AFSCME, Council 93 and Town of Sanford, MLRB No. 92-UDA-03 (May 7, 1992) Affirming MLRB No. 92-UD-03 (Feb. 21, 1992) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 92-UDA-03 Issued: May 7, 1992 ______________________________ ) AFSCME, COUNCIL 93, ) ) Appellant, ) ) UNIT DETERMINATION APPEAL and ) DECISION AND ORDER ) TOWN OF SANFORD, ) ) Appellant. ) ______________________________) Pursuant to 26 M.R.S.A. 966 (1988 & Supp. 1991) and Maine Labor Relations Board (Board) Rule 1.03, on October 2, 1991, AFSCME, Council 93 (AFSCME) filed a petition for appropriate unit determination with the Board seeking to become the exclusive collective bargaining agent of a unit of supervisory employees of the Town of Sanford, composed of the following job classifications: planning director assessor codes enforcement officer finance director/computer manager director of general assistance director of recreation and public property director of highways and sanitation boarding home administrator deputy chief, police captain, police deputy chief, fire division chief, fire office manager (police) executive secretary (3) (to town administrator; to director of public works; and to fire department) In a unit determination report dated February 21, 1992, and numbered 92-UD-03, a hearing examiner designated by the Board's Executive Director determined the following described unit, with specified exclusionary desig- nations, to comport with the requirements of 26 M.R.S.A. 966, 962(6)(C) and (D) (1988 & Supp. 1991): -1- INCLUDED: planning director, assessor, codes enforcement officer, finance director/computer manager, director of general assistance, director of high- ways and sanitation, boarding home administrator, deputy chief (fire), division chief (fire) EXCLUDED: director of recreation and public property, deputy chief (police), captain (police), office manager (police), executive secretary to town administrator, executive secretary to director of public works, executive secretary to fire department, and all other employees of the Town of Sanford On March 9 and 10, 1992, respectively, AFSCME and the Town of Sanford filed Notices of Appeal pursuant to 26 M.R.S.A. 968(4) (1988) and Board Rule 1.12. In accordance with Rule 1.12(B), AFSCME and the Town filed Memoranda of Appeal on March 18 and 27, 1992, respectively. On April 15, 1992, pursuant to Board Unit Determination Rule 1.12, the Board, consisting of Peter T. Dawson, Chair, Howard Reiche, Jr., Employer Representative and George W. Lambertson, Employee Representative, heard the parties' oral arguments at the Board's offices in Augusta, Maine. The Board did not require and the parties did not request permission to file briefs. The Town takes exception in its appeal to the hearing examiner's findings of fact and conclusions of law as follows: 1. That the Planning Director, Assessor, Codes Enforcement Officer, Finance Director/Computer Manager and Director of General Assistance are not department heads within the meaning of 26 M.R.S.A. 962(6)(D) 2. That the Director of Highways and Sanitation, the Boarding Home Administrator, and the Fire Department Division and Deputy Chiefs are not confidential employees within the meaning of 26 M.R.S.A. 962(6)(C) (1988). AFSCME takes exception to the hearing examiner's exclusion of the Director of Recreation and Public Policy, the Deputy Police Chief, the Police Captain, the Officer Manager and the Executive Secretaries of the Director of Public Works and of the Fire Department as confidential within the meaning of 26 M.R.S.A. 962(6)(C) (1988). -2- JURISDICTION The Appellants are aggrieved parties within the meaning of 26 M.R.S.A. 968(4) (1988). The Town of Sanford is a public employer within the meaning of 26 M.R.S.A. 962(7) (Supp. 1991). AFSCME is the bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988). The jurisdiction of the Board to hear this appeal and to render a decision lies in 26 M.R.S.A. 968(4) (1988). FINDINGS OF FACT The parties have not pointed to specific record evidence or transcript portions in support of a request that the Board make, vacate, modify or supplement any specific factual finding(s) either made or neglected to be made by the hearing examiner. Accordingly, the Board adopts the hearing examiner's findings of facts as its own. POSITIONS OF THE PARTIES AFSCME contends in essence that the Town has not sufficiently con- centrated its labor relations responsibilities in the fewest possible employees. AFSCME implies that unnecessary placement of non-department head employees on the Town's bargaining team constitutes unlawful inter- ference with employee statutory rights, based on erroneous exclusion from coverage of the Municipal Public Employees Labor Relations Law. The Town urges that present economic times have typically resulted in contraction of the size of departments and that, consequently, Department heads now often perform duties similar to those performed by employees which they supervise. DISCUSSION The Board has reviewed the report and order of the hearing examiner on the basis of the evidence presented to the examiner, in accordance with Board Rule 1.12. The Board has previously set forth, as follows, the stan- dard that it applies in reviewing decisions of the executive director or the director's designee in representation proceedings: -3- We will overturn a hearing examiner's rulings and determinations if they are "unlawful, unreasonable, or lacking in any rational factual basis." It is thus not proper for us to substitute our judgment for the hearing examiner's; our function is to review the facts to determine whether the hearing examiner's decisions are logical and are rationally supported by the evidence. Portland Superintending School Committee v. Portland Administrative Employee Association, No. 87-A-03, slip op. at 6 (Me.L.R.B. May 29, 1987), citing MSAD No. 43 v. MSAD No. 43 Teachers Association, No. 84-A-05, slip op. at 3, 7 NPER 20-15915 (Me.L.R.B. May 30, 1984). Although, as is implied by AFSCME, unreasonable over-designation and usage of otherwise includable unit employees as members of the Town's bargaining team might, in the right facts, constitute unlawful interference with protected employee rights, such issues are more appropriately resolved through the Board's prohibited practice procedures. The facts of this case fail to establish that the Town's decision to use the Police Captain in collective bargaining was unnecessarily made. We note in this regard that the Town's decision to use the Captain in this manner apparently predated organizational activity with respect to the sought-after unit. The Board has reviewed the unit determination report, as well as the oral arguments of the parties in light of the above-stated standard. The findings of fact in the proceeding below, which are not challenged by the Appellants, support the conclusion that the requisite community of interest exists between the members of the unit found appropriate by the hearing examiner. Moreover, the examiner's findings of fact also support the conclusion that the exclusionary determinations made by the hearing examiner are correct. Upon consideration we adopt the examiner's analysis and legal conclusions as our own. Accordingly, we conclude that the hearing examiner's determinations were not unlawful, unreasonable, or lacking in any rational factual basis. Pursuant to 26 M.R.S.A. 968(4) (1988), we hereby deny the appeals and affirm the unit determination report in its entirety. -4- ORDER On the basis of the foregoing discussion and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 968(4) (1988), it is ORDERED: 1. That the appeals of AFSCME and of the Town of Sanford filed on March 9 and 10, 1992, respectively, are denied and that the hearing examiner's February 21, 1992 unit determination report is affirmed in its entirety. 2. That the Executive Director shall, as soon as is possible, schedule and conduct a secret ballot bargaining agent election in the appropriate unit. Dated at Augusta, Maine, this 7th day of May, 1992. MAINE LABOR RELATIONS BOARD /s/______________________________ The parties are hereby advised Peter T. Dawson of their right, pursuant to Chair 26 M.R.S.A. 968(4) (1988), to seek review of this Decision and Order on Unit Determination Appeal by the Superior Court. /s/______________________________ To initiate such a review an Howard Reiche, Jr. appealing party must file a Employer Representative complaint with the Superior Court within thirty (30) days of the date of receipt hereof, and otherwise comply with the /s/______________________________ requirements of Rule 80C of the George W. Lambertson Maine Rules of Civil Procedure. Employee Representative -5-