Teamsters and Town of Wells, 84-A-03 reversing in part No. 84-UC-04 (Jan. 26, 1984). 
Board decision affirmed by Superior Court, CV-84-235.


STATE OF MAINE                          MAINE LABOR RELATIONS BOARD
                                        Case No. 84-A-03
                                        Issued:  April 11, 1984
      
______________________________      
                              )
TEAMSTERS LOCAL UNION NO. 48, )
                              )
                  Petitioner, )
                              )
                  and         )         REPORT OF APPELLATE REVIEW
                              )        OF UNIT CLARIFICATION REPORT
TOWN OF WELLS,                )
                              )
                  Employer.   )
______________________________)
      
      
     The question presented in this unit clarification report appeal
is whether the hearing examiner erred in finding that the Code
Enforcement Officer in the Town of Wells (Town) is a "department
head" within the meaning of 26 M.R.S.A.  962(6)(D)(1974).  We find
that the hearing examiner did err in making this determination, and
rule that the Code Enforcement Officer is a "public employee"
entitled to the rights and subject to the prohibitions set forth
in the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.
 961, et seq. (Act).
      
     Teamsters Local Union No. 48 (Local 48) filed its timely
appeal pursuant to 26 M.R.S.A.  968(4) (Supp. 1983) on February 6,
1984, seeking review of a unit clarification report issued on
January 26, 1984.  The hearing examiner in the report dismissed
Local 48's petition to include the Code Enforcement Officer position
in the Wells Police Department bargaining unit on the grounds that
the record showed neither sufficient changed circumstances to
warrant modification of the existing unit nor a clear and identi-
fiable community of interest between the Code Enforcement Officer
and the police officers in the bargaining unit.  The hearing
examiner went on to find that the Code Enforcement Officer was
a Section 962(6)(D) "department head" who accordingly was excluded
from the scope of the Act.  It is this latter finding from which
Local 48 appeals.

                               [-1-]
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     A hearing on the appeal was held on March 9, 1984 in Augusta,
Maine, Alternate Chairman Donald W. Webber presiding, with Employer
Representative Thacher E. Turner and Employee Representative Harold
S. Noddin.  Local 48 was represented by Business Agent David L. Berg
and the Town by Town Manager Fred T. Breslin.
      
      
                            JURISDICTION
      
     Local 48 is an "aggrieved party" within the meaning of 26
M.R.S.A.  968(4)(Supp. 1983).  The Town is a "public employer" as
defined in 26 M.R.S.A.  962(7)(Supp. 1983).  The jurisdiction of
the Maine Labor Relations Board to hear this appeal and render a
decision and order lies in Section 968(4).
      
      
                          FINDINGS OF FACT
      
     Upon review of the entire record, the Labor Relations Board
adopts the following findings of fact made by the hearing examiner:
      
     1.  Teamsters Local Union No. 48 is the recognized bargaining
agent, within the meaning of 26 M.R.S.A. Section 966(3), for a
bargaining unit composed of "all full-time patrolmen, detectives,
corporals, and sergeants employed by the Wells Police Department,
who are public employees."
      
     2.  The bargaining unit was created on December 15, 1978 when
an Agreement on Appropriate Bargaining Unit (MLRB Form 1) was filed
with the Maine Labor Relations Board.  Said agreement included the
following job classifications of employees of the Wells Police
Department together in the same bargaining unit:  "Patrolmen,
Corporals, and Sergeants."
      
     3.  The position of Code Enforcement Officer was in existence
on December 15, 1978, said position was filled and its attendant
responsibilities were carried out by an employee at that time.
      
     4.  The incumbent employee in the position of Code Enforcement
Officer was appointed to said position for an unspecified term by
vote of the Wells Board of Selectmen on November 6, 1979.  On the
same date and by vote of the same body, said individual was also

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appointed to the positions of local Plumbing Inspector and Health
Officer.
      
     5.  The employee mentioned in the preceding paragraph was
appointed to the office of Health Officer, pursuant to the mandate
found in 22 M.R.S.A. Section 451, and was appointed to the position
of Plumbing Inspector, under the authority granted by 22 M.R.S.A.
Section 42 (3-B) and 30 M.R.S.A. Section 3222.
      
     6.  Since the incumbent employee's appointment, the workload
of the Code Enforcement Officer has grown, as the result of the
enactment of new federal, state, and local environmental, health,
safety, and land use statutes, regulations, and ordinances as well
as the expansion of the scope of coverage of pre-existing standards.
      
     7.  Since the appointment of the incumbent employee and before
that date, the duties and responsibilities of the Code Enforcement
Officer position have remained the same.  Said duties and responsi-
bilities include:  using independent professional judgment in enforcing
zoning, sub-division, and building construction ordinances as well as
issuing and enforcing building, plumbing, health, or other permits
required by local, state, and federal laws.  The Code Enforcment Officer
is responsible for the day-to-day operation of the Code Enforcement
Office and for maintenance of the records thereof.
      
     8.  Since prior to the creation of the bargaining unit, the
Code Enforcement Officer and the members of said unit have had rare
professional contact.
      
     9.  The Code Enforcement Officer is, in the job description
applicable thereto, designated as being a "law enforcement officer
with specific designation as enforcement officer" for the various
areas noted in paragraph 7 hereof.  The job description also states:
"A Code Enforcement Officer is involved in the enforcement of local,
state and federal laws, relating to the protection of public health,
welfare and land use, which are regarded as not being primary function
of the municipal police departments."
      
    10.  Although the incumbent Code Enforcement Officer is a
Special Police Officer for the Town of Wells, his authority as

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such an officer is limited to enforcement of the various laws noted
in paragraph 7, supra.  The Code Enforcement Officer has never made
an arrest nor has he ever issued a summons to appear in District
Court, although he was issued a regular Wells Police Department
summons book upon being appointed to his current office.  The Code
Enforcement Officer has neither a uniform nor a badge.
      
    11.  During emergencies and at other times, the Town of Wells
has used Reserve Police Officers to replace absent regular officers
or to supplement the efforts of said regular officers.  The Town of
Wells has never used Special Police Officers for these purposes.
      
    12.  The Code Enforcement Officer reports directly to and is
under the supervision of the Town Manager while members of the
bargaining unit report to and are directed by the Chief of Police.
The Chief of Police has no authority or control over the work
activities and responsibilities of the Code Enforcement Officer.
      
    13.  The Code Enforcement Officer receives a salary, based
upon an hourly wage rate, as remuneration for his professional
services to the Town of Wells.  As a salaried employee, the Code
Enforcement Officer has not been paid an overtime premium, for the
time worked over and above his standard work week.  Police Officers
are paid an hourly wage and receive a 50% premium per hour, for
time worked above and beyond their standard work week.
      
    14.  Both the Code Enforcement Officer and the Police Officers
work forty hours per week as their standard work week.  Prior to
the certification of a bargaining agent and the negotiation of the
first collective bargaining agreement for the bargaining unit, the
terms and conditions of employment for both the Code Enforcement
Officer and the bargaining unit police officers were determined and
controlled by the Town of Wells Board of Personnel and Review Bylaws,
Rules and Regulations.  Now, said Town policy only applies to the
Code Enforcement Officer while the terms and conditions of employ-
ment for the bargaining unit police officers are determined and
controlled by the applicable collective bargaining agreement.
      
    15.  Under the provisions of 26 M.R.S.A. Section 2805, full-

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time police officers must complete the basic training course offered
by the Maine Criminal Justice Academy as a condition of continued
employment.  On the other hand, the Code Enforcement Officer has
not, nor is he required, to attend said course.  The Code Enforcement
Officer's professional training is in the areas of health, safety,
land use controls and the other specialized areas mentioned in
paragraph 7, supra.
      
    16.  The Code Enforcement Officer's office and the police depart-
ment are both located in the Wells Town Hall; however, the offices
are located in separate areas of said building.
      
    17.  The incumbent Code Enforcement Officer expressed a desire
to be included in the bargaining unit.
      
    18.  The Code Enforcement Officer's work responsibilities and
duties include:  preparing and submitting the Code Enforcement
Officer's annual budget to the Town Manager, supporting said budget
before the Budget Committee and the Wells Board of Selectmen, and
administering the Code Enforcement program for the Town of Wells.
      
    19.  The Code Enforcement Officer is viewed as being a depart-
ment head by the Town of Wells and, like other department heads,
submits an annual summary of his activities which is included in
the published Town of Wells Annual Report.
      
    20.  The Town of Wells and Teamsters Local Union No. 48 have
attempted and were unable to agree on modification in the compo-
sition of the bargaining unit, and there is no question concerning
representation involved in this case.
      
      
                             DECISION
      
     Our task in this appeal is to review the hearing examiner's
findings of fact to determine whether he was correct in finding
that the Code Enforcement Officer is a "department head" excluded
from coverage of the Act.  The standard we apply in our review has
been stated in many cases:  "We will overturn a hearing examiner's
rulings and determinations if they are 'unlawful, unreasonable, or

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lacking in any rational factual basis.'"  City of Bath and Local
1828, Council 74, AFSCME, MLRB No. 81-A-01 at 6 (Dec. 15, 1980),
quoting Teamsters Local 48 and City of Portland, MLRB Report of
Appellate Review at 6 [78-A-10] (Feb. 20, 1979).
      
     The hearing examiner at page 8 of his report correctly stated
the tests to be applied in determining whether an employee is a
Section 962(6)(D) department or division head:[fn]1
      
              "1) whether the employee is the administrator
          of the department or division, and 2) whether the
          employee is 'appointed to office pursuant to
          statute, ordinance or resolution for an unspe-
          cified term by the executive head or body of the
          public employer.'"
      
The hearing examiner went on to find that since the Code Enforcement
Officer "prepares the annual budget for his office, is responsible
for administering the code enforcement program, and maintains the
records for his office" and also "prepares an annual report which
is included in the published Town of Wells Annual Report," he is a
department head.  Having carefully examined the record, we conclude
that this finding is unreasonable because the facts do not show that
this employee is the "administrator" of any department or division.
      
     Our cases establish that for an employee to be a "department
head" within the meaning of Section 962(6)(D), the employee's primary
responsibility must be that of managing or directing the affairs of
the department, as opposed either to acting as a supervisor or to
performing the day-to-day work of the department.  For example, in
Teamsters Local 48 and City of Portland, Unit Determination Report
at 2 [78-UD-39] (Sept. 13, 1978), the hearing examiner declared 12 employees
_______________      
      
     1 Section 962(6)(D) states that "public employee" means any
employee of a public employer except any person:
      
              "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."
      
Title 26 M.R.S.A.  966(1) (Supp. 1983) provides in pertinent part
that "anyone excepted from the definition of public employee under
section 962 may not be included in a bargaining unit."

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to be Section 962(6)(D) division heads because they were "responsible
for the day-to-day administration" of their divisions, and because
their principal duties were those of "formulating and administering
division policies and practices."  On the other hand, in Teamsters
Local 48 and Town of Bar Harbor, Unit Determination Report at 3 [80-UD-09]
(Nov. 15, 1979), a Treatment Plant Operator who was responsible for
the day-to-day operation of the treatment plant and who performed
such administrative duties as setting the work schedules of other
employees, arranging for the purchase of equipment and supplies,
and submitting a budget to the town manager, was found not to be
a department head because, among other things, the employee "spent
the major portion of his time performing the same work as other
operating employees."  See also, Teamsters Local 48 and Boothbay
Harbor Water System, Unit Determination Report at 6-8 [82-UD-29] (May 11, 1982)
(Foreman who performed various administrative duties was not an
administrator because "on balance the primary function of the
Foreman's position is to act as a supervisor").  Our cases thus
require hearing examiners, when presented with evidence showing
that an employee performs both administrative duties and super-
visory or rank-and-file duties, to decide whether the primary
duties of the position are those of an administrator or those of
a supervisor or a rank-and-file employee.
      
     We think it apparent in the present case that the hearing
examiner overlooked the employee's primary duties.  The record
shows that the Code Enforcement Officer's main duties are enforcing
zoning, sub-division, and building construction ordinances as well
as issuing and enforcing building, plumbing, and health permits.
Indeed, the hearing examiner found at pages 6-7 of his report that
the "fundamental nature" of the position was "performing inspections,
issuing permits, and enforcing health, safety, and land use controls."
In addition, the Town's job description for the position does not
indicate that the Code Enforcement Officer is a department head.
For example, the duties of the position listed in the job descrip-
tion are enforcing ordinances, issuing and enforcing permits, and
working with the planning and appeals boards.  Nothing in the job

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description suggests that the employee is responsible for managing
or directing any Town department or division.
      
     The hearing examiner should have weighed this evidence regarding
the employee's primary duties against the evidence concerning the
employee's administrative duties.  Instead, the hearing examiner
focused exclusively on the administrative duties to find that the
Code Enforcement Officer is a "department head."  Such exclusive
reliance on one aspect of an employee's job, without regard to the
primary duties performed by the position, would result in excluding
many employees from the scope of the Act who routinely are included
in bargaining units.  See, e.g., Teamsters Local 48 and Town of Bar
Harbor, supra; Teamsters Local 48 and Boothbay Harbor Water Systems,
supra.  This is true because it is not unusual to find employees
performing a mixture of management and rank-and-file duties.
Indeed, code enforcement positions which perform duties very
similar to those performed by the Code Enforcement Officer in Wells
have always been included in bargaining units.  See, e.g., Council 74,
AFSCME and Town of Brunswick, Unit Determination Report at 5 [84-UD-08] (Feb. 22,
1984); City of Saco and Teamsters Local 48, Unit Clarification
Report at 3-4 [81-UC-05] (April 21, 1981).  We are not aware of a single case
where such a position has been found to be a "department head."
We conclude that excluding employees whose primary duties involve
supervisory or rank-and-file work merely because these employees
also perform some administrative duties would be contrary to the
Act's purpose of granting employees the right to be represented in
collective bargaining.  26 M.R.S.A.  961 (1974).
      
     We also find that the Code Enforcement Officer's enforcement
and licensing duties are far more significant in terms of the
employee's time and effort than are his administrative duties.
The administrative duties include preparing the annual budget for
the office, maintaining records, and preparing the annual report
which is published in the Town's Annual Report.  Having examined
the nature of these duties, we conclude that they do not constitute
the employee's primary responsibilities.  For example, the "budget

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worksheet" submitted by the employee to the Town Manager is a one-
page form showing the amount of money appropriated and spent in
1983 by the Code Enforcement Officer and the amount requested for
1984.  We do not believe that the preparation of this form could
result in a major expenditure of time or effort by the employee.
In addition, we consider maintaining records to be more of a
clerical job than an administrator's duties.  See, e.g., Council 74,
AFSCME and Town of Brunswick, supra.  Finally, the fact that the
employee's annual report is published in the Town's Annual Report
does not necessarily establish that the employee is a department
head.  Review of the Annual Report reveals that virtually every
person with any official capacity in Wells, including the Animal
Control Officer and the Supervisor of Lifeguards, publishes a report
in the Annual Report.
      
     We therefore conclude that the hearing examiner committed
factual error by finding, on the basis of the record before him,
that the Code Enforcement Officer is a Section 962(6)(D) "department
head."  Since the employee's primary duties are those of a rank-
and-file employee, the Code Enforcement Officer is a "public employee"
entitled to be represented in collective bargaining with the Town.
      
     The final matter we must consider is the question of the
employee's unit placement.  The hearing examiner found that the
Code Enforcement Officer should not be included in the police
department bargaining unit because Local 48 had not shown sufficient
changed circumstances to warrant modification of the unit and because
the employee does not share a community of interest with police
officers.  Local 48 does not challenge these findings and we see no
basis for disturbing them.  Our practice has been to include code
enforcement positions either in general town employee bargaining
units or in supervisory units.  See, e.g., Council 74, AFSCME and
Town of Brunswick, supra; City of Saco and Teamsters Local 48, supra.
Review of our records indicates that no such units exist in the
Town of Wells, however.  We therefore have no option but to establish
a bargaining unit composed solely of the Code Enforcement Officer
position.  While we have a policy of avoiding the creation of one-

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person units whenever possible, this policy cannot override the
right granted by statute of a public employee to engage in collective
bargaining.  We accordingly will order that the Code Enforcement
Officer be included in a bargaining unit of his own.  If in the
future a town employee bargaining unit or a supervisory unit is
established in the Town of Wells, we expect that the Code Enforcement
Officer position will be included in one of these units.  In the
meantime, Local 48 or any other labor organization may petition
pursuant to 26 M.R.S.A.  967(2)(Supp. 1883) for an election to
represent the Code Enforcement Officer in collective bargaining.

                              ORDER

     On the basis of the foregoing findings of fact and discussion,
and by virtue of and pursuant to the powers granted to the Maine
Labor Relations Board by 26 M.R.S.A.  968(4)(1983) it is ORDERED:

          1.  The hearing examiner's finding in the
              January 26, 1984 Unit Clarification Report
              that the Code Enforcement Officer in the
              Town of Wells is a Section 962(6)(D)
              "department head" is reversed.  The Code
              Enforcement Officer is a "public employee"
              entitled to be represented for purposes
              of collective bargaining.

          2.  All other findings and conclusions in the
              Unit Clarification Report are affirmed.

          3.  The Code Enforcement Officer position in
              the Town of Wells is included in a bar-
              gaining unit by itself.

Dated at Augusta, Maine, this 11th day of April, 1984.

The parties are advised of        MAINE LABOR RELATIONS BOARD
their right to seek review
of this decision and order
by the Superior Court by          /s/________________________
filing a complaint pur-           Donald W. Webber
suant to 26 M.R.S.A.             Alternate Chairman
968(4)(Supp. 1983) and
972 (1974) and in accord-
ance with Rule 80B of the
Rules of Civil Procedure          /s/________________________
within 30 days of the date        Harold S. Noddin
of this decision.                 Employee Representative
     

Employer Representative Thacher E. Turner filed a dissenting opinion.

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                       DISSENTING OPINION

     I dissent from the majority's decision to reverse the hearing
examiner's finding that the Code Enforcement Officer is a "depart-
ment head."  I believe the hearing examiner properly took into
account the realities of municipal administration in small towns
in finding that the employee is the administrator of a department
or division.  The record shows that the Code Enforcement Officer
does perform some administrative duties and this should be enough
to establish his status as a department head.  I would adopt the
hearing examiner's analysis of the issue and affirm his Report
in its entirety.
      
Dated at Augusta, Maine, this 11th day of April, 1984.
      
      
      
      
      
                                /s/____________________________
                                Thacher E. Turner
                                Employer Representative
      
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