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-
_____________________________________________________________________________