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
	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):


     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).


     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)


     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.


     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.


     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:

     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.


     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.


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