Town of Yarmouth and Teamsters Local 48, No. 80-A-04, affirming No. 

STATE OF MAINE                                       MAINE LABOR RELATIONS BOARD
                                                     Case No. 80-A-04
                                                     [Issued:  June 16, 1980]
TOWN OF YARMOUTH             )                           
  and                        )            REPORT OF APPELLATE REVIEW OF
                             )             UNIT DETERMINATION HEARING

     On December 21, 1979, Teamsters Local Union No. 48 ("Local 48") filed a
petition for unit determination, seeking formation of a bargaining unit composed
of the highway and sewerage division employees employed in the Town of Yarmouth's
("Town") Public Works Department.  The job classifications which Local 48 pro-
posed to include in the bargaining unit were the Equipment Operator I, Equipment
Operator II, Mechanic, Parksman, Landfill Operator, and Treatment Plant Operator
     A unit determination hearing was held on the petition pursuant to 26 M.R.S.A.
 966 on April 2, 1980, hearing examiner Michael C. Ryan presiding.  The Town con-
tended that the two Treatment Plant Operators should not be included in a bargain-
ing unit with the other employees because the Treatment Plant Operators lacked suf-
ficient community of interest with the employees.  Local 48 urged that all the em-
ployees shared a community of interest and that they accordingly should all be in-
cluded in a single bargaining unit.
     The hearing examiner issued his unit determination report on April 4, 1980,
concluding that there was a community of interest between the Treatment Plant
Operators and the other employees and that a unit composed of all the positions
was appropriate for purposes of collective bargaining.  Pursuant to 26 M.R.S.A.
 968(4), the Town on April 16, 1980 flied a timely appeal of the hearing examiner's
     A hearing on the Town's appeal was held on June 3, 1980, Alternate Chairman
Donald W. Webber presiding, with Alternate Employer Representative Thacher E.
Turner and Alternate Employee Representative Harold S. Noddin.  The Town was repre-
sented by F. Paul Frinsko, Esq., and Local 48 by Walter Stilphen.  The Board pro-
ceeded to deliberate over the case at the conclusion of the hearing.

     Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this matter, and we conclude that the Board has jurisdiction to consider
the appeal and render a decision and order as provided in 26 M.R.S.A.  968(4).
                                  FINDINGS OF FACT
     Upon review of the entire record, the Board adopts as modified the following
findings of fact made by the hearing examiner:

     1.  The Town Manager is the chief executive officer of the Town and
         is the head of the Public Works Department.  The Public Works
         Administrator/Town Engineer is under the Town Manager's authority
         and is responsible for the Public Works Department which has two
         divisions, Highway and Sewer.  Each division is headed up by a
         superintendent.  Under the Highway Superintendent are the Equipment
         Operator I (4 employees), Equipment Operator II (1 employee), Mechanic
         (1 employee), Parksman (1 employee), and Landfill Operator (2 employees)
         positions - nine employees in all.  Under the Sewer Superintendent is
         the Treatment Plant Operator position, held by 2 employees.  The two
         superintendents are working foremen.  The Public Works Administrator
         makes recommendations regarding labor relations and personnel matters
         to the Town Manager.  The personnel records for all the employees are
         kept in the Town Manager's office.
     2.  The Town also has a Public Safety Department headed by the Town Manager.
         This Department has five divisions, the Police, Fire, Rescue, Civil
         Defense and Communications divisions.  Two of these divisions are or-
         ganized, with a bargaining unit of Police employees and a unit of Com-
         munications employees.
     3.  The Sewer division in the Public Works Department is responsible for
         the operation, maintenance, and control of the wastewater treatment
         plant and the sewer system and pumping stations.  The Highway division
         is responsible for the maintenance and repair of Town roads, of all
         municipal buildings except the Sewer division building, and of docks
         and wharves.  Highway division employees also pick up rubbish at all
         municipal buildings, and answer fire calls in the daytime.  The High-
         way employees also maintain and repair all Town vehicles and equipment.
         The Highway division garage is the Town's major repair facility.
     4.  The two Treatment Plant Operators work at the treatment plant and occa-
         sionally at any of the eleven pumping stations in the system.  The
         Treatment Plant is located apart from the garage where the Highway
         division employees report.  It is evident from the job descriptions
         that the Landfill Operators spend their time almost exclusively at a
         third site, the Town sanitary landfill.
     5.  The Treatment Plant Operators run the wastewater plant, maintain pumps,
         take samples, perform laboratory tests, perform general repair work at
         the plant and pumping stations, inspect, clean, and lubricate equipment,
         take instrument and gauge readings, maintain lawns and grounds within
         the Sewer division, and perform general cleaning and housekeeping duties.
         They also perform minor repair work on Sewer division vehicles and do
         the snowplowing at the treatment plant.

     6.  The Equipment Operators operate various types of light and heavy road
         vehicles, including snowplows, perform minor vehicle and equipment
         maintenance, maintain sidewalks, drains, sewer lines and culverts, and
         clean and repair streets and signs.  The Mechanic performs difficult
         and complex mechanical work on all types of vehicles and equipment;
         this includes minor and major repair of all Town vehicles except for
         the minor repair of Sewer division vehicles.  The Parksman landscapes
         and maintains athletic fields, parks, guardrails, bridges, and other
         Town outdoor facilities, and performs carpentry tasks.  The Landfill
         Operator operates light, tracked dozers and loaders and supervises
         the operation of the Town Landfill.  All of the Highway division em-
         ployees are involved with snowplowing of some sort from time to time
         with the exception of the Landfill Operators.
     7.  There is no interchange of employees between the two divisions although
         there is a Town policy of giving preference in job bidding to Town
         employees.  There are some contacts between the Treatment Plant Operators
         and the other employees.  When Sewer division vehicles require gasoline
         or major repair work, they are brought to the Highway garage and serviced
         there.  Once or twice a year the Treatment Plant Operators will ride as
         wingman on a snowplow when personnel shortages arise.  The Highway divi-
         sion employs two part-time employees who help plow snow.  Prior to April,
         1980, the Equipment operators hauled sludge away from the treatment
         plant on a regular basis.  The Parksman occasionally performs carpentry

         work at the treatment plant.  Highway division employees sometimes
         assist when extra hands are needed to move or handle heavy objects
         at the treatment plant.  Highway employees also serve as extra hands
         when needed by other Town divisions.
     8.  The Highway division employees have one hour for lunch and usually
         go home while the Treatment Plant Operators have one-half hour and
         usually stay at the treatment plant.  There is also no promotion
         track involving the Treatment Plant Operators and any Highway divi-
         sion position.  Also, although the Town has a policy of giving
         preference to Town employees on job bids, no Highway division em-
         ployee has transferred to a Treatment Plant Operator's opening or
         vice versa.
     9.  Highway division employees work 40 hours a week from 7:00 a.m. to
         4:00 p.m., Monday to Friday, year-round.  The Treatment Plant Opera-
         tors also work a 40 hour week, from 7:30 p.m. to 4:00 p.m., Monday
         to Friday, most of the year, although in the summer they switch to
         a four day week, ten hours per day.  In addition, the Treatment
         Plant Operators are regularly scheduled for overtime for a 2-1/2 hour
         period each weekend.  There is a time clock used at the Town garage
         while the Treatment Plant Operators do not punch a clock.
    10.  The employees' annual wages based on 40 hours of work per week are:

              Eguipment Operator I                 $ 9,542
              Equipment Operator II                 10,857
              Mechanic                              12,896
              Parksman                               9,984
              Landfill Operator                     10,920
              Treatment Plant Operator               9,402
         The Treatment Plant Operators' annual gross income is approximately
         10% higher than shown in this list due to regularly scheduled over-
         time.  There is no evidence of other employees receiving regularly
         scheduled overtime opportunities.  The wages of all non-professional
         employees in Yarmouth fall within a range of $9,000 - 13,000 per year.
         All Town employees receive the same fringe benefits.
    11.  The educational requirement for the Equipment Operator I and II and
         the Landfill Operator is the completion of eighth grade.  The Mechanic
         must have completed high school.  The Parksman and the Treatment Plant
         Operators must have completed either high school or trade school.
    12.  Special licenses required are:

              Landfill Operator              Class III motor vehicle
              Parksman                       Class II    "      "
              Equipment Operator I           Class II    "      "
              Equipment Operator II          Class I     "      "   within
                                                     a time required
              Treatment Plant Operator       Class II motor vehicle plus
                                             Class II wastewater
    13.  All the affected employees wear uniforms provided by the Town.  The
         uniforms are indistinct except for the name patches.  The Town provides
         the same uniform for the blue collar employees in the School Department.
     The Town argues that the hearing examiner committed errors of fact and law by
including the Treatment Plant Operators in a bargaining unit with the other employ-
ees.  We find the Town's arguments meritless, and affirm the unit determination


     The Treatment Plant Operators clearly share a substantial community of
interest with the Highway division employees.  The hearing examiner correctly
relied on the following facts in making the community of interest finding:
the similarity in training, qualifications, skills and working conditions among
the employees (all being involved in skilled or semi-skilled physical labor
involving machinery or major pieces of equipment), the similarity in wages and
fringe benefits, the fact that all employees are employed by the same department
and are all subject to the supervision of the Public Works Administrator, the
fact that all wear identical uniforms issued by the Town, the size of the pro-
posed bargaining unit, and the fact that Local 48 proposes to represent the
entire group in one unit.  All of these facts recited by the hearing examiner are
relevant considerations which, when taken together, establish a clear and
identifiable community of interest among the employees.
     The facts that the Public Works Department has two divisions and that two
other Town bargaining units - the Police unit and the Communications unit - are
organized along divisional lines do not mean that all other Town bargaining units
must follow divisional lines.  Each petition for a unit determination must be
judged on its own merits.  While prior bargaining history is a relevant considera-
tion in any community of interest determination, it is only one consideration
among many, and certainly is not a controlling factor in this case.
     Moreover, adoption of the Town's position that all bargaining units of Town
employees must follow divisional lines would violate the employees' guaranteed
right to full freedom in the exercise of their representational and bargaining
rights.  See 26 M.R.S.A.  963 and 966(2); Lewiston Firefighters Association v.
City of Lewiston, 354 A.2d 154, 160-161 (Me. 1976).  The Town's position also is
contrary to our policy of discouraging the proliferation of small bargaining units
in a single department.  See, e.g., Millinocket Teachers Association v. Millinocket
School Committee, Unit Clarification Report at 5 (May 21, 1980)[80-UC-11]. The formation
of two bargaining units in the Public Works Department - one composed of the 9
Highway workers and the other of 2 Sewer employees - would unduly fragment the
Department.  The single bargaining unit consisting of the blue collar workers
in the Department properly follows departmental lines and plainly is the most
appropriate unit in this case.
     The Town misconceives the nature of the hearing examiner's responsibilities
under 26 M.R.S.A.  966.  As the hearing examiner correctly stated, it is his
duty to determine whether the unit proposed by the petitioner is an appropriate
one, not whether the proposed unit is the most appropriate unit.  In this determ-
ination the hearing examiner has broad discretion, particularly in deciding com-
munity of interest questions.  See, e.g., AFSCME, Pine Tree Council No. 74 and
City of Brewer, Case No. 79-A-01 at 3-4 (Oct. 13, 1979).  In any event, as previ-
ously noted, the unit found appropriate by the hearing examiner in this case is
the most appropriate unit.
     The Town would have us define the community of interest standard entirely
too narrowly, arguing that there can be no community of interest because the
Treatment Plant Operators work in a "unique facility," work slightly different
hours than the Highway employees, work in a different location, etc.  "Community


of interest" does not mean, however, that the different job classifications must
have exactly the same wages, hours and working conditions before they can be in-
cluded in the same bargaining unit.  All that is required is that the various posi-
tions share similarities in the kind of work performed, in qualifications, skills
and training, and in other relevant criteria.  Id.
     The fact that the similarities between the Treatment Plant Operators and the
Highway division employees are not all unique but also are to some degree present
with other Town employees hardly undercuts the fact that the Treatment Plant Opera-
tors share substantial similarities with the Highway workers.  If anything, the
fact that other Town employees share these similarities means that these other em-
ployees may have a community of interest with the members of the Public Works De-
partment unit.
     We will overturn a hearing examiner's rulings and determinations if they "are
unlawful, unreasonable, or lacking in any rational factual basis."  Teamsters
Local 48 and City of Portland, Report of Appellate Review of Unit Determination
Hearing at 6 (Feb. 20, 1979)[78-A-10]. Nothing presented by the Town even remotely suggests
that the hearing examiner committed any of these errors.  We will affirm the hear-
ing examiner's report and deny the Town's appeal.  Because of the substantial amount
of time which has elapsed since the filing of the petition for unit determination
and the petition for election, we direct the Executive Director to conduct a repre-
sentational election for the Public Works Department bargaining unit as soon as
     On the basis of the foregoing findings of fact and decision and by virtue of
and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A.
 968(4), it is ORDERED:
     1.  The April 4, 1980 Unit Determination Report in this matter is
         affirmed.  The Public Works Department bargaining unit in the
         Town of Yarmouth consists of the Equipment Operator I, Equipment
         Operator II, Mechanic, Parksman, Landfill Operator, and Treatment
         Plant Operator job classifications.
     2.  The Town's appeal is denied.
     3.  The Executive Director is directed to conduct a representational
         election for the Public Works Department bargaining unit as soon as

Dated at Augusta, Maine this 16th day of June, 1980.
                                         MAINE LABOR RELATIONS BOARD

                                         Donald W. Webber
                                         Alternate Chairman

                                         Thacher E. Turner
                                         Alternate Employer Representative
                                         Harold S. Noddin
                                         Alternate Employee Representative