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-