Town of Wells v. Teamsters, No. CV-84-235 (Feb. 28, 1985), affirming Board decision
No. 84-A-03 which had reversed in part Hearing Officer Decision 84-UC-04.

STATE OF MAINE                                 SUPERIOR COURT
                                               Civil Action
YORK, ss.                                      Docket No. CV84-235
WELLS,                        )
                    Plaintiff )
               v.             )                DECISION AND ORDER
et al.,                       )
     The Town of Wells (Town) brings this M.R. Civ. P. 80B appeal
from a ruling of the Maine Labor Relations Board (Board) that
the Town's Code Enforcement Officer (CEO) is not a "department
head" within the meaning of 26 M.R.S.A.  962(6)(D).  The Board
reversed a hearing examiner's decision that, as a department
head, the CEO could not be included within a collective bargaining
unit under the Municipal Public Employees Labor Relations Act,
26 M.R.S.A.  961 et seq.
     The Town argues that the Board disregarded its own standard
of review in overturning the decision of the hearing examiner,
and that the Board's decision constituted an error of law reversible
by the Superior Court under 26 M.R.S.A.  972.  This court disagrees
with both arguments and affirms the decision of the Board.
     The Board will overturn a hearing examiner's determinations
if it finds they were unlawful, unreasonable, or lacking in
any rational factual basis.  The hearing examiner made findings
of fact in this case and, from those findings, concluded that
since the CEO's duties included administrative responsibilities,


he was a department head.  The Board adopted the examiner's
findings of fact, but concluded from the findings that the CEO's
duties are mixed, including both administrative and rank-and-
file, or operational, components.  The Board found that the
facts showed that the CEO's primary duties were operational,
and that his administrative responsibilities were so limited
that it was unreasonable to classify him as a department head.
The Board did not disregard the applicable standard of review.
     The Town also argues that the Board's decision was an error
of law, while the Board responds that it was a purely factual
determination, not to be overturned in the absence of fraud
under 26 M.R.S.A.  972 and Baker Bus Service v. Keith, 416
A.2d 727 (Me. 1980).  Whether a particular employee is a "department
head" is not a question of fact.  Since it requires statutory
interpretation, it is a question of law, and the reviewing court
may overturn the Board if its interpretation is erroneous.
However, the Board made no error of law in this case.
     Employees of municipalities and other small governmental
entities frequently have hybrid responsibilities, including
both managerial and operational duties.  If any degree of adminis-
trative or supervisory responsibility were enough to disqualify
an employee from collective bargaining, many workers now routinely
included in bargaining units would have to be dropped.  The
Board's use of the "primary responsibility" test to clarify
the difficult situation of mixed responsibility is proper, and
the Board relied correctly on the facts in reaching its conclusion


that the CEO is not a department head.

     The entry is:
          The decision of the Maine Labor Relations Board is

          AFFIRMED.  The appeal of the Town of Wells is DISMISSED.
Dated:  February 28, 1985
                                   William E. McKinley,Justice
                                   Superior Court