hearing 
argument.  A post-hearing brief on behalf of the Town was sub-
mitted on June 29, 2016.  No post-hearing argument was received 
from the Union.
 
      The Town Manager served as the Searsport Police Chief for 15 
years before becoming the Town Manager.  After the Town Manager
testified about the operations of the Police Department, the 

[end of page 2]


parties reached agreement on a separate bargaining unit consisting 
of the Patrol Officers and an agreement on appropriate bargaining 
unit was signed.

                            JURISDICTION

     The jurisdiction of the executive director to hear this matter 
and to make a determination lies in 26 M.R.S.A. § 966 (1) and (2).

                            STIPULATIONS

     The parties stipulated to the following facts:

     1.  The Petitioner, the Laborers' International Union Local 
327, is a public employee organization within the meaning of 26 
M.R.S. § 962 (2).

     2.  The Respondent, the Town of Searsport, is a public 
employer within the definition of 26 M.R.S. § 962 (7).

     3.  The Waste Water Treatment Plant Operator, Public Works 
Equipment Operator/Driver Building/Grounds Maintenance, and the 
Transfer Station Attendant all share a clear and identifiable 
community of interest.

     4.  The Police Patrol Officers share a clear and identifiable 
community of interest.

                   FINDINGS OF FACT AND DISCUSSION

     The Town contends that two of the positions at issue in this 
case are excluded from the statutory definition of "public 
employee" and, pursuant to § 966(1), cannot be included in any 
bargaining unit.  The Board has held that, since the public policy 
reflected in the Act is to grant public employees the right to 
bargain collectively, the exceptions from the coverage of the Act 
must be narrowly construed.  Town of Topsham and Local S/89 
District Lodge #4, International Association of Machinists and 
Aerospace Workers, No. 02-UCA-01, at 12 (MLRB Aug. 29, 2002).
 
     The first exclusionary designation I will consider is that   
of the Waste Water Treatment Plant ("WWTP") Chief Operator/ 

[end of page 3]


Superintendent, pursuant to § 962 (6)(B) of the Act.  That provi-
sion excludes from the definition of "public employee" any person:

     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;

The hearing officer analyzed this provision extensively in 
Teamsters Union Local 340 and City of Presque Isle, No. 92-UD-10, 
at 16-25 (Aug. 18, 1992).  Reviewing this exclusion in light of the 
relevant provisions of Title 30-A as they existed at that time, the 
hearing examiner concluded that, by referring to appointments to 
office, this provision was not intended to exclude any town 
employee appointed for a fixed term from the general grant of the 
right to engage in collective bargaining.  The hearing examiner 
concluded:
 
          These provisions taken together suggest that officials 
     are those high enough in municipal government for political 
     responsiveness to be expected, either through election or 
     through fixed-term appointment.  The case is even more 
     convincing when one looks at a distinction Title 30-A makes 
     between officials and employees, in addition to the length 
     of appointment.  Both officials and employees have just 
     cause protection under section 2601.  However, section 2701 
     requires employees who have just cause protection to first 
     complete any applicable probationary period.  30-A M.R.S.A. 
     2701 (Supp. 1991).  Probation is not mentioned for officials.  
     That is not surprising, if appointed "officials" are meant 
     to be politically responsive.  Appointment for a fixed term 
     should not protect an official's wrongdoing, so a municipal-
     ity's right to remove an official before his/her term is up, 
     for cause, is not inconsistent with the concept of the 
     politically responsive appointment.  On the other hand, the 
     concepts of probation and political responsiveness are 
     inconsistent.
 
Id., at 23-4.  Testing water and recording the results, mixing and 
adding chemicals, and operating and maintaining the equipment of 

[end of page 4]


the waste water treatment plant, require technical and mechanical 
knowledge and experience, but do not constitute the sort of 
politically responsive work warranting an exclusion from coverage 
of the Act pursuant to § 962(6)(B).

     Title 30-A, § 2001 (11) defines "Municipal official" as being 
"any elected or appointed member of a municipal government."  While 
Title 30-A does not further define the term "official," § 2603, 
Deputy officials, provides that "[t]he clerk, treasurer and 
collector of a municipality may each appoint in writing one or more 
qualified persons as deputies."   The WWTP Chief Operator/ 
Superintendent is not included in this provision.
      
     The record evidence regarding the 962 (6)(B) exclusion is that 
the incumbent has been appointed to a series of one-year 
appointments, each year for the last 9 years.  The job description 
for the WWTP position does not include anything suggesting, much 
less warranting, political responsiveness.  This evidence is 
insufficient to warrant the exclusion sought.  In addition, the 
excerpt of the Town's personnel policy provided includes a lengthy 
list of positions which the Town regards as being town "officials."   
While some, including the Town Manager, hold office as contemplated 
in § 962 (6)(B), the Waste Water Treatment Plant position is not on 
the list.  On the basis of the record presented, I conclude that 
the exclusionary designation sought for the Waste Water Treatment 
Plant Chief Operator/Superintendent based on § 962 (6)(B) of the 
Act has not been established and must be denied.
  
     The Town alleges that the Public Works Foreman is a department 
or division head, within the meaning of § 962 (6)(D), and further 
alleges that, in the event that the WWTP Chief Operator/ 
Superintendent is not excluded from coverage by virtue of § 962  

[end of page 5]


(6)(B), that position is also a department head within the meaning 
of § 962 (6)(D).
  
     That provision of the Act excludes from the statutory 
definition of "public employee" any person:

     Who is a department 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.

In interpreting the (6)(D) exclusion, the Board has examined both 
the appointment process used in naming department heads and the 
actual job duties of the position.  In the instant case, the 
appointment requirement set forth in the exclusion has not been 
satisfied with regard to either position at issue.

     With regard to the WWTP position, the Town Manager testified 
that he nominated the Superintendent for appointment and the Board
of Selectmen approved a series of one-year appointments for the 
last 9 years.  Joint Exhibit C confirms that at least back to the 
year running from April 1, 2009, to March 31, 2010.  One-year 
appointments are plainly not "for an unspecified term;" therefore, 
the WWTP position does not qualify for a § 962 (6)(D) exclusion.

     The formal appointment process for the Public Works position 
is also problematic.  Title 30-A, M.R.S. § 2636 sets forth the 
powers and duties of a town manager.  Subsection 4 provides that a 
town manager "[s]hall serve in any office as the head of any 
department under the control of the selectmen when directed by the 
selectmen."  Subsection 5 states that a town manager:

      Appoint department heads.  Shall appoint, subject to 
     confirmation by the selectmen, supervise and control the 
     heads of departments under the control of the selectmen 
     when the department is not headed by the town manager 
     under subsection 4;

[end of page 6]


While the Town Manager testified that he considers the Public Works 
Foreman/Director to be a department head, the record is ambiguous, 
at best, regarding the appointment of the incumbent to this 
position.  The Minutes of the Selectmen's Meeting of March 21, 
1995, establish that "[t]he Board approved the Town Manager's 
appointment of Robert Seekins as Highway Foreman, effective        
April 1, 1995."   While no contemporaneous job description for the 
Highway Foreman was introduced, that from October 1996 was 
produced.  It is not clear that the foreman was a department head 
at the time of appointment or for an extended time thereafter.   
The April 18, 2002, job description states that the "Public Works 
Director performs the statutory functions of Commissioner of 
Roads;" however, from the calendar year beginning April 1, 2009, 
through that ending on March 31, 2017, the Board of Selectmen have 
appointed the Town Manager to serve as Road Commissioner, through 
annual appointments.  The evidence in the record fails to establish 
that the Public Works Foreman/Director was appointed in the manner 
required by 30-A M.R.S. § 2636 (5), therefore, the position does 
not qualify for a § 962 (6)(D) exclusion.

     Although the problems with the formal appointments involved 
are dispositive in this matter, the job functions of the two 
positions also fail to warrant § 962 (6)(D) exclusions.  Once the 
formal appointment requirement has been met, the Board's focus 
turns to an examination of the job functions actually performed by 
individuals for whom a (6)(D) exclusion is claimed.  In its 
analysis, the Board has identified three types of job duties 
normally found in any department or division:  day-to-day, rank-
and-file work; supervision of other employees; and formulating and 
administering department policies and practices--managing the 
department.  The Board holds that, to warrant a (6)(D) exclusion, 
the "primary function" of the position must be managing and 
directing the affairs of the department.  Teamsters Local Union No. 

[end of page 7]


48 and Town of Wells, No. 84-A-03, at 6-7 (MLRB April 11, 1984), 
aff'd sub nom Inhabitants of the Town of Wells v. Teamsters Local 
Union No. 48, No. CV-84-235, at 2-3 (Me. Super. Ct., York Cty., 
Feb. 28, 1985).  By "primary function," the Board means how much 
time and effort the position spends performing administrative 
duties, as opposed to supervising or performing the day-to-day 
duties of the enterprise.  Town of Wells, at 7-8.
  
     The Public Works Foreman/Director performs administrative 
duties, including participating in the budget process, soliciting 
bids for the purchase of materials and services, and directing the 
operation of the organizational unit on a day-to-day basis.  The 
incumbent employee was not present at the hearing and the Town 
Manager was unable to quantify the amount or percentage of work 
time the employee spends performing these functions.  The WWTP 
Chief Operator/Superintendent also performs administrative duties, 
including the same kind of budget work as the Public Works Foreman/ 
Director and manages the waste water treatment plant operation.  
The Chief Operator/Superintendent was not present at the hearing 
and no evidence was presented regarding the amount or percentage of 
work time the employee spends performing these functions.  In the 
absence of such corroborating facts, the basis for the exclusion 
cannot be established and the exclusion cannot be granted.  Town of 
Topsham, 02-UCA-01 at 12.  On the basis of the record presented, I 
conclude that neither the Public Works Foreman/Director nor the 
Waste Water Treatment Plant Chief Operator/Superintendent are 
department or division heads within the meaning of § 962(6)(D) of 
the Act; therefore, both are eligible to be represented for 
purposes of collective bargaining.

     One of the distinguishing aspects of Maine's public sector 
labor relations laws is that they authorize supervisory employees 
to be represented by a bargaining agent for purposes of collective 

[end of page 8]


bargaining.  While the Act extends collective bargaining rights to 
supervisors, § 966(1) of the Act provides that they cannot be 
included in the same bargaining unit as the employees they super-
vise.  Section 966(1) defines supervisors as employees whose prin-
cipal job functions include 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 estab-
     lishing or participating in the establishment of per-
     formance standards for subordinate employees and taking 
     corrective measures to implement those standards,

Employees whose jobs primarily involve these supervisory functions 
may have conflicts of interests with their subordinate employees, 
therefore the Act provides that they be assigned to a separate 
supervisory employee unit.  Teamsters Union Local 340 and Town of 
Warren, No. 14-UD-03, at 5-6 (Apr. 8, 2014).  Both the Public Works 
Foreman/Director and the WWTP Chief Operator/Superintendent perform 
some supervisory duties.
  
     The Public Works Foreman/Director schedules, assigns, oversees 
and reviews the work of the other public works employees; however, 
no evidence was presented whether the Foreman prepares performance 
evaluations for the other employees.  The Foreman/ Director per-
forms some work that is different from that of the other employees, 
including the items mentioned above in connection with the depart-
ment head analysis.  The Foreman is the first step of the three-
step grievance procedure and has the authority to impose disci-
pline, short of termination.  There is no evidence in the record 
that the Foreman has ever adjusted a grievance or imposed any 
discipline.  There was no mention in the record regarding the 
development of performance standards or any implementation of such 

[end of page 9]


standards.  The Foreman also performs the day-to-day work of the 
department, driving trucks, operating equipment, ditching roads, 
salting and sanding roads, and plowing snow.  Once again, there is 
no evidence in the record regarding the amount or percentage of 
work time the Foreman/Director spends doing those supervisory 
duties that he does perform. The evidence in the record does not 
support the allegation that the supervisory functions are the 
primary duties of the Foreman.  This is not surprising, since the 
entire public works crew consists of four employees, including the 
Foreman.
 
     The WWTP Chief Operator/Superintendent oversees the work of 
one subordinate employee.  The Chief Operator/Superintendent 
performs some work that is different from that of his subordinate, 
including the items mentioned above in connection with the 
department head analysis.  The Chief Operator is the first step of 
the three-step grievance procedure and has the authority to impose 
discipline, short of termination.  There is no evidence in the 
record that the Chief Operator has ever adjusted a grievance.  The 
Chief Operator imposed some kind of discipline once, approximately 
15 years ago.  There was no mention in the record regarding the 
development of performance standards or any implementation of such 
standards.  The Chief Operator also performs the day-to-day work of 
the department, operating and maintaining the treatment plant and 
pump stations, testing effluent, and maintaining records relating 
to waste water treatment.  There is no evidence in the record 
regarding the amount or percentage of work time the Foreman/ 
Director spends doing those supervisory duties that he does 
perform.  The evidence in the record does not support the alle-
gation that the supervisory functions are the primary duties of the 
Chief Operator.  Again, this is not surprising, since the entire 
waste water treatment crew consists of two employees, including the 
Chief Operator/Superintendent.

[end of page 10]

 
     Finally, § 966(2) of the Act requires that I consider whether 
the employees in the bargaining unit sought to be created through a 
unit determination proceeding share a clear and identifiable 
community of interest in order to constitute a unit which is 
appropriate  for purposes of collective bargaining.  The parties 
have stipulated that the public works and waste water treatment 
employees, other than the Foreman/Director, and the Chief 
Operator/Superintendent, share a clear and identifiable community 
of interest and, together, constitute an appropriate bargaining 
unit.  The remaining issue is whether the Foreman/Director and the 
Chief Operator/Superintendent share the requisite community of 
interest with the other employees to be included in the same 
bargaining unit with them.

     The Board has codified its long-standing community-of-interest 
analysis in Chapter 11, § 22 (3) of its Rules.  The 11 relevant 
factors are listed below, underscored, followed by the relevant 
information from the record.  The Board's community of interest 
factors that support finding a shared community of interest are:  
1) similarity in the kind of work performed:  in addition to 
performing some administrative and supervisory work, both 
individuals in the positions at issue perform the same work as the 
other employees in their respective organizational units; 2) common 
supervision and determination of labor relations policy:  all of 
the employees are supervised by the Town Manager and are subject to 
labor relations policies approved by the Board of Selectmen and 
included in the Town's personnel policy; 3) similarity in the scale 
and manner of determining earnings:  there is no evidence in the 
record regarding the amount earned by any of the employees; 
however, they are all compensated on an hourly basis; 4) similarity 
in employment benefits, hours of work and other terms and 
conditions of employment:  all of the employees' standard work week 
is Monday through Friday, 7:00 a.m. to 3:00 p.m. and all are 

[end of page 11]


expected to work overtime periodically; all have access to a 
progressive, three-step grievance procedure (starting with the 
immediate supervisor, with appeals to the Town Manager, and then to 
the Board of Appeals); and the terms and conditions of employment 
for all are determined by the Town personnel policy; 5) similarity 
in the qualifications, skills and training of employees:  the basic 
qualifications are a high school diploma, a commercial driver's 
license, and technical training and on-the-job experience, specific 
to the work being performed; 6) frequency of contact or inter-
change among the employees:  the Foreman/Director has daily contact 
with other public works employees and the Chief Operator/ 
Superintendent has daily contact with the WWTP Operator; and 10) 
extent of union organization:  including the Police Patrol Officers 
in a separate unit, the Petitioner appears to be seeking to 
represent all eligible blue-collar employees of the Town.

     The following community-of-interest factors neither support 
nor rebut a finding of a shared community of interest:  7) 
geographic proximity:  all work within the Town of Searsport; 8) 
history of collective bargaining:  there is no evidence in the 
record regarding any history of collective bargaining for any of 
the employees involved; 9) desires of the affected employees:  as 
required by Chapter 11, § 7(11) of the Board Rules, at least 30% of 
the unit employees submitted a showing of interest in support of 
the petition and, through hearsay testimony, both the Foreman/ 
Director and the Chief Operator/Superintendent seek representa-
tion; and 11) the employer's organizational structure:  as a group, 
all of the employees involved constitute 2 of the 9 organizational 
units in the Town.  Weighing the several community-of-interest 
factors individually and together, I conclude that the Public Works 
Foreman/Director and the Waste Water Treatment Plant Chief 
Operator/Superintendent share a clear and identifiable community  

[end of page 12]


of interest with the other public works and waste water employees 
employed by the Town of Searsport.


                             CONCLUSION

     On the basis of the foregoing facts and discussion and 
pursuant to the provisions of 26 M.R.S. § 966, the petition for 
unit determination filed on April 7, 2016, by Devin Mayo, Regional 
Organizer for the Laborers' International Union of North America, 
Local 327 ("Union"), as amended to delete the position of Police 
Patrol Officer, is granted.  The following described unit of 
employees of the Town of Searsport is held to be appropriate for 
purposes of collective bargaining:

     INCLUDED:  Waste Water Treatment Plant Chief Operator/
                Superintendent and Operator, Public Works
                Foreman/Director, Equipment Operator/Driver, 
                Building/Grounds Maintenance, and Transfer 
                Station Attendant

     EXCLUDED:  All other employees of the Town of Searsport

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

Dated at Augusta, Maine, July 11, 2016

				   MAINE LABOR RELATIONS BOARD



   				   /s/________________________
				   Marc P. Ayotte
				   Executive Director



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 13]