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,
         
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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        
         
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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
         
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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.
         
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                            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


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