Case No. 86-UD-02
                                            Issued:  October 17, 1985
                  Petitioner, )
          and                 )        UNIT DETERMINATION REPORT
TOWN OF LEBANON,              )
             Public Employer. )
     This unit determination proceeding was initiated on August 15,
1985, pursuant to Section 966 of the Municipal Public Employees Labor
Relations Act (Act), 26 M.R.S.A.  966 (Supp. 1984-85) and Maine Labor
Relations Board (MLRB) Unit Determination Rule 1.03, when Teamsters
Local Union No. 48 (the Teamsters) filed a petition for appropriate
unit determination proposing, as appropriate for the purposes of
collective bargaining, a unit of law enforcement employees of the Town
of Lebanon, described:
     INCLUDED:  Patrolmen.
     EXCLUDED:  All other employees of the Town of Lebanon.
     Prior to opening the record on the originally-scheduled hearing
date the undersigned Hearing Examiner postponed the hearing and
extended to the parties, who had appeared at hearing without any wit-
nesses possessing personal knowledge of the quotidian duties of the
full-time and reserve patrolmen or those of the police administrator,
the opportunity to produce competent witnesses and establish a factual
basis against which to test the parties' contentions concerning an
appropriate unit.  Hearing of the issues raised by the unit deter-
mination petition commenced at 9:30 a.m. on September 25, 1985, in the
Bureau of Labor Standards Conference Room, located on the seventh
floor of the State Office Building, in Augusta, Maine.
     Opening statements of the parties revealed their positions con-
terming the appropriateness of the petitioned-for unit to be as


follows.  The Town of Lebanon contends that the collective bargaining
unit should include full-time and reserve patrolmen in addition to the
reserve patrolman serving as police administrator.  The Teamsters con-
tend that only full-time patrolmen share a community of interest and
that reserve patrolmen, including the reserve patrolman serving as
police administrator, should be excluded from the proposed patrolman
unit due to their express exclusion from the definition of the term
"public employee" by paragraphs G and D respectively, of 26 M.R.S.A.
 962(6) (Supp. 1984-85).[fn]1
     The petitioning Teamsters Union was represented at the hearing by
Teamsters Business Agent John A. Perkins; the City of Lebanon was repre-
sented by Mark A. Kearns, Esquire.  The following stipulations were
reached by the parties in prehearing conference.
     1.  The Town of Lebanon is a public employer within the
         meaning of 26 M.R.S.A.  962(7) (Supp. 1984-85).
     2.  Teamsters Local Union No. 48 is a lawful organization
         which has as its primary purpose the representation of
         employees and which presently seeks to be designated as
         the exclusive collective bargaining agent of the law
         enforcement employees in the proposed unit, within the
         meaning of 26 M.R.S.A.  962(2) (Supp. 1984-85).

     3.  The employees who occupy the classification of patrolman
         are public employees within the meaning of 26 M.R.S.A.
          962(6) (Supp. 1984-85).
     The undersigned Hearing Examiner's jurisdiction to conduct a unit
determination hearing herein, and to issue a report thereof, lies in
26 M.R.S.A.  966 (Supp. 1984-85).
     The record was left open for seven days for the purpose of
allowing the Town's attorney to file as an exhibit the Town of Lebanon
    1 The provision of the Municipal Public Employees Labor Relations
Act which defines the term "public employee" states, in pertinent
       "Public Employee" means any employee of a public employer
        except any person . . . [w]ho is a department head or divi-
        sion head appointed to office pursuant. to statute, ordinance
        or resolution for an unspecified term by the executive head
        or body of the public employer; or . . . [w]ho is a temp-
        orary, seasonal or on-call employee.


Police Department's standard operating procedure (SOP).  The Town also
agreed to supply the Teamsters with a copy of the SOP within the same
time period, for the purposes of allowing the Teamsters to inspect
same, to compare it with the filed copy and to raise objections
thereto.  The Teamsters object to the admissibility of the SOP, filed
with the Board on October 3, 1985, because the filed copy does,not
contain an amendment providing for the creation of the position of
police administrator or specifying the duties of the position, and
because they have not received a copy of the SOP   The testimony amply
establishes that an amendment relating to the police administrator
exists.  Accordingly, the SOP is not admitted into evidence.  The
Teamsters offered and the undersigned admitted into evidence the
September/October Lebanon Police Department schedule.  The Teamsters
expressed their desire to participate in an election in any unit
determined appropriate by the Hearing Examiner.
     All parties were afforded full opportunity to appear, to present
testimonial and documentary evidence, to cross-examine witnesses and
to orally argue.  In accordance with their requests, the Teamsters
made a closing statement and the Town filed a post-hearing brief on
October 11, 1985.
                           FINDINGS OF FACT
     The Town of Lebanon is governed by a three-member Board of
Selectmen (Board), one member of which serves as Chairman of the
Board.  The Town of Lebanon employs only two non-law enforcement
employees, a land-fill attendant who works Monday, Thursday, Friday,
Saturday and Sunday, and a part-time secretary who works only during
the Board's weekly meetings.  The Lebanon Police Department has
existed for nine years and presently consists of three full-time
patrolmen (Donald Pray, Gary Prokey and Jeff Huston) and two reserves
(James Wiswell and Charles Butler), although the Town employed three
reserves at the date of the filing of the petition.  Five additional
reserves were anticipated to be sworn within one week of the hearing.
The Town has always employed reserves as an integral part of the
Department.  The Department is dispatched through the York County

Dispatch Center.  The Department provides twenty-four hour police pro-
tection to the Town's seven square miles with two patrol cars, one in
use, occupied by a single patrolman, and the remaining vehicle used as
a backup.  There are never two patrolmen on duty at the same time.
The patrolmen's minimal on-the-job interaction occurs at shift
     The Town's previous Police Chief, Gordon Smith, resigned in the
spring of 1985.  There is normally a full-time chief of police in
addition to three full-time patrolmen.  The tenures of past chiefs
have been brief.  Due to the Board's perception that it had moved too
quickly on several occasions in hiring replacement chiefs in the
past, the Board, by resolve, unanimously appointed reserve patrolman
James A. Wiswell to the temporary position of police administrator.
     The Lebanon Police Department's offices are located in the fire
department building in East Lebanon, Maine.  There are two rooms
available to Lebanon Police Department personnel.  Wiswell possesses a
desk in one of these rooms which contains all the personnel records of
the Department's employees.  Only he and the Board have access to
these records   Wiswell is required to make certain unspecified
entries on these records.  There has never been a collective
bargaining agent certified for any unit of the Town's employees.
     The Board anticipated the Administrator's employment to primarily
be that of a reserve patrolman.  The Board also anticipated the
Administrator's duties to include daily assignment of personnel to
provide the Town with twenty-four hour law enforcement coverage and
the performance of the tasks of forwarding departmental mail and sub-
mitting departmental bills to the Board.  On being appointed as
Administrator in March of 1985, Wiswell was given no indication of the
length of his term as Administrator other than that he would serve
only until a chief was selected.  The Board has no target date for
this selection and is not presently looking for a replacement for
Smith.  Wiswell has been informed that he has no chance of becoming
chief.  Wiswell meets with the Board at its weekly meetings; other
patrolmen do not.  Wiwell has no input into the formulation or modi-         

fication of any departmental policy.  Wiswell attends the Board's
meetings to deliver the mail, take note of complaints and to tender
the Department's bills for operating expenditures.  The Department's
regular operating expenses typically include expenditures for depart-
mental office supplies, the repair of vehicles, fuel, communication
equipment, uniforms and wages   Although Chief Smith and Wiswell both
submitted bills for payment to the Board, Smith, unlike Wiswell, did
not have to secure Board approval of operating expenditures.  The
Board does not intend the Administrator to have any budgetary respon-
sibility.  In the past, the police chief promulgated a budget.
However, the Board now performs this function and presents its pro-
posed budget to the Town's budget committee.
     The Administrator's disciplinary authority is limited to the
issuance of oral reprimands only.  There is no record of any indivi-
dual oral reprimand having been given by Wiswell.  Discipline
requiring written personnel file annotation and higher levels of
discipline may be dispensed only by the Board, although the
Administrator may be a conduit for such discipline.  Wiswell has made
gratuitous disciplinary recommendations to the Board.  The
Administrator does not establish, participate in establishing, or have
any responsibility in implementing performance standards for police
department personnel.
     Wiswell oversees maintenance of the Department's vehicles.
Wiswell also approves accident reports and signs gun permits issued by
the Town.  Wiswell does not perform personal injury investigations.
Other patrolmen occasionally issue gun permits and towing permits.
Wiswell has never evaluated the performance of patrolmen and will have
no greater role in training new officers than any other patrolman.
Only ten percent of Wiswell's total work time is devoted to admini-
strative duties.
     There are no written job descriptions for any of the Department's
employees, although the Town possesses and has delivered to Department
employees a set of standard operating procedures (SOP) which sets forth
the duties of the police chief and patrolmen.  The SOP was developed
between March 1985, and the resignation of former Chief Gordon Smith.

     Only full-time patrolmen are authorized to investigate accidents
involving personal injury although reserves have conducted such
investigations.  Full-time patrolmen and reserves are supervised in
the same manner by the Board.  The Board does not perceive any dif-
ference in the duties of full-time and reserve patrolmen.  All
patrolmen carry weapons and are empowered to make arrests.  The uni-
forms worn by full-time and reserve patrolmen are identical and are
furnished by the Town.  The badges of full-time patrolmen and reserves
are silver and are normally indistinguishable.  The police administra-
tor's badge is gold and displays the title "Administrator."  Full-time
officers are required to undergo the more extensive law enforcement
training provided at the Police Academy.  The two reserves, Butler and
Wiswell, have undergone a less demanding course of instruction and are
certified as reserves by the State.
     Patrolman Pray is presently at the Police Academy and is not
scheduled to work.  Pray's absence has caused other full-time and
reserve patrolmen to have to work more hours.  The present normal
shift of patrolmen is four 12-hour days with overtime compensation of
time and one-half for all hours exceeding forty-three.  Wiswell, with
input solicited from the patrolmen, promulgates the Department's sche-
dule, under instructions from the Board to maintain a 43-hour maximum
workweek for each employee.  The Board can change the schedule pro-
mulgated by Wiswell if it desires.  Wiswell's present practice is
to schedule full-time patrolmen for 48 hours each and then schedule
reserves for as many hours as he can.  Wiswell then informs patrolmen
on a seniority basis of discretionary overtime available to them.  He
then makes the balance of the workweek available to reserves.  Under
the scheduling of Chief Smith and under Wiswell until quite recently,
reserves were called just before an open shift to determine if they
wanted to work.  Only in the last month or so have reserves worked
regularly scheduled days.  Wiswell has permitted or required the full-
time patrolmen to promulgate the work schedule themselves.  Patrolmen
may swap shifts at their discretion.  With a full complement of three
patrolmen and a chief there is no regularly scheduled overtime.  With
a full complement, only during sicknesses and/or vacations are there         

hours available to be worked by reserves.
     Wiswell must find someone to fill every shift or must work the
unfilled shifts himself.  Wiswell may ask the State Police to cover
the Town only in emergency situations.  Wiswell attempted to turn the
police protection of the Town over to the State Police on one occasion
but was told, on informing the Board's chairman of his intended
action, to get someone to cover the shift.  In the week of September
22-28, 1985, Cary Prokey was required to work forty-eight hours and
volunteered to work an additional eighteen.
     The Board has maintained an "open door" policy concerning
employee grievances.  There is no grievance procedure other than
direct contact with the Board.  When Prokey and Pray approached
Wiswell with overtime complaints, Wiswell threatened to do away with
their overtime completely.  The Board was requested by Prokey to
remedy perceived inequities in Wiswell's scheduling.  Wiswell was sub-
sequently told by the Board to conform his scheduling to the Board's
announced 43 hour per week goal.  Additionally, in response to a
complaint by Butler that Wiswell was not working at all, the Board
admonished Wiswell to schedule himself more often.  At some
undisclosed date between the time that Butler approached Wiswell
regarding his complaint and the date on which Butler took his
complaint to the Board Wiswell called a meeting and informed all
patrolmen that circumventing him in the chain of command and going
straight to the Board without giving him a chance to solve the par-
ticular problem would result in progressive discipline and possibly
dismissal.  He also stated that he had the Board's backing in the
matter.  Butler informed Wiswell that he would continue to take his
complaints to the Board as he had in the past.  Wiswell has also
distributed typed memos to all patrolmen concerning the cleanliness
and fuel servicing of vehicles.  In response to the forced entry of
his desk, Wiswell issued a written notice which informed Department
personnel that if he found the culprit, the culprit would be looking
for a new job.
     The Board retains the power to hire and fire employees and to
impose discipline.  Prokey, Pray and Huston filed applications with          

and were interviewed and hired by the Board.  The Board fired
Patrolman Harvey Barr for failing to obey a selectman's direct order
to remove insignia being worn by him, in contravention of the
Department's table of organization.  Wiswell's participation in the
matter was merely that of a go-between.
     There is a one-year probationary period for full-time patrolmen.
Department employees are paid weekly and Board members sign the
departmental payroll.  Full-time patrolmen earn $5.25 per hour while
reserves earn $4.00 per hour.  The Administrator receives a stipend of
$100 per week in payment for his administrative duties.  Neither full-
time nor reserve patrolmen receive any medical insurance or sick leave
benefits.  Full-time patrolmen earn a one week-paid vacation after six
months on the job and two weeks after a year.
     The three substantive issues presented in the instant case are
as follows:
     1.   Is the police administrator a department head within
          the meaning of 26 M.R.S.A.  962(6)(D) (Supp. 1984-85).
     2.  Are reserve patrolmen excluded from the phrase "public
         employee" by 26 M.R.S.A.  962(6)(G) (Supp. 1984-85).
     3.  Do reserve patrolmen share a community of interest with
         full-time patrolmen within the meaning of 26 M.R.S.A.
          966(2) (Supp. 1984-85).
As is more fully explained in my following seriatim treatment of the
issues above, I conclude that the potice administrator is not a
department head within the meaning of the Act and that the Townes
reserve patrolmen are not public employees within the meaning of the
Act.  Therefore, any community of interest which reserves may share
with full-time patrolmen is irrelevant to my determination. of an
appropriate bargaining unit of the Town's law enforcement employees.
However, I also conclude that full-time and reserve patrolmen do not
share a community of interest.
     The test to be applied in determining whether an employee is a
26 M.R.S.A.  962(6)(D) (Supp. 1984-85) department or division head         

     1.  Whether the employee is the Administrator of the depart-
         ment or division, and
     2.  Whether the employee is appointed to office pursuant to
         statute, ordinance or resolution for an unspecified term
         by the executive head or body of the public employer.
Teamsters Local Union No. 48 and Town of Wells, No. 84-A-03 (Me.L.R.B.
Apr. 11, 1984), aff'd, No. CV-84-235 (Me. Super. Ct., Yor. Cty., Feb.
28, 1985).  In applying this test and in applying other exclusionary
methodologies herein I am cognizant of the policy that "[s]ince the
purpose of the Act is to provide public employees the right to join
unions and be represented in collective bargaining . . .  the excep-
tions to the definition of 'public employee' should be narrowly
construed and any exception must be held to mean what it declares
plainly."  Maine Office of Employee Relations v. Maine Labor
Relations Board, No. CV-77-135 (Me.L.R.B  Super. Ct., Ken. Cty., Oct.
10, 1980), quoted in, Teamsters Local Union No. 48 and Town of Lisbon,
Hearing Examiner's Unit Determination Report [No. 81-UD-17], slip op. at 4 (Me.L.R.B.
June 8, 1981).
     Because it is the easiest answered, the second of the test's
inquiries is undertaken first.  The testimony establishes that Wiswell
was placed in the police administrator position by the "resolve" of
the Board of Selectmen of the Town of Lebanon.  Appointment in this
manner expressly satisfies the degree of importance and formality
needed to satisfy the Act's requirement that the department head be
appointed to office "pursuant to statute, ordinance or resolution."
See Teamsters Local Union No. 48 and City of Saco, Hearing Examiner's
Unit Determination Report [No. 80-UD-34], slip op. at 5 (Me.L.R.B. J[u]n. 20, 1980).
However, Wiswell was not appointed to the police administrator posi-
tion for an "unspecified" period of time.  Although the ultimate
length of his tenure is not at present ascertainable, his appointment
is nonetheless for the specific period of time during which the
Department is without a chief.  Wiswell understands that his appoint-
ment is only for this specified period of time.  The department head
exemption is, therefore, inapplicable on this basis alone.  Teamsters          
Local Union No. 48 and Town of Dixfield, Hearing Examiner's Unit
Determination Report [No. 80-UD-20], slip op. at 2 (Me.L.R.B. Mar. 14, 1980).
However, because the issue of the actual managerial authority of the
Administrator is also applicable to the question of whether he is
appropriately excluded on the basis of his supervisory functions, I
shall also address the first inquiry of the test.
     It must be noted at the outset that a finding that an employee
is a Section 962(6)(D) department head need not rest, in whole or in
part, on that employee's exercising any supervisory authority over
subordinate employees.  Teamsters Local Union No. 48 and Town of
Kennebunk, Hearing Examiner's Unit Determination Report [No. 83-UD-23], slip op. at 4
(Me.L.R.B  Apr. 27, 1983).  The Board has previously stated that its
cases establish that for an employee to be a 'department head' within
the meaning of Section 962(6)(D), the employee's primary respon-
sibility must be that of managing or directing the affairs of the
department, as opposed either to acting as a supervisor or to per-
forming the day-to-day work of the department."  Teamsters Local
Union No. 48 and Town of Wells, No. 84-A-03 (Me.L.R.B. Apr. 11, 1984),
aff'd, No. CV-84-235 (Me. Super. Ct., Yor. Cty., Feb. 28, 1985).
     The record establishes that unlike the chief before him, the
Administrator has no budgetary or financial responsibilities, other
than delivering the Department's bills to the Board for payment.  The
Administrator has no input into establishing the wages or benefits of
patrolmen, does not establish standards for or assess their perfor-
mance and does not direct their work in any manner.  The Administrator
attends the Town's weekly meetings but has no input into establishing
any departmental policy.  The record also establishes that the Board
has reserved to itself all disciplinary powers, save that of oral
reprimand.  There is no evidence of any oral reprimand by the
Administrator.  Additionally, the record establishes that the
patrolmen purportedly supervised by Wiswell disregard his express
instructions to the contrary and bypass him to speak directly with the
Board to correct any grievances they have with his scheduling of their
hours.  The record establishes that other than being a coordinator of
the schedule the Administrator has absolutely no day-to-day opera-         


tional or supervisory responsibilities.  Indeed, other than the par-
ticipatory scheduling task, which he has on some occasions turned
completely over to the scheduled employees, Wiswell's administrative
duties appear to be ministerial or custodial in nature.  In any event,
these administrative duties occupy no more than ten percent of his
work day.  Although Wiswell makes some unidentified markings on the
personnel files of patrolmen, there is no evidence establishing that
these markings are more than memorializations of hours worked.
Wiswell's approval of accident reports and his issuance of gun and
towing permits appear to be pro forma.  Additionally, there is no
evidence establishing that Wiswell's threat concerning discharge of
any person found to have entered his desk was anything more than a
prognostication of the action which the Board might take after the
identification of the culprit.
     The department head exemption has been found inapplicable to
employees with greater duties than those of the administrator herein.
See Teamsters Local Union No. 48 and Boothbay Harbor Water System,
Hearing Examiner's Unit Determination Report [No. 82-UD-29] (Me.L.R.B. May 11, 1982)
(setting employees' hours and work schedules, first level grievance
processing, supervising maintenance of buildings, vehicles and equip-
ment, establishing work priorities, making hiring recommendations and
evaluating employee performance); Teamsters Local Union No. 48 and
Town of Bar Harbor, Hearing Examiner's Unit Determination Report [No. 80-UD-09]
(Me.L.R.B. Nov. 15, 1979) (responsibility for day-to-day plant opera-
tion, scheduling of employees, arranging for the processing of equip-
ment and supplies into the plant and budget item submission).  The
MLRB has opined that excluding, as department heads, employees "whose
primary duties involve 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."  Teamsters Local Union No. 48 and Town of
Wells, No. 84-A-03 (Me.L.R.B. Apr. 11, 1984), aff'd, CV-84-235 (Me.
Super. Ct., Yor. Cty., Feb. 28, 1985).
     As explained above I conclude that the Administrator is not a
department head.  I also conclude that his inclusion in the patrolman

unit is not made inappropriate because of any supervisory respon-
sibilities.  Supervisors are expressly entitled to be represented by
collective bargaining agents by the Act.  See 26 M.R.S.A.  966(1) and
 962(6) (Supp. 1984-85).  Therefore, the crucial inquiry in this
regard is whether the Administrator possesses a conflict of interest
with Patrolmen which outweighs any community of interest which he may
share with them.  I conclude that there is no such conflict of inter-
est.  The only area in which the Administrator possesses the capacity
to make employment decisions adverse to the interest of patrolmen is
in the area of scheduling and the record clearly establishes that even
in this area he lacks final authority.  Moreover, the exclusion of
this employee is undesirable in light of the Board's announced policy
against the proliferation of bargaining units within a single depart-
ment.  See M.S.A.D. No. 43 and S.A.D. No. 43 Teachers Association,
No. 84-A-05, slip op. at 4 (Me.L.R.B. May 30, 1984); Town of Yarmouth
and Teamsters Local Union No. 48, No. 80-A-04, slip op. at 4
(Me.L.R.B. June 16, 1980); Teamsters Local Union No. 48 and Town of
Lisbon, Hearing Examiner's Unit Determination Report [No. 81-UD-17], slip op. at 5
(Me.L.R.B. June 8, 1981); Millinocket Education Association and
Millinocket School Committee, Hearing Examiner's Unit Clarification
Report [No. 80-UC-11], slip op. at 5 (Me.L.R.B.  May 21, 1980).
     I have considered the duties of the Administrator in light of the
following requirement of 26 M.R.S.A.  966(1) (Supp. 1984-85):
     In determining whether a supervisory position should be
     excluded from the proposed bargaining unit, the executive
     director or his designee shall consider, among other cri-
     teria, if the principal functions of the position are
     characterized by performing such management control duties
     as scheduling, assigning, overseeing 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 participating in the establish-
     ment of performance standards for subordinate employees and
     taking corrective measures to implement those standards.
It is my conclusion that the Administrator's duties do not rise to the
described above, as an appropriate basis for excluding super-

visory personnel.  See Teamsters Local Union No. 48 and Van Buren
Light and Power District, Executive Director's Unit Determination
Report [No. 85-UD-14] (Me.L.R.B. Jan. 25, 1985) (duties of line foreman who assigns,
oversees and reviews work of employees determined as a whole not to be
so distinct and dissimilar from those performed by supervised
employees to warrant exclusion from proposed unit); Teamsters Local
Union No. 48 and Town of Pittsfield, Hearing Examiner's Unit
Determination Report [No. 81-UD-09] (Me.L.R.B. Jan 15, 1981) (sergeant position found
to be "working supervisor" where supervisory duties were limited and
undemanding and where vast majority of time was devoted to regular
patrol work); City of Bangor and Local 1599, IAFF, Hearing Examiner's
Unit Determination Report [No. 80-UD-15] (Me.L.R.B. Feb. 1, 1980) (fire lieutenants
held to be "group leaders" or "working foremen" where they had various
added responsibilities of a limited nature but essentially performed
rank-and-file duties).
     The inquiry now turns to whether reserves are excluded from the
public employee definition because they are temporary, seasonal or on-
call employees.  I conclude that the reserves are on-call employees
expressly excluded by the Act.  "The point of the 'temporary, seasonal
or on-call' exclusion is to exclude those employees who, because they
work irregularly or sporadically, do not have a community of interest
with permanent, full-time employees in the unit."  Council #74,
AFSCME and County of Knox, Hearing Examiner's Unit Determination
Report [No. 82-UD-17], slip op. at 5 (Me.L.R.B. Jan. 18, 1982), quoting, Town of
Berwick and Teamsters Local Union No. 48, No. 80-A-05, slip op. at 3
(Me.L.R.B. July 24, 1980).  The number of hours worked per week is a
significant or leadinq factor in this determination.
     Although reserves have recently worked many hours in excess of
four per week, due to both the police chief vacancy and the absence of
the one patrolman in attendance at the Academy, the testimony
establishes that during past periods of full staffing by three
patrolmen and a chief there has been no overtime for full-time
patrolmen and minimal hours available for reserves.  The testimony
also establishes that these reserve work-hours are distributed on a
fill-in basis only and that they have not been regularly scheduled.         
The testimony also establishes that with a full staff this would be
the case in the future.  Patrolmen get no sick leave presently and
only two weeks of paid vacation after one year.  Since the actual work
schedules of reserves would have been the most readily available and
appropriate form of proof of the regularity and extent of the sche-
duling of reserves, I conclude that the Town's failure to produce such
indicates that the records, if produced, would not have supported the
Town's case.
     Assuming, arguendo, one week of unpaid sick leave and two weeks
of paid vacation leave both averaged over 52 weeks, the total weekly
number of hours of absence with a full staff is a little less than ten
hours.  With a staff of four working forty-three hours each, there is
a weekly work-hour total of 172 man-hours to cover 168 possible work-
hours.  Offsetting the four extra work-hours against the ten total
absence hours leaves an average available reserve hour figure of six
hours per week.  Even using the present and lowest number of reserves,
which is two, this results in an average of three hours per week per
reserve.  In light of the fact that the Town has had at least three
reserves in the past and in light of the Town's testimony that five
additional reserves were to be sworn within one week of the hearing,
there can be little doubt that under normal circumstances the average
weekly hours worked by any one reserve will be substantially less than
four.  Moreover, even this average weekly hour figure assumes that all
absences will be distributed pro rata over the 52-week work year.
Reality and the testimony both confirm that this is not the usual case
and that hours of reserves will be irregular and on an on-call basis.
I therefore conclude that the Town's reserves are not public employees
within the meaning of the Act due to their exemption as on-call
employees by 26 M.R.S.A.  962(6)(G) (Supp. 1984-85).
     Since reserves are not public employees they are expressly prohib-
ited from being included in a bargaining unit by 26 M.R.S.A.  966(1)
(Supp. 1984-85), which provides, inter alia, that "anyone excepted
from the definition of public employee under section 962 may not be
included in a bargaining unit."  Furthermore, even though I have found
reserves to be expressly exempted by the Act I also conclude that they
do not share a community of interest with full-time patrolmen and
should not be included in the petitioned-for unit on that basis.
     The controlling portions of the Act provide "that there must be
a 'clear and identifiable community of interest among the employees
concerned' for a given bargaining unit to be appropriate for the pur-
poses of collective bargaining."  Penobscot Valley Hospital and Maine
Federation of Nurses and Health Care Professionals, No. 85-A-01, slip
op. at 4 (Me.L.R.B  Feb. 6, 1985).  See 26 M.R.S.A.  966(2) (Supp.
1984-85)   The Maine Labor Relations Board has set forth eleven cri-
teria to be used in determining the existence or absence of a com-
munity of interest.  Those factors are:
     (1) similarity in the kind of work performed; (2) common
     supervision.and determination of labor-relations policy;
     (3) similarity in the scale and manner of determining
     earnings; (4) similarity in employment benefits, hours of
     work and other terms and conditions of employment; (5) simi-
     larity in the qualifications, skills and training of employ-
     ees; (6) frequency of contact or interchange among the
     employees; (7) geographic proximity; (8) history of collec-
     tive bargaining; (9) desires of the affected employees;
     (10) extent of union organization; and (11) the public
     employer's organization structure.
Council 74, AFSCME and City of Brewer, No. 79-A-01, slip op. at 3-4
(Me.L.R.B. Oct. 17, 1979), cited with approval in, Penobscot Valley
Hospital and Maine Federation of Nurses and Health Care Professionals,
No. 85-A-01, slip op. at 4 (Me.L.R.B. Feb. 6, 1985), and, Council 74,
AFSCME and Teamsters Local Union No. 48 and County of Cumberland, No.
84-A-04, slip op. at 11 (Me.L.R.B. Apr. 25, 1984).
     Full-time and reserve patrolmen perform nearly identical work,
with the one exception being the theoretical prohibition of the
performance of personal injury investigation by reserves.  They are
both supervised by the Board, which also sets their salaries.  Full-
time patrolmen, however, earn over thirty percent more per hour and
earn vacation leave.  Reserves have no fringe benefits.  Full-time
employees normally work very many more hours than reserves and get
first choice as to those hours.  Reserves normally work on an
on-call basis whereas the work of full-time patrolmen is generally
scheduled.  Reserves do not attend as demanding a qualification course         

as do full-time patrolmen.  Although there is some interaction between
employees it is limited to shift change.  At least one of the two
reserves desires to be included in the unit.  There is no indication
of the desires of full-time patrolmen concerning the inclusion of
reserves.  Factors 7, 8, 10 and 11 are not pertinent to the instant
     Upon consideration of all of the factors above I conclude that
full-time and reserve patrolmen do not share a community of interest
and are, therefore, not appropriately included in the same bargaining
unit.  Compare Town of Berwick and Teamsters Local Union No. 48, No.
80-A-05  (Me.L.R.B. July 24, 1980) (appropriate to include part-time
officers in full-time police officer unit where part-timers worked
year-round on regularly-scheduled shifts, worked closely with full-
time officers, were on the Town's regular payroll and received some of
the fringe benefits of full-time officers).  Moreover, even though
the police administrator has not been excluded as a supervisor or
department head herein, the present status of the incumbent as a
reserve officer serves to exclude him from the bargaining unit.
     On the basis of the foregoing findings of fact and discussion and
by virtue of and pursuant to the provisions of 26 M.R.S.A.  966, the
undersigned directs that:
     1.  The police administrator is not a department head within
         the meaning of 26 M.R.S.A.  962(6)(D) (Supp. 1984-85).
     2.  Reserve patrolmen are on-call employees within the
         meaning of 26 M.R.S.A   962(6)(G) (Supp. 1984-85).
     3.  The appropriate unit of law enforcement employees of the
         Town of Lebanon consists solely of full-time patrolmen,
         as was requested in the petition of Teamsters Local
         Union No. 48.
Dated at Auqusta, Maine this 17th day of October, 1985.
The parties are advised of
their right, pursuant to 26       By: /s/_____________________________
M.R.S.A.  968(4) (Supp.              M. Wayne Jacobs
1984-85), to appeal this              Counsel
report to the full Labor              Maine Labor Relations Board
Relations Board within 15
days of the date of this