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-] ____________________________________________________________________ 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 -2- ____________________________________________________________________ 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 -3- ____________________________________________________________________ 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- -4- ____________________________________________________________________ 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 -5- ____________________________________________________________________ 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." -6- ____________________________________________________________________ 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 -7- ____________________________________________________________________ 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 -8- ____________________________________________________________________ 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- -9- ____________________________________________________________________ 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. -10- ____________________________________________________________________ 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 -11- ____________________________________________________________________