STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 97-UD-14
Issued: October 1, 1997
AFSCME COUNCIL 93,
Petitioner,
and UNIT DETERMINATION REPORT
TOWN OF PARIS,
Employer.
INTRODUCTION
This is a unit determination proceeding that was initiated
on May 9, 1997, when Ms. Beverly Miner Hatheway, a representative
of AFSCME Council 93 (hereinafter referred to as "Union"), filed
a petition with the Maine Labor Relations Board ("Board") for
determination of an appropriate bargaining unit pursuant to
section 966(1) of the Municipal Public Employees Labor Relations
Law C"MPELRL"), 26 M.R.S.A. ch. 9-A.
The Union's petition seeks the formation of a bargaining
unit composed of the following positions in the Town of Paris
Highway Department: Equipment Operator/Truck Driver, [1] Equipment
Operator/Assistant Foreman, and Foreman. The Town of Paris
("Town" or "Employer") contends that the position of Foreman is a
department head and is therefore excluded from collective
bargaining under section 962(6) (D).
Prior to commencement of the formal hearing, the parties met
with the hearing examiner to explore the possibility of
settlement and, in the alternative, to offer exhibits into
_________________________
1The petition for unit determination lists the job classification as
"Equipment operator/Truck Driver." During the hearing, however, the parties
almost always referred to the position as "Equipment operator/Laborer", the
title that was on the most recent written job description. The title
"Equipment operator/Laborer" is assumed to be correct and is used in this
decision.
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evidence and formulate stipulations of fact.
EXHIBITS
The parties agreed to the admission of the following
exhibits:
Exhibit #1 Bylaws of the Board of Municipal
Officers of the Town of Paris, Maine
Exhibit #2 Town of Paris Personnel Policy
Exhibit #3 "Things To Do This Spring Besides Reg.
Maint." (handwritten by incumbent Road
Foreman)
Exhibit #4 Requested expenditures for FY 97-98
(handwritten by incumbent Road Foreman)
Exhibit #5 "Recommendation of Road Foreman" on
salaries
Exhibit #6 Job Description--Foreman, Highway
Department
Exhibit #7 Job Description, Bangor Director of
Public Services
Exhibit #8 Job Description, Portland Director of
Parks and Public Works
Exhibit #9 Job Description, Portland Public Works
Supervisor
Exhibit #10 Job Description, Portland Public Works
District Leader
Exhibit #11 Agreement on Appropriate Unit, Lewiston
Exhibit #12 Portions of Collective Bargaining
Agreement, 1995-1998, Bangor Public
Works Department
Exhibit #13 Portions of Collective Bargaining
Agreement, 1996-1999, Fort Fairfield
Highway Department
Exhibit #14 Portions of Collective Bargaining
Agreement, 1996-1999, Houlton Public
Works Employees
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Exhibit #15 Portions of Collective Bargaining
Agreement, 1993-1996, Rumford Public
Works Department
Exhibit #16 Portions of Collective Bargaining
Agreement, 1995-1997, Saco Public Works
Exhibit #17 Portions of Collective Bargaining
Agreement, 1996-1998, City of Portland
Supervisors
Exhibit #18 Job Description, Town of Paris Equipment
Operator-Laborer (Highway Department)
Exhibit #19 Job Description, Town of Paris Public
Works Foreman, 5/7/90
Exhibit #20 Performance Evaluation, 7/11/97, Highway
Foreman by Town Manager
STIPULATIONS
1. The incumbent Road Foreman was appointed by the Town
Manager and the appointment was approved by the Board of
Selectmen. It was a one-time process and the incumbent may be
removed only for cause.
2. The appointment of the Road Foreman was not done
pursuant to any specific statute. The Town does not have a
charter.
3. The bylaws of the Town contain an organizational chart
that lists four departments--police department, highway
department, fire department and town clerk. There are additional
clerical employees in the town hall and other officers or
employees such as code enforcement officer, plumbing inspector,
and welfare assistant, which are not in any of the four
departments listed in the organizational chart on page 1 of the
bylaws.
4. Pursuant to the established personnel policy, the Road
Foreman is empowered to evaluate the performance of subordinate
employees and is authorized to counsel and discipline employees.
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The personnel policy also provides that any grievances as well as
reports of injuries and accidents in the highway department must
initially be presented to the Road Foreman.
5. The employees in the highway department were last
evaluated in June of 1994 and that evaluation was done by the
former Road Foreman and reviewed by the Town Manager. The former
Road Foreman was also evaluated at that time by the Town Manager.
6. The current Road Foreman has been in the position for 10
months and has not evaluated any of the employees. The current
Road Foreman was evaluated by the Town Manager in July of 1997.
7. The Road Foreman is the only highway department employee
with an assigned vehicle. He may take that vehicle home but may
only use it for Town business.
8. If the Foreman is determined to be a public employee
within the meaning of the Act, two bargaining units would be
appropriate: one unit consisting of the Foreman and the
Equipment Operator/Assistant Foreman and the other unit
consisting of the Equipment Operator/Laborer classification.
if the Road Foreman is determined not to be a public employee,
then there would be a single appropriate bargaining unit
consisting of the Assistant Foreman and the Equipment Operator/
Laborer classifications.
9. The Foreman and the Assistant Foreman share a clear and
identifiable community of interest. The Foreman would be
appropriately placed in a unit with the Assistant Foreman but for
the allegation that the Foreman is not a public employee.
HEARING
After due notice an evidentiary hearing on the petition was
held by the undersigned hearing examiner on July 16, 1997, at the
Board's conference room in Augusta, Maine. Mr. John Basso, State
of Maine Coordinator, AFSCME Council 93, appeared on behalf of
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the Union. Mr. David Berg, Management Consultant, appeared on
behalf of the Employer. No one requested to intervene.
The Union presented as its witnesses: Mr. Tony Farrar, Road
Foreman; Mr. George Stephen Fay, Equipment operator/Laborer; and
Mr. Armand E. Norton, Selectman. The Employer presented as its
witnesses: Mr. Arthur E. Mill, Jr., Selectman; and Mr. James
Kane, Town Manager.
The parties were given the opportunity to examine and cross-
examine witnesses, offer evidence and present oral argument at
the close of the hearing.
JURISDICTION
AFSCME Council 93 is a public employee organization within
the meaning of 26 M.R.S.A. 962(2) and the Town of Paris is a
public employer within the meaning of 26 M.R.S.A. 962(7). The
jurisdiction of the hearing examiner to hear this matter and make
a unit determination lies in 26 M.R.S.A. 966(1) and (2) (1988).
FINDINGS OF FACT
1. Section 2 of the Bylaws of the Board of Municipal
Officers of the Town of Paris provides that the Town is organized
in accordance with 30-A M.R.S.A. 2631 as a "Town Manager plan."
It also states that the Town Manager is "the Chief Executive
Officer (CEO) of the Town and is responsible for hiring qualified
personnel to head each town department, subject to confirmation
by the Board of Selectmen."
2. Two members of the Board of Selectmen and the Town
Manager interviewed the current Road Foreman before he was hired
and the full Board approved the hiring of the Road Foreman. No
evidence was presented regarding the hiring process for other
Town employees. It is presumed that Board involvement and Board
confirmation is not the normal process for hiring all Town
employees.
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3. The most current job description (dated 3/21/91) for the
Road Foreman position is the following:
Position: Foreman
Dept.: Highway
Nature of Work
This is both a supervisory and practical work
position. This employee supervises and works with a
group of semi-skilled workers and equipment operators
engaged in public works construction and maintenance
operations. Incumbent reports through daily contact
with and periodic reports to the Town Manager.
Employee of this class supervises and assists
crews which frequently include truck and equipment
operators. Work of this class involves snow removal
and sanding, road construction, and the scheduling,
coordinating and supervision of various work performed
in public works. Employee is further responsible for
checking work performed by subordinates, to insure that
streets, sidewalks, and storm sewers are made according
to prescribed lines and grades. Employee also will
work with the crew on projects and in on going
maintenance operations.
Illustrative Examples of Work
Supervises and assists a crew of truck
drivers and equipment operators in snow
removal and sanding of Town streets and
municipal parking lots
Supervises and assists a crew of truck
drivers and equipment operators in the
construction and maintenance of municipal
streets.
Responsible for maintaining storm drainage
system, where required.
Inspects work to ensure conformance with
given engineering specifications and
standards, and make necessary adjustments in
assignments and methods to correct
deficiencies.
Supervises and assists in repairing streets
and sewer basins, placing and rolling
asphalt, repair of ditches and culverts and
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related activities.
Supervises and assists in placement and
removal of street signs, removal of downed
trees and brush, and general clean-up of Town
streets.
Schedules work assignments, aids the Road
Commissioner in hiring and discipline
matters, and occasionally performs skilled
work in construction of catch basins and
equipment operation.
Participates in work in such areas as snow
removal, brush cutting, ditching, culvert
replacement, and patching.
Supervises and participates in the repair and
maintenance of departmental equipment.
Periodically patrols and inspects the road
system to determine the need for repairs and
maintenance, and for planning future work.
Performs related work as required.
Requirements of Work
Considerable knowledge of materials, methods
and techniques commonly used in street,
sidewalk, and sewer construction activities.
Considerable knowledge of the hazards and
applicable safety precautions of the work.
Working knowledge of the operation of
construction equipment such as trucks and
loaders used in road construction work, and
ability to supervise and direct the
activities of employees engaged in the
operation and maintenance of such equipment.
Ability to lay out, direct and supervise the
work of a crew and equipment operators
performing semi-skilled road and sewer
construction, repair, and maintenance
activities to obtain efficient results.
Ability to read engineering plans for road
and sewer construction and to follow
prescribed lines and grades.
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Ability to assist crews in the completion of
projects and regular tasks.
Ability to understand and follow complex oral
and written directions.
Ability to establish and maintain harmonious
relationships with employees and the public,
and to effectively obtain satisfactory work
output.
Ability to keep record and prepare reports.
Ability to supervise and assist as necessary,
the general maintenance of all public works
equipment.
Ability to budget and plan long range capital
improvements -
Ability to budget for annual departmental
expenses.
Desirable Experience and Training
High School graduate with extensive knowledge of
road repair, maintenance and construction activities,
experience as a labor foreman in road construction, or
any equivalent combination of experience and training.
Snow plowing experience desirable.
Completion of a two year program from an
accredited college in engineering technology desirable,
but not required.
Experience in operation and basic maintenance of
trucks and construction equipment.
Necessary Special Requirements
Must possess a valid Class 2 motor vehicle
operator's license.
4. The Road Foreman spends 35 to 40 hours of his 45-hour
workweek working alongside the other employees of the Highway
Department performing work duties identical to the other crew
members.
5. The bulk of the day-to-day tasks performed by the Road
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Foreman have not changed since he was an Equipment Operators
Laborer and later an Assistant Foreman.
6. The Road Foreman performs some supervisory and
administrative duties such as distributing work assignments among
the department employees, doing the payroll each week for the
department, inspecting the roads, purchasing equipment and
supplies or submitting purchasing requests to the Town Manager,
and responding to citizen complaints regarding road conditions.
The Road Foreman is authorized to schedule overtime hours. The
Road Foreman has also submitted budget requests to the Town
Manager which included proposed pay increases. The Road Foreman
has written proposed job descriptions and provided input into a
capital improvement plan in response to the request of the Town
Manager.
7. The Road Foreman has not formulated any policy regarding
the operation of the department and is not fully responsible for
any employee relations functions with respect to his employees.
He participates in the interview and hiring process with the Town
Manager but does not have hiring authority. He has the authority
to discipline employees but no authority to fire employees. The
Road Foreman has not participated in the negotiation of any
collective bargaining agreement nor has he participated in the
development of any personnel policies. He does not formulate
policies and procedures affecting the employees in the Highway
Department.
8. The Town Manager also serves as the Road Commissioner
for the Town. There is a statutory requirement that the Road
Commissioner go over the roads a number of times a year or cause
it to be done. (30-A M.R.S.A. 2702) The Road Commissioner/
Town Manager and the Road Foreman tour the roads together three
or four times a year.
9. The Road Commissioner/Town Manager and the Road Foreman
have toured the roads that are part of this year's major
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reconstruction project a number of times with the contractors who
may be submitting bids on the project.
10. The Town Manager prepares the contracts and the bid
specifications for the major reconstruction projects in the
highway department, as he does for other departments based on
their recommendations.
DISCUSSION
In response to the Union's petition, the Employer alleges
that the Road Foreman is excluded from the definition of public
employee under section 962(6) (D) and, therefore, may not be
included in any bargaining unit. Section 962(6) (D) excludes from
coverage of the Act any person " [w] ho is a department head 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." It is well established that
exceptions to the definition of public employee must be narrowly
construed to avoid undermining the purpose of the Act of
providing public employees the right to join unions and bargain
collectively. See, e.g., State of Maine and Maine State
Employees Association, No. 82-A-02, slip op. at 6 (Me.L.R.B.
June 2, 1983).
The rationale for excluding department heads from those
public employees having collective bargaining rights is not
specifically addressed in the statute. It is clear, however,
that to give department heads collective bargaining rights would
be tantamount to requiring the employer to bargain with itself.
As the attorney examiner in another unit determination case
noted, presumably the reason department/division heads are
excluded from coverage under the Act is:
. . . because in municipalities large enough to have
one or more true departments and even divisions within
departments, the chief administrator of the municipal-
ity cannot possibly personally perform the employee-
related management functions that normally fall to that
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position (and are not listed as simply supervisory
duties in 26 M.R.S.A. 966(1)) --negotiation of
collective bargaining contracts, hiring and firing of
staff, development and administration of management
policies and practices, etc.
AFSCME, Council 93 and Town of Sanford, No. 92-UD-O3 (Me,L.R.B.
Feb. 21, 1992), slip op. at 31, fn. 6, aff'd on other grounds,
92-UDA-03 (Me.L.R.B. May 7, 1992).
Evaluating whether a particular employee is a department or
division head involves two separate inquiries: "1) whether the
employee is the administrator of the department or division, and
2) whether the employee is 'appointed to office pursuant to
statute, ordinance or resolution for an unspecified term by the
executive head or body of the public employer,' as specified in
Section 962 (6) (D) ." Teamsters Local 48 and Boothbay Harbor Water
System, No. 82-UD-29, slip op. at 6 (Me.L.R.B. May 11, 1982).
The inquiry regarding the appointment process is easy to
answer in this case. Although there is no specific statute,
ordinance or provision of a city charter governing the
appointment of the Road Foreman, the fact that two Selectmen were
part of the interview process and the appointment was confirmed
by the Board of Selectmen satisfies the "degree of importance and
formality needed to satisfy the Act's [appointment] requirement."
Teamsters Local Union No. 48 and City of Saco, No. 80-UD-34, slip
op. at 5 (Me.L.R.B. June 20, 1980). See also Teamsters Local
Union No 48 and Town of Lebanon, No. 86-UD-02 (Me.L.R.B.
Oct. 17, 1985, appealed on other grounds, No. 86-A-01 (Me.L.R.B.
Dec. 5, 1985), aff'd Inhabitants of the Town of Lebanon V. Maine
Labor Relations Board and Teamsters Local Union No. 48, No. CV-
85-656 (Me. Super. Ct., Fra. Cty., Feb. 3, 1987).
The inquiry of whether the employee is the administrator of
the department must focus on the actual job duties or functions,
not the job title alone or its placement on the organizational
chart. The Board has recognized that there are typically three
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types of job functions performed in a department: day-to-day
rank and file work; supervision of other employees; and
formulation and administration of department policies and
practices, i.e., management of the department. The Board
described how the section 962(6) (D) exclusion fits in that
framework with the following:
Our cases establish that for an employee to be a
"department head" within the meaning of Section
962(6) (D), the employee's primary responsibility must
be that of managing or directing the affairs of the
department, as opposed either to acting as a supervisor
or to performing the day-to-day work of the department.
For example, in Teamsters Local 48 and City of
Portland, Unit Determination Report at 2 (Sept. 13,
1978), the hearing examiner declared 12 employees to be
Section 962(6) (D) division heads because they were
"responsible for the day-to-day administration" of
their divisions, and because their principal duties
were those ot "formulating and administering division
policies and practices." On the other hand, in
Teamsters Local 48 and Town of Bar Harbor, Unit
Determination Report at 3 (Nov. 15, 1979), a Treatment
Plant Operator who was responsible for the day-to-day
operation of the treatment plant and who performed such
administrative duties as setting the work schedules of
other employees, arranging for the purchase of
equipment and supplies, and submitting a budget to the
town manager, was found not to be a department head
because, among other things, the employee "spent the
major portion of his time performing the same work as
other operating employees." See also Teamsters Local
48 and Boothbay Harbor Water System, Unit Determination
Report at 6-8 (May 11, 1982) (Foreman who performed
various administrative duties was not an administrator
because "on balance the primary function of the
Foreman's position is to act as a supervisor") . Our
cases thus require hearing examiners, when presented
with evidence showing that an employee performs both
administrative duties and supervisory or rank-and-file
duties, to decide whether the primary duties of the
position are those of an administrator or those of a
supervisor or a rank-and-file employee.
Teamsters Local Union No. 48 and Town of Wells, No. 84-A-03, slip
op. at 6-7, 6 NPER 20-15012 (Me.L.R.B. Apr. 11, 1984), aff'd sub
nom. Inhabitants of the Town of Wells V. Teamsters Local Union
No. 48, CV-84-235 (Me. Super. Ct., Yor. Cty., Feb. 28, 1985).
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In the present case, the evidence indicates that the Road
Foreman is not a department head but is at most a working
supervisor. The Foreman spends 90 percent of his time working
alongside the other highway department employees performing the
same tasks as they do. Most of his day is spent on the same type
of work he did when classified as an Equipment Operator/Laborer
and later as an Assistant Foreman. The Road Foreman's job
description and the testimony of all of the witnesses including
the Town Manager and two Selectmen indicate that the Road Foreman
spends the vast majority of his time performing the same tasks as
others in the highway department
It is also undisputed that the Road Foreman has some
supervisory responsibilities. He assigns work, schedules
overtime, and oversees and reviews the work of other members of
the department. He is also responsible for conducting perform-
ance evaluations on subordinate employees, disciplining employees
and handling grievances at the first step, although he has not
had to perform these tasks to date. These responsibilities
cannot provide the basis for finding that the Road Foreman is a
department head.
Under the MPELRL, supervisors have collective bargaining
rights while department or division heads do not. Section 966(1)
lists some of the factors that must be considered in determining
whether an employee is a supervisor who could be placed in a
supervisory bargaining unit.[2] Clearly, more than mere
supervisory duties must be performed by an individual before that
____________________
2The relevant portion of section 966(1) states: "In determining whether a
supervisory position should be excluded from the proposed bargaining unit, the
executive director or his designee shall consider, among other criteria, 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 establishment of performance standards
for subordinate employees and taking corrective measures to implement those
standards
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person can be considered a department head, otherwise section
966(1) would be meaningless. See Sanford, supra, slip op. at 29.
Here, the only tasks performed by the Road Foreman that are even
remotely related to the types of bona fide management duties that
a department head or division head would be performing is writing
new job descriptions. It would be a considerable stretch,
however, to call this activity "formulating" employee-related
policies for a number of reasons: the Road Foreman was merely
put into writing the actual tasks and responsibilities of the
current crew members, they were only proposed job descriptions,
and the Road Foreman was simply responding to a request of the
Town Manager. Similarly, the Road Foreman's contributions to the
development of the budget and his participation in the road
reconstruction project fall far short of the level that might
constitute formulating policy for the department.
It is quite clear in this case that the primary duties of
the Road Foreman are not those of an administrator but are those
of a supervisor or rank-and-file employee. As the Board
previously noted on this issue, "excluding employees whose
primary duties involve supervisory or rank-and-file work merely
because these employees also perform some administrative duties
would be contrary to the Act's purpose of granting employees the
right to be represented in collective bargaining." Wells, supra,
slip op. at 8.
The Employer contends that the Road Foreman is a department
head because he is responsible for the day-to-day activities of
the department and there is no one else who can be considered "in
charge." The Town Manager is the Chief Executive Off icer of the
Town and, the Employer argues, does not have the time or
expertise to manage the department. The Road Commissioner has
delegated most of his responsibilities to the Road Foreman and
simply performs his statutory responsibility of regularly
inspecting the roads. Therefore, the argument goes, because the
Road Foreman is the only actor with any authority in the area, he
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must be the department head.
This argument misses the point made earlier that department
heads are excluded from coverage of the MPELRL based on their
responsibilities and authority in employee-related management
functions and setting departmental policy. The exclusion cannot
be made on the basis of the job title or position on the
organizational chart. The fact that the Road Foreman reports
directly to the Town Manager does not mean that the Road Foreman
is a department head. It is entirely conceivable that the Town
Manager could perform all of the functions of a department head
for any number of departments in the town government. This is
most likely to happen in a small town or in larger towns where
the Town Manager retains a high degree of control over the
various departments. See, e.g., Richmond Employees Association
and Town of Richmond, No. 94-UD-09, (Me.L.R.B. April 26, 1994)
(Highway Foreman was not department head where nearly all
managerial control was retained by the Town Manager with respect
to the highway department and the Foreman did no more than
coordinate, oversee and supervise.) In this case, the Town
Manager has not given the Road Foreman very much real authority
for managing the department, as opposed to supervising it. For
example, the Town Manager goes over the roads with the Foreman to
determine the season's work priorities, the Foreman consults with
the Town Manager daily concerning highway department matters as
required by the job description, and the Town Manager has not
delegated much authority regarding the reconstruction projects.
In summary, I conclude that the Road Foreman is not a
department or division head within the meaning of section
962(6) (D) because the primary function of the position is not to
manage and direct the affairs of the department but to supervise
and perform the day-to-day work of the highway department.
Accordingly, the Road Foreman is within the definition of "public
employee" under the MPELRL. The parties have stipulated that if
the Road Foreman is found to be a public employee, two bargaining
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units should be formed: one supervisory unit with the Road
Foreman and the Assistant Foreman/Equipment Operator and another
bargaining unit consisting of the Equipment Operator/Laborer
classification
APPROPRIATE UNIT DETERMINATION
On the basis of the foregoing findings of fact and
discussion and by virtue of and pursuant to the provisions of
26 M.R.S.A. 966, the Road Foreman in the Paris Highway
Department is determined to be a public employee within the
meaning of 962(6).
Pursuant to the agreement of the parties, the employees of
the Paris Highway Department are divided into the following two
bargaining units:
Supervisory Unit: Road Foreman and Assistant
Foreman/Equipment Operator
Operations Unit: Equipment operator/Laborer
Dated at Augusta, Maine, this 1st day of October, 1997.
MAINE LABOR RELATIONS BOARD
/s/________________
Marc P. Ayotte
Executive Director
The parties are hereby advised of their right, pursuant to
26 M.R.S.A. 968(4) (Supp. 1996), 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 requirements.
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