STATE OF MAINE                       MAINE LABOR RELATIONS BOARD
                                     Case Nos. 99-UD-03 & 99-UD-05
                                     Issued:  January 20, 1999  


______________________________
                              )
TEAMSTERS UNION LOCAL #340,   )
                              )
                Petitioner,   )
                              )
     and                      )        UNIT DETERMINATION
                              )              REPORT
TOWN OF BOOTHBAY HARBOR,      )
                              )
           Public Employer.   )
______________________________)


                           INTRODUCTION
                
     This unit determination proceeding was initiated on August 4,
1998, when Mr. Carl Guignard, a representative of the Teamsters
Union Local #340 (hereinafter referred to as the "Union"), filed a
petition for unit determination with the Maine Labor Relations
Board ("Board" or "MLRB").  That petition sought to create a
bargaining unit of office and clerical employees of the Town of
Boothbay Harbor (No. 99-UD-03).  On September 18, 1998, the Union
filed a petition for unit determination seeking to create a unit
of the Public Works Department employees of the Town of Boothbay
Harbor (No. 99-UD-05).  The hearing for these two matters was
consolidated by the hearing examiner. 
 
     In Case No. 99-UD-03, the Union's proposed Office and
Clerical Employees Unit consists of the following five positions: 
Bookkeeper/Deputy Treasurer/Asst. Tax Collector, Assessor's
Clerk/Asst. Tax Collector, Deputy Tax Collector/Secretary, Code
Enforcement Officer, and Administrative Assistant.  The Town of
Boothbay Harbor ("Employer") contends that four of the positions
should be excluded on the basis of either 26 M.R.S.A. 962(6)(B),
962(6)(C), or both and that, in any event, the positions do not
share a community of interest.
  
     In Case No. 99-UD-05, the Union's proposed Public Works Unit
consists of two positions:  Public Works Foreman and Operator/

                               -1-

Truck Driver/Laborer.  The Town argues that the Public Works
Foreman should be excluded from that unit on the basis of 26
M.R.S.A. 962(6)(D) or, in the alternative, because the position
is a supervisor.

     Prior to commencement of the formal hearing, the parties met
with the hearing examiner to explore the possibility of settlement
and, if unsuccessful at settlement, to offer exhibits into
evidence and formulate stipulations of fact. 

                             EXHIBITS

     The parties agreed to the admission of the following joint
exhibits:

Joint Exhibit #1    Job Description, Code Enforcement Officer

Joint Exhibit #2    Job Description, Assistant Bookkeeper/
                    Secretary with "Dep. Tax Collector"
                    handwritten above typewritten title

Joint Exhibit #3    Job Description, Deputy Tax Collector/Deputy
                    Treasurer with a handwritten line drawn
                    through "Deputy Tax Collector"

Joint Exhibit #4    Job Description, Police Secretary

     The following additional exhibits were offered into
evidence:

Union Exhibit #1    Town of Boothbay Harbor, Personnel Manual
                    (undated)

Employer Exhibit #1 Boothbay Harbor Code, Chapter 3,
                    Administration of Government, 7/10/97


                          STIPULATIONS

     1.  Teamsters Local Union #340 is an employee organization
within the meaning of Title 26, section 962.

     2.  The Town of Boothbay Harbor is the public employer
within the meaning of Title 26, section 962.

                               -2-

                             HEARING

     After due notice an evidentiary hearing on the two petitions
was held by the undersigned hearing examiner on October 14, 1998,
at the Board's hearing room in Augusta, Maine.  Carl Guignard,
Teamsters Union Local #340, appeared on behalf of the Union. 
Joseph J. Hahn, Esq., appeared on behalf of the Town of Boothbay
Harbor.  No one requested to intervene.

     The Union presented as it witnesses Mr. Dabney Lewis, Code
Enforcement Officer, and Mr. Daren Graves, Public Works
Department employee.  The Employer presented as its witnesses
Ms. Laurie Smith, Town Manager, and Mr. Floyd McDunnah, Chief of
Police.  

     The parties were given the opportunity to examine and cross-
examine witnesses, offer evidence and present oral argument at
the close of the hearing.  Post-hearing briefs were filed by both
parties, the last of which was received on November 10, 1998.

                          JURISDICTION
                                    
     The Teamsters Union Local #340 is a public employee
organization within the meaning of 26 M.R.S.A. 962(2) and the
Town of Boothbay Harbor 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.  The Town Manager of Boothbay Harbor, Ms. Laurie Smith,
reports directly to the Town of Boothbay Harbor's 5-member Board
of Selectmen.  Of the five positions sought to be included in the
Office and Clerical Employees Unit, four of the individuals
report directly to the Town Manager.  The fifth position, the
Administrative Assistant, reports to the Chief of Police who, in
turn, reports to the Town Manager.  Also reporting directly to

                               -3-

the Town Manager are the Public Works Foreman, the Harbor Master,
and the Water Systems Superintendent.

     2.  The Town Manager also holds the positions of Road
Commissioner, Tax Collector, Treasurer and Water Systems Manager. 
In the latter capacity, she reports to the Water Commissioners
rather than the Board of Selectmen.

     3.  Four of the individuals in the proposed clerical unit
work together in one large room in the administrative offices of
the Town Office.  The Town Manager's Office is located near the
administrative office and is next to the Water System Superin-
tendent's Office.  The fifth employee in the proposed unit, the
Administrative Assistant, works in the Police Department which is
located about 30 feet down the hall toward the rear of the same
building.
  
     4.  All four employees in the administrative offices and the
Administrative Assistant work the same work week:  Monday through
Friday from 8:30 to 4:30 with an hour off for lunch.
   
     5.  The Code Enforcement Officer is paid on a salary basis
and is expected to work an occasional evening or weekend.  He is
not entitled to overtime for extra hours worked.  The other
employees are paid on an hourly basis and would be paid overtime
for extra hours worked.

     6.  The employees refer to a copy of the Personnel Manual
submitted as Union Exhibit #1 for a description of policies
regarding promotions, demotions, layoffs, and benefits.  The Code
Enforcement Officer has provided copies of the manual to other
employees on occasion.  The employees are not aware of any more
recent copy of the personnel manual.
 
     7.  All five of the positions proposed for the Clerical and
Office Employees Unit are subject to a six-month probationary
period described in the personnel manual.  The employees are all
subject to the same policies and benefits.

                               -4-

     8.  The employees in the proposed Clerical and Office
Employees Unit have frequent contact with one another.  The
Administrative Assistant comes into the administrative offices
from the Police Department two or three times a day for things
such as making copies, ordering supplies through the Town
Manager's Secretary, addressing payroll issues with the Book-
keeper/Deputy Treasurer, or asking for a message to be relayed to
someone who is out of the office.  The contact among the four
employees working in the administrative office is much greater as
their desks are in the same area.  Although each person has his
or her own specific job responsibilities, they assist each other
responding to telephone calls and routine inquiries at the
counter.

     9.  There is no history of collective bargaining among the
clerical and office employees.  The one employee testifying
indicated that the employees desire to be represented together,
but there was confusion concerning the distinction between unit
composition issues and the desirability of a particular
bargaining agent.
   
    10.  The Code Enforcement Officer (CEO) is appointed to his
position on an annual basis by the Selectmen and is sworn in by
the Town Clerk each year.  The CEO is appointed pursuant to Title
30-A, section 2601-A.  The position has been filled by Mr. Dabney
Lewis for over 14 years.  The job description for the CEO lists
as "necessary special requirements" certification under
Title 30-A and Rule 80K, certification as a Licensed Plumbing
Inspector, and master certification from Maine Building Officials
and Inspectors Association.  The job description lists as
desirable experience and training:  "Experience in the
construction industry or as a journeyman electrician or plumber;
graduation from an accredited high school, supplemented by
vocational training in building construction, structural design,
or a related field; or any equivalent combination of experience
and training."
                               -5-

    11.  As CEO, Mr. Lewis processes building permits, does code
interpretations and ordinance work for the town.  Both the Town
Manager and the CEO can issue building permits and investigate
complaints about land use laws.  The CEO and the Police Depart-
ment have enforcement powers with respect to the code.  The CEO
answers questions from the public regarding code enforcement
issues.  Depending on how busy it is, he helps people at the
counter who have come to pay excise taxes or to complete other
routine tasks.  Although attending to citizens at the counter is
not his primary responsibility, he stated that he is usually the
third person to step up to the counter to respond to questions,
doing so when the first two are occupied or absent.
  
    12.  The following job description for Deputy Tax Collector/
Deputy Treasurer was introduced as Joint Exhibit #3.  A hand-
written line was drawn through the words "DEPUTY TAX COLLECTOR"
and the name of the incumbent, "Kim Upham," was handwritten in
the upper corner.[fn]1  The Town Manager testified that the
content of the job description is accurate except that the lien
duties have been transferred to Deborah Sample who now performs
the Deputy Tax Collector duties.

     DEPUTY TAX COLLECTOR/DEPUTY TREASURER

Nature of Work

     This is responsible administrative and financial work in the
collection of various taxes for the Town of Boothbay Harbor, and
the handling of Town funds.

     Employee of this class is responsible for collecting numer-
ous taxes, preparing regular reports of collected monies, main-
taining tax records for all accounts, and other clerical and
bookkeeping work as required.  Work involves significant public
contact while collecting monies, and the compilation of records
and reports.  Work is performed under the general supervision of
the Town Manager subject to applicable State laws and regulations
and regular audits.

____________________

     1 The current title of the position held by Ms. Upham is
Bookkeeper/Deputy Treasurer/Asst. Tax Collector.

                               -6-

Examples of Work (Illustrative Only)

     Is responsible for all accounts receivable, accounts pay-
     able, and tax payments.
     
     Receives and records payments of property taxes, and
     prepares collected monies for deposit.
     
     Maintains all Town banking records and accounts.

     Provides information to citizens, real estate agents and
     others on property taxes.

     Prepares a monthly financial and budget report for Manager
     and Selectmen.

     Prepares, records and receives payment of boat and automo-
     bile excise taxes.

     Registers cars, trucks and other motorized vehicles, main-
     taining records for the State.

     Prepares regular reports on registrations, tax collection
     and other financial records.

     Prepares reports on the collection status of property taxes.

     Prepares payroll for all Town employees.

     May assist Town Manager with various special projects.

     Processes all incoming Town mail.

     Inputs information and figures regarding the municipal
     budget into the computer and prepares reports as requested
     by the Town Manager.

     Performs related work as required.

Requirements of Work

     Knowledge and understanding of the State statutes relating
     to the duties and responsibilities of municipal tax collec-
     tors.

     Knowledge of modern office procedures, practices and equip-
     ment.

     Ability to establish and maintain effective working rela-
     tionships with other Town officials, employees and the
     general public.

     Proficiency in the use of the adding machine, typewriter and

                               -7-

     the ability to use the Town computer system.

     Ability to maintain records and prepare reports.

     Ability to understand and follow the laws and regulations
     governing the activity of a municipal tax collector.

Desirable Experience and Training

     High school graduation supplemented by advanced courses in
accounting or bookkeeping plus experience in the collection of
various monies; or any equivalent combination of experience and
training.

    13.  Kim Upham has been the Deputy Treasurer for about 10
years.  She also was the Deputy Tax Collector until about two
years ago, when that function was reassigned to Deborah Sample. 
Ms. Upham maintains the Town's bank accounts, does the payroll,
assists in preparing the budget, generates various reports,
manages the bond schedule, and is responsible for the Town's
accounts payable and accounts receivable.  In consultation with
the Town Manager, she also manages the Town's cash-flow needs by
transferring town funds to CDs and Dreyfus accounts.  She has
some discretion regarding the terms of these accounts.  The Board
of Selectmen has adopted specific policies that govern the use of
town funds that the Treasurer and Deputy Treasurer must follow.

    14.  The Town Manager is responsible for preparing the budget
for the Town.  Each department submits the requests and Ms. Upham
assists in compiling that information on their computer and
making sure all budget requests have been received.

    15.  The Town Manager believes that she would be negligent if
she did not have a Deputy Treasurer and Deputy Tax Collector
appointed as allowed by Title 30-A, section 2603.  The Town
Manager stated that her insurance company required her to make
these appointments.  The Town Manager's intent is for the deputy
to be able to do all the Treasurer's or Tax Collector's duties in
her absence.
       
    16.  The Code Enforcement Officer, the Deputy Treasurer and

                               -8-

the Deputy Tax Collector have all been appointed annually to one-
year terms.  The only change was when Deborah Sample first became
the Deputy Tax Collector about two years ago.  The appointment
process begins when the appointment papers are prepared which
list each person and the duties to which they are appointed.  The
Board of Selectmen makes the appointments at one of their regular
monthly meetings.  After that, the Town Clerk makes out cards for
each of them and, one by one, they are sworn in.
  
    17.  The Code Enforcement Officer testified that everyone in
the Clerical and Office Employees Unit is appointed in the same
fashion.  He also testified that his understanding is that Police
Officers are appointed and sworn in annually, as well.
 
    18.  The Town Manager emphasized that they do not appoint
jobs, they appoint duties, such as deputy tax collector and
deputy treasurer.  Although the CEO's duties are essentially
equivalent to the position, the role of deputy tax collector and
deputy treasurer can be (and have been) reassigned to different
jobs.
 
    19.  The following job description was introduced as Joint
Exhibit #2.  The words "Dep. Tax Collector" were handwritten
above the job title and the name of the incumbent, "Debby
Sample," was handwritten in the upper corner.[fn]2  The Town
Manager testified that the content of the job description is
accurate except for the lien duties corresponding to the Deputy
Tax Collector role.   

     ASSISTANT BOOKKEEPER/SECRETARY

Nature of Work

     This is a responsible administrative and clerical position
providing assistance to both the Town government and the munici-
pal Water System.

____________________

     2 The current title of the position held by Ms. Sample is
Deputy Tax Collector/Secretary.

                               -9-

     Employee of this class is responsible for assisting in the
receipt and posting of all Town and water system revenues, and
assisting in the recording and processing of expenditures.  Work
also involves providing secretarial support to the Town Manager
and Water System Manager.  Work is performed under the general
direction of the Town Manager and Water System Manager, subject
to review through observation and regular audits.

Examples of Work (Illustrative Only)
     
     Assists in preparing correspondence, auto registration, and
     water bills.

     Transcribes and types minutes of meetings and prepares bills
     for various Town and Water System accounts.

     Assists in receiving excise taxes, town taxes, boat excise,
     mooring fees, water bills and other Town and Water System
     receipts.

     Pre-prices our registrations upon receipt from the State.

     Prepares bank deposits.

     Receives, records, and makes deposits for traffic viola-
     tions.

     Answers phone and attends to counters.

     Assists in all other Town and Water System office functions.

     Prepares all correspondence for the Town manager

     Prepares all bills for Water System, and posts amounts due
     on customer cards.

     Orders supplies for all municipal departments.

     Assists in maintaining up-to-date tax records in the Town
     computer system.

     Inputs information regarding the municipal budget into the
     computer, and assists in preparing budget information.

     Prepares daily computer reports and runs back-ups.

     Daily balances cash drawer for correct amounts of collected
     and posted deposits.

     Performs related work as required.

Requirements of Work

                              -10-

     Knowledge of municipal accounting practices and procedures.

     Ability to deal with the public responding to complaints and
     inquiries.

     Considerable knowledge of business English, grammatical
     construction, spelling, punctuation, and arithmetic, and
     possession of an excellent vocabulary.

     Knowledge of laws and regulations applying to Town and Water
     System functions.

     Ability to accurately compile and maintain fiscal records.

     Knowledge of correct composition of business correspondence
     and municipal and Water System forms.

     Ability to type efficiently and operate other office equip-
     ment such as computer, calculator and copier.

Desirable Experience and Training

     High school graduation supplemented by courses in accounting
or bookkeeping, plus experience in the collection of taxes or
funds; or any equivalent combination of experience and training.

    20.  Chapter 3 of the Town's Code is entitled "Administration
of Government" and is one and a half pages long.  It contains
sections covering the date of the annual town meeting, notice of
the meeting, reports and purchasing procedures.  The only
provision related to employment is the following:

     3-5 Appointment of officers.
     All officers provided by law and not required to be elected
     shall be appointed by the Selectmen.
     
    21.  As Secretary to the Town Manager, Deborah Sample types
most of the Town Manager's correspondence.  The Town Manager has
a computer in her office and has on occasion typed her own
correspondence when, for example, the need arose after hours or
with respect to the current unit determination petition for the
clerical unit.
 
    22.  The Town Manager is on the negotiating team for the
existing Water Systems bargaining unit and the Police Department
bargaining unit.  The Town Manager helps to draft collective

                              -11-

bargaining ideas and positions, corresponds with the outside
negotiator and with the Town's attorney requesting legal advice
or clarification on certain issues related to collective
bargaining.  The Town Manager's secretary, Deborah Sample,
usually types for her.  Both the Town Manager and Ms. Sample
typed up some of the Town's proposals.  Ms. Sample has full
access to the personnel files and the files related to collective
bargaining.
  
    23.  The negotiating team for the Police Department unit
consists of the Town Manager, the Police Chief, sometimes a
selectman and sometimes an outside negotiator.  In the most
recently-bargained police contract, consultant David Berg was
hired as a negotiator and the typing of the contract was taken
care of by his office.
  
    24.  Georgette Carignan holds the position of Administrative
Assistant.[fn]3  As such, she is the receptionist and clerical
support for the Chief of Police and other members of the Police
Department.  She answers the phone, maintains personnel and
payroll records, and types all correspondence and other reports
for the Police Chief.  The Chief of Police speaks freely with her
regarding collective bargaining matters and relies on her to type
up his notes on the bargaining proposals the Department has under
consideration.  In addition, when he needs to run an idea by the
Town Manager concerning a matter to be negotiated, the Chief will
have his secretary type it up.  Ms. Carignan has done such typing
for him a number of times.  She has also typed up bargaining
proposals that were going back and forth between the parties.
 
    25.  The Personnel Manual submitted as Union Exhibit #1 is a
24-page document with chapter headings such as Recruitment,
Selection and Appointment; Probationary Period; Promotions,
Demotions, Resignations, Layoffs; Pay Plan; Employee Benefits; 
____________________

     3 The job description for this position is titled "Police
Secretary."

                              -12-

Disciplinary Actions and Grievance Procedure. 
 
    26.  The following provisions are contained in the Town's
Personnel Manual, Chapter II, Recruitment, Selection and
Appointment:

     2-2. Qualifications: For any position vacancy, the Town
          Manager will establish the basic requirements for
          the successful performance of the job.

     2-3. Application and Eligibility:
          . . .
          C. Disqualification:  The Town Manager has the
          right to reject any candidate from consideration
          if he finds that the candidate does not have the
          qualifications for the job.
          . . .
     2-4. Employee Selection:
          
          A. Selection.  Selection of employees will be based on
          job-related skills, knowledge, experience, education as
          well as prior demonstrated performance.  Screening and
          interviewing applicants will be as authorized by the
          Town Manager, utilizing the expertise of Department
          Heads to the fullest extent possible.  Final
          appointment will be made by the Town Manager, except
          that in the case of Department Head appointments
          confirmation of the Selectmen is required.
          . . .

    27.  The Personnel Manual states that employees must receive
a performance evaluation prior to the expiration of the six-month
probationary period.  Evaluations are reviewed by the Town
Manager.

    28.  The Personnel Manual states that the Town Manager
develops a "merit list" for the Selectmen suggesting which
employees should get merit increases.  This is based on
consultation with department heads and review of the performance
evaluations.
 
    29.  For disciplinary measures, the Personnel Manual states
"Department Heads are responsible for enforcing these regulations
and referring problem situations to the Town Manager for
appropriate disciplinary action."

                              -13-

    30.  Public Works Department employees plow snow, sand,
maintain roads, do culvert work, ditch work, maintain road signs,
mow, empty trash cans, maintain public parks, and maintain the 
grounds around the town office.  The Public Works Department has
large trucks and snow plows that require a Commercial Driver's
License (CDL) to operate.
 
    31.  There are four employees in the Public Works Department,
three in an Operator/Truck Driver/Laborer position and the Public
Works Foreman, Hans Holton.  All of the employees in the Public
Works Department, including the Foreman, are paid on an hourly
basis and receive overtime pay for hours over 40 in a week.  The
normal work week is eight-hour days, Monday to Friday.  Each of
the four employees has to work a weekend each summer month to
empty trash cans.  The assignments for summer weekend duty are
made by drawing names from a hat.

    32.  The Public Works Department employees refer to the
Town's Personnel manual for a description of the policies and
benefits.  A copy of the personnel manual introduced as Union
Exhibit #1 is kept in a folder on top of a file cabinet in
Mr. Holton's office at the Public Works Garage for everyone's
reference.  All four of the employees are subject to the same
policies and benefits except that Hans Holton, the Foreman, is
also provided with a pick-up truck that he is allowed take home.
     
    33.  There is no history of collective bargaining in the
Public Works Department and the one public works employee who
testified indicated that all of the employees desire to be
together in one bargaining unit.
 
    34.  The Public Works Foreman has an associate's degree in
civil engineering, is trained as a surveyor and is the person in
the department who performs those duties, such as surveying and
setting catchbasin height, that require such technical expertise. 
The other employees in the department do not have engineering or

                              -14-

surveying training or expertise.  All four employees in the
department have a commercial driver's license.

    35.  Mr. Holton was hired by the Town Manager Laurie Smith
about three years ago.  No evidence was presented showing that
the Selectmen were involved in the process or that the Board
confirmed his appointment.

    36.  The Public Works Foreman performs the same functions as
the other public works employees as well as performing various
administrative duties.  The Foreman spends two to three hours a
day doing paperwork:  less or none on days of snow storms or
major projects, more if there are no significant projects
underway and he needs to catch up.  Mr. Holton usually goes to
the Town Office to see Laurie Smith at 9 o'clock each day.  He
plans and schedules the employees' work assignments and schedules
vacations.  The Foreman takes care of paperwork related to
purchase orders, maintains records, opens bids, makes daily work
assignments and assesses problems with roads.  He deals with
complaints from the public and contractors and is the person
called when there is an emergency.

    37.  The Public Works Department employees all start their
work day by meeting in the Foreman's office at the Town Garage. 
Sometimes they work in teams and sometimes they work individ-
ually.  Once they start on their day's assignment, they return to
the garage for lunch and breaks, if possible, and for supplies as
needed.

    38.  The uncontroverted testimony by the most senior
department employee, Mr. Daren Graves, was that the Public Works
Foreman has not performed any formal performance evaluations on
any current employees in the Public Works Department.  No
evidence was presented that the Foreman had conducted any
appraisals on former employees.

    39.  The Town Manager and the Public Works Foreman share

                              -15-

responsibility for hiring decisions at least with respect to
positions that are not seasonal or on-call positions.  They both
review all applications as they are received, they interview the
candidates together, and the Town Manager ensures that the
candidates have the proper license and meet the preemployment
physical requirements.  Applications are taken in the Town
Office.  If the Foreman receives any directly, he gives them to
the Town Manager.   

    40.  In filling the three open positions earlier in the year,
the Town Manager's top choice was different than the Foreman's
top choice.  The Foreman's top choice, Daren Graves, was hired
first, then a few weeks later the Town Manager's top choice was
hired.  Daren Graves testified that he was hired by the Town
Manager at a meeting where both the Public Works Foreman and the
Town Manager were present.

    41.  The Foreman has not needed to invoke the disciplinary
procedure on any employees nor have any grievances been filed in
the Public Works Department.

    42.  Town Manager considers the Public Works Foreman to be
the Department Head and he attends Department Head meetings, also
attended by the Harbor Master, Police Chief and Water Systems
Superintendent. 
     
                           DISCUSSION

     In this consolidated report, I will first address the
exclusions and community of interest issues raised with respect
to the Office and Clerical Employees Unit (No. 99-UD-03).  I will
then deal with the department head exclusion and community of
interest issues raised concerning the Public Works Department
Unit (No. 99-UD-05).
     
Office and Clerical Employees Unit, Fixed-Term Appointments 

     In response to the Union's petition, the Town argues that

                              -16-

section 962(6)(B) requires the exclusion of three positions from
the proposed Office and Clerical Employees Unit.  Section
962(6)(B) excludes from collective bargaining any person:

     [a]ppointed to office pursuant to statute, ordinance or
     resolution for a specified term of office by the
     executive head or body of the public employer, except
     that appointees to county offices shall not be excluded
     under this paragraph unless defined as a county
     commissioner under Title 30-A, section 1302.  
     
     The Town claims that the Code Enforcement Officer fits
within this exclusion, that the Bookkeeper/Deputy Treasurer/
Assistant Tax Collector position should be excluded on the basis
of her appointment as Deputy Treasurer, and that the Deputy Tax
Collector/Secretary position should be excluded on the basis of
her appointment as Deputy Tax Collector.
  
     As a preliminary matter, it is important to note that the
statutory exclusions from collective bargaining must be strictly
construed.  The statute is remedial in nature and therefore the
exceptions must be narrowly drawn to effectuate the fundamental
purpose of the statute.  State of Maine and Maine State Employees
Association, No. 82-A-02, First Interim Order, slip op. at 6
(Me.L.R.B. June 2, 1983).
 
     In previous bargaining unit reports, hearing examiners have
identified three clear prongs to the 962(6)(B) exclusion: 
whether the executive body or head made the appointment, whether
it was made for a specified term, and whether it was made
pursuant to a statute, ordinance or resolution.  Teamsters Union
Local 340 and City of Presque Isle, No. 92-UD-10, slip op. at 17
(Me.L.R.B. Aug. 18, 1992).  See also, Town of Thomaston and
Teamsters Local Union #340, No. 90-UC-03 (Me.L.R.B. Feb. 22,
1990).  Hearing examiners have also concluded that the reference
in 962(6)(B) to appointment "to office" meant more than just
appointment to a job, but required the appointment be to an
office of the sort that a municipality would expect a certain
degree of political responsiveness.  Presque Isle, No. 92-UD-10,

                              -17-

at 22-25.  See also, Thomaston, No. 90-UC-03, at 17 ("the
presumed purpose of the exemption [is to allow] the town to
maintain an element of political responsiveness in certain town
positions").  If the phrase "appointed to office" could include
appointment to any job, a municipality could conceivably exclude
all employees from coverage of the Act by making them all
appointments for a specified term.  In Presque Isle, the hearing
examiner noted the problems with such an interpretation:

     [T]he hearing examiner does not believe that it was the
     Legislature's intention, in passing the MPELRL in 1969,
     on the one hand to create a comprehensive collective
     bargaining law covering municipal employers, and on the
     other hand to nullify that law by giving municipalities
     free reign to exclude all employees on their payrolls
     from collective bargaining simply by passing charters,
     ordinances or resolutions that authorize all
     appointments to be for fixed terms.

Presque Isle, No. 92-UD-10, at 21.  The hearing examiner pointed
out that municipal police officers and municipal constables
appointed to fixed terms pursuant to state statute are not
excluded from collective bargaining by operation of section
962(6)(B). Id. at 22.

     In concluding that this particular exclusion may have been
directed at a need for a degree of political responsiveness, the
hearing examiner in Presque Isle noted that "Section 962(6)(B)
excludes persons appointed to office for a specified term, not
simply those appointed for a specified term."  Id. at 22.  The
hearing examiner reviewed various sections of Title 30-A and
found substantial support for the notion that a distinction was
intended in using the phrase "appointed to office":

     For instance, section 2001(11) defines a municipal
     official as "any elected or appointed member of
     municipal government."  30-A M.R.S.A. 2001(11) (Supp.
     1991).  Certain officials must be elected (members of
     the municipality's legislative body and school
     committee members).  The remainder may be elected or
     appointed.  30-A M.R.S.A. 2525 (Supp. 1991).  Persons
     specifically referred to in Title 30-A as officials,

                              -18-

     whom the municipality may therefore elect or appoint,
     include the clerk, treasurer, tax collector and members
     of boards of assessors.  Single assessors, also named
     as officials, are appointed in lieu of an elected or
     appointed board of assessors.  30-A M.R.S.A.  2525,
     2526, 2552 and 2603 (Supp. 1991).  Appointments of
     officials are generally for one year . . . .

          These provisions taken together suggest that
     officials are those high enough in municipal government
     for political responsiveness to be expected, either
     through election or through fixed-term appointment. 
     The case is even more convincing when one looks at a
     distinction Title 30-A makes between officials and
     employees, in addition to the length of appointment. 
     Both officials and employees have just cause protection
     under section 2601.  However, section 2701 requires
     employees who have just cause protection to first
     complete any applicable probationary period.  30-A
     M.R.S.A. 2701 (Supp. 1991).  Probation is not
     mentioned for officials.  That is not surprising, if
     appointed "officials" are meant to be politically
     responsive.  Appointment for a fixed term should not
     protect an official's wrongdoing, so a municipality's
     right to remove an official before his/her term is up,
     for cause, is not inconsistent with the concept of the
     politically responsive appointment.  On the other hand,
     the concepts of probation and political responsiveness
     are inconsistent. 
     
Id. at 22-24.  The hearing examiner also noted that in 1969, when
the MPELRL was first enacted, both officials and employees were
appointed to one-year terms.  Id. at 23 fn. 10, citing 30
M.R.S.A. 2256 (Supp. 1970).  The hearing examiner concluded that
the Legislature did not intend to exclude every fixed-term
appointment under section 962(6)(B), regardless of the type of
position in question.  Id. at 21.

     I find persuasive the Presque Isle hearing examiner's
interpretation of section 962(6)(B) and agree that there must be
some political responsiveness expected in the job at issue in
order for the 962(6)(B) exclusion to apply.  This political
responsiveness requirement is inherent in the limitation of the
exclusion to a person "appointed to office" and is consistent
with the distinctions in Title 30-A between officials and
employees.  The political responsiveness requirement is in

                              -19-

addition to the previously-mentioned requirements that the
appointment is made by the executive head or body, that it is for
a specified term, and it is made pursuant to statute, ordinance
or resolution.
  
     In the present case, the Employer contends that three of the
positions proposed for inclusion in the Office and Clerical
Employees Unit should be excluded on the basis of section
962(6)(B).  The evidence regarding each of the positions will be
assessed with respect to the four elements necessary to fit
within this exclusion.

     The Employer argues that the position of Code Enforcement
Officer should be excluded because the appointment was made by
the Board of Selectmen, the appointment was for a specified term
of one year, and the appointment was made pursuant to Title 30-A,
section 2601-A.
  
     Section 2601-A states:

          Municipal officers may appoint code enforcement
     officers trained and certified in accordance with
     section 4451 to serve for fixed terms of one year or
     more, and may remove those code enforcement officers
     only for cause after notice and hearing.  Compensation
     for code enforcement officers is determined by the
     municipal officers and paid by the respective
     municipalities.

          Code enforcement officers need not be residents of
     the municipality for which they are appointed.

The Employer argues that section 2601-A indicates that a Code
Enforcement Officer is a "municipal official" who is treated
differently than municipal employees and is an official who fits
squarely within the 962(6)(B) exclusion.
  
     The application of the 962(6)(B) exclusion to the Boothbay
Harbor Code Enforcement Officer is no different than the
situation the hearing examiner faced in the 1992 Unit
Determination in Presque Isle.  In that case, the hearing officer

                              -20-

relied on Title 38, section 441(1), which states:

     1. Appointment.  In every municipality, the municipal
     officers shall annually by July 1st appoint or
     reappoint a code enforcement officer, whose job may
     include being a local plumbing inspector or a building
     inspector and who may or may not be a resident of the
     municipality for which he is appointed.  The municipal
     officers may appoint the planning board to act as the
     code enforcement officer.  The municipal officers may
     remove a code enforcement officer for cause, after
     notice and hearing.  This removal provision shall only
     apply to code enforcement officers who have completed a
     reasonable period of probation, as established by the
     municipality pursuant to Title 30-A, section 2601.  If
     not reappointed by a municipality, a code enforcement
     officer may continue to serve until a successor has
     been appointed and sworn.

     In deciding that Presque Isle's Code Enforcement Officer did
not fit within the section 962(6)(B) exclusion, the hearing
examiner noted that the requirement of completing a probationary
period is inconsistent with a true one-year appointment and that
"the concept of probation and the concept of political
responsiveness or loyalty through the mechanism of a fixed-term
appointment are inimical."  Presque Isle, No. 92-UD-10, at 26. 
The same statutory language in Title 38, section 441(1) is in
effect today.  The enactment of 30-A M.R.S.A. 2601-A in 1993
does not negate the applicability of an established probationary
period to a code enforcement office nor does it in any way
transform the position into an "office" within the meaning of
962(6)(B).  Just as the hearing office did in Presque Isle, I
conclude that the Code Enforcement Officer is not excluded from
collective bargaining on the basis of 962(6)(B).

     The Employer also contends that the Bookkeeper/Deputy
Treasurer/Assistant Tax Collector should be excluded from
collective bargaining because the position is covered by the
962(6)(B) exclusion.  The Employer argues that the primary
function of that position is that of Deputy Treasurer.  Relying
on Title 30-A, section 2603, the Employer argues that the
appointment was made by the executive body or head, it was made

                              -21-

for a specified term of one year, and it was made pursuant to a
statute, ordinance or resolution.  

     It is clear that the appointments were made for a specified
term of one year.  The statute under which this appointment was
made states, in full:

     2603.  Deputy officials

          The clerk, treasurer and collector of a
     municipality may each appoint in writing one or more
     qualified persons as deputies.

     1.  Sworn and oath recorded.  Before assuming the
     duties of office, the deputy must be sworn and the fact
     of the oath recorded as provided in section 2526,
     subsection 9.

     2.  Term; duties.  The deputy serves at the will of the
     appointing official.  The deputy may perform any of the
     duties of office prescribed by the appointing official.

     3.  Bond liability.  The appointing official and the
     surety on the official's bond are liable for all acts
     and omissions of the official's deputy.

     4.  Absence.  If the clerk, treasurer or tax collector
     fails to do so, the municipal officers may appoint a
     deputy to act during any absence.

     Regarding the third piece of the 962(6)(B) exclusion,
confirmation by the Selectmen satisfies the degree of importance
and formality necessary for the requirement that the appointment
be made by the executive head or body of the employer.  See,
Teamsters Local Union No. 48 and City of Saco, No. 80-UD-34, slip
op. at 5 (Me.L.R.B. June 20, 1980) (confirmation by the city
council, "whether by 'resolution' or act of other terminology"
satisfies comparable requirement in 962(6)(D)).

     With respect to the final requirement for a 962(6)(B)
exclusion, the evidence does not support a conclusion that the
Deputy Treasurer or the Deputy Tax Collector are offices for
which the Town needs to have political responsiveness.  The Town
Manager, acting in her capacity as Treasurer and Tax Collector,

                              -22-

made the appointments because her insurance company required that
she appoint deputies.  She believed that she would be negligent
in her duties if she did not make the appointments.  This is not
the type of evidence that suggests they are offices reflecting a
need for political responsiveness.
  
     Similarly, the actual job duties of the Deputy Treasurer and
Deputy Tax Collector do not appear to include the level of
discretion one would normally associate with a position that must
be politically responsive.  The Town contends that the primary
function of the Bookkeeper/Deputy Treasurer/Assistant Tax
Collector position is that of Deputy Treasurer.  Employer's Brief
at 2.  In describing the function of the Deputy Treasurer, the
Town Manager emphasized that the Deputy Treasurer was responsible
for managing the Town's cash flow and investments but later
admitted that there were various specific policies established by
the Selectmen under which the Deputy Treasurer had to operate.  
While the duties of the Deputy Treasurer involve various
financial or accounting skills, they do not appear to include the
amount of discretion or the impact on policy associated with an
office expected to be politically responsive.  Even if the only
function of the Bookkeeper/Deputy Treasurer/Assistant Tax
Collector position were the Deputy Treasurer function as the Town
argues, I cannot conclude that it is the type of position
contemplated by the 962(6)(B) exclusion and therefore will not
exclude it.

     For the same reasons, I conclude that the position of Deputy
Tax Collector/Secretary is not excluded from collective
bargaining under section 962(6)(B).  Those functions of the job
related to the Deputy Tax Collector role are clerical functions
rather than policy making or discretionary functions.  The
evidence does not support a conclusion that the nature of the
position is one requiring political responsiveness. 

Office and Clerical Employees Unit, Confidential Employees

                              -23-
     
     The Town also contends that the Deputy Tax Collector/
Secretary and the Administrative Assistant are "confidential"
employees and should be excluded from collective bargaining on
the basis of section 962(6)(C).  Section 962(6)(B) excludes any
person:

     Whose duties as deputy, administrative assistant or
     secretary necessarily imply a confidential relationship
     to the executive head, body, department head or
     division head.

The parameters of this exclusion have been well-established for a
number of years and are aptly summarized by the following:

        Some general principles have been established for
     determining whether a position is confidential.  First,
     employees who have been permanently assigned to
     collective bargaining or to render advice on a
     regularly assigned basis to management personnel on
     labor relations matters are confidential employees. 
     State of Maine and MSEA, No. 82-A-02, slip op. at 10, 6
     NPER 20-14027 (Me.L.R.B. June 2, 1983) (Interim Order). 
     The term "labor relations matters" does not refer to
     contract administration, but rather contemplates "the
     strategic and tactical considerations involved in
     negotiating collective bargaining agreements."  Id.,
     slip op. at 7.  An information provider is not a
     confidential employee.  State of Maine and MSEA, No.
     78-A-09, slip op. at 8 (Me.L.R.B. Mar. 2, 1979) . . . . 
     Finally, current duties, not duties projected for the
     future, must be the basis for a finding of
     confidentiality.  MSAD No. 14 and East Grand Teachers
     Assoc., No. 83-A-09, slip op. at 10, 6 NPER 20-14036
     (Aug. 24, 1983).

AFSCME and Town of Sanford, No. 92-UD-03, slip op. at 37
(Me.L.R.B. Feb. 21, 1992), aff'd, No. 92-UDA-03 (Me.L.R.B. May 7,
1992).  The Board has also held that "[i]n many if not most
cases, 'confidential' supervisory employees need access to at
least one 'confidential' clerical employee, to carry out their
'confidential' duties."  Id. quoting State of Maine, No. 82-A-02,
slip op. at 28 (Me.L.R.B. June 2, 1983).
      
     In the present case, Deborah Sample holds the position of
Deputy Tax Collector/Secretary to the Town Manager.  The employer

                              -24-

argues that as Secretary to the Town Manager, Ms. Sample's duties
"necessarily imply a confidential relationship" within the
meaning of section 962(6)(B).  There are two existing bargaining
units in Boothbay Harbor for which the Town Manager is an
integral part of the negotiating team:  The Police Department
Unit and the Water District Unit.  The Secretary to the Town
Manager is required to type correspondence of a confidential
nature and information pertaining to the employer's collective
bargaining proposals with respect to both of these bargaining
units as a necessary part of her job duties.  These are clearly
the type of issues contemplated by the confidential exclusion.
  
     The Union suggests that the Secretary to the Town Manager
should not be excluded as a confidential employee because the
only collective bargaining information to which the Secretary has
been exposed is related to the Police and Water District Units,
not the Clerical and Office Employees Unit, so there is no danger
of a conflict in loyalties.  This distinction has no bearing on
the issue because the statute precludes me from including a
confidential employee in any bargaining unit.  Section 966(1)
provides, in part, that when there is a dispute over whether a
position is included in the bargaining unit:
 
     the executive director or his designee shall make the
     determination, except that anyone excepted from the
     definition of public employee under section 962 may not
     be included in a bargaining unit.

The statute is clear:  when a person is found to be a
confidential employee, that person "may not be included in a
bargaining unit"--any bargaining unit.  See, e.g., Teamsters
Union Local 340 and Town of Kittery, No. 90-UD-02 (Me.L.R.B.
Nov. 22, 1989) (holding that because a secretary was a
confidential employee under 962(6)(C), she could not be placed in
a bargaining unit).  Therefore, because the position of Secretary
to the Town Manager is a confidential employee within the meaning
of 962(6)(C), it may not be included in a bargaining unit.

                              -25-

     The Town argues that the Administrative Assistant should
also be excluded from collective bargaining under the
confidential employee exclusion.  In State of Maine, the Board
noted that, "in many if not most cases, 'confidential'
supervisory employees need access to at least one 'confidential'
clerical employee, in order to carry out their 'confidential'
duties."  State of Maine, No. 82-A-02, at 28 (June 2, 1983)
(because Superintendent was only marginally involved in the last
round of negotiations, confidential status was not appropriate
for his secretary).  Clearly, as a member of the negotiating team
for the Police Department, the Chief of Police has significant
involvement in formulating the employer's collective bargaining
positions, policies and strategies.  The evidence shows that the
Administrative Assistant, Georgette Carignan, serves as his
confidential secretary and has typed and otherwise had access to
confidential documents such as notes and memos regarding the
employer's bargaining positions and policies.  I conclude,
therefore, that the Administrative Assistant must be excluded
from the unit pursuant to section 962(6)(C).  
     
Office and Clerical Employees Unit, Community of Interest

     The fundamental purpose of the bargaining unit is to
strengthen the bargaining position of the employees as a group
and not weaken it.  In unit determination matters, therefore, the
Board's goal is to make sure the employees have a substantial
mutual interest in wages and other terms and conditions of
employment.  Lewiston Firefighters Association, 354 A.2d 154, 161
(Me. 1976).  In evaluating the presence or absence of community
of interest in matters subject to collective bargaining, the
Board requires, at a minimum, assessment of the following eleven
factors:  (1) similarity in the kind of work performed; (2)
common supervision and determination of labor relations policy;
(3) similarity in the scale and manner of determining earnings;
(4) similarity in employment benefits, hours of work and other
terms and conditions of employment; (5) similarity in the
qualifications, skills and training of employees; (6) frequency

                              -26-

of contact or interchange among the employees; (7) geographic
proximity; (8) history of collective bargaining; (9) desires of
the affected employees; (10) extent of union organization; and
(11) the employer's organizational structure. (Board Rule
1.11(F)).

     Of these eleven factors, most support the conclusion that
the positions in the proposed Clerical and Office Employees Unit
share the necessary community of interest.  Generally, six out of
the first seven factors and the eleventh factor clearly support a
finding of community of interest.  With respect to the remaining
four factors the evidence is either insufficient or not
dispositive.  While there are some very specific areas in which
there are differences or there is an absence of evidence either
way, none are of the sort that would result in weakening the
unity and bargaining strength of the employees.  Overall, I find
that the evidence supports a finding of community of interest
among the positions in the Office and Clerical Employees Unit.

     The employer's primary argument against finding a community
of interest is the fact that the jobs in question are not
interchangeable.  Employer's Brief at 6.  The concept of
"community of interest" does not require that the work performed
by the various employees be identical.  As the Executive Director
of the Board noted in a previous case:

     In comparing the nature of the work being performed by
     the various classifications under consideration, the
     essence or basic type of the functions being performed
     is far more important than the details of each
     position's work responsibilities.  Inherent in the
     existence of separate job classifications is a
     difference in the specific work assignment of each
     classification; however, such differences do not
     preclude the inclusion of various classifications in
     the same bargaining unit.  

Auburn Education Association/MTA/NEA and Auburn School Committee, 
No. 91-UD-03, slip op. at 11 (Me.L.R.B. Feb. 27, 1991).

                              -27-
  
     In the present case, the evidence presented shows that all
of the positions perform different types of administrative work
primarily in an office environment.  The fact that the Deputy
Treasurer may be very knowledgeable about financial transactions
or that the Code Enforcement Officer is the only one in the group
with expertise in the applicable codes or with enforcement powers
does not mean there is no similarity in the nature of work
performed.
  
     The second factor, common supervision and determination of
labor relations policy, also supports a finding of community of
interest.  All of the positions are subject to the policies
described in the Personnel Manual and all report directly to the
Town Manager.
   
     Regarding the scale and manner of determining earnings,
there was no evidence presented regarding the wages paid to each
employee.  The process of determining wage increases, however, is
described in the Personnel Manual as the same for all and, with
the exception of the CEO, they are all paid on an hourly basis. 
There was no evidence presented suggesting that a disparity in
wage scales would destroy any existing community of interest or
that the CEO's status as a salaried employee is a significant
detraction from a community of interest.  I conclude that, on
balance, there was not enough evidence regarding this factor to
make a determination on whether it supports or detracts from a
community of interest.

     The fourth factor, similarity in benefits, hours and other
terms and conditions of work, clearly supports a finding of
community of interest.  All of the positions in question have the
same benefits, the same work week and essentially the same
conditions of work.  The only difference is that the CEO is
required to conduct field inspections and is occasionally
required to work evenings to attend planning board meetings.

     The employer suggests that the fifth factor, the difference

                              -28-

in the qualifications, skills and training required of these
positions, is significant and precludes a community of interest
finding.  It is true that the Deputy Treasurer position requires
some specialized knowledge of financial transactions and the Code
Enforcement Officer similarly requires specialized knowledge of
the building codes and land use regulation.  The CEO must also be
certified.  However, the certification requirement is not
sufficient to destroy the otherwise similar requirements for
these positions.  Indeed, all of the job descriptions submitted
indicate the identical requirements of high school graduation
supplemented by specialized courses and related experience or any
equivalent combination of experience and training.  Overall, I
conclude that this factor supports a community of interest.
 
     The sixth and seventh factors, frequency of contact or
interchange among the employees and geographic proximity, both
strongly support a finding of community of interest as they all
work in the same office.
  
     The eighth and tenth factors are not at issue here because
there is no history of collective bargaining for these positions
and the union is interested in representing all of the positions
in question.
  
     The evidence presented on the desires of the affected
employees regarding the appropriateness of the unit was not
convincing either way because it was difficult to conclude that
the sentiments expressed related to the appropriateness of the
unit, as opposed to the desirability of a particular bargaining
agent.
  
     The eleventh factor, the employer's organizational
structure, supports a finding of community of interest as all of
the employees are part of the Town's administrative offices.
   
     The community of interest factors referred to in Rule
1.11(F) have been considered.  They establish that the

                              -29-

petitioned-for unit, with the exception of the two excluded
positions, is an appropriate unit for purposes of collective
bargaining.

Public Works Unit, Department Head

     With respect to the Unit Determination Petition for the
Public Works Department, the Employer claims that the Road
Foreman is excluded from the definition of public employee under
section 962(6)(D) and, therefore, may not be included in the
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."  As previously noted, exceptions to the
definition of public employee must be narrowly drawn 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, No. 82-A-02, slip op. at 6 (Me.L.R.B. June 2,
1983).

     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).

     With respect to the first inquiry, there are generally three
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:

                              -30-

     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, [No. 78-UD-39 , slip op. at 2 (Me.L.R.B.
     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 of "formulating and
     administering division policies and practices."  On the
     other hand, in Teamsters Local 48 and Town of Bar
     Harbor, [No. 80-UD-09, slip op. at 3 (Me.L.R.B.
     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, [No. 82-UD-29, slip op. at 6-8
     (Me.L.R.B. 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).

     The inquiry into the appointment process required by the
962(6)(D) exclusion is usually easy to answer when there is a
statute, ordinance or provision of a city charter governing the
appointment of a particular department head.  See, e.g., Sanford,
No. 92-UD-03, at 29-36.  Even in cases where no ordinance

                              -31-

governed the appointment, one hearing examiner concluded that the
involvement of two Selectmen in the interview and appointment
process and the confirmation of the appointment by the Board of
Selectmen satisfied the "degree of importance and formality
needed to satisfy the Act's [appointment] requirement."  AFSCME
Council 93 and Town of Paris, No. 97-UD-14, slip op. at 11
(Me.L.R.B. Oct. 1, 1997); see also, City of Saco, No. 80-UD-34,
slip op. at 5 (confirmation by City Council would satisfy
requirement);  Sanford, No. 92-UD-03, slip op. at 33 (where
Selectmen made the appointment of CEO prior to adoption of
charter, "degree of importance and formality" implied in section
962(6)(D) met even though no statute, ordinance or resolution
specifically authorized appointment).  On the other hand, there
must be some greater significance to the appointment than the
general hiring process.  Bangor Education Association and Bangor
School Committee, No. 80-UC-02 (Me.L.R.B. Nov. 16, 1979)
("Election" of Director of Title I by School Committee not
sufficient for 962(6)(D) exception where no statute, ordinance or
resolution was evident and all teachers were "elected" in same
manner); Boothbay Harbor Water System, 92-UD-09, at 7 fn. 4
(appointment must be formal and cannot "merely be the result of
the informal hiring process").

     In the present case, there is insufficient evidence to
support a conclusion that the Public Works Foreman was "appointed
to office pursuant to statute, ordinance or resolution" as
required by section 962(6)(D).  The employer did not produce any
statute, ordinance or resolution specifically authorizing the
appointment of the Public Works Foreman.  There are only two
pieces of evidence that might conceivably be considered an
ordinance or resolution under which the Public Works Foreman was
appointed.  The first is section 3-5 of the Boothbay Harbor Code
entitled "Appointment of officers" which states, "All officers
provided by law and not required to be elected shall be appointed
by the Selectmen."  The second piece of evidence is section 2-4
of the Personnel Manual which requires all department head

                              -32-

appointments to be confirmed by the Selectmen.[fn]4
  
     The evidence is clear that the Public Works Foreman was
hired by the Town Manager.  No evidence was presented even
suggesting that the Public Works Foreman was appointed by the
Selectmen or that his appointment was confirmed by the Board of
Selectmen pursuant to section 3-5 of the Town Code or section 2-4
of the Personnel Manual.  Although the Board's unit determination
procedures are not adversarial, Board Rule 1.11(E) states that
"[e]ach party bears the responsibility of producing evidence to
support its contentions" regarding the proposed unit.  I conclude
that the Public Works Foreman was not appointed pursuant to
statute, ordinance or provision of charter as required by
962(6)(D) and therefore is not excluded from collective
bargaining on that basis.
     
Public Works Unit, Community of Interest 
  
     The employer argues, in the alternative, that Mr. Holton is
a supervisor who should not be included in the same unit with the
rank-and-file employees.  Inherent in that argument is the
contention that the supervisory functions create a conflict of
interest with the rank-and-file employees.  Before addressing
this potential conflict of interest, I will first consider
whether a community of interest exists between the Public Works
Foreman and the three other Public Works Department employees who
are all in the Operator/Truck Driver/Laborer classification.
 
     The duty and necessity of the hearing examiner to determine
whether a community of interest exists was described aptly by the
Board with the following:

          Title 26 M.R.S.A. 966(2) requires that the
     hearing examiner consider whether a clear and
     identifiable community of interest exists between the

____________________

     4 It is not clear that the Boothbay Harbor's Personnel
Manual can be considered a "statute, ordinance or resolution" for
the purposes of 962(6)(D) and I am making no judgment on that
issue.

                              -33-

     positions in question so that potential conflicts of
     interest among bargaining unit members during
     negotiations will be minimized.  Employees with widely
     different duties, training, supervision, job locations,
     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 Brewer, No. 79-A-01, slip op. at 4 (Me.L.R.B.
Oct. 17, 1979).
   
     As previously mentioned, it is necessary to assess the
eleven factors contained in Rule 1.11(F) in evaluating whether a
community of interest exists.  Considering these eleven factors
will highlight whether there are any differences likely to result
in divergent objectives or expectations at the bargaining table.

     Regarding the first factor, similarity in the kind of work
performed, the evidence is clear that the Public Works Foreman
and the Public Works Operators both spend a substantial part of
their work day performing the same type of work maintaining the
town roads and parks.  The fact that the Foreman also performs
various administrative tasks related to the public works function
does not negate the overall similarity in the operational tasks
performed.
 
     The second factor, common supervision and determination of
labor relations matters, also supports a finding of a community
of interest with the Operators.  All of the positions are subject
to the policies set forth in the Personnel Manual and all report
to the Town Manager, either directly or through one level of
supervision.

     As with the other unit, there was not enough evidence
presented regarding the scale and manner of determining earnings
to tip the balance one way or the other.  Although both the
Foreman and Operator positions are paid on an hourly basis, there

                              -34-

is no evidence regarding the wages paid nor any indication that
the wages are either similar or significantly different.  The
manner of determining merit increases is spelled out in the
Personnel Manual and applies to both positions.

     The fourth factor, similarity in benefits, hours and other
terms and conditions of work, strongly supports a finding of
community of interest.  Both of the positions have the same
benefits, the same work schedule, the same weekend assignments
and the same conditions of employment.  The only difference is
that the Foreman is provided with a Town vehicle which he is
allowed to drive home at night, a single item that does not
detract from the community of interest.

     The employer has emphasized the differences in skills and
training of the Foreman compared to Operators.  The Foreman has
an associate's degree in civil engineering and has extensive
training in surveying techniques.  There was no dispute that the
Foreman possesses various skills regarding surveying and drainage
systems not possessed by the other employees.  It was not clear,
however, that the specific skills and training possessed by the
current Foreman were actually requirements or qualifications
necessary for the job, as opposed to the particular attributes of
the successful candidate.  In any event, the Foreman possess a
commercial driver's license, like the Operators, and operates the
same machinery as the Operators.  The fact that the Foreman has
additional skills and training does not mean that interests of
the Foreman at the bargaining table would be vastly different
from those of the Operators.  Overall, this factor provides
support for a finding of community of interest.

     The sixth and seventh factors, frequency of contact and
geographic proximity, strongly support a finding of community of
interest.  All of the Public Works Department employees meet
daily in the Foreman's office at the town garage, often work
together, and usually return to the garage for their breaks and
lunch.

                              -35-
  
     The eighth and tenth factors are not at issue here because
there is no history of collective bargaining for these positions
and the Union is interested in representing all of the positions.
The ninth factor, the desires of the affected employees, will not
be considered because only one person in the proposed unit
testified on this matter.

     Finally, the eleventh factor, the employer's organizational
structure, supports a finding of a community of interest as all
of the positions are in the same functional unit.

     Having reviewed all of the community of interest factors
referred to in Rule 1.11(F), I conclude that the Public Works
Foreman shares a community of interest with the other position in
the Public Works Department, the Operator/Truck Driver/Laborers. 
I must now consider whether the Public Works Foreman possesses
supervisory duties that create such conflicts so as to preclude
placement in the same unit as the rank-and-file employees.

Public Works Unit, Supervisory Conflicts

     Although department heads are excluded from collective
bargaining under the MPELRL, supervisors do have collective
bargaining rights and may be included in bargaining units with
subordinate employees.  The Board has explained the issues
surrounding unit placement of supervisors with:
  
     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 supervisory 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 fragment-
     ation, 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 Administrative District No. 43 and Maine

                              -36-

     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 minimize 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 employees.

Penobscot Valley Hospital and Maine Federation of Nurses and
Health Care Professionals, No. 85-A-01, slip op. at 8 (Me.L.R.B.
Feb. 6, 1985).  Thus, 966(1) helps the hearing examiner to
minimize potential conflicts of interest in the bargaining unit
by identifying situations where these supervisory conflicts may
arise.  The relevant portion of 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.

The focus of this three-part test is to determine whether the
supervisor exercises a level of control over employment-related
issues that would likely result in a conflict of interest.  See
Richmond Employees Association and Town of Richmond, No. 
94-UD-09, slip op. at 30 (Me.L.R.B., Apr. 26, 1994).  Based on
the record, I conclude that the principal function of the Public
Works Foreman does not create the sort of conflict justifying
exclusion from the Public Works Department Unit.

     With respect to the first prong of the test, 966(1)
requires me to consider whether the principal function of the

                              -37-

position involves management control duties such as scheduling,
assigning and overseeing and reviewing the work of subordinate
employees.  The evidence shows that the Foreman spends the
majority of his time working alongside the other department
employees performing the substantive work of the department. 
He is also responsible for scheduling, assigning, overseeing and
reviewing the work of the Department employees to some extent,
but I cannot conclude that these constitute his principal
function.  The degree of responsibility that he holds is more in
line with the activities of a working supervisor responsible for
coordinating the work of a team.  See, e.g., Winthrop School
Department Food Service Employees, UPIU and Winthrop School
Department, No. 97-UD-11 (Me.L.R.B. Aug. 27, 1997) (neither main
site manager nor satellite managers have as their principal
functions any significant degree of management control duties);
Teamsters Local Union No. 48 and Van Buren Light and Power
District, No. 85-UD-14 (Me.L.R.B. Jan. 25, 1985) (line foreman's
duties of assigning, overseeing and reviewing work of employees
was not so different from subordinates' duties so as to justify
exclusion from unit).  The Board's long-standing policy is to
include working foremen in rank-and-file units.  Council 74,
AFSCME and Bangor Water District, No. 80-UD-01, slip op. at 7
(Nov. 30, 1979).

     Of the time that the Foreman spends on work that is not the
manual work of the department, the work is related to supervisory
functions and administrative tasks more reflective of his tech-
nical expertise than supervisory or management control.  For
example, some of the time he spends in office work is to initiate
purchase orders, keep track of expenditures on his computer and
open bids.  These are administrative tasks that, while essential
to the effective operation of the department, are not closely
linked to control over employment-related issues.
  
     The second prong of the test to determine whether a
supervisory position should be excluded from a unit examines

                              -38-

whether the supervisor performs duties that are "distinct or
dissimilar" from the duties of the supervised employees.  As
another hearing examiner noted, this criterion was not intended
to include any dissimilar duties:

     [D]uties contemplated by the "distinct and dissimilar"
     criterion include those in connection with hiring (or
     making recommendations), transfers, layoffs and
     recalls, and promotions -- duties that substantially
     align the interests of the supervisor with the
     interests of the employer and cause conflicts of
     interest.  

State of Maine and Maine State Employees Association, No.
91-UC-04, slip op. at 15 (Me.L.R.B. Apr. 17, 1991) (Foreman's new
computer responsibilities do not affect the alignment of
interests).

     In the present case, the fact that the Public Works Foreman
performs surveying, engineering tasks, administrative functions
related to budgeting, purchasing and preparation for bids is not
relevant to whether the position should be excluded from the unit. 
See, e.g., Winthrop, No. 97-UD-11, slip op. at 15 (recordkeeping
and fiscal responsibilities are not "distinct and dissimilar"
duties within the meaning of 966(1));  Lubec Education
Association and M.S.A.D No. 19, No. 83-UD-17, slip op. at 8
(Me.L.R.B. Apr. 13, 1983) (Head Bus Driver's responsibilities of
preparing and submitting budget and ordering supplies up to $500
per purchase not dissimilar duties).
  
     The only evidence presented regarding duties relevant to
this criterion was testimony regarding the Highway Foreman's
involvement in hiring Public Works Department employees.  See,
Lubec, slip op. at 8 (Head Bus Driver's participation in hiring
process is distinct and dissimilar within the meaning of
966(1)).  Based on the testimony presented and the provisions in
the Personnel Manual, I conclude that the Public Works Foreman
has input into hiring decisions but does not have final authority
for making hiring decisions.  Because the Personnel Manual

                              -39-

provides that layoffs and reinstatement rights are determined by
departmental seniority, there is no room for discretion in that
regard that could cause conflicts.  Furthermore, there is only
one classification subordinate to the Foreman's position, so he
has no opportunity to affect promotions.  Given all of the issues
involved in analyzing the second prong of the 966(1) test, I
conclude that the mere participation of the Public Works Foreman
in the hiring process is not the level of involvement that
creates the kind of conflict of interest justifying exclusion
from the unit.

     With respect to the third prong of the test to determine
whether a supervisor should be excluded from the subordinates
unit, there was no evidence that the Public Works Foreman has
ever had a need to exercise judgment in handling grievances or
disciplinary matters.  There was conflicting testimony regarding
whether the Foreman actually possessed this authority.[fn]5 
Similarly, there was no evidence that the Foreman established or
participated in establishing performance standards for his crew
or took corrective measures to implement those standards.  In
fact, the only subordinate employee testifying indicated that he
had never had a performance evaluation conducted by the Foreman
in his eight months of employment, even though the Personnel
Manual indicates that an evaluation was due before the expiration
of the 6-month probationary period.  Furthermore, no evidence was
presented by the Town Manager that the Foreman had conducted any
formal performance evaluations on the subordinate employees.
  
     It is clear that the Public Works Foreman does have some
supervisory responsibilities.  He assigns and oversees the work
of other members of the department and is involved in the hiring
process.  He has not, however, exercised any authority over
grievance or disciplinary matters, nor has he been involved with
the development or implementation of performance standards.  I 
____________________

     5 I make no finding on the issue of the Foreman's authority
to discipline.

                              -40-

conclude that he does not exercise the type of management control
that affects the employment of his subordinates to the extent
that creates a conflict of interest.
  
     Even if I believed that these limited supervisory duties
could create a conflict of interest with the subordinate
employees in the unit, I do not think that would mandate the
exclusion of the Foreman from the unit.  Resolution of these
issues requires a balancing of interests.  On the one hand, the
MPELRL guarantees the same rights to supervisors as to
subordinate employees.  On the other, collective bargaining will
not be effective when there are substantial differences in
objectives among the members of a unit.  As previously mentioned,
the purpose of analyzing the nature of a supervisor's duties is
to "minimize potential conflicts of interest."  Penobscot Valley
Hospital, No. 85-A-01, slip op. at 8.  It is not necessary for
the hearing examiner to eliminate all conflicts.  Given the
limited supervisory duties involved, the balance of interests
does not warrant the exclusion of the Public Works Foreman from
the unit. 

     Furthermore, creating a supervisory bargaining unit
consisting of only one person would be contrary to the Board's
long-standing policy against the proliferation of small
bargaining units.  The Board has explained the rationale for this
policy with:

     "Small bargaining units must be bargained for and
     serviced just as do large bargaining units.  The State
     is obligated 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."

Maine School Administrative District No. 14 and East Grand
Teachers Assoc., No. 83-A-09, slip op. at 13 (Me.L.R.B. Aug. 24,

                              -41-

1983), quoting with approval Teamsters Local Union No. 48 and
Bucksport School Dept., No. 80-UD-19, slip op. at 3 (Me.L.R.B.
Mar. 13, 1980).  The Board has held that Section 966(1) requires
the hearing examiner to consider as "other criteria" the non-
proliferation policy.  Id.  Consideration of this policy supports
my conclusion that the Public Works Foreman should be included in
the Public Works Department bargaining unit.

                 APPROPRIATE UNIT DETERMINATION
                                    
     On the basis of the parties' stipulations, findings of fact
made by the hearing examiner, and the foregoing discussion, and
pursuant to the provisions of 26 M.R.S.A. 966, I conclude that
the following two units are appropriate for the purposes of
collective bargaining:
 
     Office and Clerical Employees Unit, Case No. 99-UD-03

     INCLUDED:  Assessor's Clerk/Asst. Tax Collector,
                Bookkeeper/Deputy Treasurer/Asst. Tax Collector,
                Code Enforcement Officer.  

     EXCLUDED:  Deputy Tax Collector/Administrative Secretary,
                Administrative Assistant and all other employees
                of the Town of Boothbay Harbor.

     Public Works Department Unit, Case No. 99-UD-05
     
     INCLUDED:  Public Works Foreman, Truck Driver/
                Operator/Laborer.

     EXCLUDED:  All other employees of the Town of Boothbay
                Harbor.    


Dated at Augusta, Maine, this 20th day of January, 1999.

                                MAINE LABOR RELATIONS BOARD


                                /s/________________________
                                Lisa Copenhaver
                                Attorney Examiner


The parties are hereby advised of their right to appeal this
report to the Maine Labor Relations Board pursuant to 26 M.R.S.A.

                              -42-

 968(4) (Supp. 1998).  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.

                              -43-