Superior Court, Kennebec County, Searsport v. LIUNA Laborers' Local and MLRB, Docket No. AP-16-66 (6/21/2017), aff'g MLRB No. 17-UDA-01.

 

 

      
       Before the Court is the Town of Searsport's 80C appeal of the Maine Labor
Relations Board's determination that the Town of Searsport's Waste Water
Treatment Chief Operator/Superintendant and its Public Works Director are
employees pursuant to the Municpal Public Employees Labor Relations Law. The
Town of Searsport is represented by Attorney John K. Hamer. The Maine Labor 
Relations Board is represented by Attorney Lisa Copenhaver. Liuna Laborers' Union
327 has not appeared. Oral argument was held on June 6, 2017.

   I.     Background

      A.  Procedural History

   On April 7, 2016, the LIUNA Laborers' Local 327 filed a petition for unit
determination with the Maine Labor Relations Board ("MLRB") seeking to create a
bargaining unit for employees working in the Town of Searsport's (the "Town")
Public Works Department and at the Waste Water Treatment Plant ("WWTP"). The 
Town objected to the inclusion of the WWTP Chief Operator/Superintendant and


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the Public Works Director in the bargaining unit. The MLRB's Hearing Examiner
held an evidentiary hearing and issued a determination on July 11, 2016. The 
Hearing Examiner's decision held that both the WWTP Chief
Operator/Superintendant and the Public Works Director should be included in the
bargaining unit. The Town appealed the determination to the fulll MLRB. The MLRB
reviewed the record before the Hearing Examiner and heard argument. On October
20, 2016, the MLRB issued a decision finding that the two positions were not
excluded from coverage by the Maine Public Employees Labor Relations Law, 26
M.R.S. § 961 et seq (the "Act"), but also finding that the two should be placed in a
separate supervisory bargaining unit. The Town now appeals the determination of
the MLRB.

      B.  Facts

   The Town of Searsport operates under the Town Manager Plan as set out in Title
30-A, Chapter 123, Subchapter 2. The WWTP Chief Operator/Superintendant has
been appointed each year for the last 9 years to a one year appointment. The Public
Works Director, Robert Seekins, was originally appointed to the position of
Highway Foreman, effective April 1, 1995. The Minutes of the Board of Selectmen's
(the "Board") Meeting of March 21, 1995 states that the Board approved the Town
Manager's appointment of Robert Seekins. Since 1995, when Mr. Seekins was first
appointed as Highway Foreman, his job title and job description have changed. In
2002, his job title changed to Public Works Director. At that time, the Board
approved the job description. The Selectmen did not take any further action to


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reappoint or clarify the appointment of Mr. Seekins to this new job title and job
description.

   As of the MLRB's determination, the Public Works Director supervised three
employees and the WWTP Chief Operator/Superintendant supervised one
employee. They are both tasked with planning, scheduling, assigning, and
disciplining employees, if necessary. Both perform administrative tasks, for
example: the purchase of equipment and supplies, record keeping, payroll, and the
preparation of their department's budget. Both are responsible for the technical and
mechanical operations of their respective departments and both spend a large
portion of their time performing operational tasks.

   The Town of Searsport 2015 Policy Book, Section 2: Appointive Authority, lists
24 officials appointed by the Board. Neither the WWTP Chief Operator/Supervisor
nor the Public Works Director are on this list. The list of officials is followed by the
statement, "These appointments are made subject to state statute and may be in the
form of a contract." The Policy goes on to state, "The Town Manager appoints
Department Heads, subject to confirmation by the Board of Selectmen. The Town
Manager also appoints all other employees as authorized by the Board of
Selectmen." R.30.

   II.   Standard of Review
      
      When acting in an appellate capacity pursuant to Rule 80C and the APA, the
court reviews an agency's decision for errors of law, abuse of discretion, or findings
not supported by substantial evidence in the record. Somerset Cnty. v. Dep't of Corr.,
2016 ME 33, ¶ 14, 133 A.3d 1006; 5 M.R.S.A. § 11007(4)(C)(1)-(6). The party 


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seeking to vacate an agency's decision bears the burden of persuasion to
demonstrate error. Rossingnol v. Me. Pub. Emples. Ret. Sys., 2016 ME 115, ¶ 6, 144 
A.3d 1175, Clark v. Hancock Cnty. Comm'rs, 2014 ME 33, ¶ 22, 87 A.3d 712; Forest
Ecology Network v. Land Use Regulation Comm'n, 2012 ME 36 ¶ 24, 39 A.3d 74.

   An agency has the authority to determine the weight to be given to the evidence.
Rossignol, 2016 ME 115, ¶ 6, 144 A.3d 1175; 5 M.R.S.A. § 11007(3). Findings of fact
will be affirmed if they are supported by any competent evidence in the record, even
if the record contains inconsistent evidence or evidence contrary to the result
reached by the agency. Watts v. Bd. of Envtl. Prot., 2014 ME 91, ¶ 5, 97 A.3d 115, 118.
The reviewing court will vacate a determination that a party failed to meet that
burden their burden of proof only if the record compels such a conclusion to the
exclusion of any other inference. Rossingnol, 2016 ME 115, ¶ 6, 144 A.3d 1175.

   Questions of law are subject to de novo review. York Hosp. v. HHS, 2008 ME 165,
¶ 32, 959 A.2d 67. Deference is generally given to an agency's interpretation of an
ambiguous regulation or statute that is within its area of expertise, but an agency's
interpretation will be rejected if it is unreasonable or if the statute or regulation
plainly compels a contrary result. Cheney v. Unemployment Ins. Comm'n, 2016 ME
105, ¶ 6, 144 A.3d 45; Lippitt v. Bd. of Certification for Geologists & Soil Scientists,
2014 ME 42, ¶ 17, 88 A.3d 154.

   III.   Discussion

          a.  Municipal Public Employees Labor Relations Law

   According to the Act, which establishes a public employee's right to collectively
bargain, "anyone excepted from the definition of public employee under section 962


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may not be included in a bargaining unit." 26 M.R.S. § 966(1). A public employee is
any employee of a public employer, with certain exceptions. The two exceptions
considered in the matter before the Court apply to any person:

          B. Appointed 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; or

          ...
          D. Who 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 publc employer;

26 M.R.S. § 962(6). Where appropriate, the Act authorizes the creation of a spearate
bargaining unit for supervisory positions.

      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 excercising judgment in adjusting grievances,
      applying other established personnel policies and procedures and in
      enforcing a collective bargaining agreement or establishing or
      participate in the establishment of performance standards for
      subordinate employees and taking corrective measures to implement
      those standards.

26 M.R.S. § 966(1).

           b.  WWTP Chief Operator/Supervisor

   The MLRB Decision affirmed the Hearing Examiner's determination that the
WWTP Chief Operator/Supervisor should be considered a public employee with the
right to collectively bargain pusuant to the Act, not subject to the exception laid out
in 26 M.R.S. § 962(6)(B). According to exception (B) of Section 962(6), a person is


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not included in a collective bargaining unit if they are "[1] [a]ppointed to office
pursuant to statute, ordinance, or resolution [2] for a specified term of office [3] by
the executive head or body of the public employer" 26 M.R.S. § 962(6)(B) (Numbers
added). The MLRB concedes that the WWTP Chief Operator/Supervisor was
appointed to his position for a series of one-year terms, by the Town Manager, who
is the "executive head" of the Town. Town of Searsport and Laborers Local 327, No. 
17-UDA-01, 3 (Oct. 20, 2016). The MLRB's determination found that the WWTP 
Chief Operator/Supervisor did not fall into the Section 962(6)(B) exception because
the WWTP Chief Operator/Supervisor was not appointed to an "office".

   The MLRB Decision looked to the Hearing Examiner's finding that the Searsport
2015 Policy Book lists 24 "officials" appointed by the Board. The WWTP Chief
Operator/Supervisor is not on that list. According to the MLRB Decision, "The Town
produced no evidence that this position was an 'office' of any kind or in any sense of
the word beyond a synonym for 'employment'." Id. at 5.

   The Court first looks to the plain language of the statute in order to give
the statute the meaning the legislature intended. Cyr v. Madawaska Sch. Dep't, 2007
ME 28, ¶ 9, 916 A.2d 967 ("If the statute's meaning is clear, we do not look beyond
its words, unless the result is illogical or absurd.") If the language of the statute can
reasonably be interpreted in more than one way, the Court looks to external sources
to determine the legislature's intent, deferring to the agency's interpretation where
reasonable. Arsenault v. Sec'y of State, 2006 ME 111, ¶ 11, 905 A.2d 285.

   In the statute in question, the Court finds that "office" could reasonably be
interpreted in more than one way. Finding the language of the statute to be


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ambiguous when read as a whole, the Court defers to the MLRB's interpretation of
"office" unless it is found to be unreasonable. The MLRB determined that the
legislative intent of Section 962(6)(B) was to carve out an exception to the right to
collectively bargain for those public employees who were officially appointed to 
termed "offices", or official positions, that were specifically created by statute,
ordinance, or resolution. There is evidence in the record to support the MLRB's
finding that the WWTP Chief Operator/Supervisor is not an office according to the
MLRB's definition. More specifically, the WWTP Chief/Supervisor was not an official
position specifically created by statute, ordinance, or resolution.  The MLRB look to
a list of officials appointed by the Board, found in the Searsport 2015 Policy Book.
WWTP Chief Operator/Supervisor is not included on this list. Searsport has not
offered dispositve evidence that the WWTP Chief Operator/Supervisor is an office
specifically established by statute, ordinance, or resoultion. Therefore, the Court
defers to the MLRB's interpretation of "office" and finds that there is evidence in the
record to support the MLRB's determination that the WWTP Chief
Operator/Supervisor is not excluded from collective bargaining pursuant to Section
962(6)(B).

           c. Public Works Director

      Searsport appeals the MLRB's determination that the Public Works Director
is a public employee for purposes of collective bargaining pursuant to the Act, not
subject to exception 26 M.R.S. § 962(6)(D). Section 962(6)(D) excepts from the
definition of public employee any [1] department head or division head, [2] who
was appointed to office pursuant to statute, ordinance or resolution, [3] by


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executive head or body of the public employer, [4] for an unspecified term. 26 M.R.S.
§ 962(6)(D). The Town Manager plan of town governance, as found in 30-A M.R.S. §
2636, requires that the Town Manager appoint department heads, subject to
confirmation by the selectmen. 30-A M.R.S. § 2635(5). The MLRB has interpreted
Section 962(6)(D) to require that the primary function of a position excepted
pursuant to 962(6)(D) be managerial or administrative, not solely
supervisory. See Town of Topsham and Local s/89 District Lodge #4, International
Association of Machinists and Aerospace Workers, No. 02-UCA-01, 3 (August 29,
2002). The Court finds that the language of Section 962(6)(D) is unambiguous, and 
therefore the Court does not look beyond the statute itself in its interpretation. See
Cyr, 2007 ME 28, ¶ 9.

      The issue before the Court is whether there is any evidence in the record that
supports the MLRB's determination that Mr. Seekins is not a department head or
division head, who was appointed to office pursuant to statute, ordinance, or
resolution by the executive head or body of the public employer. The MLRB found
that Mr. Seekins was not appointed pursuant to statute, ordinance, or resolution
and that the failure to appoint in that manner was dispositive. The MLRB decided
that there was "no error in the Hearing Examiner's conclusion that the record lacked
any evidence that the incumbent functioned as or even was considered a
department head at the time of the appointment in 1995 or for several years after."
Respondent's Brief, 10. The Hearing Examiner found that Mr. Seekins was not 
appointed as a department head because when he was originally appointed in 1995
it was not as a department head for the Public Works Department, but instead as


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Highway Foreman. Essentially, the Hearing Examiner found that at the time Mr.
Seekins was appointed he was not appointed to a department head position and he
was not subsequently appointed to another position that may be considered a
department head.

      The MLRB cites to Town of Topsham, to support the proposition that Mr.
Seekins has not been "appointed to ofice pursuant to statute, ordinance or 
resolution". The Town of Topsham decision finds that "it is clear that in order to be
appointed to office pursuant to statute, the statute must be followed. Furthermore,
the confirmation step in the appointment process is what distinguishes the
appointment of department heads from ordinary hires under the Town Manager
Plan." Id. at 9. In this case, the Hearing Examiner found, and the MLRB affirmed, that
Mr. Seekins was never appointed to a department head position pursuant to statute,
ordinance, or resolution.

      The Court finds that there is evidence in the record to support the MLRB's
determination that Mr. Seekins is not excluded from collective bargaining pursuant
to Section 962(6)(D) because he was not properly appointed to a department head
position. The only position to which Mr. Seekins was properly appointed was the
position of Highway Foreman. There is sufficient evidence in the record to find that
Highway Foreman was not a department head position. Regardless of whether Mr.
Seekins' current position of Public Works Director is a department head position,
Mr. Seekins was never appointed by the executive head or body of the public 
employer to the position of Public Works Director. Without being appointed by the
executive head or body of the public employer to a department head position, Mr.


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Seekins does not fall into the exception delineated in Section 962(6)(D). The Court
affirms the MLRB's determination.

           d.  Supervisory Unit
             
      At hearing, the parties agreed that if the Court were to affirm the decision of
the MLRB as it pertains to the WWTP Chief Operator/Supervisor and Public Woks
Director's right to collectively bargain then the Court should also affirm the separate
supervisory unit for the two positions. Because there is no challenge to the MLRB's 
establishment of the separate supervisory bargaining unit, the Court affirms the
MLRB's determination on that point.

  IV.  Conclusion

      The Court affirms the decision of the Maine Labor Relations Board.


The Clerk is directed to incorporate this Order into the docket by reference in
accordance with M.R.Civ.P. 79(a).


DATE:  6/21/17                                    /s/__________________________
                                                  Michaela Murphy
                                                  Justice, Superior Court



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