Topsham v. Local S/89 District Lodge #4 IAMAW, and MLRB, affirming 02-UCA-01.

STATE OF MAINE                                   SUPERIOR COURT
                                                 CIVIL ACTION
KENNEBEC, ss.                                    DOCKET NO. AP-02-68

     v.                                          DECISION AND ORDER
      This matter comes before the court on appeal from the determination of the
Maine Labor Relations Board ("MLRB") that the Town Clerk and Tax Collector for the
Town of Topsham are not department heads and must remain in a bargaining unit of
supervisors represented by the International Association of Machinists and Aerospace
     The Municipal Public Employees Labor Relations Law, 26 M.R.S.A.  961 et seq.
("MPELRL") grants certain municipal employees the right to unionize and engage in
collective bargaining.  However, the MPELRL excludes any person, "who is a 
department 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." 26 M.R.S.A.  962(6)(D).
     In 1991, the Town of Topsham (`Town") adopted the Maine Town Manager Plan,
30-a M.R.S.A.  2636 ("Plan").  Under the Plan, the Town's Board of Selectmen and


Town Manager share the executive authority.  The Plan provides that the town
Manager, "shall appoint, subject to confirmation by the selectmen, supervise and
control the heads of departments under the control of the selectmen when the
department is not headed by the town manager."  30-A M.R.S.A.  2636(5).
     On March 4, 2001, the Town filed an Amended Petition for Unit Clarification
with the MLRB seeking a determination that the positions of Town Clerk, Tax Collector,
Planning Director and Fire Chief could not be included in a unit of supervisors
represented by the union because these positions were department head positions.  On
May 9, 2002, after a hearing, the hearing examiner issued an extensive opinion in which
he excluded the Fire Chief from the supervisory unit, but left in that unit the Town
Clerk, Tax Collector and Planning Director because the evidence failed to show that
they were "department heads."  To arrive at this conclusion, the hearing examiner
found that the "executive head or body" referred to in the statute is comprised of the
Board of Selectmen, not the Town Manager, and therefore, in the absence of evidence
that the Board of Selectmen confirmed any of the three present individuals in their
positions, the Town's application must fail.
     The Town filed a timely appeal to the MLRB, which modified the hearing
examiner's decision.  The MLRB found the Town Manager, pursuant to the plan, was
the "executive head" of the Town, while the Board of Selectmen was the "executive
body" for purposes of appointment.  Thus, pursuant to the Plan, the Board of Selectmen
must confirm the Town Manager's appointments.  Although the MLRB's interpretation
of the statute was slightly different from that of the hearing examiner, the Town's
argument failed because of the same failure of evidence, i.e., that there was no evidence
of the Board of Selectmen confirming the appointment of any of the three individuals.
The Town now appeals the MLRB decision to this court.

     As a preliminary matter, the decisions of both the hearing examiner and the
MLRB ultimately rested on their finding that there had been a failure in the evidence
with regard to appointment of the Town Clerk and Tax Collector.  Following the
hearing examiner's decision, but prior to presentation to the Board, the Town offered to
provide new explicit evidence of the Selectmen's confirmation of these positions.  The
MLRB declined to accept the evidence and declined to reopen the hearing to take
additional evidence.  The Town now alleges that the MLRB's refusal to consider the
additional evidence is an abuse of discretion and that this matter should be remanded
with an order to the Board to take that additional evidence into consideration.
However, section 30(1) of the Board's own rules states "the appellate proceeding is not
a hearing de novo.  On appeal, the Board reviews the decision of the hearing examiner
on the basis of the evidence presented to the examiner."  Nothing in the MLRB's rules
or the MPELRL mandate authorize a hearing de novo in order to accept additional
evidence.  The MLRB's adherence to their own administrative rules is not an abuse of
     The Town also argues that the MLRB committed an error of law when it
concluded that the Town Clerk and Tax Collector were not department heads because
they were not appointed pursuant to statute, ordinance or resolution.  The MLRB ruled
that "pursuant to statute" in this case means that the Town must appoint department
heads pursuant to the Plan, which in turn provides for appointment by the Town
Manager subject to confirmation by the Board of Selectmen.  In review of this type,
courts grant great deference to an agency's interpretation of a statute it administers and
upholds the interpretation unless the statute plainly compels a contrary result.  Maritime
Energy v. Fund Insurance Review Board, 2001 ME 45  7, 767 A.2d 812.  This deference,
though not conclusive, is especially applicable in the present case given the richness
and depth of the MLRB's written precedents, as witnessed by the citations in both the
hearing examiner's and Board's decisions.  The MLRB's interpretation that the Plan
requires appointment by the Town Manager and confirmation by the Board of
Selectmen is consistent with the language of the statutes and there is nothing in the
statute which plainly compels a contrary result.  The Board's decision presents no error
of law.
     Although the MLRB's findings of fact are final, the Town raises evidentiary
arguments.  Essentially, the Town argues that since there was no evidence that the
Selectmen did not confirm the appointment of the Town Clerk and the Tax Collector,
the MLRB should have assumed that the confirmations took place The evidence of
record might have allowed the Board to make such a reasonable inference, but the
evidence is not so overwhelmmg that it compels such an inference.  Again, the court
finds no error.
     Considering the finality of the MLRB's factual findings, their internal rules
regarding evidentiary burdens and the nature of appeals, and due deference to the
MLRB's interpretation of their rules and the statutes they implement, the Town has not
met its burden in showing that the MLRB made an error of law in determining the
Town Clerk and Tax Collector are not department heads.  Nor have they established
that the MLRB abused its discretion by refusing to reopen the evidence or in any other
     The entry will be:
            Appeal DENIED; REMANDED to the Maine Labor Relations Board.

Dated:  March 20, 2003 
                                        S. Kirk Studstrup             
                                        Justice, Superior Court