Searsport and Laborer's Local 327, No. 17-UDA-01, affirming No. 16-UD-09. Town of Searsport appealed to Superior Court filed Nov. 2, 2016.

 

 

	  
     The Town of Searsport filed this unit determination appeal on 
July 20, 2016, pursuant to 26 M.R.S.A. §968(4) of the Municipal 
Public Employees Labor Relations Law (the "Act") and Chapter 11,
§30 of the Rules and Procedures of the Maine Labor Relations Board 
(the "Board").	The unit determination report that is the subject 
of this appeal (No. 16-UD-09) was issued on July 11, 2016.  The 
parties had agreed on the inclusion of several positions in the 
bargaining unit, but disagreed on the status of two.  After an 
evidentiary hearing, the Hearing Examiner determined that neither 
the Waste Water Treatment Plant ("WWTP") Chief Operator/Superin-
tendent nor the Public Works Director was excluded from the 
definition of public employee under the Act.  The Hearing Examiner 
further concluded that the two positions should not be placed in a 
separate supervisory unit and that the bargaining unit as proposed 
was an appropriate unit.

     In its Memorandum of Appeal, the Town of Searsport challenges 
the Hearing Examiner's conclusion that the two positions at issue 
are not excluded from coverage of the Act under either §962(6)(B) 
or §962(6)(D).  The Town further argues that, in the event the

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Board affirms the Executive Director's conclusion that the two 
positions are covered by the Act, the Board should reverse his 
conclusion that the two positions should not be placed in a 
separate supervisory bargaining unit.

     John K. Hamer, Esq., represented the Town of Searsport during 
the unit determination hearing and on the appeal.  Mr. Devin J. 
Mayo represented Laborers' Local 327 at the unit hearing. The 
Union chose not to file a written brief responding to the Town's 
appeal, other than expressing its strong support for the Hearing 
Examiner's ruling.  The Board, comprised of Chair Katharine I.
Rand, Employer Representative Robert W. Bower, Jr., and Employee
Representative Amie M. Parker deliberated this matter on September 
13, 2016.


                            JURISDICTION

     The Town of Searport is an aggrieved party within the meaning 
of 26 M.R.S. §968(4) and Chapter 11, §30 of the Rules and 
Procedures of the Board.  The jurisdiction of the Maine Labor 
Relations Board to hear this appeal and to render a decision 
herein lies in 26 M.R.S.A. §968(4).


                          FINDINGS OF FACT

     Neither party has taken exception to the facts recited in 
the Unit Determination Report.	The essential facts can be 
summarized with the following:

  *  The Town of Searsport operates under the Town Manager Plan, 
       as detailed in Title 30-A, Chapter 123, subchapter 2.
  *  The Town 's 2015 Policy Book, Section 2: Appointive Authority, 
       lists 24 officials appointed by the Board of Selectmen.
       The WWTP Chief Operator/Superintendent is not on this list. 
       The list of officials is followed by the statement, "These

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       appointments are made subject to state statute and may be 
       in the form of a contract."  The policy further states "The 
       Town Manager appoints Department Heads, subject to 
       confirmation by the Board of Selectmen. The Town Manager 
       also appoints all other employees as authorized by the 
       Board of Selectmen."
  *  The incumbent WWTP Chief Operator/Superintendent has been 
       appointed to a series of one-year appointments for each of 
       the last 9 years.
  *  The Minutes of the Selectmen's Meeting of March 21, 1995, 
       state "The Board approved the Town Manager's appointment of 
       Robert Seekins as Highway Foreman, effective April 1, 
       1995."  The minutes also record the appointment of several 
       officials following a formal motion and vote on each 
       appointment.
  *  The 1996 job description for the Highway Foreman was updated 
       in 2002 and the job title changed to Public Works Director.
       The Board of Selectmen approves all job descriptions, but 
       no specific action was taken regarding the appointment of 
       Mr. Seekins other than the 1995 approval.
  *  The Public Works Director supervises 3 employees; the WWTP 
       Chief Operator/Superintendent supervises 1 employee.  Both 
       are authorized to plan, schedule, assign, and discipline 
       employees, if necessary.	Both perform administrative tasks 
       such as those related to the purchase of equipment and 
       supplies, record keeping, payroll, and preparation of their 
       department's budget.  Both are responsible for the
       technical and mechanical operations of their respective 
       departments and both spend a significant amount of time 
       performing operational tasks.

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                            DISCUSSION

     The standard of review for bargaining unit determinations 
is well established:  The Board will overturn a hearing 
examiner's rulings and determinations if they are "unlawful, 
unreasonable, or lacking in any rational factual basis. " 
Council 74, AFSCME and Teamsters Local 48, No. 84-A-04 at 10 
(Apr. 25, 1984), quoting Teamsters Local 48 and City of 
Portland, No. 78-A-10 at 6 (Feb. 20, 1979).

     Section 962, sub-§6 defines which employees of a public 
employer are covered by the Act.  There are several exceptions to 
the definition, including the two at issue in this case,
paragraphs B and D.  These two paragraphs exclude from coverage of 
the Act any person:

     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
        . . .

     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;

26 M.R.S. §962(6) .


     The Town argues that the WWTP Chief Operator/Superintendent 
should be excluded pursuant to §962(6)(B) or, alternatively, 
should be excluded as a department or division head under
§962(6) (D).  We agree with the Hearing Examiner's conclusion that 
the WWTP Chief Operator/Superintendent is not excluded from

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coverage of the Act under either §962(6)(B) or §962(6)(D) for the 
following reasons.[fn]1

     Sections 962(6) (B) and 962(6)(D) are similar with respect to 
the appointment process, as both require the employee to be 
"appointed to office pursuant to statute, ordinance or resolution 
[for a term] by the executive head or body of the public 
employer."  Although both use the words "appointed to office" at 
the start of this clause, paragraph B expressly requires the 
appointment to be "for a specified term of office," while 
paragraph D requires it to be "for an unspecified term."  Thus,
the §962(6)(B) exclusion requires that the appointment be both for 
a specified term and to an "office."

     After reviewing the record, we agree with the Hearing 
Examiner's conclusion that there was insufficient evidence to 
support the Town's assertion that the WWTP Chief 
Operator/Superintendent was appointed for a "specified term of 
office."  Although the Selectmen appointed the incumbent to a 
specified one-year term, there is no evidence that he was 
appointed to an "office."

     The Hearing Examiner noted that the Town's 2015 Policy Book 
lists 24 "officials" appointed by the Board of Selectmen, but that 
list does not include the WWTP Chief Operator/Superintendent.  The
Town produced no evidence that this position was an "office" of
any kind or in any sense of the word beyond a synonym for 
"employment."  The statute mandates that the appointment be for a 
"specified term of office," and we cannot ignore the word office, 
particularly where the word is omitted from the same phrase in


[fn]1  The Hearing Examiner's conclusion that the WWTP Chief Operator/Superintendent 
was not an employee excluded under §962(6)(B) relied on Teamsters Union Local 
340 and City of Presque Isle, No. 92-UD-10 (Aug. 18, 1992).  Our analysis does 
not rely on Presque Isle, so there is no need to address the Town's assertion 
that we should overrule that case.

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another paragraph of the same statutory section.  We therefore 
affirm the Hearing Examiner's finding that the WWTP Chief 
Operator/Superintendent	was not excluded under §962(6)(B).

     The Hearing Examiner's conclusion that the WWTP Chief 
Operator/Superintendent could not be excluded as a department head 
under §962(6)(D) is also affirmed because §962(6)(D) requires that 
the appointment be for an unspecified term.  The WWTP Chief
Operator/Superintendent's appointment was clearly for a specified 
term of one year.

     With respect to the Public Works Director, the Town disputes 
the Hearing Examiner's conclusion that the position is not a 
department head within the meaning of §962(6)(D).  All of the 
components in paragraph D must be met for the exclusion to apply:
(1) the executive head or body of the employer must appoint the 
person for an unspecified term; (2) the appointment must be 
pursuant to statute, ordinance or resolution; and (3) the primary 
function of the position must be that of a department head or 
division head.  See, e.g., Town of Topsham and Local S/89 District 
Lodge #4 IAMAW, No. 02-UCA-01 at 3 (Aug. 29, 2002), aff'd, Topsham
v. Local S/89 District Lodge #4 IAMAW, and MLRB, AP-02-68 (Me. 
Super. Ct., Ken. Cty., March 20, 2003).  The Hearing Examiner held 
that the second and third requirements of this exclusion were not 
met.

     The Hearing Examiner concluded the record lacked evidence 
that Mr. Seekins was appointed as Public Works Director "pursuant 
to statute, ordinance or resolution," as required by paragraph D. 
The Town of Searsport operates under the Town Manager Plan, 30-A
M.R.S. Ch. 123, sub-chapter 2, which specifies the powers and 
duties of the Town Manager in §2636.	Sub-section 5 is the

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controlling provision with respect to the appointment of 
department heads.  That section states:

     5.  [The Town Manager] [s]hall appoint, subject to 
     confirmation by the selectmen, supervise and control 
     the heads of departments under control of the 
     selectmen when the department is not headed by the 
     town manager under subsection 4.

30-A M.R.S. §2636(5) .

     There is no dispute that on March 21, 1995, the incumbent 
Public Works Director was appointed as Highway Foreman by the 
former Town Manager and the appointment was approved by the 
Selectmen.[fn]2	 It was not until 2002 that the job description was 
updated to indicate the position title of "Public Works Director." 
The Board of Selectmen approved the new job description, but did 
not take any action to re-appoint the incumbent.  We find no error 
in the Hearing Examiner's conclusion that the record lacked any 
evidence that the incumbent functioned as or even was considered a
department head at the time of the appointment in 1995 or for 
several years after.

     The Town argues that it "was error to deny the exemption 
based on the formalities of appointment."  We disagree.	 The
formalities of the statute require the department head to be 
appointed pursuant to statute, ordinance or resolution.	The Town 
Manager Plan statute requires confirmation by the Board of 
Selectmen and that did not occur.  This same point was addressed 
previously by the Board in Topsham, in which the Board held:

     As the Town Manager Plan is the source of the town 
     manager's authority, the limitations on that authority 
     specified in that statute must also be controlling.
     The Town Manager Plan is unambiguous regarding the


[fn]2  The minutes of the Board meeting merely indicate that the Board "approved" the 
Town Manager' s appointment of him as Highway Foreman. Every other action of the 
Board that evening involved a Motion and a recorded vote.

[end of page 7]


     appointment of department heads.  Section 2636, 
     subsection 5 states:  "[The town manager] shall 
     appoint, subject to confirmation by the selectmen, 
     supervise and control the heads of departments . .	. ."
     Confirmation by the selectmen is not presented as an 
     option.  When read in conjunction with 26 M.R.S.A.
     962(6) (D), which excludes a department head "appointed 
     to office pursuant to statute, ordinance or
     resolution," it is clear that in order to be appointed 
     to office pursuant to statute, the statute must be 
     followed.

Topsham, No. 02-UCA-01 at 9, aff'd, Topsham v. District Lodge #4 
IAMAW and MLRB, AP-02-68 at 4 (Board's interpretation of the 
appointment requirement is consistent with the language of the 
statutes).

     Although we agree with the Hearing Examiner that the two 
positions at issue are covered by the Act, we disagree with his 
conclusion that these positions should be placed in the same 
bargaining unit as the subordinate employees.  Section 966(1) 
offers guidance on when a supervisory position should be excluded 
from the proposed bargaining unit:

     . . . 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.


     The Hearing Examiner recognized that the Public Works 
Director and WWTP Chief Operator / Superintendent in fact perform

[end of page 8]

      
some management control responsibilities and work that is 
different from that of the other employees, including 
participating in the budget process, scheduling, directing and 
overseeing the work of others, and, in the case of the Public 
Works Director, soliciting bids for the purchase of materials and 
services.  The Hearing Examiner also recognized that both
positions are the first step in the three-step grievance procedure 
and possess the authority to issue discipline short of
termination.  He nonetheless concluded that the evidence was 
insufficient to support the conclusion that these management 
control functions were the positions' "primary duties," noting the 
lack of any evidence that either employee has imposed discipline 
or adjusted a grievance, and the absence of any evidence
concerning the amount or percentage of time the Public Works 
Director and WWTP Chief Operator / Superintendent spend performing 
supervisory duties, as opposed to executing the day-to-day work of
the department.


     Although the amount of time spent performing management 
control duties may be relevant to whether such duties comprise the 
"principal functions" of any given position, we are cognizant of 
the fact that, in smaller towns with smaller departments, 
supervisors will generally spend less time managing and more time 
chipping in with the day-to-day work.  The management control 
responsibilities of such supervisors are not necessarily less 
important or "principal," however.  Moreover, the risk of conflict 
that arises when a supervisor must train, counsel, discipline or 
hear the grievance of a fellow bargaining unit member is acute, 
regardless of whether the supervisor has a history of taking such 
actions or is called upon to take them for the first time.

[end of page 9]


     The job descriptions provide, and there was testimony at
hearing to confirm, that the Public Works Director and WWTP Chief
Operator / Superintendent are responsible for the operations of
their respective departments, including overseeing the work of
subordinate employees and ensuring the safe and effective
operation of the department.  We are persuaded that the principal 
functions of these positions consist of management control and
similar supervisory duties, even if - because of the size of their
respective departments, the historically adequate performance of
subordinates, and/or the apparent lack of any grievances to date -
they do not spend the majority of their time on these duties.

     A review of the record and the Hearing Examiner's specific
findings regarding the community of interest factors supports our
conclusion that the two positions share a community of interest.
For these reasons, we conclude that the two positions should be in
a separate supervisory unit.


                                ORDER

     On the basis of the foregoing discussion and pursuant to the 
powers granted to the Board by 26 M.R.S. §968(4), it is ORDERED
that the following two bargaining units are appropriate for the
purposes of collective bargaining:

SUPERVISOR UNIT

     INCLUDED:  Waste Water Treatment Plant Chief Operator/
                Superintendent and Public Works Director

     EXCLUDED:  All other employees of the Town of Searsport

OPERATIONS UNIT

     INCLUDED:  Equipment Operator/Driver, Building/Grounds
                Maintenance, Transfer Station Attendant,
                and WWTP Operator

[end of page 10]


     EXCLUDED:  All other employees of the Town of Searsport


A bargaining agent election for these units will be conducted 
forthwith.



Dated at Augusta, Maine, this 20th day of October, 2016.                          
 

 

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