Portland Teachers Assn. and Portland Public Library, No. 81-UD-04: Decision of Nov. 25, 1980 on jurisdiction, affirmed by 81-A-02 and by CV-81-884. Decision on unit composition 81-UD-04 issued Sept. 22, 1981. STATE OF MAINE MAINE LABOR RELATIONS BOARD (Hearing Examiner Decision) Issued: November 25, 1980 [Case No. 81-UD-04] ________________________________ ) PORTLAND TEACHERS/ ) MAINE TEACHERS ASSOCIATION, ) ) Petitioner, ) ) UNIT DETERMINATION REPORT and ) (JURISDICTION) ) PORTLAND PUBLIC LIBRARY, ) ) Respondent. ) ________________________________) This is a motion by the Board of Trustees of the Portland Public Library (Library or Trustees) for a preliminary determination of jurisdiction to conduct an appropriate unit determination pursuant to a petition for such filed by the Portland Teachers/Maine Teachers Association (Union) pursuant to Section 966(1) of the Municipal Public Employees Labor Relations Law (Act), 26 M.R.S.A. 966(1) (Supp. 1980). At issue is whether the library is a "public employer" within the meaning of 26 M.R.S.A. 962(7). Pending the resolution of this threshold ques- tion, the parties agreed to the holding in abeyance of proceedings on the merits of the underlying appropriate unit issues. The undersigned designee of the Executive Director of the Maine Labor Rela- tions Board (Board) held a hearing on November 12, 1980, in the Portland Public Library, Portland, Maine. The Library was represented by F. Paul Frinsko, Esq.; the Union by John Alfano, Maine Teachers Association (MTA) UniServ Director, Roger Kelley, MTA UniServ Director, and Tom Bohan, Esq. Also present were the follow- ing witnesses: Edward Chenevert Library Director Barbara D. Smith Assistant Library Director Anna Piper Financial Officer Bonnie Taylor Librarian III Jacqueline Eisner Librarian I Janice Littlefield Sr. Office Asst. Each side had the opportunity to present documentary evidence, to examine and cross-examine witnesses, and to offer oral argument. The record includes stipulations, sworn testimony, and 21 exhibits.[fn]1 FINDINGS OF FACT Upon a preponderance of the evidence obtained, I find the following: 1. Background. (1) The Portland Public Library was incorporated by an act of the State Legislature in 1867 (Chapter 174) "for the purpose of establishing and maintain- __________ 1. One exhibit, Association #12, was admitted over an objection on the grounds of relevance. [-1-] __________________________________________________________________________________ ing a library and an institute of natural history, science and art, in the city of Portland, with all the powers and privileges, and subject to all the duties and liabilities of similar corporations in this state." Section 3 of the Act provided: SECT. 3. The city of Portland are hereby authorized to appro- priate and pay, annually, toward the expenses of establishing and maintaining said institution, a sum not exceeding one dollar for each of its ratable polls, in the year next precedinq that in which said appropriation is made; and may also furnish rooms for its ac- commodation. And when, and so long as said city shall make such annual appropriations, said corporation shall allow, under proper regulations, the inhabitants of said city to have free access to its library, for the purpose of using and enjoying the same on the premises. The property of said corporation shall be exempt from taxation. (2) In 1876, the Legislature passed an act (Chapter 198) which, among other things, authorized the City at any time to take the property and rights of the corporation to be used and maintained as a free public library. In 1889, however, this option was terminated by an act (Chapter 287 Section 1) which declared among other things that: "All the powers, immunities and franchises and affairs of the [Library] shall perpetually hereafter be exercised, managed and governed by a permanent board to be styled The Trustees of the Portland Public Library; the corporate property shall be used and improved for a free public library for the inhabitants of the city of Portland, and shall be forever exempt from liability to be taken by the city from the management, direction and control of said board of trustees." A subsequent act of the Legislature in 1965 (Chapter 61) removed previous restric- tions on the amount of property the corporation could hold. (3) In 1943, the Library received tax exempt status from the Internal Revenue Service under Section 501(c)(3) of the Internal Revenue Code. This status has been retained through the present. 2. Current By-Laws and Personnel Policy (4) The current Library by-laws, last revised in 1976, provide for a self- perpetuating Board of Trustees, with a maximum of 20 members. One of the member is appointed annually by the Portland City Council from its membership. In prac- tice, the Mayor has been appointed as the Council's Trustee. Another of the mem- bers, purely as a matter of custom, has been the Superintendent of Schools. The by-laws also provide that the Librarian (also known as the Director) shall select and direct members of the Library staff. (5) One of the Trustees' standing committees is the Committee on Finance and Personnel. The by-laws direct that this committee work with the Librarian on the budget and appear at City budget hearings held before the City Manager and before the City Council. This Finance Committee, which is entrusted with the care and control of the finances of the Library, is required (a) to deposit securities in a bank located in Portland and (b) to consist of at least three members who are residents of the City of Portland. (6) The Library also has a comprehensive personnel policy, last revised in December 1977. Significant items included are: (a) first preference in hiring to qualified residents of the City; (b) ". . . the Library policy to utilize a -2- __________________________________________________________________________________ Library pay plan which corresponds as nearly as possible with the current City of Portland non-union employee pay plan." (c) eligibility for Workers Compen- sation; and (d) permission for employees to be represented in a grievance pro- cedure by a member of the "Staff Association." While it is unclear to what exact extent the fringe benefits correspond to those of non-union City employees, the Library has at least an unwritten policy of maintaining parity with City employees in fringe benefits. 3. The City's involvement in Library operations. A. Financial involvement (7) The Library owns little that is not traceable at least in part to City of Portland sources except for its endowment fund. Its collection of books and arti- facts has been purchased over the years in part with City money, and its equipment and furniture has been purchased, specifically for the new library building, in part with City, State, and federal money. That part which has not been paid for with public money has either been directly donated or been purchased with donated money. The Library owns none of the buildings it uses. The Library's endowment fund, however, has grown to a total of $1.1 million as of the end of 1979. This will produce about $0.1 million in income for 1980. (8) The Library is, nonetheless, totally dependent upon the City for annual operating funds. The endowment fund income is miniscule in comparison to the total value of the City's financial support, both direct and indirect, of the Library. By the end of 1980, for example, the City will have provided for the year about $0.85 million in direct cash payments[fn]2 and will have provided rent free use of the City-owned, new main library building which costs about $6.2 mil- lion when finished.[fn]3 (The financial report for 1979 listed the value of the use of this building as unestimable, but substantial.)[fn]4 Additional indirect financial support is substantial and by itself dwarfs the Library's endowment fund income. The indirect support is itemized below: (a) In addition to the main library building the library has five branches, four located in school buildings and one located in the City's Public Safety Build- ing on Peaks Island. The City also does not charge rent for the use of the Public Safety building. Although the Library pays a share of the utilities used at the Peaks Island facility, it does not pay for heating the main library building. __________ 2. The State provided about $0.1 million dollars for 1980 operations. 3. The U. S. government provided about $3.4 million of this, while the City provided the land and over $2.0 million in cash. 4. The City also owned the building previously used as the main library building. It also charged no rent for the use of that building. -3- __________________________________________________________________________________ (b) The Portland Public Library is a separate participating local district[fn]5 of the Maine State Retirement System (M.S.R.S.). The Trustees accepted the pro- visions of the then State Retirement Act in 1950 in a resolution passed by the Trustees which directly implied that the Library employees are employees of the City of Portland. The resolution, as passed, stated: Whereas, the City Government of the City of Portland being wholly in accord with the admission of the Portland Public Library employees to the retirement system on the same basis as other employees of the City of Portland, Now, therefore, Be It Resolved, that the Portland Public Library with respect to all its employees join said retirement system on the same basis as the other employees of the Portland City Government, the same to be effective May 1, 1950. (Emphasis added.) The City assumed the financial obligations of providing this benefit and has always paid directly into the M.S.R.S. on behalf of library employees, presently 16.32% of earnings.[fn]6 (c) The City maintains insurance on the main library buildings (and, presum- ably, the Public Safety Building). It also insures the Library Bookmobile and all the contents of these buildings. (d) The City carries liability insurance on the Library employees. (e) The City makes the required unemployment insurance payments for the Library employees. (f) The City provides supplies, e.g., stationery, to the Library at cost (about one half the retail price). (g) The City provides Workers Compensation coverage for Library employees. Two employees have recently been paid on claims submitted to the City. Because the Library was unaware of the fact that the City would pay on such claims, it has also paid for Workers Compensation insurance. (h) The City provides sidewalk snow removal to the Library. (i) The City provides printing services to the Library although it is unclear whether this is free or not. (j) The City has in the past provided some building and equipment main- tenance services to the Library. It is unclear to what extent this will continue. __________ 5. "Local district" for M.S.R.S. purposes is defined in 5 M.R.S.A. 1001 (11-A) (1979) as: ". . . any county, municipality, quasi-municipal corporation, incorporated instrumentality of the State or of one or more of its political subdivisions, or any incorporated associa- tion of employees of the State or of such local districts, or incorporated association of such local districts, or any entity eligible to become a participating local district, or presently participating in the system, under this section as in effect immediately prior to January 1, 1976." 6. In both 1970 and 1974 the Trustees resolved to adopt changes in M.S.R.S. benefits "in order to parallel the action taken by the City Council." The pension benefits for employees of the City and of the Library have remained the same. -4- __________________________________________________________________________________ (k) The City provides the use of its computerized payroll system to the Library, and actually draws the payroll checks on City funds (which are then subtracted from the monthly payments to the Library according to the City budget). B. Managerial Involvement. (9) The Director and the Trustees manage the daily affairs of the library and direct the staff. There is no right of control by the City Manager or the City Council. Influence over major operational decisions is exercised nonethe- less through the budgetary process (discussed below) and through other contacts with the City. Some examples of this influence are evident. First, the Director is "invited" by the City Manager to all meetings of City department heads. In this manner the City Manager and the Director can be confident that the Director is kept abreast of the City's financial and other problems. Second, the City was explicitly offered the choice to have the Library open on Mondays. The alterna- tives were explicated in the Library's 1981 Budget Request. Introduction. as follows: "Although we have received numerous and persistent requests from the public to at least restore Monday hours at the Main Library, and increase the hours of service at the branch libraries, costs for such increase are not included in this budget request. [The estimated additional costs for re-opening the Main Library for 9 hours of service on Mon- days is $19,934 for six months.)" It is altogether clear that the City could open the Library on Mondays by provid- ing the extra funds. Indeed this or any other item the Council might desire could be accomplished through the budget process even if not specifically mentioned in the budget request. Third, in the same budget request, also in the Introduction, the Library states: "2. Page 8 - Salaries, Permanent, New Positions The Library is requesting four additional clerical positions for the main library, two of which are 20 hour positions: 1 - switchboard operator to replace a college work study position 1 - office assistant in Technical Services to alleviate a long existing staff shortage 1 - (20 hrs) office assistant in Circulation to help handle the increased volume of activity 1 - (20 hrs.) office assistant in Periodicals to handle shelf maintenance because of the dramatic rise in periodicals use now that they are accessible and visable in open stacks." Again, the increase in staff decision is laid in the hands of the City for deci- sion. Fourth, during the most recent budgetary process, the Director was asked to indicate how he would revise his budget to reflect a cut from a total request of $.6 million to $.5 million. (10) The last example is the decision where the new library building would be located. In 1974, the Trustees voted to support a resolution to be proposed for passage by the City Council which stated: "That it is the sense of the Council that one of the paramount needs of the City is a new Public Library Building, that a suitable new [building] should be constructed as soon as possible, with due -5- __________________________________________________________________________________ consideration to the other needs of the City . . . ." The Trustees' suggestion that a building committee be formed, chaired by a City Council member, with repre- sentatives appointed by the Council, was accepted. The City Council eventually did pick the actual building site, pay for the design of the structure, and approve the plan. C. Personal involvement. (11) Apart from the involvement in personnel matters which were listed as items of indirect financial support to the Library, indicated in subheading 3., A., above, the City is involved in the following personnel matters as well: (a) In the "Report of the Librarian for the Year 1966," to the Trustees, the Librarian stated: "In June the City Council set up a new salary scale for library employees, and it was hoped that this new salary scale would reverse the trend [high staff turnover] and that better pay . . . ." (b) Within the last few years, the City contracted for an expert study of its job classification system. The Library Director asked that the Library employees be included in the study. The study proposed a new City "Non-union and Administra- tive Pay Plan," which both the City and the Library adopted. Significantly, the minutes of the June 20, 1979, Trustees meeting show the following statement: "[T]he City of Portland had recently adopted a new pay scale for its non-union and administrative employees and Mr. Leddy [Secretary of the Board of Trustees reported that the City~ Manager as well as the City Council were in favor of the Portland Public Library adopt- ing the same pay plan for the Library." As indicated, the plan was adopted. (c) The June 20, 1979, minutes also indicate that the Trustees wanted to in- crease the Library Director's salary as recommended by a Trustee subcommittee: "The Subcommittee met with the City Manager in order to see if there was any way that the Library could increase Mr. Chene- vert's salary to $30,000 in order to reward him for the out- standing job he has done. Mr. Wilson [City Manager] made it very clear that this would not be politically feasible and his recommendation would be to put Mr. Chenevert on the newly adopted Pay Plan and make it retroactive to January 1, 1979." The City Manager's recommendation was adopted. (d) Library employees are part of the same group health insurance plan as City employees, although the Library is billed by the City for its share. (e) Library employees are part of the same group life insurance plan as City employees. The individual must pay for this. The payment is easily accomplished by an automatic payroll deduction, however, since the City actually writes the Library employee's pay check. (12) Notably, there is no evidence in the record of an attempt by the City to exercise control over a managerial or personnel function which was actually rebuffed by the Library. 4. The Budget Process. (13) The Library is treated just like a City department in the budgetary -6- ____________________________________________________________________________________________________________________________________________________________________ process. For example, the Library is denominated as a department on all City forms that are utilized. Also, the Library goes through the same process as all the City departments, and is subject to the same control and influence of the City Manager and City Council. That process starts with an extremely detailed, line-by-line budget request (for a six-month period) and includes exhaustive reviews by the City Manager and City Council, both of which include public hear- ings. (14) The 1981 (first half) Portland Public Library budget request is 27 pages long. It itemizes planned expenses according to a specific code format and includes such things as the details of employee salaries by job classification and expenditures, from light bulbs to the purchase of new books necessary to keep the Library's collection current. The City departments provide the same degree of detail on these City-printed forms. (15) The budget is initially prepared by the Director in conjunction with the Finance Committee of the Board of Trustees. It is then approved by the full Board of Trustees and submitted to the City Manaqer. The City Manager meets with the Director and the Trustees and reviews the Library budget request. He then makes his own proposal for the Library in his total City budget which he submits to the City Council Finance Committee. (16) The City Finance Committee also meets with the Trustees, ask questions, and reviews the budget request. In the Library's latest budget review, for ex- ample, the City Finance Committee asked the Library to indicate how it would reduce its budget if the total were cut by $100,000. When the budget is finally approved, it is submitted to the full City Council for vote at a public hearing. (17) Director Chevevert stated that the Library could, in theory, just ask the City for a total allocation without following the line item, budget review process. He does not do this and never has. Rather, he tries to give as much detail as possible because it is "better for them to see where their money goes." (18) One final item of note is the filing of a grant request with the U.S. government for monetary support in the building of the new library. The grant required the filing of an "EEO-4" form (see footnote 12) for each of the City functions. The City Manager listed "Library" as one of the functions performed by the City rather than as one not performed by the City. DISCUSSION I. The Issue and Contentions. The issue can be simply stated: Is the Portland Public Library a public employer as defined by 26 M.R.S.A. 962(7) (Supp. 1980)?[fn]7 If so, then it and its employees are subject to the benefits and burdens of the Municipal Public Employees __________ 7. " 'Public employer' means any officer, board, comission, council, committee or other persons or body acting on behalf of any municipality or town or any subdivision thereof, or of any school, water, sewer or other district, or of the Maine Turnpike Authority." 26 M.R.S.A. 962(7). -7- __________________________________________________________________________________ Labor Relations Law, 26 M.R.S.A. 961 et seq. If not, then the employment relationship would be unregulated.[fn]8 Specifically, if there is jurisdiction, the Executive Director of the Board would proceed to determine an appropriate unit for collective bargaining and conduct a bargaining agent election pursuant to Section 966 and 967 of the Act. The Library contends that it does not qualify as a public employer under the tests articulated in the three cases decided in Maine, Baker Bus v. Keith, 416 A.2d 727 (Me. 1980) Erskine Academy Teachers Association v. Erskine Academy Board of Trustees, MLRB No. 79-06 (March 27, 1979), and Teamsters Local 48 and Auburn Public Library, Unit Determination (Oct. 18, 1978) [No. 79-UD-03], or under a similar New York case, New York Public Library v. New York State, 357 N.Y.S.2d 522 (Sup. Ct., App. Div. 1974), aff'd, 374 N.Y.S.2d 625 (Ct. App. 1975). While the Library concedes that it relies on the City's direct and indirect financial contributions, it con- tends that the Library retains total responsibility for the management and control of its business affairs and employee relations. It posits that the City has no right of control over the Library. The Union contends that the City does in fact control and influence Library operations (1) through the budget process, (2) by paying directly for many Library needs and functions, (3) by treating the Library as a department, and (4) by dominating its finances, operations, and labor relations. It argues that there is enough effective control by the City to warrant and justify the inclusion under the Act of the Library and its employees. I conclude that there are sufficient elements of control present such that the Library is the City's "servant" and that the Library is a body acting on behalf of a municipality, the City of Portland. Therefore, it is a public employer. II. The Test of Public Employer Status. The test that must be applied here is that set forth by the Law Court in the Baker Bus case. In that case it affirmed, with slight modification, the test developed by the Board in the decision under review, Baker Bus Service and Teamsters Local No. 48, MLRB Appellate Review of Unit Determination (Oct. 6, 1978) [No. 78-A-05]. The question is whether the entity, in providing a service to a city, acts as an agent- servant subject to the City's control or right to control. See, Baker Bus, supra, 416 A.2d at 737. The Board's Erskine Academy case, although decided before the Law Court's __________ 8. The National Labor Relations Board (N.L.R.B.) would not likely assert juris- diction over the Library because it has an "intimate connection" with a governmental entity (the City) exempt from coverage under 29 U.S.C. 152(2). E.g., Rural Fire Protection Co., 216 NLRB 584 (1975) (declining jurisdiction over company which provided basic firefighting protection, under contract, to a city). But see, National Transportation Service, Inc., 240 NLRB No. 64 (1979) (asserting jurisdiction over a company which provided busing services to a school district). (3-2 decision). In Nassau Library System, 196 NLRB 864 (1972), the N.L.R.B. decided it would not "effectuate the purposes" of the NLRA to assert jurisdiction over a library system which was chartered pursuant to state law, received state and county financial assistance, and performed a public service in close coordination with governmental functions. -8- __________________________________________________________________________________ decision in Baker Bus, is helpful because it in essence applied the approved agency test. The decision of the hearing examiner in the Auburn Public Library case, however, is of no precedential value because it suggests two standards which are inconsistent with the Board's approved test. See, Baker Bus Service v. Keith, 416 A.2d 727 (Me. 1980). The holding in New York Public Library v. New York State, 357 N.Y.S.2d 522 (Sup. Ct., App. Div. 1974), affirmed, 374 N.Y.S.2d 625 (Ct. App. 1975) (memorandum), is also inapposite. In deciding that the New York Public Library was not a public employer, the New York courts construed New York's Taylor Law, Civil Service Law 201, subd. 6(9), which is substantially narrower than the Maine Act. See, Baker Bus, supra, 416 A.2d at 730. The broadest language in the Taylor Act is "(vi) any other public corporation, agency or instrumental- ity or unit of government which exercises governmental powers under the laws of the state." Id. This statute would exclude an entity such as Baker Bus on at least two grounds: (1) it is a private corporation and not a public corporation or other listed entity, and (2) it does not exercise governmental power, for example, "the power to tax, to enact general legislation which is judicially enforceable, to take by eminent domain, and to exercise police powers," Id. at 533. III. Analysis. The key issue is control , not the terms of art "agency" or "servant-agent" as such. Rather, these concepts are used as guides by the Board in analyzing the relationship; they are not hard and fast or binding for other purposes outside the Act. But somewhere along the spectrum of degrees of control, a functioning entity crosses a line between (1) being sufficiently controlled by a municipality or other public employer to be considered to fall within the purpose of the Act, and (2) being sufficiently independent of a municipality, for which it may perform a service or otherwise act for, to be outside the ambit of the Act. While the ultimate conclusion must be a systemic one, it is helpful to utilize the factors or elements that have already been identified in making the determination. A number of categories of control elements were identified in Baker Bus. The first three received special emphasis, 416 A.2d at 731: (1) the relative size of the capital investment involved (also emphasized in Erskine Academy) (2) who furnished the equipment, supplies or materials necessary to operate the service; and (3) the situs of power over major operational functions of the service.[fn]10 __________ 9. In Teamsters Local No. 48 and Auburn Public Library, Unit Determination (Oct. 18, 1978) [No. 79-UD-03], the hearing examiner suggested that a library, to be a public employer under the Act, (1) must be an official organ or branch of municipal government (sl. op. at 7) or (2) that it is the control over the employment relationship that is the acid test of coverage under the Act. (sl. op. at 8). Baker Bus Service, held to be a public employer by the Board and the Law Court, would not qualify under either of these standards. 10. Although the Board specifically rejected this factor in its analysis in the Baker Bus case, see, Teamsters Local No. 48 and Baker Bus Service, MLRB Report of Appellate Review of Unit Determination (Oct. 6, 1978) (sl. op. at 7) [No. 78-A-05], the Law Court emphatically relied on it, see, Baker Bus Service v. Keith, 416 A.2d 727, 731 (Me. 1980). -9- __________________________________________________________________________________ Others were also noted: (4) the public identification of the entity as a public employer;[fn]11 (5) the responsibility for maintaining, replacing and insuring the capital assets; (6) the provision for liability insurance; (7) responsibility for compliance with governmental regulations; (8) the type and degree of other sup- port provided; and (9) control over labor relations matters. Other factors sug- gest themselves from logic and legal formulations of the servant-independent con- tractor dichotomy: (10) the length of the relationship; (11) how the parties themselves view their relationship; and (12) other indicia of public employment character. Every listed category indicates that an element of City control is present in this case. Moreover, despite the fact that a major city library system is a more complex and sophisticated operation than a school bus service, there is more control by the City of Portland over its library than by the City of Augusta over its school bus service. (1) Like Baker Bus and unlike Erskine Academy, the Library Trustees have a relatively minimal capital investment compared to the massive investment in the buildings and the other funds provided by the City over the last one hundred and thirteen years. (2) Even the equipment, book collection, and daily materials used by the Library are traceable in substantial part to the City. (3) Major operational functions are also controlled by the City, much like the bus routes in Baker Bus. Although the right of control is not specifically reserved by contract, it is actually retained in fact through the power of the purse and its close budget review. Clear examples of this are evident in the Library's treatment of the fact that it is closed on Mondays. If the City wanted the Library open on that day it could simply provide an extra $18,000. The City has the same control over the size of the staff. This is evident from the fact that the Library specifically "requests" an increase in staff by four in its bud- get request. The City also controls the size of the book collection by how much it allocates for this expenditure. Other less obvious possibilities of control are evident from a review of the budget itself. The written evidence of such control, evident in some of the minutes and in the Report of the Librarian, makes it likely that there are more examples that did not reach written form. A final example of control is the City's role in the selection of the site for the new library building. (4) Public identification of the agent as part of the municipality is also evident here, as in Baker Bus where the buses were marked "City of Augusta School Department." The name of the Library, "Portland Public Library" connotes that this is a public service of the City of Portland. (5) The City does some maintenance work for the Library, and pays for the rest indirectly. Notably, it also insures (a) both the City buildings used by the Library, (b) the contents of the buildings, and (c) the Bookmobile. (6) The City, like in Baker Bus, also carries liability insurance on the Library employees. __________ 11. For example, the buses operated by Baker Bus Service were marked "City of Augusta School Department." Baker Bus Service v. Keith, 416 A.2d 727, 731 (Me. 1980). -10- __________________________________________________________________________________ In addition, it provides Workers Compensation for these employees. (7) There is little evidence of the need by the Library to comply with governmental regulations. It is notable, however, that when the City applied to the U.S. government for a partial grant to build the new library building, it was required to submit an "EEO-4"[fn]12 form for all City functions. The compliance with equal opportunity laws can be initially judged from this form. By listing "Library" as one of the functions performed rather than one not per- formed by the City, it appears to take primary responsibility for compliance, at least for the purposes of employment decisions. (8) There is an extensive list of other support that the City provides to the Library: Maine State Retirement System payments; unemployment insurance; office supplies, gas and oil; Workers Compensation coverage; snow removal; printing services; and payroll computer services. It is not suggested by the evidence that the Library has any realistic alternatives to these examples of support. (9) Significantly, the City exercises extensive de facto control over labor relations at the Library, in contrast to the near total freedom exercised by the bus company in Baker Bus. Not only does the Library have written and unwritten policies of matching the City wage and Benefit plans, there is evidence that the City requires this. (See Findings (11)(a) and (b)). For example, the Library's wage increase to its employees follows the City's plan. Also, when the Trustees wanted to increase the Director's salary, they asked the City Manager's approval. He refused. The Trustees followed his alternative suggestion. (10) The relationship between the City and the Library is lengthy and, because of the confluence of factors, some of which are political, it is not likely that the Library can strike a course independent of the City's control. The Library's history shows this. The legislative act which created the Library corporation contains the basic terms of the relationship: as long as the City pays for the Library and provides the location, the Library will provide free access for City residents. (Findings para. (1)). A subsequent act eliminated these contingencies in the relationship by simply declaring that the authorized purpose of the library corporation is to provide a free library for City residents. In essence, it is charged by law with performing this governmental function on behalf of the City of Portland. The City must pay for this service; it always has. (11) The Library sees itself as a servant of the City. Although this con- clusion was denied at the hearing, the evidence dictates the result. First, the Library acts like, and is treated like, a City department. Second, even the Library's own minutes contain evidence of this self perception. For example, in the 1950 minutes (Findings 8(b)) there are two references to the Library employees as City employees. Third, the City sees itself as the master of the Library. For example, in its EEO-4 form submission to the U.S. government, it take responsi- bility for the Library. Other examples abound. __________ 12. The full title is "Equal Employment Opportunity Commission, State and Local Government information (EEO-4)." The form provides a detailed breakdown by category of employee of the number of each race and sex employed. -11- __________________________________________________________________________________ (12) Although less significant, there are other indices of public character present here: participation in M.S.R.S., which is essentially re- served for instrumentalities of the State and its political subdivisions; and the Library's federal and state tax exempt status. In conclusion, the elements of control itemized above are more weighty and extensive than those present in Baker Bus, and are more than sufficient to support the conclusion that the Library is a servant-agent and alter ego of the City. IV. Joint employer considerations. This decision determines only that the Library itself, as represented by the Trustees and the Director, is a public employer. It does not reach the question, not posed by the parties, whether the City is also a public employer of these employees, that is, a joint employer. That possibility, however, is definitely suggested by the fact that the City has fairly extensive control over, and involvement in, the Library's labor relations. This has not been the case in "public employer" cases previously decided. This is a concern because joint employer status has serious legal ramifi- cations. The Board addressed this specific problem in Lewiston Police Depart- ment, IBPO Local 545 v. City of Lewiston, MLRB No. 79-64 (Dec. 18, 1979). Thus, if a union were to become the legal bargaining agent for Library employees, both the Library and the City could be in danger of violating the duty to bargain, 26 M.R.S.A. 965(1), if the City's actual conduct with respect to mandatory sub- jects of bargaining is inconsistent with its status as either a joint public employer of these employees or not. In other words, if this question is not re- solved by the parties in advance, it may have to be resolved by the Board in the context of a prohibited practice complaint. V. Conclusion. For the reasons indicated in the Analysis section, it is determined that the Portland Public Library is a public employer within the meaning of Section 962(7) of the Act. The Executive Director or his designee, therefore, has jurisdiction under Section 966 to make an appropriate unit determination. Dated at Augusta, Maine, this 25th day of November 1980. /s/________________________________ Michael C. Ryan Hearing Examiner The parties are advised of their right pursuant to 26 M.R.S.A. 968(4) to appeal to the Maine Labor Relations Board within 15 days after receipt of this determina- tion. __________ 13. While the "right of control" stemming from a contract was involved in Baker Bus 416 A.2d at 731, actual control is present here. The confluence of legislative act, political structure, and financial realities have resulted in a course of conduct that demonstrates an implied agreement that the Library will act on behalf of the City. -12- __________________________________________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD [Case No. 81-UD-04] [Issued: September 22, 1981] ______________________________ ) PORTLAND TEACHERS ASSOCIATION ) ) and ) UNIT DETERMINATION REPORT ) PORTLAND PUBLIC LIBRARY ) ______________________________) This is a unit determination proceeding, initiated on July 15, 1980 when the Portland Teachers Association (Association) filed a petition for unit determination pursuant to 26 M.R.S.A. 966(1). The Portland Public Library (Library) objected to the filing of the petition on the ground that it was not a "public employer" subject to the provisions of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq. Hearings were held on the jurisdictional issue, and on June 18, 1981 the Maine Labor Relations Board issued a decision in Case No. 81-A-02 affirming a hearing examiner's report which found that the Library is a "public employer" subject to the jurisdiction of the Labor Relations Board. The Library has appealed this decision to the Cumberland County Superior Court. On September 22, 1981, a hearing was held in Augusta, Maine on the merits of the petition for unit determination. The Association was represented by John C. Alfano and the Library by F. Paul Frinsko, Esq. The Library objected to the hear- ing on the ground that its appeal of the jurisdictional ruling was still pending, and noted for the record that by participating in the hearing it was not waiving its right to contest the jurisdictional ruling in Superior Court. The Association seeks by its petition formation of a bargaining unit composed of various Library job classifications. The Library proposed at the hearing that two bargaining units be formed, one composed of the Library's professional employees and the other composed of technical, clerical and maintenance employees. After con- sidering this proposal, the Association agreed that two bargaining units of Library employees would be appropriate. Having examined the job descriptions of the employees proposed to be included in the two bargaining units, the hearing examiner concludes pursuant to 26 M.R.S.A. 966 that the two proposed bargaining units are appropriate for purposes of col- lective bargaining. The description of the professionals bargaining unit is: [-1-] ____________________________________________________________________________________ All public employees in the Librarian I, Librarian II or Librarian III job classifications at the Portland Public Library. The description of the technical, clerical, and maintenance bargaining unit is: All public employees in the Library Associate, Senior Library Technical Assistant, Library Technical Assistant, Senior Office Assistant, Office Assistant, Senior Fiscal Clerk, Library Clerk, Senior Custodian, or Custodian job classifications at the Port- land Public Library: All other job classifications at the Library are excluded from bargaining units at the present time. The Library by participating in this hearing has not waived its right to contest this Board's jurisdictional ruling. SO ORDERED. Dated at Augusta, Maine this 22nd day of September, 1981. MAINE LABOR RELATIONS BOARD /s/___________________________________ Wayne W. Whitney, Jr. Hearing Examiner -2- ____________________________________________________________________________________ LIBRARIAN I Nature of work: This is professional library work in one or more specialized fields of public library service. Employees perform duties involving the general application of professional library techniques and procedures. Fields of assignment include cataloging and classification, general and technical reference, readers' advisory service, children's library services, and general duties in the main library or in a branch library. The work is performed under the direction of an administrative superior, who exercises general supervision and assists with difficult or unusual problems; all work is performed according to established policies and procedures. Supervision may be exercised over a small staff of clerical and sub-professional employees. Illustrative examples of work: Performs readers' advisory work, assisting patrons in the use of library facilities; advises parents in selection of reading material for children. Performs professional technical services in cataloging, classification, indexing, subject heading, and documentation. Prepares general book lists and bibliographies, does general reference work; processes government documents; maintains pamphlet and clipping files. Supervises specialized reading rooms and service facilities, such as talking books. Performs related work as required. Knowledges, abilities and skills: Knowledge of modern library principles, methods, and practices. Knowledge of reader interest levels and of books and authors. Knowledge of library reference materials, aids, and procedures. Ability to supervise the work of a small group of clerical employees. Ability to establish and maintain effective working re- lationships with library patrons and with other employees. Desirable experience and training: Graduation from an accredited college or university with a Master's Degree from an accredited graduate library school or equivalent professional training or experience. Desirable courses are: Reference, Book Selection, the Library in the Social Order, and Cataloging. ___________________________________________________________________________________ LIBRARIAN II Nature of work: This is professional work requiring experience and special training in library science. An employee of this class is responsible for professional duties involving administrative or supervisory responsibilities, or in-depth subject specialization. Modern library techniques must be applied normally without direct supervision although work is subject to review by an administrative superior who is consulted on difficult problems. Illustrative examples of work. Acts as a principal assistant in a large department and/or contributing in-depth subject specialization. Trains personnel in library routines; catalogs books; answers reference questions; assists in the selection of materials for the library or one or more of its special collections. Performs varied reference work including research on difficult technical questions; prepares book lists and bibliographies; handles correspondence of research questions done by mail; classifies and assigns subject heading for pamphlets for various sections of the library. Assist supervising librarians in division management; prepared work schedules, and gives departmental orientation and training to new clerical and professional employees. Performs related work as required. Knowledges, abilities and skills: Considerable knowledge of modern library purposes, professional policies, methods and techniques. Considerable knowledge of reference, cataloging, and circulation pro- cedures, materials, aids and skill in their application. Knowledge of reader interest levels and in-depth knowledge of books and authors. Ability to perform specialized research on historical, technical or other questions. Ability to establish and maintain good work relationships with community groups, the public, and with other employees. Ability to analyze professional and administrative problems and assist in their solution. Desirable experience and training: Graduation from an accredited college or university and attainment of a graduate degree from an accredited school of library science or a Masters Degree in another field of specialization required by the library. Experience in professional library work including some experience in a progressively responsible supervisory position. ___________________________________________________________________________________ LIBRARIAN III Nature of work: This is professional library work in administration of a major function of the library system. The work is performed under general supervision, and considerable latitude for initiative and independent judgment is present. Supervision may be exercised over a staff of professional, sub-professional, and clerical employees. Illustrative examples of work: Manages a major department or one of the branches of the library system. Trains and directs professional and clerical staff. Develops, installs and supervises procedures to assist the division in more effectively performing its work. Provides consultant services to organizations and general public. Plans and participates in special activities designed to inform the public on library facilities or to expand the scope of services being offered. Attends staff meetings and workshops. Knowledges, abilities and skills: considerable knowledge of modern library principles, methods, and practices. Considerable knowledge of the acquisition and organization of library materials. Considerable knowledge of patron interest levels and a wide knowledge of a variety of books, and other library materials, print and non-print. Considerable knowledge of the techniques of library service, services to individuals and to groups, and library program planning. Ability to establish and maintain good work relationships with community groups, the public, and to provide constructive leadership and supervision of a staff of employees. Ability to analyze problems and determine most appropriate solution. Ability to set goals, plan for achieving the goals, and secure cooperation of others in attaining them. Desirable experience and training: Graduation from an accredited college or university with a Masters in Library Science; and at least three years of successful employment in a professional capacity, including some supervisory experience. ___________________________________________________________________________________