Affirmed, AFSCME Council 93 and Town of Sanford, MLRB No. 92-UDA-03 (May 7, 1992) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 92-UD-03 Issued: February 21, 1992 ______________________________________ ) AFSCME, COUNCIL 93, ) ) Petitioner, ) ) and )7 ) UNIT DETERMINATION ) REPORT TOWN OF SANFORD, ) ) Public Employer. ) ______________________________________) On October 2, 1991, pursuant to section 966 of the Municipal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 966 (1988 & Supp. 1991), and Maine Labor Relations Board ("Board") Unit Determination Rule 1.03, AFSCME, Council 93 ("AFSCME") filed a petition for appropriate unit determination with the Board, seeking to become the exclusive bargaining agent of a unit of supervisory employees of the Town of Sanford ("Town"). AFSCME proposed for inclusion in the unit the following job classifica- tions:[fn]l planning director assessor codes enforcement officer finance director/computer manager director of general assistance director of recreation and public property director of highways and sanitation boarding home administrator deputy chief, police captain, police 1 In some instances, the job titles listed on the petition were inac- curate. These are the titles utilized by the parties at the time of the hearing. -1- deputy chief, fire division chief, fire office manager (police) executive secretary (3) (to town administrator; to director of public works; and to fire departments[fn]2) In response to the petition, the Town alleges (1) that all of the classi- fications are excluded from collective bargaining under section 962(6)(C) or (D) of the MPELRL,[fn]3 and (2) that there is no clear and identifiable community of interest among employees of the proposed unit, as required by section 966(2) of the MPELRL. Upon due notice a public evidentiary hearing was scheduled for 9:30 a.m. on Thursday, November 21, 1991, in Augusta, Maine. Richard V. Taylor, staff representative, represented AFSCME, and Patricia M. McDonough, Esquire, represented the Town. No one requested to intervene in the pro- ceeding or otherwise requested to participate as an interested party. Prior to commencement of a formal evidentiary hearing, the parties met with the hearing examiner in an informal conference in order to determine whether any factual and/or legal stipulations were possible. The stipula- tions that were reached have been incorporated herein. Participating in the conference as resource persons, in addition to the representatives of record for each party, were: Faith D. Ballenger- chair, Sanford Board of Selectmen Michael P. Davolio- planning director Gordon N. Paul- captain, police dept. Annalee Rosenblatt- consultant (labor negotiator), Town of Sanford __________________________ 2 The petition simply listed the job classification of executive secre- tary; a Form 1 Agreement on Appropriate Unit for the general government unit listed (and excluded) four, not three different executive secretary positions. Since no evidence was provided at hearing by either party on the position of executive secretary to the director of highways and sanita- tion, the hearing examiner will not make any unit determination with respect to this position. 3 For some job classifications, the Town alleged in its written response that they were excluded under section 962(6)(B) as well as (D). At hearing the Town dropped its (6)(B) allegations. -2- Dan G. Stanley - deputy chief, police dept. John E. Webb - town administrator Following the informal conference, a formal evidentiary hearing was convened for the purpose of taking testimony on a limited number of issues. Parties were afforded the opportunity to present evidence and to cross- examine witnesses. Due to an apparent misunderstanding regarding atten- dance at the hearing, certain witnesses on behalf of AFSCME did not attend; accordingly, the hearing was reconvened on Wednesday, December 4, 1991, at 1:00 p.m. Witnesses for each party, at each day of hearing, are reflected in the hearing transcripts. Upon completion of the hearing, the parties filed written briefs and replies, the last of which was received on Janu- ary 28, 1992. The following documents were admitted into the record, upon stipulation of the parties: J-1 Sanford Charter Commission Final Report dated May 7, 1980 (78 pp.) J-2 Job description for deputy police chief (adopted on 1/18/89) (3 pp.) J-3 Job description for captain, police dept. (revision adopted on 5/16/89) (3 pp.) J-4 Job description for deputy fire chief (adopted on 11/7/89) (3 pp.) J-5 Job description for division chief, fire dept. (adopted on 11/1/86) (3 pp.) J-6 Job description for planning director (adopted on 11/1/86) (3 pp.) J-7 Job description for office manager, police dept. (adopted on 11/1/86) (3 pp.) J-8 Job description for director of recreation and public property (adopted on 11/1/86) (3 pp.) J-9 Job description for assessor (adopted on 11/1/86) (3 pp.) J-10 Job description for boarding home administrator (revision adopted on 12/4/90) (3 pp.) -3- J-11 Job description for executive secretary (adopted on 11/1/86) (3 pp.) J-12 Job description for codes enforcement officer (adopted on 11/1/86) (3 pp.) J-13 Job description for finance director/computer manager (revision adopted on 4/16/91) (3 pp.) J-14 Job description for general assistance director (adopted on 11/1/86) (2 pp.) J-15 Job description for director of highways and sanitation (adopted on 11/1/86) (3 pp.) J-16 Form 1 Agreement on Appropriate Bargaining Unit for Sanford general government unit, dated 2/10/87 (2 pp.) J-17 Operational and Policy Handbook for the Town of Sanford, Maine, adopted October, 1989, reviewed February 5, 1991 (first 17 pp. only) J-18 Organizational chart, Town of Sanford J-19 Grievance procedure - public works unit contract, 1/1/88 - 12/31/90 (4 pp.) J-20 Grievance procedure - general government unit contract, 1/1/89 - 12/31/91 (4 pp.) J-21 Grievance procedure - police and dispatchers' unit contract, 1/1/88 - 12/31/89 (4 pp.) J-22 Grievance procedure - firefighters' unit contract, 7/1/91 - 6/30/92 (3 pp.) J-23 Rules and Regulations Covering Employment with the Town of Sanford, adopted 10/6/81 (9 pp.) J-24 Minutes, Board of Selectmen Special Meeting, 6/29/89 J-25 Minutes, Board of Selectmen Meeting, 1/2/81 J-26 Minutes, Board of Selectmen Meeting, 6/4/91 JURISDICTION The jurisdiction of the hearing examiner to hear this matter and to make a unit determination lies in 26 M.R.S.A. 966(1) and (2) (1988). -4- STIPULATIONS In prehearing discussion the parties reached the following factual and legal stipulations: 1. AFSCME, Council 93 is a public employee organization that seeks to become the bargaining agent for employees in the sought-after unit, within the meaning of 26 M.R.S.A. 962(2) (1988). 2. The Town of Sanford is a public employer within the meaning of 26 M.R.S.A. 962(7) (Supp. 1991). 3. In addition to the supervisory unit being sought here, there are four bargaining units covering employees of the Town of Sanford: a general government unit (represented by AFSCME, Council 93), a public works unit (represented by AFSCME, Council 93), a firefighters' unit (represented by the International Association of Fire Fighters), and a police and dispatchers' unit (represented by the Sanford Police Association). 4. By a Form 1 Agreement on Appropriate Unit dated 2/10/87, the job classifications of office manager, executive secretary to the town adminis- trator, executive secretary to the director of public works, and executive secretary to the fire department were excluded from the general government unit. For job classifications other than these, neither party challenges their appropriateness in a supervisory unit, if they are not otherwise excluded from collective bargaining under section 962(6) of the MPELRL. 5. There is neither a contract bar nor an election bar to AFSCME's petition. 6. The planning director is the "town planner" referred to in section 3-4 of the town charter. 7. The management bargaining team for the last public works unit contract (which expired 12/31/90) included two selectmen, the head of the public works department, the town administrator and the personnel coor- dinator. Although the job description for the director of highways and sanitation, adopted 11/1/86, states that he/she "serves on Town's nego- tiating and management planning teams," the director did not participate in negotiations for the last public works contract and is not participating -5- in current negotiations for a successor contract. Throughout this time period, the position of director of highways and sanitation has been (and is) occupied by a member of the public works unit on an acting capacity basis. 8. From 1980 until late 1981 or early 1982, police department personnel included four supervisory positions -- a police chief and three lieutenants. In early 1982, the three lieutenants were promoted to captain. As of January of 1989, two captains had retired and neither position had been filled. At that time, the position of deputy chief was created, giving the police department three supervisory positions -- a chief, a deputy chief and a captain. 9. The deputy chief and captain of the police department, along with the chief, are on the management bargaining team for negotiations that are currently ongoing for the patrolmen and dispatchers' unit. No captain has sat on the management bargaining team for any previous contract negoti- ations. 10. Between 1981 and 1989, fire department supervisory positions consisted of a fire chief and two division chiefs. No division chief has ever sat on the management bargaining team for negotiation of a fire- fighters' contract, including the two-year contract that became effective July 1, 1988, and was extended, without negotiation, to June 30, 1992. Sometime between 1981 and 1989, one division chief retired and was not replaced. The new position of deputy fire chief was created in 1989, after the current firefighters' contract had been negotiated, giving the depart- ment three supervisory personnel -- a chief, a deputy chief and a division chief. 11. The most recent collective bargaining agreement for the general government unit was entered into on September 16, 1988. FINDINGS OF FACT Upon review of the entire record, the hearing examiner makes the following additional findings: -6- Miscellaneous 1. The Town of Sanford currently operates under a representative town meeting form of government, as established in the charter adopted in 1981. The first paragraph of section 3-4 of the charter (Appointing Powers) states: The board of selectmen shall, as provided for by this charter or by by-law or ordinance, appoint the town administrator, town attorney, labor negotiator, personnel board, advisory committee to the Department of Public Safety, Highway Commisioner (sic), three Warrant Committee members, Fire Chief, Police Chief, Director of Parks and Recreation, Town Planner, Town Engineer, Director of the code enforcement office and members of all appointed multiple member bodies for whom no other method of selection is provided by the charter or by by-law or ordinance, except persons serving under elected officers and officials appointed by state officers. Section 8.3 of the charter (Continuation of Personnel) states: Any person holding a town office or employment under the town shall retain such office or employment and shall continue to perform his duties until provisions shall have been made in accordance with the charter for the performance of the said duties by another person or agency. 2. According to its organizational chart, the Town has three depart- ments: fire, police and public works. It also has several smaller enti- ties, called bureaus. These include assessing, code enforcement, welfare (general assistance) and planning. The finance/computer bureau has recent- ly been converted to the status of a department, although it currently con- sists of only one person (a part-time person will be added sometime in the future). 3. The town administrator holds a weekly group meeting with employees it designates as department heads and bureau chiefs. These meetings con- sist of review of actions taken by the board of selectmen, review of the board agenda for the next week, presentation of activity reports by depart- ment heads and bureau chiefs, and discussion of issues of current concern. 4. Proposed annual budgets for departments and bureaus are initiated by each department head and bureau chief; proposals are presented to the town administrator for review and possible amendment and then to the board -7- of selectmen, the warrant committee and the full town meeting. Department heads and bureau chiefs, as well as such individuals as the deputy police chief and captain, and the deputy and division chiefs of the fire depart- ment, normally attend meetings where the budget proposals are presented to these town bodies. Proposed budgets may be amended at any stage of the process. 5. In October of 1989, the Sanford Board of Selectmen promulgated the Operational and Policy Handbook for the Town of Sanford, Maine, which hand- book was last reviewed for revisions on February 5, 1991. The handbook prohibits department heads from making internal transfers of monies within departments (that is, from one expediture account to another, or from one program to another within a department); making additions, dele- tions or modifications to conditions of employment or to collective bargaining agreements covering employees in their departments; and estab- lishing job descriptions for new employee positions or reclassifying any existing position, without the specific authorization or approval of the board of selectmen. The board also reserves to itself the quarterly review of the pay plan for non-union personnel. Planning director 6. Section 3-14 of the Town of Sanford charter (Planning Department) reads as follows: There shall be a planning director who shall be the administrative head of a Planning Department. The selectmen shall appoint, determine the duties and fix the compensation of the planning director. The planning director may be removed from his position and his services terminated by the selectmen when, in their judge- ment, the public interest so requires. The planning director provides technical assistance to the plan- ning board and, on occasion, to the board of selectmen. He supervises a full-time executive secretary and a part-time clerk typist. He does not handle employee grievances, he has never been a part of any bargaining with the Town's negotiating team, and he does not propose wage increases for the employees he supervises. The written job description for this position includes the following: -8- NATURE OF WORK This is responsible, professional, administrative and tech- nical work in directing the planning function for the Town. Employee in this class is responsible for all municipal plan- ning functions, including the development and implementation of the Town's Capital Improvement Plan. Work involves land use plan- ning; staffing and providing technical assistance to the Planning Board; researching, developing, coordinating, and administering land use and planning related projects; maintaining accurate records; and public contact. Employee in this class has consider- able independence of action. Work is reviewed through discussion, reports, results and/or performance appraisals. EXAMPLES OF WORK - (Illustrative Only) 1. Plans, organizes and directs all activities of the department. 2. Supervises the administrative details of the department including requisition of materials, supplies and equip- ment. 3. Develops and administers departmental budget. 4. Reviews and verifies all applications for subdivision and shoreland zoning permits. 5. Advises applicants and Planning Board of application status and compliance with ordinance. 6. Coordinates review with appropriate municipal depart- ment. 7. Reviews proposals placed before the Zoning Board of Appeals, if requested, and is a Site Plan Review Commit- tee member. 8. Prepares and implements standard operating procedures and policies of the department. 9. Makes recommendations to Planning Board for appropriate action or additional conditions to be imposed. 10. Collects land use data for use in preparation of compre- hension plan and development of zoning regulations. 11. Advises general public of appropriate ordinances, State statutes, and departmental rules and regulations. 12. Attends and staffs Planning Board meetings. -9- 13. Processes purchase orders and accounts payable, and monitors special project budgets. 14. Develops Capital Improvement Projects for the Town. 15. Directs the implementation of the five-year capital plan and monitors its progress. 16. Attends Selectmen's meetings as requested. 17. Hires, trains and evaluates all department employees. 18. Resolves grievances. 19. Disciplines employees. 20. Evaluates employees. 21. Approves overtime. 22. Serves on Town's management planning team. 23. Performs other work as may be required. REQUIREMENTS OF WORK 1. Thorough knowledge of principals and practices of munici- pal land use planning. 2. Knowledge of the subdivision and shoreland and municipal zoning statutes. 3. Knowledge of grantmanship (sic) including grant devel- opment and writing; budget development and grant adminis- tration. 4. Some knowledge of civil engineering including use of survey equipment, map making and reading and photo interpretation. 5. Knowledge of title search and filing procedures. 6. Ability to analyze and interpret laws, ordinances, rules and regulations. 7. Ability to keep varied records, to assemble and organize data, and to prepare standard reports from records. 8. Ability to establish and maintain effective working relationships with outside agencies, municipal officials, employees and the general public. -l0- 9. Ability to maintain detailed records and to prepare re- ports. 10. Ability to manage modern office, including preparation and administration of a budget. 11. Knowledge of modern personnel and management practices. TRAINING AND EXPERIENCE Graduation from an accredited four-year college or university with a degree in urban planning, engineering, or related field required; experience with municipal or state planning and an ad- vanced degree in a related field desirable; equivalent combination of training and experience may be considered in lieu of a degree. Assessor 7. Section 3-22 of the charter (Assessing Department) states: There shall be an assessing department for the evaluation of all properties both personal and real in the town. The department shall be responsible for keeping complete records of all parcels and a list of all taxpayers in the community. It shall work in close cooperation and be coordinated with the publishing of all tax billings, their distribution and collection as performed by the office of town clerk and tax collector. Section 3-23 (Chief Assessor) states: The board of selectmen shall appoint a chief assessor for the town and shall set the compensation of the office. The chief assessor shall be hired on the basis of training and experience and must be certified by the State of Maine. The assessor supervises one employee -- an executive secretary. The written job description for the position of assessor contains the follow- ing: NATURE OF WORK This is a responsible specialized technical and administra- tive position in the assessment of taxes within the Town of San- ford. Employee in this class is responsible for the evaluation and assessment of all taxable property within the town and the adminis- tration and supervision of all department functions. Work involves -11- extensive field work, supervising staff; reviewing assessments; insuring department operations are up-to-date; and conducting sales ratio studies. Work is carried out with considerable technical independence in accordance with applicable laws. Work is reviewed for results obtained and through State and local review and appeal. EXAMPLES OF WORK (Illustrative Only) 1. Supervises the maintenance of all records pertaining to the assessment of real and personal property in the town. 2. Conducts field checks of all real and personal property accounts including measuring and listing; appraises same. 3. Conducts sales ratio analyses and determines the valu- ation to be placed on new, renovated, and existing prop- erty. 4. Provides extensive public information regarding com- plaints arising from assessments; meets with taxpayers and resolves disputes; interprets property tax laws; makes final review and approves major technical decisions in all assessment program work. 5. Keeps abreast of appraisal procedures, market trends and construction costs. 6. Develops and administers departmental budget. 7. Prepares estimates of Town-wide valuations for use by the Selectmen for budget appropriations. 8. Supervises the preparation and maintenance of the Town property identification maps. 9. Attends Selectmen's meetings when requested. 10. Hires, trains and evaluates all departmental employees. 11. Plans, organizes, assigns and supervises the work of department staff. 12. Schedules work approves vacation and leave requests. 13. Disciplines employees. 14. Approves overtime. 15. Resolves employee grievances. 16. Serves on the Town's management planning team. -12- 17. Performs other work as required. REQUIREMENTS OF WORK 1. Thorough knowledge of the principles and techniques of real and personal property assessment and valuation. 2. Thorough knowledge of Town Charter provisions, ordinances and general law pertaining to tax assessments. 3. Ability to analyze factors which may influence the value of property and to exercise judgment in determining prop- erty values and changes in Town structure and physical properties. 4. Ability to plan and organize the preparation of varied assessment rolls and reports. 5. Familiarity with computer operation and their application to assessing functions. 6. Ability to express ideas effectively, verbally and in writing. 7. Knowledge of good public administration and personnel procedures. EXPERIENCE AND TRAINING Considerable experience in property assessment work involving the appraisal and evaluation of land and buildings, preferably including some experience in the maintenance of standard office records required. Satisfactory completion of a course of study leading to certification in real property appraisal required. Graduation from a four-year college or university program with a degree in business or public administration and a specialization in property assessment desirable. NECESSARY SPECIAL REQUIREMENTS Must be a Certified Maine Assessor. Codes enforcement officer 8. The current codes enforcement officer was hired into his position by the board of selectmen on February 28, 1976, before adoption of the town charter that is currently in effect. Consequently, no codes enforcement officer has been appointed pursuant to section 3-4 of the 1981 charter. -13- The codes enforcement officer is designated by the Town as a department head; he attends the weekly meeting of department heads and bureau chiefs, and prepares a proposed annual budget for the codes enforcement office. The codes enforcement officer currently supervises a full-time executive secretary, a part-time clerk typist and a part-time field inspector. According to him, he has no authority to hire or fire employees he super- vises, nor does he make decisions at any step in the formal grievance procedure for those employees. He has issued verbal warnings on occasion. According to the written job description for the codes enforcement officer: NATURE OF WORK This is a responsible administrative and technical position carrying out the building,'plumbing, health and sanitation inspec- tions and in securing compliance with code and zoning regulations. Employee of this class is responsible for issuing building, plumbing, and demolition permits, conducting building, housing health and plumbing inspections; enforcing the State and municipal zoning ordinances; maintaining liaison with appropriate state and local agencies; and maintaining departmental records and reports: This employee works with considerable independent judgment and dis- cretion in accordance with applicable laws and ordinances. Work is reviewed through reports, discussions and results achieved. EXAMPLES OF WORK (Illustrative Only) 1. Inspects buildings which are under construction, altera- tion or repair or (sic) compliance with building, elec- trical or zoning requirements. 2. Inspects old and dangerous buildings for fire and other dangers. 3. Confers with other Town officials as appropriate. 4. Provides code information as requested by banks, lawyers, relators (sic), developers, and individuals. 5. Reviews building and plumbing plans for soundness before issuing permits; makes recommendations to ensure com- pliance with codes. 6. Investigates complaints of possible code violations, including building, plumbing, sanitation, and zoning, -14- initiating appropriate action to ensure compliance as necessary. 7. Interviews applicants and reviews applications for build- ing, demolition or plumbing permits; calculates fees and issues same. 8. Prepares and maintains records and reports. 9. Develops and administrators (sic) departmental budget. 10. Attends Selectmen meetings as requested. 11. Evaluates employees under supervision. 12. Resolves employee grievances. 13. Hires and trains new employees. 14. Disciplines, up to and including dismisses, employees. 15. Performs other work as required. REQUIREMENTS OF WORK 1. Considerable knowledge of approved methods and materials used in building construction and plumbing repair and installations. 2. Considerable knowledge of local, state, and federal enactment governing plumbing constructions, use, and occupancy, and ability to interpret same. 3. Considerable knowledge of State and Town zoning ordinance provisions and ability to interpret same. 4. Knowledge of approved methods and practices of conducting health and sanitation inspections. 5. Ability to analyze and interpret complex construction plans and specifications. 6. Ability to deal with the public firmly and courteously under adverse or strained conditions. 7. Ability to maintain records and prepare reports. 8. Ability to recognize codes violations and to take approp- riate enforcement action. 9. Ability to express ideas effectively, verbally and in writing. -15- 10. Knowledge of the municipal budgeting process; ability to develop and administer a budget. 11. Knowledge of the principals of public administration and personnel practices. TRAINING AND EXPERIENCE Considerable experience in the construction industry or as journeyman electrician or plumber, graduation from high school supplemented with a two-year vocational program in building con- struction, structural design required. A college degree in a re- lated field is desirable. Experience as a codes enforcement officer may be substituted in lieu of a college degree. NECESSARY SPECIAL REQUIREMENT 1. Possession of appropriate inspections licenses for direct inspections work performed. 2. Possession of a valid State of Maine motor vehicle operator's license. Finance director/computer manager 9. The written job description for the position of finance director/ computer manager contains the following: NATURE OF WORK This is a responsible administrative and supervisory position in the handling of municipal funds. Employee of this class is responsible for the practices of municipal finance administration, including budget preparation and control, auditing, data processing, cash management and preparation of financial reports. Work involves assisting with the investment of funds and overseeing the various municipal accounts. Work is performed under the general supervision of the Town Administrator with considerable independence of action in accordance with appli- cable laws and following generally accepted accounting procedures. Work is reviewed through observation, verification, internal audit and through an annual fiscal audit. -16- EXAMPLES OF WORK (Illustrative Only) 1. Maintains accounts in such a manner as to show fully, at all times, the financial condition of the Town. 2. Advises, in cooperation with the Treasurer, as to future financial needs and makes such recommendations as deemed desirable. 3. Recommends and provides support data for changes in departmental budgets. 4. Recommends changes in budgetary procedures, coordinates the financial and data processing functions and coordi- nates the financial relationships between departments. 5. Certifies all proposed expenditures. 6. Participates in the preparation of departmental budgets. 7. Prepares and submits a proposed annual operating budget and a proposed capital improvement program. 8. Provides all financial information for the annual report. 9. Works with the Town Administrator in preparing a total town budget (including material received from the school department) to submit to Board of Selectmen, Warrant Committee and Town Meeting; provides budgetary recom- mendations and support data to the warrant committee. 10. Works with Town Administrator in developing proposed financial policies. 11. Works with departments to provide Town Administrator with appropriate management reports including but not limited to expenditures, revenues, debt position and and capital plan balances. 12. Maintains a full and complete inventory of all property of the Town both real and personal. 13. Prepares recommendations and proposals for the Town computer based upon periodic analyses of the Town's office and information system requirements and overall operational needs. Plans, directs and coordinates the acquisition and operation of all computer equipment and software for the Town. 14. Responsible for documentation of all custom software. 15. Coordinates the installation of new computer equipment and software with Town personnel and outside vendors -17- and/or consultants and coordinates the maintenance of computer equipment and software with Town personnel and outside vendors as appropriate. 16. Advises, in cooperation with other departments, on com- puter needs for the Town. 17. Attends evening meetings. 18. Performs other duties as required. REQUIREMENTS OF WORK 1. Must have extensive knowledge of the principles and practices of municipal finance administration and exten- sive knowledge of auditing principles and practices. 2. Thorough knowledge of modern office practices and pro- cedures and of standard office and accounting equipment. 3. Thorough knowledge of the principles and methods of business organization and management. 4. Considerable management knowledge of data processing concepts and practices. 5. Thorough knowledge of the standard procedures and prac- tices of budget preparation and control. 6. Ability to plan, lay out, coordinate, direct and control the work of subordinates. 7. Ability to prepare comprehensive analyses and reports of the financial activities of municipal departments. 8. Ability to exercise judgment and initiative in analyzing and evaluating accounting problems and in developing or recommending modifications and improvements in existing financial management procedures. 9. Ability to deal courteously with the public and to estab- lish and maintain effective work relationships with other employees and the public. EXPERIENCE AND TRAINING Bachelors degree in Business Administration, Accounting or related field and considerable experience in municipal finance and knowledge of computers required. Masters degree in Business Administration and/or CPA preferred. Work experience demon- -18- strating progressively more responsible positions highly desirable. Must have training appropriate for a system administrator of a minicomputer (Wang VS training and experience preferred) and train- ing appropriate for a system administrator for a proprietary financial software package. The Finance Director may not accept or perform outside finan- cial consulting or professional services without the express written consent of the Board of Selectmen. Director of general assistance 10. The employee who holds the position of director of general assis- tance has worked for the Town since 1973. The position began as town nurse (she was appointed to that position by the board of selectmen to handle general assistance as well as other responsibilities) and has evolved into director of general assistance. The director reports to the town adminis- trator, who is the welfare director for the Town. The director is con- sidered by the Town to be a bureau chief. Although appointment to that position by the selectmen is not mentioned in the charter, and the director was not reappointed to her position by the selectmen at the time the charter was adopted, it is the Town's intention that should the position become vacant in the future, any new appointment would be made by the selectmen. The director currently supervises two clerk typists. She has never had to resolve a grievance under the contract grievance procedure for the employees she supervises. She has participated in hiring decisions on two occasions, in conjunction with the Town's personnel director. According to the written job description for the director of general assistance: NATURE OF WORK This is a responsible administrative position directing and administering the Town of Sanford Welfare Department. Employee of this class is responsible for dispensing welfare assistance, including processing applications, determining eligi- bility, providing assistance. Employee also has responsibility for supervising and directing the department's activities includ- ing maintaining the budget, keeping records of departmental activi- ties, and making reports. The work is evaluated through reports and discussion of results achieved. -19- EXAMPLES OF WORK - (Illustrative Only) 1. Takes applications for welfare assistance; interviews clients; investigates and determines need in accordance with applicable welfare guidelines and determines the amount and type of assistance necessary. 2. Maintains liaison with and makes referral to various local, state and federal agencies or other human service organizations. 3. Develops and administers departmental budget. 4. Attends meetings and represents Town on matters dealing with welfare, housing, mental health and other social work programs. 5. Maintains detailed account of client records. 6. Prepares reports as required. 7. Attends Selectmen's meeting when requested. 8. Hires, trains and evaluates all departmental employees. 9. Resolves grievances. 10. Disciplines employees. 11. Approves overtime. 12. Schedules work, vacations and approves leaves of absence. 13. Provides clinical consultation at Mountain View Infirmary. 14. Provides vacation back-up for Mountain View Infirmary administrator. 15. Performs other work as required. REQUIREMENTS OF WORK 1. Thorough knowledge of welfare laws, guidelines, and pertinent regulations and the ability to apply the laws and regulations to departmental operations. 2. Thorough knowledge of other agencies to which clients may be referred for services needed and ability to main- tain effective working relations with those agencies. 3. Thorough knowledge of the theory and practice of welfare administration and the social factors involved in cases. -20- 4. Ability to work with people who are under stress in a compassionate manner. 5. Ability to handle private, personal and confidential information. 6. Ability to express ideas effectively, verbally and in writing. 7. Skill in interviewing persons on a one-to-one basis. 8. Working knowledge of the municipal budgeting process. 9. Ability to work independently following statutory and general policy guidelines. 10. Knowledge of good public administration and personnel practices. TRAINING AND EXPERIENCE Experience in welfare administration, social service work, supplemented with college level education in social welfare, public administration, or any equivalent combination required. Graduation from a four year college or university with a degree in social welfare, social service or public administration desirable. Director of recreation and public property 11. Section 3-17 (Department of Public Works) reads[fn]4: (a) Establish (sic) and Scope -- There shall be a department of public works headed by a director who shall be appointed by the board of selectmen. This department shall consist of the town engineering department, highway department and the parks and recreation departments. The department shall be respon- sible for the performance of all public works activities of the town placed under its control by the Charter, by by-law or ordinance, or otherwise, including but not limited to refuse collection and disposal, forestry services, protection of natural resources, maintenance of all municipal buildings and grounds, streets, roads and parks and recreation facili- ties. (b) Policy formulation -- The board of selectmen, acting through the administrator shall be responsible for the overall super- _________________________ 4 See June 8, 1988 amendment to charter that appears on the last page of that document. -21- vision of the department of public works and for the estab- lishment of priorities and policies to govern the operation of the department. The director of recreation and public property is one of two bureau chiefs in the public works department. He sits on the management bargaining team for the public works unit contract that is currently being negotiated. He has participated in bargaining planning/strategy meetings, prior to and after bargaining sessions. He has also participated in bargaining sessions with the union. Before it was presented to the union, he was aware of the package of proposals that was going to be presented, including the financial aspects of that package. The director of recreation and public property has not been a member of the management bargaining team for any public works unit contracts prior to the one currently being negotiated. The current director supervises nine employees. His proposed budget for the bureau of recreation and public property is not submitted directly to the town administrator; he submits it to his immediate supervisor, the director of the public works department, who in turn submits a departmental budget proposal to the town administrator. The current director of recreation and public property was originally hired into his position by the director of the public works department approximately seven years ago. Just prior to the end of his first year of employment, he was favorably evaluated by the board of selectmen and appointed to his position by them. Since then, he has received no reap- pointments to his position. The written job description for this position contains the following: NATURE OF WORK This is a responsible, administrative, technical and super- visory position involving the operation and maintenance of the town's municipal airport, parks, recreation programs, buildings and facilities, and related work as assigned. Employee of this class is reponsible for planning, organizing, directing and reviewing the work of skilled, semi-skilled and un- skilled workers engaged in operation and maintenance of airport facilities, parks and recreation areas, and related activities. This work requires consideration (sic) discretion and independent judgment. -22- EXAMPLES OF WORK (Illustrative Only) 1. Develops and implements a capital improvement plan for municipal parks and recreation areas. 2. Develops and administers budget for the maintenance and improvement of all parks, public property and the Sanford Municipal Airport. 3. Establishes and implements departmental policy regarding the usage, maintenance and development of parks and public property. 4. Meets with various community groups regarding park and recreation usage and programming. 5. Prepares reports on departmental activities and goal achievements. 6. Maintains records of departmental activities.. 7. Assists in the acquisition of new land for recreational purposes. 8. Develops grants to fund purchases and activities in recreational areas. 9. Attends Selectmen's meetings when requested. 10. Reports for on-call, night, weekend and holiday work as necessary. 11. Establishes work schedules and assignments for depart- mental personnel. 12. Approves overtime, vacations and leaves. 13. Participates in the hiring of new personnel. 14. Trains personnel. 15. Evalutes (sic) employees under supervision. 16. Takes disciplinary action when needed. 17. Resolves employee grievances. 18. Performs other work as required. REQUIREMENTS OF WORK 1. Thorough knowledge of administrative, operational and procedural pratices (sic) of airport facilities, parks, -23- athletic fields, swimming pools and other recreation areas including seasonal and rountine (sic) maintenance requirements. 2. Ability to work independently in planning and super- vising a wide variety of maintenance operations. 3. Ability to establish and maintain good working rela- tionships with employees, airport tenants, municipal official (sic) and the general public. 4. Ability to supervise a large group of employees engaged in a variety of grounds maintenance, repair, and re- lated operations. 5. Ability to monitor and control expenditure of funds allocated to maintain assigned facilities. 6. Working knowledge of occupational safety hazards, and safety precautions of the operations and trades in- volved including flight operations, swimming pool opera- tions, etc. 7. Ability to prepare a detailed budget and develop grant proposals attempting to increase funding for municipal recreation. 8. Knowledge of modern public administration and personnel practices. 9. Ability to deal with the public courteously and firmly and to establish and maintain effective working rela- tionships. 10. Ability to express facts and ideas effectively, orally and in writing. 11. Willing to work nights, weekends and holidays. REQUIREMENTS OF WORK Graduation from a four-year college or university with a degree in recreation management services, public administration or a related field; experience in developing recreational program- ming desirable. Director of highways and sanitation 12. The acting director of highways and sanitation has not partici- pated on a regular basis in weekly group meetings between the town adminis- -24- trator and employees designated as department heads and bureau chiefs. Although the acting capacity director of highways and sanitation was not a member of the management bargaining team for the last public works unit contract, and is not on the management team for successor contract nego- tiations that are currently ongoing, he has been consulted for information and opinions on various bargaining issues. One of his predecessors, as a permanent (rather than acting capacity) employee, was a member of the manage- ment bargaining team for an earlier contract. It is the Town's expectation that the person recently hired to fill the position on a permanent basis will be a member of management's bargaining team for the public works contract. The written job description for the director of highways and sanitation includes, as an example of work, "Serves on Town's negotiating and management planning teams." Boarding home administrator 13. During negotiations for the general government unit contract that was in effect through December 31, 1991, the Town's labor negotiator (who is a part-time consultant) met with the then-boarding home administra- tor regarding matters that needed to be addressed in the contract for employees of the boarding home -- for instance, the unique safety needs of the facility, the low salaries of boarding home employees, the effect of licensing requirements for some employees on their terms and conditions of employment, and unique issues resulting from the fact that the boarding home is an around-the-clock facility (compensatory time, overtime, holiday pay, etc.). The boarding home administrator was not a member of the management bargaining team itself. At the time of the hearing in this matter, the bargaining team had not been assembled and the current adminis- trator had not been consulted regarding negotiations for a successor contract, although the general government contract was due to expire on December 31, 1991. Police department - deputy chief and captain 14. The nature of the work performed by the deputy police chief as outlined in the written job description is as follows: -25- NATURE OF WORK This is a responsible administrative and supervisory position involving the assisting in the direction of the enforcement and crime prevention activities of the Sanford Police Department. The employee in this class assists the Chief of Police in carrying out the activities of the police department. The employee will be in overall control of the Patrol Division and the Bureau of Special Services, second only to the Chief of Police. Employee will coordinate activities of both units in order to present more efficient police services to the public. Work involves responsi- bility for directing and supervising internal investigations for the department. Work involves seasoned judgment, administrative ability, and advanced knowledge of police methods and techniques in planning and directing operations. Work is reviewed through observation, reports, and results achieved. According to the job description, the deputy chief supervises the captain and the employees in Special Services. The job description for the captain also outlines the nature of his work: NATURE OF WORK This is a supervisory, technical and administrative position involving direction of employees and activities related to the function of various department bureaus. Employee of this class is assigned responsibility for the operation of one or more of the department bureaus. Work involves the direct supervision of and administrative responsibility for one entire shift. Work involves the direct supervision of and administrative responsibility for bureau staff and bureau budget. Work involves the exercise of seasoned judgment, administrative ability, and advanced knowledge of police methods and techniques in planning and directing operations. Work is reviewed through observation, reports, and results achieved. According to the job description, the captain supervises sergeants, the head dispatcher, corporals, detectives and civilians. In their roles as members of the management bargaining team for the ongoing patrolmen and dispatchers' unit contract, the deputy police chief and the captain of the police department have been made aware of management proposals in advance of bargaining sessions, have sat in on -26- management bargaining strategy sessions and helped plan and draft manage- ment proposals in connection with their supervisory duties, and have been made aware of the dollar amounts that the department has available for settlement of a contract. An important function for both has been to pro- vide information in connection with issues related to their respective supervisory duties. The job description for the captain states that he "serves as back-up on the department's management negotiating team." The job description for the deputy chief does not mention any negotiating responsibilities. In current negotiations, the deputy chief has served on a subcommittee, with the police chief and the union president, to draft a contract article after fact finding had occurred. He does not handle employee grievances. Nor does the captain of the police department handle employee griev- anices. He does conduct all internal affairs investigations for the depart- ment, the results of which may lead to disciplinary action against members of the department. Under the direction of the chief, he also prepares drafts of standard operating procedures for the department that are cir- culated amongst the department staff for review. Fire department - deputy chief and division chief 15. The current contract for firefighters expires on June 30, 1992. It is the Town's intention to have both the deputy chief and division chief sit on the management bargaining team for successor contract negotiations. Nowhere in the job descriptions for these positions is that duty mentioned. Office manager 16. The office manager in the police department is the police chief's secretary. She also supervises four employees who are members of the general government unit. The office manager has provided employment information to the Town's labor negotiator for negotiation of the patrolmen and dispatchers' contract, and she may have typed a contract proposal on at least one occasion. (The labor negotiator does not utilize the office manager for typing negotiation proposals). She opens all of the police chief's mail and takes messages to the chief from the Town's labor nego- tiator if the chief is not available. Also, as a supervisor she has been -27- consulted for her opinions regarding some contract issues for the general government unit. Finally, she offered contract input to correct a problem that she had been having in administering one aspect of the previous patrolmen and dispatchers' contract. Duties in the written job description for the office manager include organizing and maintaining the files of the police chief, as well as typing of all memos, reports and correspondence for the chief. The office manager also supervises other clerical personnel. Executive secretaries 17. The executive secretary to the town administrator has been relied upon toprovide information and to convey messages between the Town's labor negotiator and the town administrator regarding contract negotiation mat- ters, and to open mail for the labor negotiator. She has also handled collective bargaining documents, such as preliminary proposals, and has typed many documents addressed to the labor negotiator. 18. The executive secretary for the public works department has pro- vided information and conveyed messages between the labor negotiator and the director of the public works department, in connection with her duties as secretary to that director. She also opens and handles correspondence between the labor negotiator and the director, as well as bargaining docu- ments (bargaining proposals, for example). 19. The executive secretary of the fire department sat in on and took minutes for the bargaining sessions for the last firefighters' contract. She also was present at management caucuses and planning sessions. For earlier contracts, she typed many documents related to bargaining. 20. According to the written job description, executive secretaries supervise other clerical personnel. DISCUSSION Section 962(6)(D) exclusion In response to AFSCME's petition, the Town alleges that six of the job classifications proposed for inclusion in the supervisory unit are excluded -28- from collective bargaining under section 962(6)(D) of the MPELRL. That provision excludes any person "[w]ho 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." Thus, when making a determination under this exclusion, the hearing exam- iner must inquire into the nature of the job itself, as well as the appointment process (including the length of the appointment). Whether the appointment requirements of this exclusion have been met is often easy to determine. The more difficult question is whether or not a particular job classification can fairly be categorized as a department or division head. Under the MPELRL, while department and division heads are excluded from collective bargaining, supervisors are not. 26 M.R.S.A. 966(1) (1988). The distinction is not always an easy one to make, but it is critical. Section 966(l) sets out some of the criteria that are to be considered when making a determination as to whether an employee is a supervisor and therefore should not normally be placed in the same unit as the employees he/she supervises. Since supervisors have collective bargaining rights, these criteria can not be determinative of whether an employee is a department or division head, and therefore is excluded from collective bargaining.[fn]5 Teamsters Local No. 48 and Boothbay Harbor Water System, No. 82-UD-29, slip op. at 7 (Me.L.R.B. May 11, 1982). Stated another way, a true department or division head does not simply coordinate, oversee and supervise a program. Bangor Education Association and Bangor School Committee, No. 80-UC-02, slip op. at 8 (Me.L.R.B. Nov. 16, 1979). _________________________ 5 Section 966(l) states, in part: In determining whether a supervisory 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, 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 griev- ances, applying other established personnel policies and procedures and in enforcing a collective bargaining agreement or establishiing or participating in the establishment of performance standards for subordinate employees and taking corrective measures to implement those standards. -29- In interpreting the (6)(D) exclusion, the Board has looked at the three types of job duties normally inherent in a department or division: day- to-day, rank and file work; supervision of other employees; and formulating and administering department or division policies and practices -- manage- ment of the department or division. In looking at these duties, the Board uses a "primary function" test -- is it the primary function of the job classification to manage and direct the affairs of the department or divi- sion, or is the primary function to supervise and/or perform the day-to-day work for which the department or division is responsible? Teamsters Local Union No. 48 and Town of Wells, No. 84-A-03, 6 NPER 20-15012 (Me.L.R.B. Apr. 11, 1984), aff'd sub nom. Inhabitants of the Town of Wells v. Teamsters Local Union No. 48, CV-84-235 (Me. Super. Ct., York Cty., Feb. 28, 1985). Planning director The Town alleges that its planning director is excluded from collective bargaining under section 962(6)(D), on the basis that the directer is appointed by the Board of Selectmen pursuant to provisions of the Town Charter. In connection with the duties of this job classification, the Town simply cites section 3-14 of the charter, which states that the "planning director shall be the administrative head of a Planning Depart- ment". The hearing examiner agrees that the appointment requirements of the (6)(D) exclusion have been met. Both section 3-4 and section 3-14 of the charter state that the planning director (alternatively called town plan- ner) is appointed by the Board of Selectmen, and section 3-14 makes it clear that the appointment is for an unspecified term. However, the planning director performs few, if any, of the management functions that -30- distinguish a department or division head from a supervisor.[fn]6 Moreover, the extensive job description makes it clear that the primary function of the planning director is to carry out the substantive land use planning responsibilities of the planning department (as it is designated in the charter) or bureau (as it is designated in the Town's organizational chart). Since the director is the only person in the planning bureau who has planning skills and duties (he supervises an executive secretary and a clerk typist, the only other employees of this bureau), he cannot possibly function primarily as a manager of the type contemplated by the (6)(D) exclusion. In fact, it is difficult to see any real difference between the situation here and that in Wells, where the code enforcement officer was essentially a one-man department. The fact that the code enforcement officer in Wells had no supervisory duties is irrelevant, since supervisors have collective bargaining rights in any event. Nor is it relevant that the code enforcement office in Wells was officially part of the police department -- the code enforcement officer reported directly to the town manager, and the chief of police had no authority or control over his work activities and responsibilities. In sum, the hearing examiner finds that the planning director is not a department head within the meaning of section 962(6)(D) of the MPELRL. Therefore, he is included in the supervisory unit sought by AFSCME. Assessor The basis for the Town's assertion that this job classification is excluded under section 962(6)(D) is that 1) section 3-22 of the charter _________________________ 6 Although the collective bargaining statute itself does not explain why supervisors have collective bargaining rights and department/division heads do not, it is presumably because in municipalities large enough to have one or more true departments and even divisions within departments, the chief administrator of the municipality cannot possibly personally perform the employee-related management functions that normally fall to that posi- tion (and are not listed as simply supervisory duties in 26 M.R.S.A. 966(l)) -- negotiation of collective bargaining contracts, hiring and firing of staff, development and administration of management policies and practices, etc. Budget duties for department heads and bureau chiefs, emphasized by the Town at hearing, do not appear to the hearing examiner to be relevant. -31- establishes an assessing department;[fn]7 2) the Board of Selectmen appoint the chief assessor pursuant to section 3-23 of the charter; and 3) the current assessor was appointed by the selectmen on January 2, 1981.[fn]8 Once again, it is not the appointment requirements that make the designation of this position as a department head questionable -- it is the job duties of the assessor. By virtue of the fact that the assessor is the only person in the assessing department (or bureau, according to the Town's organizational chart) with assessing skills and training (he supervises one secretary), and in light of the extensive list of substantive assessing duties and the sparsity of employee-related management duties, other than supervisory ones, in the job description, the hearing examiner finds no basis for treating the classification of assessor differently than the classification of planning director.[fn]9 Accordingly, the assessor will be included in the supervisory unit. Codes enforcement officer The proposal by the Town to exclude the codes enforcement officer from the supervisory unit is based first on section 3-4 of the charter, which states that the Board of Selectmen will appoint the director of the code enforcement office. Additionally, the Town points out that although the person currently employed in this position was appointed to it in 1976,[fn]10 _________________________ 7 Although the Town's brief states that 3-22 establishes a "Planning Department," it in fact creates an assessing department. 8 AIthough the Town's brief points to exhibit J-22 for this fact, it is exhibit J-25 that memorializes the appointment. 9 It is not uncommon for the tax assessor to be excluded from collective bargaining, but under the (6)(B) rather than the (6)(D) exclusion. See, for example, Paqe v. Stewart, No. CV-86-663 (Me. Super. Ct., York Cty., Apr. 22, 1988). For whatever reason(s), neither in its charter nor other- wise has the Town of Sanford decided that the political responsiveness inherent in a fixed-term appointment (and in the (6)(B) exclusion) is necessary for the position of tax assessor. 1O There is a discrepancy between the date of appointment cited by the Town, in its brief, and the date given by both the town administrator and the codes enforcement officer in direct testimony. In any case, he was appointed sometime before the charter was adopted in 1981. -32- before the charter existed, it was the selectmen who made the appointment, and the charter contains a transitional provision (section 8-3) that addresses the continuation of personnel. The Town further argues that if and when the current codes enforcement officer leaves his position, a suc- cessor would be appointed pursuant to the charter. AFSCME responds that the appointment of the codes enforcement officer for an indefinite term is contrary to state law, and "code enforcement officers in other communities are in bargaining units." Although the hearing examiner does not believe that the 1976 appoint- ment of the current codes enforcement officer is fatal in connection with the appointment requirements of section 962(6)(D) of the MPELRL,[fn]11 and although it may well be that the indefinite appointment of the codes enforce- ment officer is contrary to state law,[fn]12 these issues need not be reached, since the codes enforcement officer is not a department head within the meaning of section 962(6)(D). As is true of the planning director and assessor, the codes enforcement officer's primary function is to carry out the substantive duties of his office, with some time devoted to supervision of other employees. Although he does have a part-time field inspector, no evidence was provided to suggest that the job description for the codes enforcement officer, which overwhelmingly consists of substantive code enforcement duties, was an inaccurate reflection of how he spends his time. He is not properly excluded from the supervisory unit being established pursuant to this unit determination. The codes enforcement officer's lack of employee-related management duties supports that conclusion. Hiring/firing authority is a manage- ment function that, along with others, might support a finding that a job _________________________ ll While either a reappointment after the charter was adopted or sub- mission of a resolve showing the 1976 appointment would certainly have clarified the matter, the fact that the 1976 appointment was made by the selectmen satisfies the "degree of importance and formality" implied in section 962(6)(D). Teamsters Local Union No. 48 and City of Saco, No. 80-UD-34, slip op. at-5 (Me.L.R.B. June 20, 1980). 12 38 M.R.S.A. 441 (1989 and Supp. 1991) appears to require annual appointment of code enforcement officers. -33- classification is a department head. Although the job description for the codes enforcement officer (unlike those for the planning director and the assessor) states that he has the authority to hire and to fire employees he supervises, in uncontroverted testimony the person currently occupying the position stated that in fact he has neither hiring nor firing authority. In addition, he does not perform other employee-related management func- tions such as negotiation of collective bargaining agreements or develop- ment and administration of policies and procedures affecting the employees he supervises. Accordingly, he will be included in the unit of super- visors. Finance director/computer manager In arguing that the finance director is excluded under section 962(6)(D), the Town states that the appointment of a person to this new position by the selectmen on June 4, 1991, followed the provisions of the Operational and Policy Handbook for the Town of Sanford. There is no need for the hearing examiner to determine whether this appointment meets the appointment requirements of section 962(6)(D), since she finds that the finance director is not a department head within the meaning of that sec- tion. The parties stipulated that the finance/computer bureau has recently been converted to the status of a department, although it currently con- sists of only one person. (A part-time person will be added sometime in the future.) While the Town is free to call it anything it wishes, the director of this "department" is literally a one-woman show -- she has no employee-related management duties, because there are no other employees in the department. The job description does not even list any specific super- visory duties, let alone higher management duties, notwithstanding the three would-be employees listed for supervision by the director. There is absolutely no basis for excluding this job classification from collective bargaining, and the hearing examiner declines to do so. Director of general assistance The Town's proposed exclusion of this job classification from the supervisory unit is based first on the fact that although the person -34- currently holding this position was appointed by the selectmen prior to creation of the charter, the appointment survived creation of the charter through its transition provisions. The Town intends to fill any vacancy in this position in the future through appointment by the selectmen. While these facts might support a finding that the appointment requirements of section 962(6)(D) have been met,[fn]13 there is no need to make that determi- nation, since once again, the hearing examiner finds no basis for classi- fying the director of general assistance as a department head. Review of the job description for this position reveals that the direc- tor has very few employee-related management functions that are not simply supervisory (she does participate in hiring decisions in conjunction with the personnel director) -- her duties are overwhelmingly the day-to-day work for which that bureau is responsible. While there is no doubt that these duties are important ones that require much skill and independent judgment,[fn]14 they do not make her a department head within the meaning of section 962(6)(D). The director of general assistance will be included in the supervisory unit. Director of recreation and public property In its written response to the unit determination petition, the Town alleged that the director of recreation and public property is both a divi- sion head excluded by section 962(6)(D), and a confidential employee excluded under section 962(6)(C). At the time of the informal conference in this matter, the Town again asserted both exclusions, and evidence was presented by both the Town and AFSCME in connection with the (6)(D) ex- clusion. Thus, the hearing examiner assumes that the Town's failure, in its brief, to discuss its proposed (6)(D) exclusion was inadvertent, and __________________________ 13 There is some doubt in this regard, since the director of general assistance is not specifically listed in the charter as one of the employ- ees who must be appointed by the board of selectmen. Since the position existed at the time the charter was created, one would have expected that position to have been included in the list if there was an intention that appointment by the selectmen occur in the future. 14 The same is true of the other positions proposed by the Town for exclu- sion under section 962(6)(D). -35- this exclusion will be addressed. Section 3-17 of the Sanford charter establishes a public works depart- ment, which includes both a highway department and a parks and recreation department. Section 3-4 of the charter requires appointment of the "Director of Parks and Recreation" by the board of selectmen. Since the current director of recreation and public property was appointed by the selectmen approximately six years ago, the appointment requirements of sec- tion 962(6)(D) have been met. No evidence was presented, either through the written job description or otherwise, to indicate that the primary function of the director of recreation and public property is to conduct employee-related management functions, other than those that are simply supervisory in nature. Section 3-17 of the charter specifies that the board of selectmen, acting through the town administrator, will establish policies to govern the operation of the public works department. In addition, according to the job description for this position, the director has the authority to hire but not fire employees under his supervision. He is presently sitting on the management negotiating team for the successor public works unit contract that is being negotiated, although the written job description does not mention this duty. However, because of the lack of other management responsibilities that would justify a finding that the director is a division head under section 962(6)(D), his bargaining duties will be considered in the Town's proposed (6)(C) exclusion for this position. Section 962(6)(C) exclusion The remainder of the job classifications proposed for exclusion by the Town allegedly fall under section 962(6)(C), which excludes any person "[wlhose duties as deputy, administrative assistant or secretary necessari- ly imply a confidential relationship to the executive head, body, depart- ment head or division head." The purpose of this exclusion is to avoid the conflict between an employee's duty to his/her employer and loyalty to fellow employees. This conflict flows from the fact that the employer's confidential collective bargaining "ideas, positions and policies . . . , if disclosed to the bargaining agent, could provide the bargaining agent -36- with unfair leverage or advantage over the public employer." Town of Fairfield and Teamsters Local Union No. 48, No. 78-A-08, slip op. at 3 (Me.L.R.B. Nov. 30, 1978). Some general principles have been established for determining whether a position is confidential. First, employees who have been permanently assigned to collective bargaining or to render advice on a regularly assigned basis to management personnel on labor relations matters are con- fidential employees. State of Maine and MSEA, No. 82-A-02, slip op. at 10, 6 NPER 20-14027 (Me.L.R.B. June 2, 1983) (Interim Order). The term "labor relations matters" does not refer to contract administration, but rather contemplates "the strategic and tactical considerations involved in nego- tiating collective bargaining agreements." Id., slip op. at 7. An infor- mation provider is not a confidential employee. State of Maine and MSEA, No. 78-A-09, slip op. at 8 (Me.L.R.B. Mar. 2, 1979). "In many if not most cases, 'confidential' supervisory employees need access to at least one 'confidential' clerical employee, to carry out their 'confidential' duties." State of Maine (No. 82-A-02), slip op. at 28. However, the employer should make an affirmative effort to centralize con- fidential functions, to the maximum extent practicable. Id., slip op. at 19-20. Finally, current duties, and not duties projected for the future, must be the basis for a finding of confidentiality. MSAD No. 14 and East Grand Teachers Association, No. 83-A-09, slip op. at 10, 6 NPER 20-14036 (Aug. 24, 1983). Director of highways and sanitation The Town seeks a (6)(C) exclusion for this position on the basis that according to the job description, the director hires and trains employees, disciplines employees, serves on the Town's negotiating and management planning teams, and must have a thorough knowledge of good personnel and labor relations practices. The current director of highways and sanitation holds his position on an acting capacity basis. Consequently, he is not a member of management's bargaining team for the public works contract being negotiated, although at least one of his predecessors was on the team for a previous contract. According to the Town, however, it intends that the -37- newly hired director, who has been hired as a permanent rather than an acting capacity employee, will participate on future management bargaining teams. Neither contract administration nor general supervisory duties are relevant to this inquiry -- collective bargaining-related duties are at the heart of this exclusion. State of Maine (No. 82-A-02). Although the Town intends to use the newly appointed director on its bargaining team in the future, the hearing examiner must look at current duties and not future duties in determining whether to exclude this position from the supervisory unit. MSAD No. 14. Accordingly, until such time as the director actually performs these duties once again, this position will be included in the unit sought by AFSCME.[fn]15 Director of recreation and public property As pointed out earlier, the director of recreation and public property is presently sitting on the management negotiating team for the successor public works unit contract that is under negotiation. The job description for this position does not mention this duty, and the director was not a member of the bargaining team for the last public works contract. (As a bureau chief, he was consulted on some of the Town's bargaining proposals.) The Town offered no explanation for its recent decision to include the director on the bargaining team, when it had not done so in the past. The relevancy of this inquiry becomes clear when one looks closely at the (6)(C) exclusion itself: excluded, among others, are those employees whose duties as deputy to a department head necessarily imply a confidential relationship to that department head. It appears to the hearing examiner that the director of recreation and public property may be on the public works bargaining team for the first time because the other bureau chief in the public works department, the _________________________ 15 Should the parties be unable to reach an agreement on the exclusion of this position at that time, the Town should file a unit clarification peti- tion seeking the exclusion. -38- director of highways and sanitation, has been unable to serve in this capa- city. That director is an acting capacity employee who previously was in the bargaining unit for which a contract was being negotiated. In the estimation of the Town, he had a conflict of interest that prevented the Town from using him on its bargaining team for the two most recent sets of negotiations. The hearing examiner finds that his participation on the management bargaining team, recent though it is, excludes the director of recreation and public property from the supervisory unit under section 962(6)(C). She also finds, however, that the Town has not shown that it needs both public works bureau chiefs on the management bargaining team for the public works contract. The Town's own actions support that conclusion -- only one job description includes this duty, and in fact only one bureau chief has been utilized for this purpose at any one time, apparently without any signifi- cant hindrance to negotiations. Accordingly, the hearing examiner strongly suggests that in selecting future bargaining teams for the public works department contract, the Town decide whether it wishes to return to using the director of highways and sanitation on its team, or whether it wishes to continue its more recent use of the director of recreation and public property in this capacity. Since the management team for the public works contract al- ready includes the Town's labor consultant, the town administrator, the director of personnel, and the director of the public works department, one bureau director should be more than adequate to meet the Town's collective bargaining needs.[fn]16 Requiring the Town to make this choice is also supported by the Board's policy that employers should centralize confidential functions to the maximum extent practicable. State of Maine _________________________ 16 The Town's alternate use of these two bureau chiefs raises the question of whether the duties of either chief necessarily imply a confidential relationship to the public works director. The fact that participation on the bargaining team appears in one of the bureau chief job descriptions, coupled with the fact that the Town has historically used one or the other, even in the absence of the incentive that the existence of a supervisory unit might create, persuades the hearing examiner that the use of one bureau chief meets the "necessarily implied" test in section 962(6)(C). -39- (No. 82-A-02). Finally, the requirement is supported by the fact that the MPELRL does not exclude supervisors from collective bargaining. 26 M.R.S.A. 966(1) (1988). Permitting the Town, without good reason, to put all of its supervisory personnel on its bargaining team undermines the pur- poses of the law. Boarding home administrator The Town asks that this position be excluded from the unit on the basis that 1) it is responsible for a variety of supervisory and other management duties; and 2) the person who previously held this position (when nego- tiations were occurring for the general services unit to which boarding home employees belong) was consulted extensively about the special matters that needed to be addressed in the general services contract for boarding home employees. The general supervisory and other management duties to which the Town refers are irrelevant for a (6)(C) exclusion. While the Town's second argument has some appeal, it must also be rejected. At the heart of the (6)(C) exclusion is the need for collective bargaining confidentiality -- the need to protect information that, if revealed to the bargaining agent prior to negotiations, could provide the bargaining agent with unfair advantage. Town of Fairfield. In her discussions with the labor negotiator, the boarding home adminis- trator provided information that AFSCME undoubtedly had or could have got- ten from the employees themselves -- the unique safety needs of the facility, the comparatively low salaries of these employees, the effect of certain licensing requirements on terms and conditions of employment, and needs resulting from the fact that the facility operates around the clock (compensatory time, overtime, holiday pay). There is nothing confidential about any of this information. It is certainly good management practice to consult one's supervisory employees to determine what issues may need to be raised at the bargaining table. That fact does not make those super- visory employees confidential employees within the meaning of section -40- 962(6)(C).[fn]17 Accordingly, the boarding home administrator will be included in the supervisory unit. Police department - deputy chief and captain The Town proposes that both the deputy chief and the captain of the police department be excluded from the supervisory unit. In connection with the deputy chief, the Town asserts that 1) the deputy is responsible for the patrol division and the bureau of special services, and acts for the police chief in his absence; 2) he has specified supervisory duties; and 3) he serves on the management bargaining team for the police and dispatchers' unit contract. For the captain, the Town alleges that 1) he is responsible for one or more of the department's bureaus; 2) he has specified supervisory duties; 3) he conducts all of the internal affairs investigations for the department; and 4) he too serves on management's bargaining team for the police department contract. Of the grounds asserted by the Town, only involvement in collective bargaining matters is relevant to the (6)(C) exclusion. Supervisors are granted bargaining rights under the MPELRL, and the Town has not made a case for excluding either of these employees as a department or division head. While the captain's internal investigation responsibilities may lead to disciplinary action against members of the department, these duties do not involve labor relations matters as that term has been defined by the Board. State of Maine (No. 82-A-02). They do not create the collective bargaining conflict of loyalties contemplated by this exclusion. Town of Fairfield._________________________ 17 In the hearing examiner's mind, there is little or no difference be- tween this situation and the situation with the acting capacity director of highways and sanitation. Because he has been acting capacity, was pre- viously in the bargaining unit for which a contract was being negotiated, and presumably will return to that unit now that a permanent replacement has been hired for the position of director, the Town has not put him on its bargaining team for the last two sets of negotiations. It has used him to provide information in connection with negotiations. The Town's action in connection with the director of highways and sanitation supports the Board's position that an information provider is not a confidential employee. State of Maine (No. 78-A-09). -41- While there is no doubt that both the deputy chief and the captain have participated in collective bargaining in a way and to the degree contem- plated by the exclusion, the hearing examiner must also take cognizance of the Board's policy of requiring centralization of confidential functions to the maximum extent practicable. State of Maine (No. 82-A-02). The job description for the deputy chief, created at the time the position was created in 1989, does not mention any negotiating responsibilities. The job description for the captain states that he serves as "back-up" on the negotiating team. Yet both employees are currently being utilized as management bargaining team members. The Town has provided no explanation for this decision to go involve all three levels of Police department super- visors in the bargaining process. (The bargaining team includes the Town's consultant labor negotiator, the town administrator, the police chief, the deputy chief and the captain. It may also include the director of person- nel.) Once again, the Town has in effect undermined the intent of the MPELRL, which grants supervisors collective bargaining rights. 26 M.R.S.A. 966(1) (1988). Accordingly, the hearing examiner will exclude both the deputy chief and the captain from the supervisory unit, since they are sitting on manage- ment's bargaining team. However, she also advises the Town to carefully review its collective bargaining needs and to decide which, if either, of its mid-level supervisory personnel is necessary for the efficient and effective negotiation of a successor police department contract. That decision should be reflected in future bargaining teams for the Town. Removing one or both of these positions from the bargaining team and placing them in the supervisory unit at the time the next contract is nego- tiated will not prevent the Town from continuing to use them to provide information in connection with bargaining issues related to their super- visory duties. Both the deputy chief and the captain have been used for this important function in the past, and can be used in the future, without denying them the rights granted in the MPELRL. Fire department - deputy chief and division chief In its brief, the Town lists various management and other supervisory duties in support of its proposal that the deputy chief and the division -42- chief of the fire department be excluded from the supervisory unit sought by AFSCME. In connection with the deputy chief, it asserts that it intends to use him in the future on its bargaining team for the fire department contract. (The current contract expires on June 30, 1992). In connection with the division chief, the Town states that he too will be a member of the management bargaining team when a successor fire department contract is negotiated. (This assertion was made in the Town's brief. It was not made at the time of the hearing.) Of the grounds asserted by the Town, only involvement in collective bargaining is relevant to a (6)(C) exclusion. In addition, current duties, and not duties projected for the future, must be the basis for a finding of confidentiality. MSAD No. 14. Since neither the deputy chief nor the division chief has participated in collective bargaining to date, both positions must be included in the supervisory unit. The "necessarily implied" test of (6)(C) and the Board requirement that employers centralize confidential functions both lead the hearing examiner to suggest to the Town that once again it carefully review its collective bargaining needs before choosing the members of its bargaining team for future fire department negotiations. Since there have been no fire department negotiations since the position of deputy fire chief was created in 1989, it is understandable that he has not yet been used in this capa- city. It is noteworthy, however, that the job description for this posi- tion does not mention this duty. As for the division chief, no person in this position, which has existed since 1981, has ever been used as a bargaining team member. Nor does the job description for this position list collective bargaining as a duty. Yet the Town intends to use the division chief in its next contract negotiations. Again, the Town has given no explanation for its intention to utilize all three levels of supervisory personnel to bargain a single contract (the fire chief already sits on the bargaining team), a decision that would effectively undermine section 966(1) of the MPELRL. Officer manager (police department) and executive secretaries The Town proposes that the officer manager in the police department, as well as the executive secretaries to the town administrator, fire chief and -43- public works director, be excluded from collective bargaining under the (6)(C) exclusion. AFSCME has proposed putting them in the supervisory unit rather than the general government unit, because they all supervise other clerical personnel. The Town responds that they do not have a community of interest with other supervisory personnel, and therefore should be placed in the general services unit if it is determined that they have bargaining rights at all. All four of these positions are clerical positions; three perform clerical duties for the head of their respective departments (police, fire and public works), and the other is the secretary to the town manager. All four managers for whom these personnel work sit on management bargaining teams for negotiation of collective bargaining agreements. The record shows that all four clerical employees have access to infor- mation that if revealed to the bargaining agent, "could provide the bargaining agent with unfair leverage or advantage over the public employer." Town of Fairfield, slip op. at 3. The very nature of each job is to handle phone calls, correspondence and other files in connection with the duties of the respective managers -- and these duties include collective bara- gaining. Since as a general rule, confidential supervisory employees need access to a confidential clerical employee to carry out their own confiden- tial duties, the hearing examiner finds that these four positions should be excluded from collective bargaining. Consequently, there is no need to determine whether they have a community of interest with other supervisors in the supervisory unit. APPROPRIATE UNIT DETERMINATION On the basis of the parties' stipulations, findings of fact made by the hearing examiner, and the foregoing discussion, and pursuant to the provisions of 26 M.R.S.A. 966 (1988 and Supp. 1991), I conclude that the following unit of supervisory employees of the Town of Sanford is approp- riate for the purposes of collective bargaining, within the meaning of 26 M.R.S.A. 966: -44- INCLUDED: planning director, assessor, codes enforcement officer, finance director/computer manager, director of general assistance, director of high- ways and sanitation, boarding home administrator, deputy chief (fire), division chief (fire) EXCLUDED: director of recreation and public property, deputy chief (police), captain (police), office manager (police), executive secretary to town administrator, executive secretary to director of public works, executive secretary to fire department, and all other employees of the Town of Sanford Dated at Augusta, Maine, this 21st day of February, 1992. MAINE LABOR RELATIONS BOARD /s/_________________________________ Judith A. Dorsey Designated Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4) (Supp. 1991), to appeal this report to the Maine Labor Relations Board. To initiate such an appeal, the party seeking appellate review must file a notice of appeal with the Board within fifteen (15) days of the date of issuance of this report. See Board Rules 1.12 and 7.03. -45-