Town of Lisbon v. Teamsters Union Local 340 and MLRB, CV-95-311, reversing 95-UCA-02 and 95-UC-04 & -05. STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. Civil Action Docket No. CV-95-311 TOWN OF LISBON, ) ) Petitioner ) ) v. ) DECISION ON APPEAL ) TEAMSTERS UNION LOCAL 340, ) ) and ) ) MAINE LABOR RELATIONS BOARD ) ) Respondents ) In this M.R.Civ.P. 80(C) appeal, the Town of Lisbon ("Town"/petitioner) challenges the decision of respondent Maine Labor Relations Board ("Board") to include the position of Solid Waste Supervisor in the Public Works Department collective bargaining unit. Petitioner claims that the Board's decision is based on flawed analysis and erroneous application of the Board's policy against proliferation of bargain units. For the reasons that follow, the court grants the appeal. FACTUAL AND PROCEDURAL BACKGROUND On October 27, 1994, respondent Teamster's Union Local 340 ("Union") filed a petition for unit clarification pursuant to 26 M.R.S.A. 966(3) (1988) and Rule 1.16 of the Board, requesting that the newly created position of Solid Waste Supervisor be included in the Public Works Department bargaining unit, formed in 1981. On November 9, 1994, petitioner filed a similar petition, requesting that the existing positions of Shop Supervisor and Highway Foreman be removed from the Public Works Department [1] bargaining unit, based on changes in the duties associated with those positions, particularly, additional supervisory responsibilities. The petitions were consolidated and a hearing examiner designated by the Board conducted an evidentiary hearing on January 27, 1995. On May 11, 1995, the hearing examiner issued a report in which he determined that the positions of Shop Supervisor, Highway Foreman, and Solid Waste Supervisor should be included in the Public Works Department bargaining unit. The Town appealed the hearing examiner's report to the Board. Petitioner challenged the hearing examiner's determination that the Shop Supervisor, Highway Foreman, and Solid Waste Supervisor positions should be included in the Public Works Department bargaining unit. Following a hearing, the Board affirmed the hearing examiner's report by decision dated September 6, 1995. The Board specifically found that the hearing examiner's decision was supported by evidence in the record. The Town then filed the instant appeal which, as indicated above, challenges only the Board's decision to include the Solid Waste Supervisor position in the Public Works Department bargaining unit. DISCUSSION Petitioner submits that, properly applied to the facts in the record, 26 M.R.S.A. 966 and the eleven factors enumerated in Section 1.11(F) of the Board's Rules of Procedure support the conclusion that no community of interest exists between the position of Solid Waste Supervisor and the other positions in the Public Works Department bargaining unit. According to petitioner, 2 the Board considered the Solid Waste Supervisor vis-a-vis the positions of Shop Supervisor and Highway Foreman, instead of all positions in the Public Works Department bargaining unit, as required by 966(2). Petitioner asserts that there is no evidence to support the Board's resulting conclusion that "[t]he hearing examiner's finding that [the Solid Waste Supervisor] shares a strong community of interest with the other two supervisors in the unit is supported by the evidence" and that the hearing examiner needlessly considered the "absence of any conflict" between the Solid Waste Supervisor and his subordinates. The Town further argues that the existence of a conflict of interest derives from whether or not a community of interest exists, that the hearing examiner inappropriately referred to, and relied on, the Board's policy against proliferation of bargaining units in making his decision. The Union argues that an adequate factual basis supports the hearing examiner's and the Board's finding "that the community of interest among the various employees of the public works collective bargaining unit existed." It further argues that the Board's application of its policy against proliferation was appropriate. The Board contends that "ample evidence" supports its affirmance of the hearing examiner's decision. It asserts that it appropriately applied the community of interest standard in 26 M.R.S.A. 966(2), and, once it determined that a community of interest existed, properly considered whether a conflict of 3 interest existed between the position Solid Waste Supervisor and other positions in the Public Works Department bargaining unit, pursuant to 966(1). The Board asserts that it then applied its nonproliferation policy "as an added criteria" for inclusion of the Solid Waste Supervisor position in the Public Works Department bargaining unit. The court finds that the hearing examiner's decision conflicts with 26 M.R.S.A. 966(2) because it is based on a determination that the Solid Waste Supervisor shares a community of interest with the Shop Supervisor and the Highway Foreman. As petitioner notes, 966(2) requires the Board or its designee to determine whether an "identifiable community of interest among employees" in making collective bargaining unit assignments (emphasis added). The hearing examiner apparently overlooked this mandate and focused instead on comparing the position of Solid Waste Supervisor with the similarly supervisory Shop Supervisor and Highway Foreman positions, Unit Clarification Report, pp. 19, 20, 27-28, ultimately concluding that "the Solid Waste Supervisor shares a strong community of interest with the two other supervisors." The court further finds that the hearing examiner's decision ignores or misapplies a significant number of the eleven factors in Board Rule 1.l1F. The first factor is "similarity in the kind of work performed." The hearing examiner noted that the Solid Waste Supervisor spends minimal time performing work engaged in by other employees in the public Works Department, and spends a 4 majority of time supervising employees. Unit Clarification Report, pp. 20, 27n.9 The third factor is "similarity in the scale and manner of determining earnings." The hearing examiner noted that the Solid Waste Supervisor is paid twenty-one percent more than his closest subordinate, and that, moreover, unlike most other employees, he is paid a salary. He dismissed these concerns with the unsupported assertion that the significance of Solid Waste Supervisor's salary is diminished by the compensatory time provisions in the Supervisor's contract. Unit Clarification Report, pg. 28. The sixth factor is "frequency in contact or interchange among the employees." The hearing examiner reported that there is frequent contact" among supervisors, but only "general contact" between supervisors and other employees. In short, despite the fact that his findings on several key issued identified in Board Rule 1.11(F) indicate bargaining unit conflicts between the Solid Waste Supervisor and other employees in the Public Works Department, the hearing examiher inexplicably determined that no conflicts existed sufficient to preclude the inclusion of the Solid Waste Supervisor in the Public Works Department bargaining unit. The hearing examiner's misapplication of the statutory standard in 26 M.R.S.A. 966(1) and problematical treatment of the factors in Board Rule 1.11(F) warrant reversal of the Board's decision. 5 M.R.S.A. 11007(4)(C). The court therefore does not reach the issue of the hearing examiner's invocation of the Board's anti-proliferation policy. 5 CONCLUSION For the foregoing reasons, the petitioner's appeal is GRANTED. The decision of respondent Maine Labor Relations Board including the position of Solid Waste Supervisor in the Public Works Department bargaining unit is REVERSED. So ordered. Dated: August 1, 1996 /s/______________________ Thomas E. Delahanty, II Justice, Superior Court 3