STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 92-UD-10 Issued: August 18, 1992 _______________________________________ ) TEAMSTERS UNION LOCAL 340, ) ) Petitioner, ) ) and ) UNIT DETERMINATION ) REPORT CITY OF PRESQUE ISLE, ) ) Public Employer ) _______________________________________) On June 1, 1992, 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, Teamsters Union Local 340 ("the Teamsters") filed a petition for appropriate unit determination with the Board, seeking to become the exclu- sive bargaining agent of a unit of general government employees of the City of Presque Isle ("City"). The Teamsters proposed for inclusion in the unit the following job classifications:[fn]1 tax collector tax clerk (2) treasurer accounts payable clerk payroll clerk city clerk deputy city clerk assessor assistant assessor general assistance director code enforcement officer administrative assistant emergency management director director of planning and development planner (2) secretary/bookkeeper secretary/receptionist (2) ______________________________ 1 In some instances, the job titles listed in the petition were incom- plete or inaccurate. These are the titles utilized by the parties at the time of the hearing. -1- ___________________________________________________________________________ animal control officer highway (public works) foreman parking officer administrative assistant/police department In response to the petition, the City asserted that an appropriate unit would include the following job classifications: tax clerk (2) accounts payable clerk payroll clerk administrative assistant assistant assessor secretary/bookkeeper secretary/receptionist (2) It further asserted that several of the remaining employees are excluded from collective bargaining under section 962(6)(B), (C) or (D) of the MPELRL,[fn]2 and also that certain classifications lack the requisite community of interest. Prior to hearing, the parties agreed to accrete the parking officer to the police officers and dispatchers' unit of the police depart- ment. At hearing, the following changes and clarifications were made by the parties to their respective positions: 1) the City corrected its response to add the position of deputy city clerk to the clerical unit it had proposed, and to remove the position of secretary/receptionist on the ground that the position is confiden- tial within the meaning of section 962(6)(C) of the MPELRL; 2) the parties stipulated that the position of administrative assistant for the police department is confidential within the meaning of section 962(6)(C); 3) the parties stipulated that the position of director of planning and development would be withdrawn from the list of positions proposed by the Teamsters for inclusion in the unit; 4) the City asserted that the position of planner is a professional one requiring that persons employed in that position be given the opportunity to vote on whether they wish to be included in the unit of clerical employees or to be placed in a separate unit; 5) the City asserted that the highway (public works) foreman lacks a community of interest with other employees proposed for inclusion in the unit; ______________________________ 2 The response cites section 962(B), (C) and (D). The correct citation is section 962(6)(B), (C) and (D). -2- ___________________________________________________________________________ 6) the City asserted that all other employees proposed for inclusion in the unit are excluded from collective bargaining under section 962(6)(B) of the MPELRL; and that failing a finding to that effect by the hearing examiner, all but the animal control officer are excluded under section 962(6)(D). The animal control officer, according to the City, lacks a community of interest with other positions in the unit proposed by the Teamsters. Upon due notice an evidentiary hearing was scheduled for Wednesday, July 1, 1992, in Augusta, Maine. William J. Turkewitz, field represen- tative, represented the Teamsters, and Linda D. McGill, Esquire, repre- sented the City. No one requested to intervene in the proceeding or otherwise requested to participate as an interested party. Prior to com- mencement of the formal evidentiary hearing, the parties met with the hearing examiner in an informal conference in order to present uncontested factual evidence and to determine whether any factual and/or legal stipula- tions were possible. The stipulations that were reached have been incor- porated herein. Ms. Jere Serois, personnel director and acting city manager for the City of Presque Isle, participated in the informal con- ference as a resource person. During the informal conference, parties were given the opportunity to make oral argument regarding their positions. 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. Witnesses are reflected in the hearing transcript. Both parties declined to file written briefs. Upon subsequent review of the record, the hearing examiner concluded that she needed certain City ordinances that had not been provided. Consequently, she gave the City the opportunity to supplement the record in this regard. The City was unable to locate any such documents, and instead provided a letter stating reasons why the ordinances were not necessary to its case. The Teamsters chose not to respond to the City's letter. The following joint exhibits were admitted into the record: J-1 Collective bargaining agreement between the City and the Teamsters for police department employees (1/1/91 - 12/31/91) (18 pp.) J-2 Collective bargaining agreement between the City and the Teamsters for public works department employees (1/1/91 - 12/31/91) (17 pp.) -3- ___________________________________________________________________________ J-3a Job description for emergency management director (3/21/91) (2 pp.) J-3b(1) Job description for office administrator of police dept. (2 pp.) J-3b(2) Job description for secretary/account clerk of police dept. (2 pp.) J-3c Job description for code enforcement officer (10/15/91) (2 pp.) J-3d Job description for general assistance director (2 pp.) J-3e Job description for assessor (2 pp.) J-3f Job description for planner (3 pp.) J-3g Job description for highway (public works) foreman (2 pp.) J-3h Job description for director of planning and development (2 pp.) J-3i Job description for city clerk (2 pp.) J-3j Job description for deputy city clerk (1 page) J-3k Job description for tax collector (5/92) (2 pp.) J-3l Job description for treasurer (5/92) (2 pp.) The following exhibits were offered by the petitioner and admitted without objection: P-1 Collective bargaining agreement between the City and the Teamsters for fire department employees (1/1/91 - 12/31/91) (17 pp.) The following exhibits were offered by the petitioner and excluded by the hearing examiner based on relevance: P-2 Collective bargaining agreement between Town of Kittery and the Teamsters for professional employees (7/1/90 - 6/30/92) (32 pp.) P-3 Collective bargaining agreement between Town of Kittery and the Teamsters for administrative/clerical employees (7/1/90 - 6/30/92) (31 pp.) P-4 List of employees included in Form 1 agreement between City of Augusta and Teamsters for general government unit (4 pp.) -4- ___________________________________________________________________________ The following exhibits were offered by the respondent and admitted without objection: R-1 City Charter (City of Presque Isle) (18 pp.) R-2 List of annual appointments for 1991 and 1992 (4 pp.) R-3 Personnel Merit System Ordinance (39 pp.) R-4 Organizational chart (30 pp.) R-5 Affidavit of John Y. Edgecomb, Director of Planning and Development (1 page) R-6 Agendas for city council meetings (1/7/91, 1/6/92, 1 page each) R-7 Minutes for city council meeting of 1/6/92 (5 pp.) 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). STIPULATIONS In prehearing discussion the parties reached the following factual and legal stipulations: 1. Teamsters Union Local 340 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 City of Presque Isle is a public employer within the meaning of 26 M.R.S.A. 962(7) (Supp. 1991). 3. None of the positions proposed for inclusion in the unit have pre- viously been the subject of a unit determination. 4. None of the positions originally proposed for inclusion in the unit are excludable on the basis that they are temporary, seasonal or on- call within the meaning of 26 M.R.S.A. 962(6)(G) (1988).[fn]3 _______________________________ 3 The issue of the exclusion of a temporary position did arise in connec- tion with a clerical position in the planning department that came to light at the hearing. That issue will be addressed. -5- ___________________________________________________________________________ 5. There is neither a contract bar nor an election bar to the Teamsters' petition. 6. All employees in the public works department, including the high- way (public works) foreman, work five 8-hour days per week for six months of the year, and four 10-hour days per week for the other six months. City hall employees work 8-hour days year-round. 7. The animal control officer works out of his home, works 20 hours per week, and reports directly to the city manager. He works through the police department when animal control complaints are made directly to that department. FINDINGS OF FACT Upon review of the entire record, the hearing examiner makes the following additional findings: 1. The city charter for the City of Presque Isle, adopted by the Maine Legislature in 1939, states, in part: ARTICLE IV Administrative Officers Sec. 1. Titles and appointment. There shall be the follow- ing administrative officers and boards: (a) The following officers and boards shall be appointed by ballot by a majority vote of the members of the city council; city manager, city clerk, treasurer and tax collector, members of the superintending school committee, members of the board of assessors, 2 members of the board of registration as provided under section 8 of chapter 6 of the revised statutes, board of mothers' aid (child welfare), chief of police, superintendent of the city farm, trus- tees of the public library, librarian, chief of the fire depart- ment, planning board, board of health and local health officer. (b) The following officers shall be appointed by the city manager, subject to confirmation by the city council: road com- missioner, inspector of buildings, inspector of meat and milk, janitor for the library, and all other department heads or offi- cers whose position may from time to time be created by ordinance. (c) All officers and boards appointed under this section except as otherwise provided in this chapter and except those whose terms of office are fixed by the public laws of the State of Maine shall hold office until the 1st Monday of January next following the date of their appointment and until their successors -6- ___________________________________________________________________________ are appointed and qualified. (Added by Chapter 46, P. & S. L., 1941, effective July 26, 1941) Sec. 2. Power of council with regard to appointive officers and boards. The council shall have power by ordinance or resolve: (a) To create any new appointive office. (b) To authorize the appointment of assistants or deputies to any office. (c) To divide duties of any office between 2 or more offices. (d) To assign duties of 2 or more offices to 1 office. Sec. 3 Term of service. All appointive offices whose terms of service are specified to be for a fixed term, shall be remov- able by the city council upon written charges, notice, and hearing, if upon such hearing they are adjudged guilty of the charges pre- ferred. All other appointive offices shall hold office during the pleasure of the appointing power. The terms of office of members of the board of registration of voters shall be as now provided by law, except as otherwise specifically provided in this act. . . . Sec. 6. Powers and duties of the city manager. The city manager shall be the administrative head of the city and shall be responsible to the city council for the administration of all departments. The powers and duties of the city manager shall be as follows: (a) To see that the laws and ordinances are enforced, but he shall delegate to the chief of the police department the active duties connected therewith regarding criminal offenses. (b) To exercise control over all departments and divisions created herein or that may hereafter be created. (c) To make appointments as provided in this charter. (d) To attend meetings of the city council, except when his removal from office is being considered, and recommend for adop- tion such measures as he may deem expedient. (e) To keep the city council fully advised as to the business and financial condition and future needs of the city and to fur- nish the city council with all available facts, figures and data connected therewith, when requested. -7- ___________________________________________________________________________ (f) To perform such other duties as may be prescribed by this charter or required by ordinance of the city council. 2. On January 7, 1991, and January 6, 1992, the city council, in addition to making appointments to a variety of boards and committees, made one-year appointments for the following individual positions: city manager city treasurer city clerk fire chief/fire inspector police chief city solicitor tax collector constable (18 positions) librarian health officer assistant to the health officer certified weigher (4 positions) sealer of weights and measures At those same meetings, the city council confirmed the following one-year appointments made by the city manager: airport manager code enforcement officer/building inspector/housing inspector/ plumbing inspector/electrical inspector city assessor director of public works general assistance administrator director of planning and development personnel director/safety director affirmative action officer director of recreation and parks director of The Forum animal control officer director of solid waste city engineer (2 positions) Hanson Lake administrator handicapped project coordinator director of emergency management 3. The City has no records indicating that the positions of assessor, general assistance administrator, code enforcement officer, director of emergency management and animal control officer were created by ordinance. 4. Article IV, section 2(a), of the City's charter gives the power to create any new appointive office to the city council. Currently, when any new municipal position is created in Presque Isle, it is created by the -8- ___________________________________________________________________________ city council. 5. Section 10 of Article IV of the charter requires that three assessors of taxes (called collectively the board of assessors) be appoint- ed by the city council for a term of three years and having the powers, duties and liabilities that "similar officers of the several towns and cities in the state may exercise, and may now or hereafter be subject to under the laws of the state." Currently, the City council makes three-year appointments to the board of assessors, and confirms the city manager's one-year appointment of a separate, administrative position called city assessor. Nowhere in the charter is this separate position mentioned. According to testimony of the acting city manager, the board of assessors is "like the appeals board;" in her opinion, the assessor "holds quite a bit of weight with the board as far as an appeal might go, because they most often are relying on that assessor's experience and expertise in that area." 6. The written job description for the city assessor contains the following: Nature of Work This is specialized technical administrative work in the assessment of real and personal property within the City of Presque Isle. Work involves the evaluation and assessment of all taxable real and personal property within the City and the administration of varied records necessary to administer the property taxing program. While duties involve extensive field work in the review of existing and new properties, the City Assessor participates in administrative office work and has responsibility for the mainte- nance of property assessment records. Work is performed under the general direction of the City Manager. Assignments, however, are carried out with technical independence subject to general policy guidlines (sic), and are checked for results obtained and through State or local review and appeal. Examples of Work (Illustrative Only) Plans and organizes field work; may make field checks on new contruction and renovations and secures varied data for records purposes. Maintains and reviews the maintenance of official maps, trans- fers, and other records maintained at the assessment office; makes and enters computation valuations and other data in -9- ___________________________________________________________________________ valuation commitment books; determines the valuations to be placed on new, renovated, and existing property based on changing market value. Is responsible for the on-going maintenance of current pro- perty valuation through visitation and data collection. Maintains varied property information records necessary to the preparation of assessment rolls; verifies proper names, locations, and size of all transfers of property using docu- ments in the Registry of Deeds. Reviews qualifications of tax exempt properties, confers with local businesses in the listing and inspection of all taxable personal property. Provides extensive public information regarding complaints arising from assessments; meets with the taxpayers and re- solves disputes; interprets property tax laws; makes final review and approves major technical decisions in all assess- ment program work. Maintains list of tax acquired property; oversees sale of tax acquired property. Assists Code Enforcement Officer in issuing building permits. Maintains records on City Data Processing equipment. Performs related work as required. Requirements of Work Thorough knowledge of the principles, methods, and tech- niques of real and personal property assessment and valu- ation. Thorough knowledge of City Charter provision, ordinances and general law pertaining to Tax Assessment. Ability to analyze factors which may influence the value of property and to exercise judgment in determining property values and changes in City structure and physical proper- ties. Ability to plan and organize the maintenance of assessment and property records to facilitate the preparation of varied assessment rolls and reports. Ability to establish and maintain effective working relation- ships with taxpayers, the general public, and employees. Ability to speak before public groups to present the real properties assessment program. Skill in the operation of calculating machines and standard office equipment. -10- ___________________________________________________________________________ Desirable Experience and Training Considerable experience in property assessment work involving the appraisal and evaluation of land and buildings; satisfactory completion of a course of study leading to certification in real property appraisal, or graduation from an accredited college pro- gram with specialization in property assessment, business, or public administration. Any equivalent combination of experience and training. Necessary Special Requirements Possession of a Certified Maine Assessor Certificate. 7. The written job description for the general assistance administra- tor contains the following: Nature of Work This is responsible administrative work in directing and administering the City's welfare program. Work involves responsibility for dispensing welfare assis- tance through the application, screening and investigation stages, consulting with the City Manager when necessary. This employee also has responsibility for performing other varied social service activities and for maintaining the department budget, keeping records of departmental activities, and making reports. Work is performed under the general direction of the City Manager with considerable independence and is evaluated through reports and discussion of results achieved; assignments are also reviewed through fiscal audits and reports to State agencies. Examples of Work (Illustrative Only) Takes applications for welfare assistance; interviews cli- ents; investigates and determines need in accordance with applicable welfare guidelines and determines the amount and type of assistance necessary. Maintains liaison with and makes referrals to various local, state and federal agencies or programs. Attends meetings and represents City on matters dealing with welfare, housing, mental health and other social work pro- grams. Coordinates welfare receipient's (sic) work program with appropriate City Department. Serves on Health Board and Board of Child Welfare. Prepares varied reports for State of Maine and City of Presque Isle. -11- ___________________________________________________________________________ May provide transportation for clients to doctor's office or hospital; may take applications in client's (sic) homes or at hospital. Performs related work as required. Requirements of Work Ability to deal with the public in an effective, tactful, and pleasant manner, and to establish effective re- lationships with other employees. Thorough knowledge of welfare laws, guidelines, and per- tinent regulations and the ability to apply the laws and regulations to departmental operations. Thorough knowledge of other agencies to which clients may be referred for services needed and ability to maintain effective working relations with those agencies. Thorough knowledge of the theory and practice of welfare administration and the social factors involved in cases. Effective communications skills, especially verbal and listening. Skills in interviewing persons on a one-to-one basis. Ability to work independently following statutory and general policy guidelines. Desirable Experience and Training Considerable experience in welfare administration, social service work; high school graduation or equivalent, or any equiva- lent combination of experience and training. 8. The written job description for the emergency management director contains the following: JOB SUMMARY THE EMERGENCY MANAGEMENT DIRECTOR is the Chief of Emergency staff. He/she is responsible to the CHIEF ELECTED OFFICIALS and works under the direction of the City Manager. It is the responsibility of the Emergency Management Director to coordinate local response and recovery in an emergency. JOB DUTIES AND RESPONSIBILITIES 1. Coordinate the identification of hazards in the City. 2. Analyze the City's vulnerability to these hazards and the risks involved. 3. Assess the capability of the City to respond to the hazards identified. 4. Identify available resources, and develop an emergency plan and related checklists. -12- ___________________________________________________________________________ 5. Maintains a positive relationship with all City depart- ments, County and State Emergency departments. 6. Conducts weekly radiological monitor test and bi-weekly National Advance Warning Test. 7. Prepares and submits quarterly financial report to State. 8. Prepares annual budget request and monitors same. 9. Coordinates annual emergency response exercise. 10. All other related duties as required. JOB REQUIREMENTS 1. Ability to organize and direct personnel. 2. Ability to remain calm and function under stress and emergency situations. 3. Ability to understand and apply federal and state laws as they pertain to emergency management. 4. Ability to communicate both orally and in writing. 5. Ability to prepare and maintain accurate reports and records. MINIMUM QUALIFICATIONS One to two years of college or technical school supplemented with business courses, or any equivalent combination of experience and training; previous supervisory experience. JOB SPECIFICATIONS 1. Knowledge of supervisory and basic management principals (sic); knowledge of hazardous chemicals. 2. Physically capable of performing job: sufficient mobility to react to and aid in emergency situations; must be able to withstand adverse weather conditions that may be present in emergency situations. 3. Accountability: Directs and supervises personnel in emergency situations, must be able to anticipate and react to varied emergency needs. 9. The City's organizational chart indicates that 17 positions are considered to be department heads by the City: director of planning and development director of parks and recreation -13- ___________________________________________________________________________ librarian general assistance administrator director of public works director of solid waste code enforcement officer treasurer tax collector police chief fire chief director of emergency management airport manager director of The Forum personnel director city clerk city engineer (2) All persons designated as department heads report directly to the city manager and work at city hall. Although the position of tax assessor is not shown as a department head on the organizational chart, as that chart was explained by the City during testimony and as the chart itself is constructed, the City considers the assessor to be a department head also. Personnel in department head positions, including the positions at issue in this proceeding, attend biweekly department head meetings, develop budget requests for their departments (salary and benefits for him/herself and support staff if any, office supplies, utilities, travel, etc.), administer their departmental budgets, make hiring decisions for filling vacancies in their departments, and make recommendations concerning termination of employees in their departments. Persons designated as department heads exercise independent judgment and discretion in carrying out the duties of their particular positions and make recommendations to city council and/or the city manager regarding such matters as the update of ordinances. 10. The assessor and the code enforcement officer each have an administrative assistant. The general assistance administrator supervises a part-time employee who fills in when the administrator is absent. (Public law contains stringent requirements regarding the prompt acceptance and processing of public assistance applications; 22 M.R.S.A. ch. 1161 (1992).) The director of emergency management does not have an assistant on a per- manent basis. At times he has a part-time secretary who is not on the City's payroll, but rather is occasionally available through one or more outside-funded programs. -14- ___________________________________________________________________________ 11. Normally, two women job-share the position of secretary/recep- tionist. Each works 25 hours per week, and both perform clerical functions for the city manager, among other things. Recently, the department of planning and development received a grant for which the department needed temporary clerical assistance. One of the employees in the job-share agreed to work full-time for the planning department during the period of the grant, with the understanding that she would be able to return to her former position when the grant ran out. The other employee in the job share has been and will continue to work full-time for the city manager during this period. Grant money for the clerical position in the planning department is expected to run out sometime in the early spring of 1993. 12. In the 1991 police department, fire department and public works department collective bargaining agreements, the city manager is the repre- dentative of the City to whom grievances are submitted at step 2 of the grievance procedure in each. 13. The highway (public works) foreman supervises semi-skilled and skilled laborers and equipment operators who work for the public works department. His duties include organizing, assigning, supervising and inspecting the work of others; he reports to the director of the depart- ment, and assists in the hiring process by participating in interviews and making hiring recommendations. Unless he is filling in for the department director, his workplace is the highway (public works) department garage. The foreman, like persons designated as department heads, is a salaried employee. 14. Article 24 of the 1991 public works department collective bargain- ing agreement states: ARTICLE 24 - SUPERVISORY EMPLOYEES The foreman may perform bargaining unit work only for jobs or tasks which would only last in duration of fifteen (15) minutes or less. The use of a foreman will not be used by the City to obvert the payment of overtime. The use of the foreman will be only used for critical emergencies where the public health and safety of the community is threatened. The department head will notify the steward as soon as practical after the foreman works detailing the reasons why the foreman was required to perform bargaining unit work. -15- ___________________________________________________________________________ 15. City hall employees, clerical as well as persons designated as department heads, currently have the same benefits, vacations and holidays. 16. The written job description for the City's two planner/project coordinators, who work for the department of planning and development, contains the following statement regarding the nature of work performed: Nature of Work This is specialized work that entails providing planning and management for programs or projects assigned to the department. The employee in this class exercises considerable indepen- dence of judgment, receiving general guidance from the Planning and Development Director. Work involves planning and coordinating activities of the assigned program; developing proposals and implementing special projects; monitoring and evaluating project progress; preparing reports and applications for funding from a variety of sources. Employees in this class may provide technical assistance to other departments and staff. More specifically, their duties include coordinating acquisition, reloca- tion and demolition projects; working with appraisers; overseeing the bid process for contract services; monitoring contract services and other pro- jects; performing environmental reviews and assessments, and preparing grant applications. DISCUSSION The parties have reached agreement on the right to collectively bargain for several of the positions originally included in the unit determination petition. The hearing examiner must determine whether the remaining employees should be excluded from bargaining, and what the unit configura- tion(s) should be for those employees who are entitled to bargain collec- tively. Section 962(6)(B) exclusion In response to the Teamsters' petition, the City alleges that eight of the job classifications proposed for inclusion in the unit are excluded from collective bargaining under section 962(6)(B) of the MPELRL. That provision excludes any person "[a]ppointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer, except that appointees to county -16- _____________________________________________________________________________ offices shall not be excluded under this paragraph unless defined as a county commissioner under Title 30-A, section 1302." Thus, the three prongs of this exclusion are 1) whether the executive body or head made the appointment, 2) whether it was made for a specified term, and 3) whether it was made pursuant to a statute, ordinance or resolution. city clerk, treasurer, tax collector Section 1(a) of Article IV of the City's charter states that the city clerk, the treasurer and the tax collector shall be appointed "by a major- ity vote of the members of the the city council." Section 1(c) states that persons appointed under section 1(a) shall hold office "until the 1st Monday of January next following the date of their appointment and until their successors are appointed and qualified," unless the charter or a public law of Maine specifies otherwise. The city clerk, the treasurer and the tax collector have been appointed to one-year terms by the city council for at least the last two calendar years. Since the City's charter was passed as a private and special law by the Maine Legislature,[fn]4 it qualifies as a statute pursuant to which these appointments were made. The city council of Presque Isle constitutes the executive body of the City. Thus, the three prongs of the exclusion have been met, and the persons in these three positions are excluded from collective bargaining under section 962(6)(B). code enforcement officer, assessor, general assistance administrator, emergency management director, animal control officer In connection with the other five employees alleged to be excluded under section 962(6)(B), the City takes the position that these employees, who for at least the last two years have been appointed to one-year terms by the city manager and confirmed by the city council, are excluded because these fixed-term appointments were made pursuant to section 1(b) of Article IV of the charter. Section 1(b) states: (b) The following officers shall be appointed by the city manager, subject to confirmation by the city council: road com- ______________________________ 4 The charter was originally adopted in ch. 29, P. & S. L. 1939; it has been amended through private and special laws five times since then, the last time being in 1963. Amendments after 1963 were made by the city council. -17- _____________________________________________________________________________ missioner, inspector of buildings, inspector of meat and milk, janitor for the library, and all other department heads or offi- cers whose position may from time to time be created by ordinance. Section 1(c) fixes the terms of officers appointed under section 1(b) for the time period "until the 1st Monday of January next following the date of their appointment," again unless the charter or the public laws of the State of Maine specify otherwise. Under the City's charter, the city manager is the administrative head of the City (Article IV, section 6), and the city manager's appointments must be confirmed by the city council in any case. Appointments to all five positions have been one-year appointments for at least the last two years. Thus, two of the three prongs of the exclusion have been met. Since none of the positions is specifically named in section 1(b) of the charter,[fn]5 the hearing examiner must determine whether any or all of them are "other department heads or officers whose position may from time to time be created by ordinance." Testimony by the acting city manager indicated that all new positions in city government are currently created by the council, although it was not specified what procedural mechanism the council uses to do so. The City was unable to locate ordinances creating any of the five positions at issue. The City argues that the lack of ordinances does not mean that it has not met the authorization prong of the section 962(6)(B) exclusion, even though the charter specifies that that is how the positions must be ______________________________ 5 The "inspector of buildings" is specifically named in section 1(b) of the charter; however, in at least each of the last two years, the City has appointed a single person to perform the duties of code enforcement officer, building inspector, housing inspector, plumbing inspector and electrical inspector. (This multiple appointment is authorized by 38 M.R.S.A. 441 (Supp. 1991).) Therefore it is not appropriate that the code enforcement officer, with all five duties, should be considered to be specifically named in the charter as a fixed-term appointee. Indeed, in making its argument regarding the code enforcement officer, the City relies not on the naming of the "inspector of buildings" in the charter, but upon two other things: the authorization in the charter for the fixed-term appointment of "other department heads or officers whose position may from time to time be created by ordinance," and upon 38 M.R.S.A. 441 (1991), which supercedes the charter, even by the charter's own terms. Thus, the position of code enforcement officer will be considered with the other four positions that are not specifically named. -18- _____________________________________________________________________________ created. First the City suggests that "the City Council, City Manager and the citizens themselves have recognized these positions as 'other depart- ment heads or officers'" pursuant to the charter, and they have consistent- ly treated them as such by appointing persons to these positions for specified terms. The hearing examiner has no authority, the City argues, either to interpret the charter differently than the City itself interprets it, or to decide that persons in the positions are not appointed to speci- fied terms, when in reality they are. The hearing examiner has no intention of finding that persons are not appointed to fixed terms if in fact they are. A finding that fixed-term appointments were made does not end the inquiry, however. Under section 962(6)(B), they must be made pursuant to a statute, ordinance or resolu- tion. Furthermore, it is the hearing examiner's duty, in making unit determinations pursuant to section 966 of the MPELRL, to determine who is excepted from the definition of public employee under section 962 and therefore may not be included in a bargaining unit. Since the City has asserted the section 962(6)(B) exception for certain employees, the hearing examiner has no choice but to interpret the charter and any other statute, ordinance or resolution upon which the City relies in making its asser- tions. With respect to the charter, the hearing examiner is not reading the charter overly literally in requiring that the City provide ordinances to support its proposed (6)(B) exclusions where those exclusions are asserted on the basis of that charter. Article IV, section 2, of the charter states that the council shall have the power by ordinance or resolve to create any new appointive office, and section 3 of that article differentiates between two types of appointive offices -- those specified to be for a fixed term, and all others. Consequently, the hearing examiner assumes that the reference in section 1(b) of Article IV to positions created by ordinance was intentional. It should be noted that the disagreement regarding the need for ordi- nances notwithstanding, the hearing examiner has major concerns about the broad appointment authority granted to the city council and/or the city manager by the charter, if it is to be used to exclude employees from collective bargaining. As pointed out earlier, the charter authorizes one- -19- _____________________________________________________________________________ year appointments for "all other department heads or officers whose posi- tion may from time to time be created by ordinance." What is a "department head"? What is an "officer"? The charter itself provides no definition for the term "department head." Nor is a review of the positions that were specifically named for appointment in the charter very helpful in determining what the drafters of the charter had in mind by their use of this term, because none of these named positions, in either section 1(a) or 1(b), is specifically referred to as a department head (they are all called "officers"). None of the named positions in section 1(b) would necessarily be a department head by today's standards. At least some of the positions named in section 1(a) -- the police chief and the fire chief in particular -- today would fall into that category. Of course it is impossible to know what responsibilities each of these positions carried in 1939 when the charter was adopted, com- pared to what they carry today. It is also not clear whether the Board's current definition of department head, which is for a totally different purpose,[fn]6 is appropriately applied to the charter, although the reference in section 6(b) of Article IV to "departments and divisions" suggests something larger than a one-person operation.[fn]7 One thing is apparent: The drafters of the charter viewed the appointments in section 1(a) as more important in some respect than those in 1(b), since appointments to the positions in section 1(a) must be made directly by the council, whereas those in section 1(b) are made by the city manager and confirmed by the council. Just as with the term "department head," the term "officer" is not defined in the charter. It is used very broadly -- the officers in sec- ______________________________ 6 The Board's definition of department head normally arises in the con- text not of section 962(6)(B), but of 962(6)(D), which excludes department heads appointed for an unspecified term. The definition of the term "department head" arises in the current case, in connection with section 962(6)(B), only because the City's charter, which uses the term, is the basis for the section 962(6)(B) exclusions urged by the City. 7 The City's Personnel Merit System Ordinance defines a department as "the primary organizational unit which is under the immediate charge of a department head who reports directly to the city manager." In practice, the City has designated as a department head anyone who reports directly to the city manager, with only one exception that the hearing examiner is aware of -- the animal control officer. -20- _____________________________________________________________________________ tion 1(a) include such positions as the city manager, the city clerk, the treasurer, the tax collector, the police chief, the fire chief, the librarian and the local health officer. Positions specifically named in 1(b) are also referred to as officers, and they include such diverse posi- tions as the road commissioner, the inspector of buildings and the janitor for the library. In essence, the charter appears to give the city council the discretion to make one-year appointments, directly or via confirmation, for any employment position that it chooses, unless doing so would be inconsistent with the public laws of Maine. In fact, the council appears to be operating on that assumption -- there were 31 fixed-term appointments for employees made in each of the last two calendar years, not counting the one-year appointment of the city manager and 18 constables. There is nothing to prevent the City, for its own purposes, from making fixed-term appointments, pursuant to its charter, for all of its employees, if it so chooses. However, in the hearing examiner's judgment the City's assertion that anyone so appointed, regardless of the nature of the posi- tion, is excluded from collective bargaining under section 962(6)(B), is very much at odds with the intent of the municipal collective bargaining law, passed 30 years after the charter, in 1969. That the City believes it has free reign to remove employees from collective bargaining is reflected in its backup argument regarding its asserted (6)(B) exclusions. The City states that even without the charter, the city council vote confirming the one-year appointments to the five positions at issue constitutes a "resolution" for the purposes of section 962(6)(B). For positions otherwise intended by the Legislature to be excluded under section 962(6)(B), that might well be the case. However, the hearing examiner does not believe that it was the Legislature's intention, in passing the MPELRL in 1969, on the one hand to create a comprehensive collective bargaining law covering municipal employers, and on the other hand to nullify that law by giving municipalities free reign to exclude all employees on their payrolls from collective bargaining simply by passing charters, ordinances or resolutions that authorize all appointments to be for fixed terms. Although the legislative history of the MPELRL contains nothing regarding whether the (6)(B) exclusion should be read as literally (and therefore as broadly) as the City suggests, the Legislature's intention may be, at least in part, gleaned in other ways. -21- _____________________________________________________________________________ The appointment of municipal police officers is perhaps the most obvious indication that municipalities have not been given carte blanche. 30-A M.R.S.A. 2671(1) (Supp. 1991) states: 1. Appointment. Except as provided by charter, ordinance or section 2636, subsection 6, the municipal officers may appoint police officers for a definite term, and control and fix their compensation. Police officers, including chiefs of police, may be removed for cause after notice and hearing. In various forms, this statutory authorization to appoint police officers for a definite term has existed since at least 1903.[fn]8 Yet no one would seriously argue that rank-and-file police officers who are appointed to fixed terms pursuant to this statute are excluded from collective bargain- ing under section 962(6)(B) of the MPELRL. In 1987, the Legislature explicitly acknowledged what it and everyone else had assumed (that police officers do have bargaining rights), when it referred to collective bar- gaining as a means for setting a longer probationary period for police officers than is normally permitted for other municipal employees. 30-A M.R.S.A. 2701 (Supp. 1991). Municipal constables, who function much the same as police officers, may also be appointed to fixed terms. 30-A M.R.S.A. 2673 (Supp. 1991). The city council for the City of Presque Isle appoints its constables for one-year terms, at the same January meeting at which it makes or confirms other appointments. Yet the City's constables have been organized for the purposes of collective bargaining since 1971. If the Legislature did not intend that all fixed-term appointees would be excluded under section 962(6)03), what did it intend? A review of other statutes suggests that the need for some type of political responsiveness or loyalty from core municipal officials may have been the basis for putting this exclusion in the MPELRL. The language of the MPELRL exclusion itself is interesting. Section 962(6)(B) excludes persons appointed to office for a specified term, not simply persons appointed for a specified term. Other sections of Title 30-A support the idea that a distinction may have been intended in the use of the words "appointed to office." For instance, section 2001(11) defines ______________________________ 8 See R.S. 1903, ch. 4, 94. -22- _____________________________________________________________________________ a municipal official as "any elected or appointed member of municipal government." 30-A M.R.S.A. 2001(11) (Supp. 1991). Certain officials must be elected (members of the municipality's legislative body and school committee members). The remainder may be elected or appointed. 30-A M.R.S.A. 2525 (Supp. 1991). Persons specifically referred to in Title 30-A as officials, whom the municipality may therefore elect or appoint, include the clerk, treasurer, tax collector and members of boards of assessors. Single assessors, also named as officials, are appointed in lieu of an elected or appointed board of assessors. 30-A M.R.S.A. 2525, 2526, 2552 and 2603 (Supp. 1991). Appointments of officials are generally for one year: 2601. Appointment and term of officials; generally[fn]9 1. Appointment of officials and employees. Except where specifically provided by law, charter or ordinance, the municipal officers shall appoint all municipal officials and employees re- quired by general law, charter or ordinance and may remove those officials and employees for cause, after notice and hearing. 2. Terms of officials. Unless otherwise specified, the term of all municipal officials is one year. 30-A M.R.S.A. 2601 (Supp. 1991). These provisions taken together suggest that officials are those high enough in municipal government for political responsiveness to be expected, either through election or through fixed-term appointment. The case is even more convincing when one looks at a distinction Title 30-A makes between officials and employees, in addition to the length of appointment. Both officials and employees have just cause protection under section 2601. However, section 2701 requires employees who have just cause protection to first complete any applicable probationary period. 30-A M.R.S.A. 2701 (Supp. 1991). Probation is not mentioned for officials. That is not surprising, if appointed "officials" are meant to be politically responsive. Appointment for a fixed term should not protect an official's wrongdoing, so a municipality's right to remove an official before his/her term is up, ______________________________ 9 Where the municipality is a city rather than a town, Maine's public laws simply change who makes the appointments. 30-A M.R.S.A. 2552(6) (Supp. 1991); 30 M.R.S.A. 5351(6)(A) (1965). -23- _____________________________________________________________________________ for cause, is not inconsistent with the concept of the politically respon- sive appointment. On the other hand, the concepts of probation and politi- cal responsiveness are inconsistent.[fn]10 A review of the other collective bargaining statutes, at least to some degree, supports the need for an exclusion for loyalty or political respon- siveness. In the State Employees Labor Relations Act ("SELRA"), the provi- sion analogous to section 962(6)(B) is section 979-A(6)(B). There, persons are excluded who are "[a]ppointed to office pursuant to statute, ordinance or resolution for a specified term by the Governor or by a department head or body having appointive power within the executive department." 26 M.R.S.A. 979-A(6)(B) (1988). Positions excluded pursuant to this provi- sion shortly after SELRA was passed included the superintendent of banks and banking, superintendent of consumer protection, superintendent of insurance, bureau directors in various departments, and directors of the State Planning Office and the Officer of Energy Resources. Council No. 74, AFSCME, et al., No. 77-A-02 (Me.L.R.B. Feb. 2, 1977) (Interlocutory decision). For the most part, these positions are now excluded as major policy-influencing positions. 26 M.R.S.A. 979-A(6)(J) (1988 and Supp. 1991); 5 M.R.S.A. ch. 71 (1989 and Supp. 1991). Section 1282(5)(B) of the Judicial Employees Labor Relations Act, 26 M.R.S.A. 1282(5)(B) (1988), excludes the person "[w]ho serves as the State Court Administrator." That person is appointed by the Chief Justice of the Maine Supreme Judicial Court to manage the court system in Maine. The University of Maine System Labor Relations Act, which provides for ______________________________ 10 At the time the MPELRL was passed in 1969, the definition of municipal official was the same as it is today. 30 M.R.S.A. 1901(8) (1965). In addition, tne earlier provision similar to section 2601 also allowed both officials and employees to be removed for cause. 30 M.R.S.A. 2256 (Supp. 1970). P.L. 1969, ch. 438, 5. However, there was no provision addressing probation in 1969. Presumably that concept became more preva- lent with the advent of collective bargaining in the public sector. It is worth noting that in 1969 both officials and employees were appointed to one-year terms as a general matter. 30 M.R.S.A. 2256 (Supp. 1970). This fact further supports the hearing examiner's position that the Legislature could not have intended that the section 962(6)(B) exclu- sion would apply to every fixed-term appointment, regardless of the nature of the position. -24- _____________________________________________________________________________ collective bargaining for the University of Maine System, the Maine Maritime Academy and the technical colleges, contains two exclusions based on appointment. It excludes any person "[a]ppointed to office pursuant to law." (For instance, the appointment of a treasurer for the University is required under 20-A M.R.S.A. 10905 (Supp. 1991).) It also excludes any person "[a]ppointed by the Board of Trustees as a vice-president, dean, director or member of the chancellor's, superintendent's or Maine Technical College System president's immediate staff." The hearing examiner will now return to the five positions that the City urges should be excluded under section 962(6)(B) based on their one- year appointments. Each will be addressed in light of the apparent pur- pose behind the exclusion.[fn]11 code enforcement officer The position of code enforcement officer, on its face, does not appear to be in the nature of a core municipal position that requires political responsiveness or loyalty. This conclusion is supported by 38 M.R.S.A. 441(1) (1991), to which the City points as an alternate authorization for its fixed-term appointment for this position. That section states: 1. Appointment. In every municipality, the municipal officers shall annually by July 1st appoint or reappoint a code enforcement officer, whose job may include being a local plumbing inspector or a building inspector and who may or may not be a resident of the municipality for which he is appointed. The municipal officers may appoint the planning board to act as the code enforcement officer. The municipal officers may remove a code enforcement officer for cause, after notice and hearing. This removal provision shall only apply to code enforcement officers who have completed a reasonable period of probation as established by the municipality pursuant to Title 30-A, section 2601. If not reappointed by a municipality, a code enforcement officer may continue to serve until a successor has been appointed and sworn. ______________________________ 11 The best solution to the problem presented here would be legislation clarifying the meaning of the section 962(6)(B) exclusion. Unable to find relevant legislative history, the hearing examiner has considered the pur- pose of the MPELRL, pertinent sections of Title 30-A and parallel provi- sions of the other labor relations laws administered by the Board in determining the meaning of the exclusion at issue. -25- _____________________________________________________________________________ While this provision, which was originally passed in 1984,[fn]12 requires annual appointment, it does two other things that strongly suggest that the Legislature did not intend that this annual appointment requirement would exclude code enforcement officers from collective bargaining under section 962(6)(B) of the MPELRL. First, in requiring annual appointment or reap- pointment, rather than simply appointment for a one-year term, section 441(1) appears to contemplate extended service. This is reinforced by the second aspect of section 441(1) -- the requirement to complete any proba- tionary period that may apply to the appointing municipality's employees, before being entitled to protection against removal except for cause. In the hearing examiner's mind, the concept of a probationary or trial period and the concept of a one-year appointment that is truly for one year are not consistent. Likewise, as pointed out earlier, the concept of probation and the concept of political responsiveness or loyalty through the mecha- nism of a fixed-term appointment are inimical. The position of code enforce- ment officer will not be excluded from collective bargaining on the basis of section 441(1). assessor The City offers 30-A M.R.S.A. 2552 (1991) as alternate authorization for its one-year appointment of the tax assessor and its assertion that this position is subject to the section 962(6)(B) exclusion of the MPELRL. Section 2552(1) provides: 1. Assessors and assistant assessors. The following pro- visions apply to assessors and their assistants. A. Assessors and their assistants shall be chosen annually on the 2nd Monday of March to serve for one year and until others are chosen and qualified in their places, unless the city charter provides otherwise. B. In addition to the assistant assessors chosen under a city charter, the municipal officers may authorize the assessors to appoint any necessary assistants to serve during the municipal year in which they are appoint- ed. C. Notwithstanding the provisions of any city charter to the contrary, the city council, by ordinance, may ______________________________ 12 P.L. 1983, ch. 796, 4. -26- _____________________________________________________________________________ provide for a single assessor whose powers and duties are the same as for towns, and who is appointed for a term not exceeding 5 years. It is clear from the language of this provision that the single assessor referred to in paragraph (C) is in lieu of a board of assessors referred to in paragraphs (A) and (B). (See 30-A M.R.S.A. 2526(5) (Supp. 1991) for the parallel authorization for towns, as opposed to cities.) In the present proceeding, the evidence regarding the assessor was somewhat con- fusing. On the one hand, a three-person board of assessors, appointed for a term of three years, is required under the City's charter (Article IV, section 10) (the charter contains nothing regarding an additional position called city assessor); moreover, in at least the last two years the city council has made three-year appointments to the board of assessors. These facts suggest that the City has not chosen a single assessor in lieu of a board of assessors, but rather has both a board of assessors and an adminis- trative position called city assessor. In addition, the City provided no ordinance, in connection either with the charter or with the requirement of of paragraph (C) of section 2552(1) that the city council exercise its single-assessor option by passing an ordinance. On the other hand, testi- mony by the acting city manager indicated that the board of assessors acts as an appeals board (commonly called a "board of assessment review"). Section 2552(2) of Title 30-A authorizes cities to adopt a board of assess- ment review if they have chosen a single assessor, that board to consist of three members appointed by city council for terms of three years unless otherwise established by ordinance. In addition, the written job descrip- tion for the city assessor strongly suggests that the person appointed to that position performs primary assessment functions. Although the facts are somewhat confusing, the hearing examiner finds on balance that the city assessor's one-year appointment was made pursuant to 30-A M.R.S.A. 2552. The assessor is an official whose designation is spelled out in detail in Title 30-A, and who is appointed in lieu of a board of assessors, which board may be elected or appointed. Thus, the assessor appears to be a core municipal official of whom political respon- siveness or loyalty is expected. This position will be excluded from bargaining under section 962(6)(B) of the MPELRL. -27- _____________________________________________________________________________ animal control officer The position of animal control officer is a different matter. Each municipality must appoint one or more animal control officers, whose duties are to enforce Maine's laws regarding uncontrolled dogs and ferrets, licensing of dogs, physical transport and ownership transfer of domesti- cated ferrets, and failure of a municipality to enforce the animal control laws. 7 M.R.S.A. 3911, 3912, 3921, 3924, 3943, 3947, 3948, 3950, 3950-A, and 3966-70 (1989 and Supp. 1991). The City asserts that the per- son in this position is an "officer" within the meaning of Article IV, sec- tion 1(b), of its charter (the absence of an ordinance creating the position notwithstanding), and that even in the absence of the charter, the vote of the city council to confirm the city manager's one-year appointment for this position excludes it from collective bargaining under section 962(6)(B). The hearing examiner can only reply that if this position is subject to 962(6)(B), then municipalities have indeed been given free reign to, in effect, repeal the collective bargaining law within their own bound- aries. There is little or no difference in nature between this position and other positions of law enforcement (which do have bargaining rights), except of course that it is very limited in scope. Certain of the duties statutorily set for animal control officers may also be performed by police officers, constables or sheriffs. 7 M.R.S.A. 3943, 3948, 3950-A (1989 and Supp. 1991). This position will not be excluded from bargaining. general assistance administrator and emergency management director The City uses the same reasoning to urge exclusion of the general assistance administrator and the emergency management director under sec- tion 962(6)(B). According to oral testimony and the written job descrip- tion for the general assistance administrator, the person in this position is responsible for administering the City's general assistance program, which program is mandated by the State. 22 M.R.S.A. ch. 1161. (1992). The emergency management director coordinates local response and recovery in case of an emergency. Local civil emergency preparedness is required by 37-B M.R.S.A. ch. 13, subchapter III. Although the duties of both posi- tions are important, neither position is part of the core of municipal government contemplated in Title 30-A. Certainly neither is an official of the type that a municipality is likely to decide to elect rather than -28- _____________________________________________________________________________ appoint. Rather, these two positions are in nature more similar to that of other mid-level administrative positions such as the code enforcement officer. Consequently, the hearing examiner declines to exclude them from bargaining simply because they were appointed to one-year terms. Section 962(6)(D) exclusion As an alternative to the section 962(6)(B) exclusion, the City asserts that the code enforcement officer, the general assistance administrator and the emergency management director are department heads who must be excluded under section 962(6)(D). Section 962(6)(D) excludes any person "[w]ho is a department 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." Since persons in all three positions have been appointed for one-year terms for at least the last two years, this exclusion cannot apply -- it requires appointment for an indefinite term. In any case, none of the positions is a department head as that term has been defined in the Board's case law. Since supervisors have bargaining rights under Maine's collec- tive bargaining laws, the criteria in section 966(1) of the MPELRL for determining who is a supervisor cannot be used to determine who is excluded from bargaining as a department or division head. AFSCME, Council 92 and Town of Sanford, No. 92-UD-03, slip op. at 29 (Me.L.R.B. Feb. 21, 1992), aff'd, No. 92-UDA-03 (Me.L.R.B. May 7, 1992). Thus, a department or divi- sion 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). In Sanford, the Board's department/division head test was summarized: 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 divi- sion policies and practices -- management 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 classifi- cation to manage and direct the affairs of the department or division, or is the primary function to supervise and/or perform the day-to-day work for which the department or division is re- sponsible? 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 -29- _____________________________________________________________________________ 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). Sanford, slip op. at 30. In the matter now before the hearing examiner, the duties of the code enforcement officer, general assistance administra- tor and emergency management director are no different in kind than the duties of so-called "department heads" in Sanford -- Presque Isle's "departments" consist of a single person who carries out the substantive work of the department, plus a full-time clerical assistant (in the case of code enforcement), an occasional clerical assistant (in the case of emergency management) or a substitute (in the case of general assistance). Oral testimony as well as the job descriptions for these positions made it clear that persons in the three positions spend the vast majority of their time performing work for which the department is responsible and/or super- vising and very little time performing employee-related management duties -- that is, those relevant to the section 962(6)(D) exclusion. Sanford, slip op. at 31, n. 6. Accordingly, they will not be excluded from bargain- ing as department heads. Section 962(6)(C) exclusion Although, according to the job description for the city clerk, that person has at some point in the past functioned as the city manager's secretary, more recently the two persons who job-share the position of secretary/receptionist have been performing clerical functions for the city manager, each working 25 hours per week. Since the the department of planning and development received a grant for which the department needed temporary clerical assistance, one of the employees in the job share is working full-time for the planning department during the period of the grant, with the understanding that she will be able to return to her former position when the grant runs out. The other employee in the job share has been and will continue to work full time for the city manager during this period. Grant money for the clerical position in the planning department is expected to run out sometime in the early spring of 1993. The City believes that the position of secretary/receptionist, whether filled by one person or two, should be excluded from bargaining under the confidentiality exclusion of the MPELRL. 26 M.R.S.A. 962(6)(C) (1988). -30- _____________________________________________________________________________ That section excludes any person "[w]hose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head, body, department head or division head." The hearing examiner agrees that the person who is currently the secretary/receptionist should be excluded, and that when the second person returns to that posi- tion (that is, when it reverts to a job share), both should be excluded. The city manager, as the executive head of the city to whom at least 17 people report directly, and with overall responsibility for collective bargaining in the City's existing bargaining units, is entitled to a con- fidential clerical employee. State of Maine and MSEA, No. 82-A-02, slip op. at 28, 6 NPER 20-14027 (Me.L.R.B. June 2, 1983) (Interim Order). That this position normally is job-shared will not change that in this case, in spite of the Board requirement to centralize confidential functions.[fn]13 The supervisor of the two job-share employees is the city manager and not a department head with fewer management duties, and job-share time for these employees is not split unevenly so as to make centralization appropriate. The City further suggests that the use of one of the job-share employees in the department of planning and development should not entitle that person to collective bargaining rights during her stint with the department, since the position she is filling is a temporary one, excluded under section 962(6)(G). The City also suggests that it shouldn't have to go to the trouble of bargaining for a person who will be returning to an excluded (confidential) status in the spring of 1993. The hearing examiner rejects both suggestions. Section 962(6) of the MPELRL, by its own terms, excludes persons, not positions: "'Public employee' means any employee of a public employer, except any person . . . ." Although there is usually no practical differ- ence between an excluded position and an excluded employee, there may be a substantial difference between a temporary position and a temporary employee; that difference is most likely to arise where an employee moves from one position to another. That was the case in AFSCME Council 93 and State of Maine, No. 89-UC-07 (Me.L.R.B. Aug. 10, 1990), aff'd, No. 91-UCA-02 (Me.L.R.B. Feb. 12, 1991), aff'd, No. CV-91-143 (Me. Super. Ct., Ken. Cty., Aug. 6, 1991), aff'd on other grounds sub nom. Bureau of ______________________________ 13 State of Maine, slip op. at 19-20. -31- _____________________________________________________________________________ Employee Relations v. M.L.R.B., No. KEN-91-454 [611 A.2d 59] (Me. July 15, 1992). There, employees were hired to fill a series of temporary vacancies as acting capacity employees; as permanent vacancies arose, this labor pool of "temporary" employees was tapped for filling those vacancies. In finding that these employees were in fact not "temporary," the hearing examiner applied a test established by the Board in Council 93, AFSCME v. Town of Sanford, No. 90-07 (Me.L.R.B. June 15, 1990) -- that test being, "in the totality of the circumstances, whether the employee involved may be said to have [ ] a reasonable expectation of continued employment." Id., slip op. at 14. In the present case, that question is easily answered. The employee in question has been promised that when the planning department's grant runs out, she will be able to return to her former job-share position. Thus, although the clerical position she now occupies is temporary, her employ- ment with the City is not. The City's inconvenience argument is even less persuasive. Maine's collective bargaining statutes do not contain an exclusion based on incon- venience. In any case, there should be no substantial difference in bargaining for this employee and other clerical employees in the unit which would cause a bargaining hardship for the employer. To the degree that the grant under wnich this employee is working does not set her terms and con- ditions of employment, there is no reason for them to be any different than the terms and conditions of employment for other clericals. The hearing examiner will order that as long as an employee with a reasonable expect- tation of continued employment fills the temporary clerical position in the department of planning and development, that person will be a bargaining unit member. Unit placement Unit placement for the following employees must be determined: nine clerical positions [tax clerk (currently 2), deputy city clerk, accounts payable clerk, payroll clerk, administrative assistant, assistant assessor, secretary/bookkeeper, clerical assistant to the department of planning and development] general assistance director code enforcement officer emergency management director -32- _____________________________________________________________________________ planner (currently 2) animal control officer highway (public works) foreman The City asserts that the animal control officer and the highway (public works) foreman do not have a community of interest with city hall employees. The Board's Rules and Procedures list the factors that the hearing examiner shall, at a minimum, consider in making the community-of- interest determination required by section 966(2) of the MPELRL: (1) similarity in the kind of work performed; (2) common supervision and determination of labor relations policy; (3) similarity in the scale and manner of determining earnings; (4) similarity in employment benefits, hours of work and other terms and conditions of employment; (5) similarity in the qualifications, skills and training of employees; (6) frequency of contact or interchange among the employees; (7) geographic proximity; (8) history of collective bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the employer's organizational structure. The City also asserts that the position of planner is a professional one requiring that persons in that position be given the opportunity to vote on whether they wish to be included in the unit of clerical employees or placed in a separate unit, pursuant to section 966(2). Since there are a substantial number of both clerical and non-clerical employees for whom no unit currently exists, and since there are substan- tial differences between these two groups in such community-of-interest factors as kind of work performed, supervision, scale and manner of deter- mining earnings, and qualifications, skills and training of employees, the hearing examiner will establish two bargaining units -- one for city hall clerical employees and one for city hall non-clerical employees. The remaining question is whether the animal control officer and the highway foreman should be in the city hall non-clerical unit, or should be in a separate unit or units. The parties have stipulated that the animal control officer works out of his home, works 20 hours per week, and reports directly to the city -33- _____________________________________________________________________________ manager. His duties are in the nature of law enforcement, and he works through the police department when animal control complaints are made directly to that department. Thus, the animal control officer has at least some small community of interest with the members of the police officers and dispatchers' unit. However, his placement in that unit has not pre- viously been raised by the Teamsters, and the parties have apparently nego- tiated and signed a new, three-year contract for that unit that prevents the addition of new unit members absent changed circumstances or an agree- ment between the parties. The highway foreman has some community of interest with the public works department, since he supervises employees in that department. Once again, however, his placement in the public works unit has not previously been raised by the Teamsters, and the parties have negotiated a new contract for that unit as well. In neither case will the newly signed contracts prevent these employees from being placed in some other unit. "It is well established that the Hearing Examiner's duty is to establish an appropriate unit, not the most appropriate unit." Portland Superin- tending School Committee and Portland Administrative Employee Associ- ation, No. 87-A-03, slip op. at 6 (Me.L.R.B. May 29, 1987), citing Town of Yarmouth and Teamsters Local Union No. 48, No. 80-A-04 (Me.L.R.B. June 16, 1980). The animal control officer and the highway foreman have no more com- munity of interest between themselves than they have with city hall non- clerical employees. City hall employees work in city hall, the animal control officer works out of his home, and the highway foreman works in the public works department garage. The animal control officer works 20 hours per week, while city hall employees and the highway foreman are full-time; city hall employees work 8-hour days year round, while the highway foreman works five 8-hour days for half the year and four 10-hour days for the other half of the year. Three of the five city hall employees are salaried (nothing was placed in the record regarding the planners' salaries), as is the highway foreman. Three of the city hall employees and the animal control officer report to the city manager; the highway foreman reports to the head of the public works department, and the planners report to the head of the planning department. Three of the city hall employees have some supervisory responsibilities and two have none; the highway foreman -34- _____________________________________________________________________________ spends a great deal of his time supervising others, while the animal control officer spends none. The substantive work performed is as unique to each city hall employee as it is to either the animal control officer or the highway foreman. In these circumstances, the hearing examiner sees no reason either to place the animal control officer and the highway foreman each in a one- person unit, or to place them in a two-person unit. It is in the interests of all concerned to avoid the proliferation of very small bargain-units in those instances where other options are available. M.S.A.D. No. 43 Board of Directors and M.S.A.D. No. 43 Teachers Association, No. 84-A-05 (May 30, 1984). These employees will be placed in the city hall non-cleri- cal unit. Of course the parties are free to agree to place them else- where. 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 units of employees of the City of Presque Isle are appropriate for the purposes of collective bargaining: city hall clerical unit INCLUDED: tax clerk, deputy city clerk, accounts payable clerk, payroll clerk, administrative assistant, assistant assessor, secretary/bookkeeper, and clerical assistant to the department of planning and development (as long as that position, if temporary, is filled by an employee with a reason- able expectation of continued employment) EXCLUDED: secretary/receptionist, administrative assistant (police department) and all other employees of the City of Presque Isle city hall non-clerical unit INCLUDED: general assistance director, code enforcement officer, emergency management director, planner, animal control officer, highway (public works) foreman -35- _____________________________________________________________________________ EXCLUDED: city clerk, treasurer, tax collector, city assessor, director of planning and development and all other employees of the City of Presque Isle Dated at Augusta, Maine, this 18th day of August, 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 for full requirements. -36- _____________________________________________________________________________