Town of Kittery and Teamsters, No. 83-A-02, affirming No. 83-UD-04

 STATE OF MAINE                                      MAINE LABOR RELATIONS BOARD
                                                     Case No. 83-A-02
                                                     Issued:  February 7, 1983
 TOWN OF KITTERY                )
   and                          )              REPORT OF APPELLATE REVIEW OF
                                )                 UNIT DETERMINATION REPORT
      This is an appeal by the Town of Kittery ("Employer") of a unit determination
 report issued pursuant to Title 26 M.R.S.A. Section 966(1) on November 5, 1982, by
 a hearing examiner, the designee of the executive director of the Maine Labor Rela-
 tions Board ("Board").  The hearing examiner concluded that Teamsters Local Union
 No. 48 ("Union") may, although it represents the Police Department Dispatchers and
 Patrolmen of the Kittery Police Department, also represent the Sergeants employed
 in said Police Department in a separate supervisors bargaining unit.  The Employer
 had no objection to the formation of the Sergeants' bargaining unit, however, it con-
 tended that inherent conflicts of interest would arise if the Union was allowed to
 represent both said unit and that composed of employees who are subordinate to the
 Sergeants in the Police Department.
      The parties waived the right to present evidence at a hearing on this matter
 and submitted their arguments in written briefs, which have been duly considered
 by the Board.  The Employer was represented by Duncan A. McEachern, Esq., and the
 Union was represented by its Secretary/Treasurer Walter J. Stilphen, Jr.
      The Employer is an aggrieved party within the meaning of 26 M.R.S.A. Section
 968(4).  The Union is a public employee labor organiation as defined in 26 M.R.S.A.
 Section 962(2).  The jurisdiction of the Maine Labor Relations Board to consider
 this appeal and render a decision and order lies in 26 M.R.S.A. Section 968(4).
                             FINDINGS OF FACT
      The Appellant Employer, on page 1 of its Brief, stated that "[t]he facts in
 this appeal are undisputed" and they are "adequately and fully set forth in the

 decision of the Hearing Examiner."  The Board, therefore, adopts the findings of
 fact, outlined on pages 2 and 3 of the hearing examiner's decision, and incorporates
 the same herein by reference, as if said findings were fully set forth herein.
      The sole issue presented by the appeal in this case is whether an employee
 organization may be the bargaining agent for both the rank-and-file and the super-
 visory employees of the same public employer.  This question is purely one of
 statutory construction involving interpretation of the relevant sections of the
 Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. Section 961,
 et seq.  As the agency charged with the enforcement of the Act, the Board is em-
 powered to construe the meaning thereof.  State v. Maine Labor Relations Board,
 Me., 413 A.2d 510, 514 (1980).  The issue presented herein is a question of first
 impression for the Board.  In resolving such issues, the Supreme Judicial Court
 has directed the Board to look for guidance to parallel sections of the National
 Labor Relations Act and the decisions of the National Labor Relations Board and
 the Federal Courts thereunder.  Baker Bus Service v. Keith, Me., 428 A.2d 55, 56,
 n.3 (1981). Federal law is not helpful in deciding the issue before us because
 the analogous section of the Labor Management Ralations Act, 29 U.S.C.A. Section
 164(a). effectively excludes supervisors from collective bargaining. We must,
 therefore,discern the meaning of the Act, as it relates to this case, from the
 plain meaning of the words of the relevant sections thereof.
      Section 961 of the Act states as follows:
             "It is declared to be the public policy of this State and
          it is the purpose of this chapter to promote the improvement
     	  of the relationship between public employers and their employ-
          ees by providing a uniform basis for recognizing the right of
          public employees to join labor organizations of their own choos-
          ing and to be represented by such organizations in collective
          bargaining for terms and conditions of employment."
 The public employee right to self-determination, in the selection of a bargaining
 agent for the purposes of collective bargaining, is further amplified in Section
 963 of the Act.  26 M.R.S.A. Section 963 states:
           	  "No one shall directly or indirectly interfere with, intimi-
           date, restrain, coerce or discriminate against public employees
           or a group of public employees in the free exercise of their 
           rights, hereby given, voluntarily to join, form and participate
           in the activities of organizations of their own choosing for the                             
           purposes of representation and collective bargaining, or
           in the free exercise of any other right under this chapter."
 The unfettered right of public employees to opt to be represented by any bargain-
 ing agent is apparent from the two statutes cited above.  The Law Court has recog-
 nized that freedom of employee self-organization is one of the two fundamental pur-
 poses of the Act.  Lewiston Firefighters Ass'n v. City of Lewiston, Me., 354 A.2d 154. 161 (1976).
      The broad scope of public employee autonomy, in the selection of a bargain-
 ing agent, is further supported by the language of Section 966(1) of the Act.
 This is the statutory provision under which the hearing examiner conducted the
 hearing below and issued his decision.  The statute provides:
          "In the event of a dispute between the public employer and an
      employee or employees as to the appropriateness of a unit for pur-
      poses of collective bargaining or between the public employer and an
      employee or employees as to whether a supervisory or other position is
      included in the bargaining unit, the executive director or his designee
      shall make the determination, except that anyone excepted from the
      definition of public employee under section 962 may not be included in
      a bargaining unit.  The executive director or his designee conducting
      unit determination proceedings shall have the power to administer oaths
      and to require by subpoena the attendance and testimony of witnesses,
      the production of books, records and other evidence relative or perti-
      nent to the issues represented to them.  In determining whether a su-
      pervisory 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, over-
      seeing 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 partici-
      pating in the establishment of performance standards for subordinate em-
      ployees and taking corrective measures to implement those standards.
      Nothing in this chapter is intended to require the exclusion of principals,
      assistant principals, other supervisory employees from school system bar-
      gaining units which include teachers and nurses in supervisory positions."
 In adopting the Act, the legislature was cognizant of the parallel sections of
 Federal law and many portions of the Act are patterned after the Federal labor
 law.  Legislative Record, 105th Legislature, Vol. 1, P.1767 (1971).  As was noted
 above, the analogous section of the National Labor Relations Act, 29 U.S.C.A. Section
 164(a), provides that employers are under no obligation to engage in collective bar-
 gaining with supervisors.  In adopting the Act, the Legislature not only rejected

 the Federal model of excluding supervisors from collective bargaining but also
 expressly delegated to the executive director, applying the criteria set forth in
 Section 966(1), the authority to determine whether said supervisors should be
 included in the same bargaining unit as the employees whom they supervise.  We
 hold this authority to be determinative of the issue presented by this appeal.
 Section 967(2) of the Act states, in relevant part:

      "The bargaining agent certified as representing a bargaining unit
       shall be recognized by the public employer as the sole and exclusive
       bargaining agent for all of the employees in the bargaining unit,
       unless and until a decertification election by secret ballot shall
       be held and the bargaining agent declared by the executive director
       of the board as not representing a majority of the unit."
 Since the legislature has expressly authorized the inclusion of supervisory and
 non-supervisory employees into the same bargaining unit and, hence, to be repre-
 sented by the same bargaining agent, we must conclude that the same bargaining
 agent may represent a public employer's supervisory and rank-and-file employees
 in separate bargaining units.  We hold that this conclusion is the proper inter-
 pretation of the Act.
      The Employer has cited, as precedent in support of its position, three
 federal court decisions.  Elk Grove Firefighters Local No. 2340 v. Willis, 400
 F.Supp. 1097 (N.D. Ill., 1975); York County Fire Fighters v. York County, 589
 F.2d 775 (4th Cir. 1978); Norbeck v. Davenport Community School Dist., 545 F.2d
 63 (8th Cir. 1976).  Each of these cases involved the right of supervisory employ-
 ees, under the freedom of association clause of the First Amendment of the United
 States Constitution, to join a labor union together with the rank-and-file employ-
 ees supervised.  The Elk Grove Court outlined the balancing test, which is applied
 whenever a state attempts to limit First Amendment freedoms, as follows:
      "The determination of what limits may constitutionally be put on
      the First Amendment activities of public employees requires a balanc-
      ing of the public interest asserted as justification for the limitation
      against the interests of the individuals or groups whose rights are
      being curtailed.  Where the state seeks to limit First Amendment free-
      doms it must show (1) that a substantial, legitimate state interest (2)
      will be served, and (3) that the limit imposed on First Amendment activi-
      ties is the least drastic restriction of constitutional rights which will
      accomplish the states purpose.  Shelton v. Tucker, 364 U.S. 479, 81 S.Ct.
      247, 5 L.Ed.2d 231 (1960)."
 400 F.Supp., at 1100.  Each of the cited cases concluded that avoidance of a conflict


 of loyalties of public employee supervisors was a substantial and legitimate state
 interest, that said interest was served by excluding supervisors from membership
 in the same bargaining unit as the supervised employees, and that said exclusion
 was the least restrictive means of furthering the state interest.  York County Fire
 Fighters, supra, 589 F.2d, at 778; Norbeck, supra, 545 F.2d, at 68; Elk Grove,
 supra, 400 F. Supp., at 1103.
      We distinguish the issue presented by this appeal from those presented to the
 three Federal Courts discussed above.  The organizational rights asserted by the
 Union herein are based upon the provisions of the Municipal Public Employees Labor
 Relations Act, 26 M.R.S.A. Section 961, et seq., and not upon the freedom of asso-
 ciation clause of the First Amendment of the United States Constitution.  The three
 cases present valid policy reasons as to why supervisors and subordinate employees
 should not be represented in the same bargaining unit and possibly by the same bar-
 gaining agent.  We believe, however, that our consideration of said policy arguments
 is foreclosed by the plain meaning of the Act.  Our duty is to interpret the words
 of the Act to effect the legislative intent and not to substitute a different mean-
 ing thereto.  We believe, as was discussed above, that the legislative intent, that
 supervisory and non-supervisory employees may be represented by the same bargaining
 agent, is clear and unambiguous.  The policy arguments proffered by the Employer
 herein would more properly be presented in the Legislative forum.
      We also distinguish the case of City of Concord v. Public Employee Labor Rela-
 tions Board, N.H., 407 A.2d 363 (1979), from the case now before us.  The New Hamp-
 shire statute, discussed by the Court in Concord, RSA 273-A: 8 II, provides that
 supervisory employees may not be included in the same bargaining unit as the em-
 ployees supervised.  As was noted above, Section 966(1) of the Act provides no such
 bar.  Furthermore, even with such a prohibition in effect, the New Hampshire Court
 did not hold that the rank-and-file employees could not be represented by the same
 bargaining agent as the supervisory employees of the same public employer.  The
 Court merely held that the supervisory employee unit and the rank-and-file unit not
 be allowed to "commingle on each other's negotiating teams."  407 A.2d, at 364.
 The New Hampshire Court felt that the language of the New Hampshire act mandated
 the result which it reached. Idem.  Since the Maine law is significantly different
 from that of our neighbor jurisdiction, we do not find the Concord decision per-

      Since the facts found by the hearing examiner are not in dispute, on the basis
 of the foregoing decision and by virtue of and pursuant to the powers granted to
 the Maine Labor Relations Board by 26 M.R.S.A. Section 968(4), it is ORDERED:
      1.  The November 5, 1982 unit determination report in this matter
          is affirmed.  Teamsters Local Union No. 48 may properly repre-
          sent separate bargaining units of supervisory and non-supervis-
          ory employees of the same public employer.
      2.  The Town of Kittery's appeal is denied.
      3.  This proceeding is remanded to the Executive Director with
          the instruction that he or his designee conduct a represen-
          tation election therefor as soon as practicable.
 Dated at Augusta, Maine, this 7th day of February,1983. 

                                          MAINE LABOR RELATIONS BOARD          
                                          Donald W. Webber, Alternate Chairman     
                                          Don R. Ziegenbein, Employer Representative
                                          Harold S. Noddin, Employee Representative
      The parties are advised of their right, pursuant to 26 M.R.S.A. Section 968(4)
 to seek a review by the Superior Court of this decision by filing a complaint in
 accordance with Rule 80-B of the Rules of Civil Procedure within 15 days after re-
 ceipt of this decision.