Case No. 93-UC-02
                                           Issued:  December 10, 1992
AFSCME COUNCIL 93,            ) 
                 Petitioner,  )
     and                      )       UNIT CLARIFICATION REPORT
CITY OF SACO,                 )
            Public Employer.  )
     This unit clarification was commenced by the filing of a unit
clarification petition by AFSCME Council 93, on September 3, 1992.
AFSCME's petition seeks the inclusion of a Recycling Working Foreman
position in a unit of Public Works employees of the City of Saco
     INCLUDED:  Head Mechanic, Mechanic, Foreman I, Foreman-
                Sewer, Heavy Equipment Operator, Light
                Equipment Operator, Truck Driver, Laborer,
                Mechanic Store Clerk, Park and Rec. Maint.,
                Park and Rec. Technician and Sidewalk Plows.
     EXCLUDED:  All other employees of the City of Saco.
The petition alleges that the sought-after position was created within
the last year.
     The City's October 21, 1992, response states that the sought-
after position is a supervisory one not appropriate for inclusion in
the unit.  The response also states that the "employee holding the
position would have the option of electing to become a member of the
Teamsters Supervisory Unit."  Finally, the response states that "the
City of Saco, based upon past practice with respect to other accre-
tions to the bargaining unit in question, and based upon an agreement
with the prior bargaining agent for the unit, believes that the ques-
tion of whether the position of recycling foreman should be included


in the bargaining unit is one that should be addressed as part of the
collective bargaining process in the context of negotiating a new
contract with the unit."
     Upon due notice, an evidentiary hearing was conducted by the
undersigned on October 26, 1992, in Room 714 of the State Office
Building in Augusta, Maine.  The Employer was represented at hearing
by Attorney James P. Boone.  The Petitioner was represented by AFSCME,
State of Maine Coordinator Kenneth A. Dietrich.  No other interested
party either participated or requested to participate in the pro-
ceedings.  The Petitioner called as witnesses Recycling Foreman Mark
Sanders and City Truck Driver Marius Palange.  The City called as wit-
nesses City Administrator Larry Mitchell and Public Works Director
Larry Nadeau.  The City submitted the following exhibits which were
admitted without objection:
     City Exhibit No. 1   A two-page job description for the
                          position of Recycling Working Foreman
     City Exhibit No. 2   The cover page and page 24 of an
                          agreement between the City and AFSCME
                          Council 93
     City Exhibit No. 3   A one-page job description for the
                          position of Recycling Laborer--Part
AFSCME submitted one exhibit, admitted without objection, consisting
of one duplex photocopied page listing Saco School and Municipal
employees and their salaries.
     Neither party filed briefs.  The transcript was completed on
November 4, 1992.  Pursuant to the parties' stipulation of admission,
made via telephone conference, AFSCME filed a copy of the parties'
most recent collective bargaining agreement on November 2, 1992.
During a conference call on Tuesday, December 8, 1992, the parties
stipulated that "members of the Public Works unit perform manual work
and/or operate heavy and/or light equipment and/or machinery."



     The jurisdiction of the hearing examiner to hear this matter and
to make a unit clarification determination lies in 26 M.R.S.A.
 966(1) and (2) (1988).  Neither party has objected to the hearing
examiner's assumption of jurisdiction over this matter.
     In off-the-record discussion prior to hearing the parties reached
the following stipulations:
     1.  The City of Saco is a public employer within the meaning
of 26 M.R.S.A.  962(7) (1988 & Supp. 1992).
     2.  The present occupant of the Saco Recycling Working Foreman
position is a public employee within the meaning of 26 M.R.S.A.
 962(6) (1988).
     3.  The employees occupying positions within the existing City
Public Works unit are public employees within the meaning of 26
M.R.S.A.  962(6) (1988).
     4.  AFSCME Council 93 is the bargaining agent of the employees
mentioned in paragraph 3 above within the meaning of 26 M.R.S.A.
 962(2) (1988).
     5.  The position of Recycling Working Foreman was created by the
City on July 1, 1991.
     6.  There is no question concerning representation in the instant
     7.  The issue of the unit placement of the Recycling Working
Foreman has been raised by AFSCME and has not been resolved.
     8.  The parties' most recent collective bargaining agreement
expired June 30, 1992.
     9.  AFSCME has sent a letter to the City requesting successor
negotiations and the City is presently awaiting AFSCME's initial pro-


                       POSITIONS OF THE PARTIES

     The positions of AFSCME and the City are best summarized by their
closing arguments set forth in their entirety, as follows:
     [Mr. Dietrich:  AFSCME asserts t]hat by the testimony given
     today, the nature of the work, the supervisory responsi-
     bilities of the employee for the position are not different
     from that of other foremen who are in the collective
     bargaining agreement and were part of the bargaining unit
     that AFSCME represents.  The location of the work is rela-
     tively the same as other employees, as evidenced by the time
     clock in the lounge and the physical location; that these
     positions are in fact similar in nature, and this position
     should be accreted to the AFSCME bargaining unit.

     [Mr. Boone:]  The city obviously disagrees with that or else
     we wouldn't be here.  The evidence showed that the facility
     where the recycling foreman works is physically separate
     from the public works facility.  There isn't the type of
     interaction between the recycling foremen and public works
     other than when he's supervising public works employees as
     recycling foreman.  Their testimony was that the relation-
     ship that he has with the director of public works is a
     direct relationship.  It's not--he is directly supervised by
     the public works director.  The relationship is not like the
     foremen that are members of the bargaining unit, who typi-
     cally under normal circumstances report to the working fore-
     man rather than directly to the director of public works.
     The testimony was that the nature of the work performed is
     different, that Mr. Sanders has a much greater degree of
     paperwork.  He needs to be involved in planning and carrying
     out scheduling matters that are not functions of the other
     supervisors, the other foreman; and based on all of those
     factors we feel that this position is not properly part of
     the bargaining unit.
                           FINDINGS OF FACT
     On June 14, 1984, Council #74, AFSCME was certified by the Maine
Labor Relations Board (Board) as the exclusive collective bargaining
agent of a unit of public works employees of the City of Saco described:
     Head Mechanic, Assistant Head Mechanic, Mechanic, Foreman I,
     Street Foreman, Sewer Foreman, Heavy Equipment Operator,
     Light Equipment Operator, Truck Driver I, Truck Driver II,

     Waste Truck Driver, Refuse Collector and Laborer.[fn]1

The parties' expired contract's[fn]2 recognition clause states:
     The City recognizes the Union as the sole and exclusive
     bargaining agent for the unit comprised of the named posi-
     tions in Appendix A hereof, for the purposes of collective
     bargaining and entering into agreements relative to wages,
     hours and working conditions.
     In the event that a new position is created or a job
     restructured, the City shall meet with the Union for the
     purposes of determining inclusion in the unit and the
     appropriate wage schedule.  Job description will be reviewed
     in six months and become part of the contract.
Appendix A of the agreement lists the following positions with the
caveat that the Head Mechanic "classification is being eliminated":
     Head Mechanic, Mechanic, Foreman I, Foreman-Sewer, Heavy
     Equipment Operator, Light Equipment Operator, Truck Driver,
     Laborer, Mechanic Store Clerk, Park and Rec. Maint., Park
     and Rec. Technician, Sidewalk Plows and Truck Driver.
     The City employs a Foreman of Parks and Recreation, Mr. Hinrichsen,
and a Head Foreman (Working Foreman-Public Works), Mr. Townsend, who
are represented for the purposes of collective bargaining by the
Teamsters.  The City employs an Automotive Mechanic Foreman (Garage
or Shop Foreman), Sam Soule, who was excluded from the Teamsters' unit
by agreement of the parties.  The City also employs a Sewer Foreman,
Mr. Bastille, and a Foreman I, Mr. Dwelley, who are members of the
Public Works unit.  In July of 1991, the City created a full-time
Recycling Working Foreman position.  Mark Sanders has occupied the
Recycling Working Foreman position since January of 1992.  Sanders
arrives at work at 7:00 a.m. and punches in on the time clock, used by
all Public Works employees, which is located in the main lobby of the
Public Works garage.  In the entire Public Works Department, only the
     1 ARTICLE 24--PRIOR PRACTICE of the parties' expired agreement
indicates that "[a]s a result of negotiations between the City and the
Union, the Union agrees that the position of Public Works Inspector
shall be excluded from joining the Union [sic]."
     2 The parties' expired contract was effective July 1, 1990, through
June 30, 1992.


Shop Foreman and the Director are exempted from punching a time card.

     Sanders attends a daily task assignment meeting at Public Works
Director Larry Nadeau's office which is attended by Head Foreman
Townsend, Automotive Mechanic (Garage or Shop) Foreman Soule,
Foreman I Dwelley and Sewer Foreman Bastille.  The Foreman I and Sewer
Foreman on a daily basis perform work assigned by Nadeau.  Prior to
this year and under "normal conditions," the Foreman I and Sewer
Foreman report(ed) directly to Townsend.  All Public Works foremen
presently report directly to Nadeau.  Working Foreman Townsend has, in
the absence of the Public Works Director in the past, acted as
"essentially an assistant public works director."[fn]3  Sanders reports
directly to and is supervised by Nadeau.  Nadeau will typically visit
the recycling facilty once during the course of a day to oversee the
carrying out of Sanders' work.  Although the Shop Foreman was
designated to monitor the activities of the recycling building in
Sanders' absence at this hearing, the Recycling Laborer ordinarily
assumes and performs Sanders' job functions in his absence and the
plant continues to receive, process and bail contractor deposited
     Sanders opens up the recycling building, assigns a work schedule
to his Laborer and picks up and assigns any required and available
Workfare employees.  Workfare employees pick up trash in and around
the recycling building and the cold storage site, remove contaminents,
sort plastic recyclables by color and take the caps off plastic jugs.
On approximately five work days per month, other Public Works Laborers
work in the recycling center, or with the chipper, and are supervised
by Sanders.
     Sanders' responsibilities include departmental recycling, City
recycling and transfer station composting.  The job responsibilities
of the previous Recycling Foreman did not include departmental
     3 The testimony in this respect is unclear, inasmuch as City
Exhibit 3 indicates that the City apparently employs a Mr. Dumas as
Assistant Public Works Director.

recycling.  The previous Foreman worked primarily inside the recycling
building and dealt with less recycling volume.  In the course of his
workday, Sanders operates heavy equipment such as loaders in addition
to a Bobcat brand skid-steer, a bailer and a chipper.  Unspecified
Public Works employees operate dump trucks.  Unspecified Public Works
employees operate the wood chipper more frequently than Workfare or
recycling employees.  All of the equipment operators in Public Works
run loaders.  Sanders' regular workday ends at three o'clock.  When
Sanders works past three it is usually toward the end of the work week
when he works late to make room for City residents' weekend deposits.
Sanders does not have to obtain prior approval but does later have to
justify his overtime to Nadeau.
     Sanders supervises one Recycling Laborer.  That employee operates
the Bobcat and also operates the chipper.  Prior to occupying the
Recycling Working Foreman position, Sanders was the City's Recycling
Laborer.  Sanders possesses no qualification for his position other
than job experience.  The only difference in qualifications between
Sanders' position and the Laborer's position is the ability to sched-
ule vendor collections.  The job description for the City classifica-
tion of Recycling Working Foreman was promulgated by Nadeau and
     Sanders did not hire his present Laborer.  He did recommend his
hire to the Director based on the Laborer's previous employment as a
Workfare employee.  Sanders did not interview anyone for the vacant
Laborer position.  Sanders has no disciplinary authority.  Sanders'
supervisory authority is limited to making sure that the Recycling
Laborer performs his daily tasks and follows established safety guide-
lines.  Sanders does not verify the Laborer's time card.  The Laborer,
loaned Public Works employees and Workfare employees are Sanders' only
subordinates.  The number of available Workfare employees varies.  The
highest number of Workfare employees supervised at any one time by
Sanders has been five.
     Sanders earns $10.25/hour or $21,320 annually and does not know
what his Laborer's hourly wage is.  The Laborer works 32 hours per

week and earns approximately $7.50/hour.  Truck Driver annual salaries
range from $18,034 to $19,136.  Mechanics earn $19,573 annually and
the Head Mechanic, $23,275.  Laborers earn from $6,672 to $16,619.
Nadeau earns $37,553 and the Parks Director, $30,732.  Townsend earns
$28,205; Soule, $25,242; Dwelley, $23,004; Hinrichsen, $21,923; and
Bastille, $21,433.  Light Equipment Operators earn from $19,598 to
$20,372.  Dumas earns $23,058 annually.  Sanders speculates that his
role in recommending any wage increase for the Laborer would be
limited to comment upon his work record.  The City Administrator ulti-
mately approves or disapproves all hiring and firing recommendations
made by department heads.  Sanders and the Automotive Mechanic
(Garage or Shop) Foreman are the only Foremen who possess the ability
to write purchase orders on an asneeded basis such as, in Sanders'
case, for the transport of recyclables and the purchase of materials.
     A private contractor mechanically off-loads recyclable materials
from a compartmented truck into bins at the recycling center.  Sanders
and his Laborer stand clear of the off-loading.  The material is then
cleaned of contaminents, baled and cold-stored.  Sanders and his
Laborer work side by side and take turns spreading the recyclable
material with the Bobcat to facilitate its decontamination.  Sanders
keeps a tally of recyclables received, arranges for bailing and
schedules vendor pickup of accumulated recyclables.  The Public Works
Director decides which vendors get the City's recycling business.
After contacting vendors to schedule their trucks, Sanders' respon-
sibilities involve loading the trucks and getting the proper paperwork
signed and exchanged.  Sanders devotes five hours per week to paper-
work.  On arrival Sanders and/or his Laborer load the vendor trucks
using the Bobcat.
     Departmental recycling requires Sanders to provide plastic gar-
bage bins weekly to all City departments and to help them post signs
encouraging the separation of their rubbish.  Sanders personally or
with the assistance of Workfare employees empties departmental bins
into separate boxes in the back of a pickup truck.  Departmental
recycling comprises two or three hours of Sanders' workweek.  There is
no evidence of what number of regular and overtime hours comprise

Sanders' workweek.

     At the transfer station the recycling division uses yard waste to
make compost for City residents.  Residents deposit their yard waste
with a subcontractor transfer station attendant.  On a weekly basis
for a couple of hours Sanders and a Public Works employee transfer the
waste from the transfer station receiving area to the compost area
located behind the transfer station, using a loader and a dump truck.
Sanders usually runs the dump truck.  On occasion Sanders has devoted
an entire workday to loading trucks with compost for residents.
     Sanders spends eighty-five percent of his workweek inside the
recycling building.  Sanders performs identical work alongside his
Laborer approximately twenty percent of his work time and performs
chores similar in nature to those performed by the Laborer during
approximately eighty percent of his workday.  Sanders and his Laborer
often simultaneously operate bailers at opposite ends of the building.
During eighty percent of their work time the Foreman I and Sewer
Foreman work alongside and perform the same work as their supervised
     The City and AFSCME reached agreement on an undisclosed pre-
hearing date to include the part-time Recycling Laborer in the
bargaining unit via the next Public Works unit collective bargaining
agreement.  The current Teamsters' supervisory unit collective
bargaining agreement is effective from September of 1992 through June
of 1995.  A general inquiry was made by the City of the Teamsters
respecting whether the issue of the inclusion of the Recycling Foreman
in the supervisory unit would be raised during negotiations for the
supervisory contract.  The Teamsters did not respond.  The issue of
supervisory unit placement of the Recycling Foreman was not included
in the formal contract proposals exchanged by the City and the
Teamsters.  The City abandoned the Recycling Foreman supervisory unit
placement issue.  The existing supervisory unit contract contains a
recognition clause which describes the supervisory unit without spe-
cifically mentioning the Recycling Foreman position.
     The Administrator perceives that all Saco City employees
(nonunion, including department heads, as well as employees repre-

sented by AFSCME and TEAMSTERS) possess non-salary fringe benefits in
the areas of overtime, sick leave, vacation time and health plans
which "are very close to the same," with "specific differences that
apply to different departments."  Sanders possesses blanket pre-
approval for overtime at the end of the workday.  Unit employees must
obtain 24-hour prior approval of the Director for overtime.  Sanders'
benefits and working conditions also differ from unit employees in the
following respects:  call time for Sanders is unspecifiedly different
from that of unit employees; Sanders apparently is not subject to the
assignment of sidewalk sweeping and street painting duties and is not
eligible for holiday duty bonus pay; Sanders does not know whether he
has health insurance; Sanders receives a clothing and boot allowance
and an unspecified amount of unaccumulable sick leave; Sanders is not
eligible for a sick-leave-usage bonus pay available to unit employees.
     The recycling facility in which Sanders' office is located is a
separate building located on Saco's North Street, on the same property
as the Public Works garage.  Only the Public Works (Street and Sewer)
Department is located at the Public Works yard.  The Parks and
Recreation Department is separately located downtown.  The "separate"
Public Works and Parks and Recreation Departments do share employees.
The Public Works yard is composed of the main shop, the main office,
the truck fleet, the salt shed and materials accumulated in the yard.
The Public Works building contains a break room, a restroom, a phone
and a supply shop used by Sanders and other Public Works employees.
Sanders' office is located about 200 yards from Nadeau's.  Recycling
and other Public Works employees attend training sessions together.
     The pumps at which Public Works, Treatment Plant and Parks and
Recreation vehicles are fueled are located between the Public Works
and Recycling Buildings.  There is some contact by Sanders with
employees who fuel vehicles in the Public Works yard.  Sanders doesn't
know who occupies the positions of Assessor or Building Inspector.
A Laborer from Parks and Recreation brings recyclable materials to
Saunders once or twice a month.  Sanders has on only one occasion
assisted other Public Works Department employees in performing the

department's street functions.  Sanders transported a trench box to a
Public Works street department job site in a vehicle ordinarily used
to transport recyclable materials to Saco Steel.  As a result, the
Sewer Foreman was admonished not to use non-unit employees for unit
     As is more fully set forth below, I conclude in light of the evi-
dence and arguments that the petition in this case was properly filed
and that the Recycling Working Foreman is appropriately accreted to
the existing Saco Public Works bargaining unit.  The MPELRL provides
in section 966(1) that:
     In the event of a dispute between the public employer and an
     employee or employees as to the appropriateness of a unit
     for purposes of collective bargaining or between the public
     employer and an employee or employees as to whether a super-
     visory or other position is included in the bargaining unit,
     the executive director or his designee shall make the deter-
26 M.R.S.A.  966(1) (1988).  The MPELRL provides, with respect to the
availability of Board unit clarification procedures, that:
     Where there is a certified or currently recognized
     bargaining representative and where the circumstances
     surrounding the formation of an existing bargaining unit are
     alleged to have changed sufficiently to warrant modification
     in the composition of that bargaining unit, any public
     employer or any recognized or certified bargaining agent may
     file a petition for a unit clarification provided that the
     parties are unable to agree on appropriate modifications and
     there is no question concerning representation.
26 M.R.S.A.  966(3) (1988).  The purpose of unit clarification proce-
dures is to analyze job classifications in light of changes which have
occurred since the formation of the bargaining unit to determine
whether the changes are sufficient to warrant modification of the
unit's description.  The creation of a new job classification is a
change that is usually deemed sufficient to satisfy the threshold
requirement of "substantial change."  Portland Public Library Staff
Association and Portland Public Library, No. 88-UC-03, slip op. at 9
(Me.L.R.B. June 2, 1988).  Rule 1.16(A) of the Board's Unit
Determination Rules states:

     Where there is a certified or currently recognized
     bargaining representative and where the circumstances
     surrounding the formation of an existing bargaining unit are
     alleged to have changed sufficiently to warrant modification
     in the composition of the bargaining unit the employer or
     the incumbent recognized or certified bargaining agent may
     file a petition for a unit clarification (MLRB Form 2) pro-
     vided that the parties are unable to agree on appropriate
     modifications and there is no question concerning represen-
     tation.  Unit clarification petitions may be denied if (1)
     the question raised should properly be settled through the
     election process, or (2) the petition requests the clarifi-
     cation of unit placement questions which could have been but
     were not raised prior to the conclusion of negotiations
     which resulted in an agreement containing a bargaining unit
This rule reflects a policy favoring the establishment of bargaining
unit parameters through agreement of the parties.[fn]4  It is discretionary
and permits but does not mandate the dismissal of unit clarification
petitions.  See State v. MSEA, No. 82-A-02, slip op. at 5 & 6, 6 NPER
20-14027 (Me.L.R.B. June 2, 1983).
     The record indicates that all of the statutory prerequisites to
the filing of the instant clarification petition have been satisfied.
The Petitioner is the certified collective bargaining agent and the
Recycling Working Foreman position was created after the unit was ini-
tially created.  No party has asserted and the record evidence does
not give rise to an inference of the existence of a question con-
cerning representation.[fn]5  Finally, the record establishes that the
issue of the unit placement of the Recycling Working Foreman was
raised in the current, and at present, inconclusive negotiations for a
     4 Monetary predictability in the adequate funding of collective
bargaining agreements is enhanced by the Board's rule allowing the
dismissal or refusal of petitions raising clarification issues for the
first time subsequent to and in contradiction of contractual agreement
on unit descriptions.
     5 The possibility of the accretion of one employee to a unit of
this size does not create a question concerning representation.


successor to the parties' contract which expired on June 30, 1992.
Contrary to the contention of the City, I do not consider the terms
of the parties' expired contract's recognition clause to constitute a
clear and unmistakable waiver of the right to bring this unit clarifi-
cation matter.  See M.S.A.D. No. 56 Teachers Association v. M.S.A.D.
56, No. 89-UC-03, slip op. at 14-15 (Me.L.R.B. May 12, 1989) (citing
     Having found the petition to be timely and sufficient, I shall
first address the issue of whether the Recycling Working Foreman
shares a community of interest with members of the existing Public
Works collective bargaining unit.  The Board has discussed the duty of
hearing examiners to assess whether a community of interest exists
among prospective fellow unit members as follows:
     Title 26 M.R.S.A.  966(2) requires that the hearing exam-
     iner consider whether a clear and identifiable community of
     interest exists between the positions in question so that
     potential conflicts of interest among bargaining unit mem-
     bers during negotiations will be minimized.  Employees with
     widely different duties, training, supervision, job loca-
     tions, etc., will in many cases have widely different
     collective bargaining objectives and expectations.  These
     different objectives and expectations during negotiations
     can result in conflicts of interest among bargaining unit
     members.  Such conflicts often complicate, delay and
     frustrate the bargaining process.
AFSCME and City of Bangor, No. 79-A-01, slip op. at 4, 1 NPER 20-10032
(Me.L.R.B. Oct. 17, 1979).  See also Board Unit Determination
Rule 1.11(F).
     In evaluating the presence or absence of community of interest,
the Board requires, at minimum, assessment of the following eleven
     (1) similarity in the kind of work performed; (2) common
     supervision and determination of laborrelations policy;
     (3) similarity in the scale and manner of determining earn-
     ings; (4) similarity in employment benefits, hours of work
     and other terms and conditions of employment; (5) similari-
     ties 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 public employer's
     organizational structure.
Council 74, AFSCME and City of Brewer, MLRB No. 79-A-01, slip op. at
3-4, 1 NPER 20-10031 (Oct. 17, 1979); (cited with approval in
Penobscot Valley Hospital and Maine Federation of Nurses and Health
Care Professionals, AFT, AFL-CIO, MLRB No. 85-A-01, slip op. at 4,
8 NPER ME-160l1 (Feb. 6, 1985)).  See Board Unit Determination
Rule 1.11(F).
     The evidence establishes that like the Foreman I and Sewer
Foreman, the Recycling Foreman spends eighty percent of his workday
performing work identical to that of supervised subordinates.[fn]6  The
parties have stipulated that Public Works unit employees perform
manual work and/or operate heavy and/or light equipment and/or machin-
ery.  The records supports a similar finding respecting the Recycling
Laborer and Working Foreman.  Accordingly, I find that Sanders, his
Laborer and members of the Public Works unit all perform substantially
similar job duties.  The possession of similar, not identical, job
responsibilities and conditions is the central inquiry in community of
interest determinations.  While the evidence establishes that Sanders
and his Laborer work primarily indoors, there is no evidence respecting
the balance of Public Works employees, other than the inference that
dump truck and sidewalk plow operation is primarily accomplished out
of doors.  I make no conclusion respecting the similarity in con-
ditions under which Sanders' and unit employees' work is performed.
     Although Sanders, the Foreman I and Sewer Foreman are presently
supervised directly by Nadeau, the evidence establishes that under
     6 Absent evidence to the contrary, the parties' agreement to
include the Recycling Laborer in the Public Works unit supports a
reasonable inference that the parties have also agreed that the
Laborer and members of the unit share a community of interest.
But cf. Auburn School Committee v. Auburn Education Association,
No. 91-UDA-01, slip op. at p.3, n.1, 14 NPER ME-220061 (Me.L.R.B.
May 8, 1991).  The fact that the Recycling Working Foreman performs
work identical to that of the Laborer he supervises suggests that he,
too, shares a community of interest with members of the Public Works


normal conditions the Foreman I and Sewer Foreman are subject to an
additional layer of undescribed supervision.  All Public Works
employees are, however, ultimately supervised by Nadeau, who retains
nearly all managerial departmental control.  There is no indication of
who determines labor-relations policy for Sanders.  Unit employees'
wages, hours and terms and conditions of employment are determined
through collective bargaining.  All of the employees at issue are
hourly-paid.  The three subject foremen receive approximately equiva-
lent annual salaries, although Sanders' salary is not set through
collective bargaining.  The record establishes no significant dif-
ference in Sanders' and unit employees' overall benefits, hours of
work and other terms and conditions of employment.[fn]7  Other than semi-
skilled equipment or mechanical operations, there is no evidence of
the qualifications, skills and training of Public Works employees.
Sanders likewise is not subject to any exceptional qualifications or
training requirements.  Sanders meets weekly with the other two unit
foremen at Nadeau's office, attends training sessions with Public
Works employees, supervises a loaned public works employee at least
weekly and has ample daily opportunity for informal contact due to the
location of shared facilities in the Public Works building.  The
Recycling and Public Works building are co-located in the Public Works
yard.  There is nothing probative in the parties' collective
bargaining history.  There is no clear indication of Sanders' pre-
ference, if any, whether to be included in the Supervisory or Public
Works unit.  In response to the question whether Sanders has "a pre-
ference one way or another as to whether or not [his] position is part
of the AFSCME unit," Sanders replied only, "I have a good working
relationship with the City.  I believe if it was tied down with the
hours that my position would be hindered."  The Teamsters did not, on
inquiry by the City, express a desire to include the Recycling Foreman
in the Supervisory unit and have not entered an appearance in this
case.  The Teamsters' Supervisory Unit apparently does not seek
     7 See, Orono School Committee and Orono Teachers Association,
No. 89-UD-04 and 89-UC-02, slip op. at 16 (Me.L.R.B. Dec. 14, 1988).

Sanders' accretion.[fn]8

     The issue of Sanders' inclusion in the Teamsters' unit was not
preserved by request during City/Teamsters negotiations.  As a con-
sequence, absent agreement of the parties, no accretion to the
Teamsters' unit would be available by unit clarification until 1995.
Additionally, establishment of a single-member Recycling Working
Foreman unit would offend the Board's long-standing policy against the
unnecessary proliferation of small bargaining units.[fn]9  The Board has
explained its rationale as follows:
     Small bargaining units must be bargaining for and serviced
     just as [must] large bargaining units. The State is obli-
     gated to provide under 26 M.R.S.A. Section 965 the same
     mediation and arbitration services for small units as are
     provided for large units.  The formation of small bargaining
     units among employees in the same department can thus result
     in the employer, the union, and the State expending an
     amount of time, energy and money all out of proportion to
     the number of persons served.
M.S.A.D. 43 and M.S.A.D. 43 Teachers Association, No. 84-A-05, slip
op. at 4-5, 7 NPER 20-15015 (Me.L.R.B. May 30, 1984), see, e.g., MSAD
14 and East Grand Teachers Association, No. 83-UCA-09, slip op. at 13,
6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983), MSAD 16 Library Employees
Association and MSAD 16 Board of Directors, No. 82-A-03, slip op. at 3
(Me.L.R.B. Aug. 12, 1982).  There is nothing in the record pertaining
to the public employer's organizational structure which counsels
     8 The Employer's evidence in this regard, running against the
Employer's unit placement preference as it does, although hearsay, is
credible.  There is, however, no indication whether the Teamsters'
demurrer is owed to the reach of the AFL-CIO affiliate's no-raid
     9 See, Lubec Education Association, MTA/NEA and M.S.A.D. No. 19
Board of Directors, No. 83-UD-17 (Me.L.R.B. Apr. 13, 1983) (Head Bus
Driver/Custodian included in unit due to policy against overfragmen-
tation although supervisory duties included scheduling, assigning,
reviewing and overseeing work of employees, submitting a budget for
salaries and supplies, ordering supplies up to $500, interviewing and
participating in the hiring of subordinates for vacancies, adjusting
grievances, applying established personnel policies and participating
in the formulation of job descriptions and performance criteria).


against the requested inter-departmental accretion.

     I find that Board criteria numbered 1, 3, 5, 6 and 7 strongly
support the requested accretion, that criteria 2, 10 and 11 mildly
support the accretion and that the evidence respecting considerations
related to criteria 4, 8 and 9 is either insufficient or is not dis-
positive.  I therefore conclude that the Recycling Working Foreman
shares a community of interest with members of the Public Works Unit
and if not appropriately excluded on the basis of supervisory conflict
of interest should be accreted thereto.  The inquiry now turns to
whether the Recycling Foreman's supervisory duties compel a conclusion
that his accretion would be inappropriate due to the requirements
of 26 M.R.S.A.  966(1).
     In Penobscot Valley Hospital and Maine Federation of Nurses
and Health Care Professionals, No. 85-A-01, 8 NPER ME-16011 (Me.L.R.B.
Feb. 6, 1985), the Board stated, at page 8, that:
     Section 966(1) does not require the exclusion of supervisory
     employees from bargaining units composed of the employees
     whom they supervise but relegates the decision of the super-
     visory employees' unit status to the sound discretion of the
     hearing examiner.  Maine School Administrative District No.
     14 and East Grand Teachers Association, MLRB No. 83-A-09, at
     12 (Aug. 24, 1983).  Except in instances where the resulting
     one- or two-member supervisory unit would contravene our
     policy of discouraging the proliferation, through fragmen-
     tation, of small bargaining units, we have approved of the
     creation of such separate supervisory units.  Maine School
     Administrative District No. 14, supra, at 12-13; Maine
     School Administative District No. 43 and Maine School
     Administrative District No. 43 Teachers Association, MLRB
     No. 84-A-05, at 4-5 (May 30, 1984).  The purpose of creating
     separate supervisory employee bargaining units is to mini-
     mize potential conflicts of interest within bargaining
     units, between supervisors and their subordinate employees,
     as well as to lessen conflicts of loyalty for supervisors
     between duty to their employer and allegiance to fellow unit
I have considered the duties of the Recycling Working Foreman both in
light of this statement of Board policy and in light of the following
requirement of 26 M.R.S.A.  966(1) (Pamph. 1992):
     In determining whether a supervisory position should be
     excluded from the proposed bargaining unit, the executive

     director or his designee shall consider, among other cri-
     teria, if the principal functions of the position are
     characterized by performing such management control duties
     as scheduling, assigning, overseeing and reviewing the work
     of subordinate employees, or performing such duties as are
     distinct and dissimilar from those performed by the
     employees supervised, or exercising judgment in adjusting
     grievances, applying other established personnel policies
     and procedures and in enforcing a collective bargaining
     agreement or establishing or participating in the establish-
     ment of performance standards for subordinate employees and
     taking corrective measures to implement those standards.
Based upon the record I conclude that the Recycling Working Foreman is
a leadworker whose quotidian duties do not rise to the level described
above as an appropriate basis for excluding supervisors from units
containing their subordinates.  The community of interest which the
Recycling Workng Foreman shares with his Laborer and members of the
Public Works unit is not outweighed by any actual, routine and signif-
icant conflict of employment interests.
     The record does not establish training in supervisory duties to
be a prerequisite of employment as Recycling Working Foreman.  See
Region 8 Employees Association and Region 8 Cooperative Board,  No.
88-UD-11, slip op. at 3 (Me.L.R.B. Mar. 30, 1988); Teamsters Local
Union No. 48 and Town of Cape Elizabeth, No. 86-UD-03, slip op. at 21
(Me.L.R.B. Jan. 31, 1986); Teamsters Local Union No. 48 and Van Buren
Light and Power District, No. 85-UD-14, slip op. at 10 (Me.L.R.B.
Jan. 25, 1985); Teamsters Local Union No. 48 and Lewiston-Auburn
Water Pollution Authority, No. 79-UD-15, slip op. at 4 (Me.L.R.B.
Feb. 23, 1979).
     Sanders' supervisory authority on the whole appears to be no more
than that required to assure a safe and coordinated work effort, the
classic limited authority of a leadworker.  Compare Teamsters Local
Union No. 48 and Town of Cape Elizabeth, No. 86-UD-03 (Me.L.R.B.
Jan. 31, 1986) (Highway Foreman's ministerial service as acting
department head, making of gratuitous and unsuccessful disciplinary
recommendations and lack of final authority over crew assignment,
vacation and sick leave of subordinates compelled inclusion in
bargaining unit of subordinates), with, Teamsters Local Union No. 48

and Boothbay Harbor Water System, No. 82-UD-29 (Me.L.R.B. May 11,
1982) (Water System Foreman excluded where supervisory duties included
scheduling, directing, evaluating and supervising employees,
establishing work priorities, maintaining records and making hiring
recommendations).  See, e.g., Teamsters Local Union No. 48 and Town
of Lebanon, No. 86-UD-02 (Oct. 17, 1985), aff'd, No. CV-85-656
(Me.Sup.Ct., Yor.Cty., Dec. 13, 1985) (Police Administrator who lacked
final authority in singular possibly conflicting duty, that of sched-
uling, included in unit with patrolmen); Teamsters Local Union No. 48
and Van Buren Light and Power District, No. 85-UD-14 (Me.L.R.B.
Jan. 25, 1985) (duties of Line Foreman who assigned, oversaw and
reviewed work of employees determined as a whole not to be so distinct
and dissimilar from those performed by supervised employees to warrant
exclusion from proposed unit); Teamsters Local Union No. 48 and Town
of Pittsfield, No. 81-UD-09 (Me.L.R.B. Jan. 15, 1981) (Sergeant posi-
tion found to be "working supervisor" where supervisory duties were
limited and undemanding and where vast majority of time was devoted to
regular patrol work); City of Bangor and Local 1599, IAFF, No. 80-UD-15
(Me.L.R.B. Feb. 1, 1980) (Fire Lieutenants held to be "group leaders"
or working foremen" where they had various added responsibilities of a
limited nature but essentially performed rank-and-file duties).
     Employees possessing greater supervisory authority than Sanders
have been included in units with supervised employees.  See, e.g.,
Council 74, AFSCME and Rockland Wastewater Treatment Facility,
No. 82-UD-03, 4 NPER 20-12035 (Me.L.R.B. Aug. 12, 1981), (Chief
Operator who supervised Senior Operator, Operators, Lab Director and
Lab Technicians, who made monthly shift assignments, computed waste
and flow rates, kept Federally-mandated operational and effluent
records, selected test sites within the system, exercised discretion
in varying treatment plant operations, inspected equipment, and
ordered chemicals included in Public Works unit).
     In light of the fact that Sanders performs manual labor similar
to that performed by his Laborer and other Public Works employees
during approximately eighty percent of his workday, it cannot


realistically be said that the principal functions of his positions are
either distinct and dissimilar from those performed by subordinates,
or characterized primarily by managerial control duties.  See Southern
Aroostook Teachers Association, MTA/NEA and Southern Aroostook
Community School District, No. 86-UD-18, slip op. at 25 (Me.L.R.B.
Jan. 26, 1987).  In M.S.A.D. No. 5 High School Department Coordinators
and M.S.A.D. No. 5, No. 88-UD-01 (Me.L.R.B. Oct. 16, 1987), the under-
signed commented, albeit in a school unit context, upon the evidentiary
basis to support allegations of supervisory conflict, as follows:
     Although not intended to constitute an exhaustive listing,
     the following examples are illustrative of the variety of
     evidence which may be probative of the issue of the
     existence of the supervisory conflict of interest:  evidence
     of the exercise of personal decisions to hire, promote,
     discharge or discipline employees or instances of the effec-
     tive recommendation of such personnel actions; evidence of
     the performance of significant duties in the observation and
     evaluation of teachers where such observations and evalua-
     tions play a substantial role in reappointment, non-
     reappointment, grant of continuing contract status, award of
     merit pay or promotion; evidence of the exercise of indepen-
     dent judgment in the ranking of subordinates for the pur-
     poses of establishing an order of lay-off or re-call beyond
     merely ranking by seniority; evidence of the performance of
     a role in the curriculum area(s) of responsibility indi-
     cating the exercise of independent judgment in the deter-
     mination, modification or attainment of curriculum
     objectives, and the placement of teachers in curriculum
     courses; evidence of the exercise of prevailing influence in
     textbook selection or the preparation of class schedules or
     assignments; evidence of the exercise of significant discre-
     tion in the promulgation or execution of a working budgetary
     document for an area of responsibility; evidence of the non-
     ministerial grant or denial of the use of vacation, sick,
     bereavement, educational or other leaves of absence; and
     evidence of the use of settlement authority in grievance
     Based upon the findings of community of interest and lack of
supervisory conflict discussed above, I make the unit clarification
determination set forth below.
     Pursuant to 26 M.R.S.A.  966 (1988 & Supp. 1992) and on the
basis of the above discussion applying the Board's precedent to the

stipulations and findings of fact in light of the legal arguments of     
the parties, I conclude that the Recycling Working Foreman is
appropriately included in the existing City of Saco Public Works
collective bargaining unit.
Dated at Augusta, Maine, this 10th day of December, 1992.
                                  FOR THE EXECUTIVE DIRECTOR OF THE
                                  MAINE LABOR RELATIONS BOARD

                                  M.WAYNE JACOBS
                                  Designated Hearing Examiner
The parties are hereby advised of their right pursuant to 26 M.R.S.A.
 968(4) (Supp. 1992), 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.