Reversed, in part, by Maine Maritime Academy v. Maine State Employees Assoc.,
No. 03-UCA-01, May 15, 2003. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 03-UC-02 Issued: January 21, 2003 ___________________________________ ) MAINE MARITIME ACADEMY, ) ) Petitioner, ) ) and ) UNIT CLARIFICATION ) REPORT MAINE STATE EMPLOYEES ) ASSOCIATION, ) ) Certified Bargaining Agent. ) ___________________________________) PROCEDURAL HISTORY This unit clarification proceeding was initiated on October 2, 2002, when Leonard Tyler, President of the Maine Maritime Academy ("MMA" or "Academy"), filed a petition for unit clarification with the Maine Labor Relations Board ("Board"). The petition seeks a determination whether the positions of Commandant/Port Captain, Assistant Commandant, and Marine Operations Manager should be excluded from the existing Administrative Staff bargaining unit, pursuant to Section 1024- A(7) of the University of Maine System Labor Relations Act ("UMSLRA"). The Maine State Employees Association ("MSEA" or "Association") is the recognized bargaining agent for the MMA Administrative Staff bargaining unit. The MSEA filed a timely response to the petition. A hearing notice was issued on October 28, 2002, and was posted for the benefit of affected employees. The hearing examiner conducted a prehearing conference by telephone in this matter on November 12, 2002. The hearing was conducted on November 19, 2002. Thomas C. Johnston, Esq., appeared on behalf of the Academy. Chief Negotiator Chuck Hillier appeared on [-1-] ______________________________________________________________________ behalf of the MSEA. The parties were afforded full opportunity to examine and cross-examine witnesses, and to present evidence. The following witnesses were presented at the hearing: for the Academy, Director of Human Resources H. Eugene Moyers, Vice President of Administration and Finance Richard Ericson, and Commandant/Port Captain Jeffrey Loustaunau; for the MSEA, Marine Operations Manager Tim Leach and Assistant Commandant Gary Frost. The parties presented written argument following the conclusion of the hearing, postmarked on December 13, 2002. JURISDICTION The jurisdiction of the hearing examiner to hear this matter and to make an appropriate unit determination lies in 26 M.R.S.A. 1024-A(7). EXHIBITS The following exhibits were admitted to the record without objection of the MSEA: Maine Maritime Academy Exhibits 1. Positions Currently in Unit (List) 2. Collective Bargaining Agreement, Administrative Staff Bargaining Unit, October 1, 1999 - September 30, 2002 3. Organization Chart #1 4. Organization Chart #2 5. Commandant of Midshipman/Port Captain, Job Description (April, 2000) 6. Marine Operations Manager, Job Description (February 2000) 7. Agreement on Appropriate Bargaining Unit (MLRB Form 1), September 1, 1988 8. Commandant of Midshipmen/Port Captain, Job Description (Draft, November, 2002) 9. Assistant Commandant of Midshipmen, Job Description (January, 2000) 10. MMA 2001 - 2003 Undergraduate Catalog 11. Human Resource Action Notices (Various, 8 pages) -2- ______________________________________________________________________ STIPULATIONS The parties agreed to the following factual stipulations on the record: 1. The Maine State Employees Association ("MSEA") is a public employee organization that is the recognized bargaining agent for the Maine Maritime Academy Administrative Staff bargaining unit, within the meaning of 26 M.R.S.A. 1022(1-B). 2. The Maine Maritime Academy ("MMA") is a public employer within the meaning of 26 M.R.S.A. 1022(1-A). 3. There is no question concerning representation of the MMA Administrative Staff bargaining unit. 4. The parties are unable to agree on the modification to the MMA Administrative Staff bargaining unit proposed by the employer; that is, whether the positions of Commandant/Port Captain, Assistant Commandant, and Marine Operations Manager should be excluded from this unit. 5. The Commandant/Port Captain and the Assistant Commandant positions are currently included in the MMA Administrative Staff bargaining unit. 6. The Marine Operations Manager position was created in February 2002. This is a sufficient change in the circumstances surrounding the formation of the bargaining unit to warrant consideration of modification in the composition of the bargaining unit within the meaning of 26 M.R.S.A. 1024-A(7). -3- ______________________________________________________________________ 7. In addition to the MMA Administrative Bargaining Unit, there are two other bargaining units currently organized and represented at the MMA: the Faculty of MMA bargaining unit and the Comprehensive Classified Employee bargaining unit. FINDINGS OF FACT 1. The Maine Maritime Academy is a college specializing in ocean and marine-oriented programs at the undergraduate and graduate levels, with emphasis on engineering, transportation, management, and ocean sciences, as well as preparing officers for the uniformed services of the United States. 2. The MMA Administrative Staff bargaining unit was created by Agreement on Appropriate Bargaining Unit signed on September 1, 1988. At that time, the unit consisted of all regular staff employees except " . . . the five vice-presidents; the general counsel; the Director of Admissions; and the Waterfront Services Director." 3. On March 20, 1990, another Agreement on Appropriate Bargaining Unit was signed by the parties. This time, a list of all positions included in the bargaining unit was made part of the agreement. The positions of "Commandant of Midshipmen" and "Assistant Commandant of Midshipmen" were included in the list of bargaining unit positions. 4. In 1993, 1999, and 2002, the parties filed other Agreements on Appropriate Bargaining Unit, including or excluding positions from the Administrative Staff bargaining unit. 5. Approximately 175 persons are employed by the MMA on a non-seasonal basis. Of these, approximately 60 employees are in the Administrative Staff bargaining unit; 55 employees are in the -4- ______________________________________________________________________ Faculty bargaining unit; and 55 employees are in the Classified bargaining unit. 6. Currently, only two of the five Vice-President positions excluded by agreement from the bargaining unit in 1988 still exist: the Dean of Academic Affairs and the Vice President of Administration and Finance. 7. One of the Vice Presidents initially excluded from the bargaining unit was the Vice President of Training. The person who held this position also served as the Master of the primary training vessel of the MMA, the State of Maine. After the person who held this dual position retired, the position of Vice President of Training was not filled again and an individual was hired to be Master of the Training Vessel, only. The Academy has treated the Master of the Training Vessel position as a non- unionized position ("exempt") since that time. 8. The Master of the Training Vessel supervises a crew of employees including the supply officer, chief engineer, chief mate and others. All of the positions supervised by the Master of the Training Vessel, except seasonal employees, have been in the Administrative Staff bargaining unit since the inception of the unit. 9. The Assistant Commandant supervises two company officers and oversees the functioning of the Academy Regiment of Midshipmen, which is a quasi-military organization. About 400 of the 700 Academy students belong to the Regiment. Belonging to the Regiment is a requirement for entry into the Coast Guard and obtaining certain maritime licenses. The Assistant Commandant and the two company officers who serve below him are positions that have been in the Administrative Staff bargaining unit since the -5- ______________________________________________________________________ inception of the unit. 10. The Assistant Commandant and the Master of the Training Vessel have been supervised by the Commandant/Port Captain since the inception of the unit. 11. The Director of Waterfront (an excluded position under terms of the original Agreement on Appropriate Bargaining Unit) supervised the employees who cared for and made up the crew of about 75 ships on the Academy's waterfront, other than the main training vessel. This included Maine's official sailing vessel, the schooner Bowdoin. All of the waterfront positions under the Director of Waterfront, including the Assistant Director of Waterfront, were in the Administrative Staff bargaining unit. The Director of Waterfront reported to the Vice President for Training and, when this position was eliminated, to the Vice President for Administration and Finance. 12. In 2002, the Director of Waterfront retired after many years of employment. Rather than hire a new Director of Waterfront, the Academy created a new position, the Marine Operations Manager. This new position performs many of the same functional duties as the former Director of Waterfront position. The former Assistant Director of Waterfront was hired to fill the new Marine Operations Manager position and the Assistant Director of Waterfront position was then effectively eliminated. 13. When the new Marine Operations Manager position was created, the Academy decided to move supervision of this position (as well as overall supervision of the waterfront and its employees) from the Vice President of Administration and Finance to the Commandant/Port Captain. As a result of this change, the Commandant/Port Captain now oversees and is responsible for the -6- ______________________________________________________________________ Regiment of Midshipmen, the main training vessel State of Maine, and the waterfront operations. These changes occurred in April 2002. 14. Because the duties of the Commandant/Port Captain have expanded, he has somewhat less time to spend overseeing the Regiment of Midshipmen. The Assistant Commandant has accordingly spent more time overseeing the Regiment of Midshipmen without as much direct supervision from the Commandant/Port Captain. The duties and responsibilities of the Assistant Commandant position have not changed, however. 15. The Director of Human Resources and the Vice President of Administration and Finance are the only two Academy employees regularly assigned to negotiate collective bargaining agreements. They are often assisted by their counsel. They are currently involved in the negotiations for a successor agreement; the last agreement expired on September 30, 2002. 16. The present Commandant/Port Captain was hired in 2000. When initially hired, he reported to the Academic Dean. When the person who served as Academic Dean left his position, the Commandant/Port Captain began to report directly to the Academy President. This was apparently an effort to "raise the profile" of the regimental program. 17. The Commandant/Port Captain has not been actively involved in negotiating the successor agreement. As part of the "management team" who directly reports to the Academy President, the Commandant/Port Captain has been kept up-to-date on the negotiations. 18. The Director of Human Resources consults frequently -7- ______________________________________________________________________ with the Commandant/Port Captain about personnel matters within the Commandant/Port Captain's division, such as wages, working conditions and job classifications. For instance, the Commandant/Port Captain decided that a new administrative assistant position for the Marine Operations Manager needed to be created. He actively worked with the Human Resources Department to create the new job description and to create the interview committee for the position. 19. The Commandant/Port Captain has authority to approve or reject the recommendation of any interview committee convened in order to hire new employees under his supervision. 20. Both the Commandant/Port Captain and the Marine Operations Manager could be actively involved in resolving grievances filed by employees under them. If, for example, a waterfront employee filed a grievance, the Marine Operations Manager would write the "Step 1" grievance response. The Commandant/Port Captain would write the "Step 2" grievance response. "Step 3" of the grievance response would be written by the President in consultation with the Director of Human Resources. 21. The Director of Human Resources oversees and coordinates the hiring of all Academy employees, in consultation with the division or department head affected by the hire. Most hiring is done following the convening of an interview committee. A recommendation for hiring is forwarded through the Human Resources Department. The President and Vice President for Administration and Finance must concur in all hiring decisions. 22. The Academy Board of Trustees meets quarterly. The Board approves all hires, although this is often "after the -8- ______________________________________________________________________ fact." The Board has been actively involved in the search for the President and for the Academic Dean. The Board of Trustees did not participate in the hiring of the Commandant/Port Captain, the Marine Operations Manager or the Assistant Commandant, other than approving their hire after the fact, as is done for all employees. 23. About 12 positions in the Administrative Staff bargaining unit have supervisory authority over other employees also in the same bargaining unit. "Supervisors" have other employees report to them, and they have authority to sign time sheets and personnel action forms. Most of these supervisors have between two and six employees reporting to them. A few supervisors have more employees reporting to them. For instance, the Commandant/Port Captain has ultimate supervisory authority over 40 to 50 employees. The Marine Operations Manger supervises about 10 employees. 24. The Commandant/Port Captain does not usually assign work, schedule or actively supervise those employees who work in the three areas that he oversees. Such active supervision is generally performed by the Marine Operations Manager, the Master of the Training Vessel, and the Assistant Commandant. Any required discipline of employees is also carried out by these three immediate supervisors, in consultation with the Commandant/Port Captain. 25. The Marine Operations Manager, the Master of the Training Vessel, and the Assistant Commandant recommend whether new hires under their supervision should be made a permanent employee after a six-month probationary period. This is done in consultation with the Commandant/Port Captain. Permanent employees are not given annual evaluations, or routine -9- ______________________________________________________________________ evaluations of any kind. They receive step increases under the collective bargaining agreement based on longevity. DISCUSSION Preliminary Unit Clarification Issues The issue presented by this case is whether three positions in the Maine Maritime Academy Administrative Staff bargaining unit--the Commandant/Port Captain, the Assistant Commandant, and the Marine Operations Manager--should be removed from that unit. No organized supervisory bargaining unit now exists at the Academy. Removal of the positions, if it were granted here, would mean that the positions would become unrepresented positions. Title 26 M.R.S.A. 1024-A(7)[fn]1 of the UMSLRA provides: Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed sufficiently to warrant modification in the composition of that bargaining unit, any public employer or any recognized or certified bargaining agent may file a petition for a unit clarification, provided that the parties are unable to agree on appropriate modifications and there is no question concerning representation. The parties have agreed that most of the requirements for the filing of a unit clarification petition have been met in the present matter; namely, that during the present contract negotiations the parties have been unable to agree upon the exclusion of these three positions, that the petition was properly filed by the employer, and that there is no question concerning representation of this unit. The preliminary issue ____________________ 1 The remaining references in this report are all to Title 26, Maine Revised Statutes Annotated. -10- ______________________________________________________________________ remains whether the circumstances surrounding the formation of the unit have changed sufficiently to warrant modification of the unit. The requirement of changed circumstances "is a threshold question on which the petitioner, in a unit clarification proceeding, bears the burden of alleging the requisite change and, further, of establishing the occurrence of said change in the unit then at issue." MSAD No. 14 and East Grand Teachers Assoc., No. 83-A-09, slip op. at 7 (MLRB Aug. 24, 1983), quoting from State of Maine and MSEA, No. 82-A-02, slip op. at 16 (MLRB June 2, 1983)(interim order).[fn]2 The creation of a new job classification normally meets the requirement for changed circumstances, as it is impossible to consider the bargaining unit status of a position before it exists. MSEA and State of Maine Department of Inland Fisheries and Wildlife, Nos. 83-UC-43 and 91-UC-11, slip op. at 8 (MLRB May 4, 1993). Likewise, change of duties in a particular job classification since the formation of the bargaining unit may satisfy the "changed circumstances" threshold, particularly if those changes in duties result in the employee becoming excluded from the definition of a "public employee" under the relevant state labor relations law. State of Maine and MSEA, No. 91-UC-04, slip op. at 13-14 (MLRB Apr. 17, ____________________ 2 Many of the citations in this report involve an interpretation of the Municipal Public Employees Labor Relations Law ("MPELRL") or the State Employees Labor Relations Act ("SELRA"). There has been far fewer cases, either before the Board or the Courts, interpreting the UMSLRA. In many instances, it is appropriate to use precedent involving the MPELRL or the SELRA in interpreting the UMSLRA. Except as noted, the statutory language regarding unit clarification is identical in all three statutes. Cf., e.g., 26 M.R.S.A. 966(3), 979-E(3), and 1024-A(7). The Board Rules regarding unit clarification, such as Chap. 11, Sec. 6(3) of the Board Rules, apply equally to petitions brought before the Board pursuant to any of the state labor relations laws. Finally, the Maine Supreme Judicial Court has found that MPELRL precedent is useful in interpreting cases arising under the UMSLRA, as parts of the statutes are identical. Board of Trustees of the UMS v. Associated COLT Staff, 659 A.2d 842, 844 n.3 (1995). -11- ______________________________________________________________________ 1991). The Board has also heard unit clarification cases involving changes in an employer's organizational structure. City of Bath and Council 74, AFSCME, No. 81-A-01 (MLRB Dec. 15, 1980). Regarding the position of Marine Operations Manager, the parties have agreed that this is a newly-created position in 2002 and that this constitutes a "sufficient change" to warrant consideration of the unit clarification petition (see Stipulation No. 6). It is noteworthy that this new position largely encompasses the duties of a former position, the Director of Waterfront; the latter position was effectively eliminated after the retirement of the person who long-held the position. The Director of Waterfront position was excluded from the bargaining unit by agreement of the parties since the inception of the unit. Despite the similarity between the positions, the employer has agreed to consider the Marine Operations Manager position as part of the Administrative Staff bargaining unit, pending a determination of this petition. Regarding the position of the Commandant/Port Captain, a position that has been in the Administrative Staff bargaining unit since the unit's inception, two changes have occurred to this position. First, sometime after the hiring of the individual who presently serves in the capacity of the Commandant/Port Captain in 2000, the position began to report directly to the Academy President, rather than to the Vice President for Administration and Finance. As argued by the petitioner, this change has placed this position "on par" with the various Vice Presidents and Deans who all report directly to the President and who each serve as a type of "division head" over discrete areas of the Academy (See Exh. No. 3, organizational chart). Second, in 2002, overall supervision and responsibility for the waterfront operations was shifted to the Commandant/Port Captain, when the Marine Operations Manager -12- ______________________________________________________________________ position was created and placed under the supervision of the Commandant/Port Captain. This shift added a third area of management responsibility to the Commandant/Port Captain, to the other two areas that had long been part of this position's management responsibility (Regiment of Midshipmen and the Training Vessel). The duties of this position have changed sufficiently to meet the threshold requirements of 1024-A(7).[fn]3 Regarding the position of Assistant Commandant, the duties of this position have not changed to any significant degree. The Academy's witnesses acknowledged this lack of change or were, at least, hard-pressed to describe any change to the position. When asked whether this position has changed in the last few years, the Director of Human Resources testified: "Has not. Other than all of his job has remained in the commandant's division or commandant's department, if you will. The incumbent that's there has served as company officer, directly involved with the ship's midshipmen, as well as assistant commandant, but for the purposes of what we're talking today with the marines operation, not at all. He has stayed in that area." [Tr. 43] The Assistant Commandant could only state that since the Commandant/Port Captain has been given a third area of management responsibility (over the waterfront area), the Commandant/Port Captain has less time to oversee the Regiment of Midshipmen, thus giving the Assistant Commandant more real responsibility. As he ____________________ 3 It could be said that neither of the changes to the Commandant/ Port Captain position are the type of changes which should trigger a review of the position's placement in the unit. The position remains a supervisory-type position with simply a larger area of supervisory responsibility. However, the hearing examiner believes that the changes to this position (which could also be considered organiza- tional changes at the Academy) are sufficiently substantial under Board precedent to at least warrant a review of whether the position should remain in the unit. -13- ______________________________________________________________________ testified, "My door is now a swinging door with more people coming in" [Tr. 115]. However, the job description of the Assistant Commandant has always included direct oversight and management of the Regiment of Midshipmen. The Assistant Commandant has always been required to act for the Commandant in the Commandant's absence. The duties of the Assistant Commandant have not changed since the creation of the bargaining unit and, without such change, the hearing examiner has no jurisdiction to consider removal of the position from the bargaining unit as part of a unit clarification petition. Cf. Portland Public Library Staff Association and Portland Public Library, No. 88-UC-03 (MLRB June 2, 1988)(merely renaming a position and making minor changes in its duties and responsibilities does not constitute sufficient change to warrant modification). Consequently, in the remainder of the decision, the hearing examiner will address only whether the positions of Commandant/Port Captain and Marine Operations Manager should be removed from the bargaining unit. Statutory exclusions The Academy argues that the position of Commandant/Port Captain should be excluded from the bargaining unit because the position is not a "University, academy or technical college employee" as defined in 1022(11), and thus not a covered employee under the UMSLRA. The UMSLRA contains fewer exclusions from the definition of covered employee than either the MPELRL or the SELRA. The UMSLRA contains the following exclusions: 11. University, academy or technical college employee. "University, academy or technical college employee" means any regular employee of the University of Maine System, the Maine Maritime Academy or the Maine Technical College System performing services within a campus or unit, except any person: A. Appointed to office pursuant to law; -14- ______________________________________________________________________ B. Appointed by the Board of Trustees as a vice-president, dean, director or member of the chancellor's, superintendent's or Maine Technical College System president's immediate staff; C. Whose duties necessarily imply a confidential relationship with respect to matters subject to collective bargaining as between such person and the university, the academy or the Maine Technical College System; or D. Employed in the initial 6 months of employment. Specifically here, the Academy argues that the Commandant/Port Captain is (1) a confidential employee as defined in 1022(11)(C) or (2) is an employee "on par with the Vice President and other exempt employees at the Academy" (Academy's brief at p. 3). The Academy has made no argument that the Marine Operations Manager is excluded from coverage under the UMSLRA, only that this position does not share a community of interest with others in the bargaining unit. In considering the Academy's argument regarding statutory exclusions, the hearing examiner is mindful that such exclusions from coverage under the state collective bargaining laws must be strictly construed. The Board has found that the statutes are remedial in nature, and therefore the exclusions must be narrowly drawn to effectuate the fundamental purpose of the statutes. State of Maine and MSEA, No. 82-A-02, First Interim Order, slip op. at 6 (MLRB June 2, 1983). It is also noteworthy that the UMSLRA has fewer statutory exclusions than either the MPELRL or the SELRA, even though the UMSLRA was enacted after these other state labor laws. For instance, both the MPELRL and the SELRA exclude from the definition of public employee a "department or division head" appointed to office; to be excluded under this definition, the position's primary responsibility must be that of managing or directing the affairs of the department, as opposed either to acting as a supervisor or performing the day-to-day work of the department. Teamsters Local Union No. 48 and Town of -15- ______________________________________________________________________ Wells, No. 84-A-03, slip op. at 6-7 (MLRB Apr. 11, 1984). In many ways, the position of Commandant/Port Captain most nearly fits this type of managerial exclusion. The UMSLRA does not contain such an exclusion, however. The hearing examiner is bound only to consider those exclusions that the Legislature included in the University Act, and those exclusions must be strictly construed. The Academy first argues that the Commandant/Port Captain should be excluded as a "confidential" employee. Section 1022(11) excludes from the definition of Academy employee those persons "Whose duties necessarily imply a confidential relationship with respect to matters subject to collective bargaining as between such person and . . . the academy . . . ." A similarly-worded exception is contained in both the MPELRL, at 962(6)(C), and in the SELRA, at 979-A(6)(C), and it is therefore appropriate to draw upon the Board's precedent regarding this exception in determining the present question. The exception for a confidential employee is not intended to include all employees with access to information considered "confidential" in other contexts. The Board has held: Our standard for the exclusion of 'confidential' employee is that those persons affected are employees who are 'permanently assigned to collective bargaining or to render advice on a regularly assigned basis to management personnel on labor relations matters.' State of Maine and Maine State Employees Association, [Report of Appellate Review of Unit Clarification Report (Mar. 2, 1979)][78-A-09], at 8. As we have noted above, the 'labor relations' matters, in the foregoing context, do not include contract administration actions or duties. Applying Hendricks County, [454 U.S. 170, 102 S.Ct. 216, 70 L.Ed.2d 323 (1980)], to this context, those employees who have, as part of their work responsibilities access to the employer's negotiations positions, in advance of said positions being disclosed at the bargaining table, and who, as an integral part of their job duties, assist and act in a confidential capacity with respect to persons who formulate or -16- ______________________________________________________________________ determine the employer's bargaining positions or bargaining strategy are 'confidential' employees, under Section 979-A(6)(C) of the Act. State of Maine and Maine State Employees Association, No. 82-A-02, Interim Order, slip op. at 10 (MLRB June 2, 1983). The purpose of this exclusion is to avoid situations where employees would be faced with conflicts in loyalty in the collective bargaining context between that owed to the employer and that owed to the bargaining agent. The potential of such a conflict may arise with employees who, as an inherent part of their job duties, have access to the employer's collective bargaining positions and strategies before they are presented at the bargaining table. These collective bargaining ideas, policies or positions, "if disclosed to the bargaining agent, could provide the bargaining agent with unfair leverage or advantage over the public employer." Town of Fairfield and Teamsters Local Union No. 48, No. 78-A-08, slip op. at 3 (MLRB Nov. 30, 1978). The Commandant/Port Captain has never been a member of the Academy's collective bargaining team, and the involvement of this position in collective bargaining strategy has been minimal. The collective bargaining team for the Academy, historically, has been comprised of the Director of Human Resources, the Vice President for Administration and Finance, and the Academy's counsel. When the Commandant/Port Captain was asked whether he was "involved in any consultation back from the [collective bargaining] team," he responded: Well, I have a number of conversations with folks in human resources and with the president and all that, and in and around positions, salaries, benefits like that, I have been brought up to speed I think on a number of situations that have occurred where, you know, where we're at, what's happened and that sort of thing. Nothing that I pass down the line or anything like that, but I have been in, you know, conversations like that. Is that - that's why I say indirect. -17- ______________________________________________________________________ [Tr. at 84]. The Human Resources Director testified as follows about the position's involvement in the collective bargaining process: As part of the collective bargaining process, based on the job descriptions, I, as well as the vice president for administration, would meet with the commandant as well as other department and division heads concerning positions under his control and how those compare internally as well as externally at the Academy. Be that might lead to reimbursement for crew, stipends, those sorts of things, the commandant is involved in management discussions prior to setting down at the table and in-between discussions. [Tr. at 25]. While the testimony was not completely clear on this point, it appears that the Commandant/Port Captain serves as a conduit for information about those positions below him so that such information can be used by the team to formulate collective bargaining strategies. This type of "information providing" does not require the exclusion of an employee as a confidential employee. See State of Maine and Maine State Employees Association, No. 78-A-09 (Mar. 2, 1979)(an employee whose only role related to collective bargaining matters is that of an information provider is not a confidential employee). The Commandant/Port Captain also receives "updates" on the on-going bargaining along with other employees, but these seem occasional and not equal to a confidential strategy session. State of Maine and Maine State Employees Association, supra, slip op. at 8 ("An undefined role in collective bargaining or responsibilities in contract administration are not sufficient to justify exemption from the Act. Nor are occasional or unstructured meetings which smack as much of informational sessions as they do of collective bargaining strategy sessions.") The Academy also cites the extensive supervisory/management -18- ______________________________________________________________________ responsibilities of the Commandant/Port Captain in support of its argument that this is a confidential position. His responsibil- ities include creating search committees and approving the hiring decisions made by these committees, determining initial job descriptions and classifications of any new positions in the areas of his supervision, and interpreting contract provisions such as regards to flex time and cruise pay. However, ultimate authority regarding these matters rests with the Director of Human Resources, the Vice President for Administration and Finance or the President.[fn]4 While the Commandant/Port Captain is charged with enforcing and administering the contract and other Academy personnel policies, the Board has found such duties to constitute "contract administration" which does not confer confidential status. For instance, in State of Maine and Maine State Employees Association, No. 82-A-02, Second Interim Order, slip op. at 8-9 (MLRB Aug. 9, 1983), the Board found that the deputy director of a state agency who advised the director on employee contracts and benefits, was involved in reviewing and determining layoff plans, and who advised the agency grievance officer was not excluded as a confidential employee. Such contract administration duties are often the domain of supervisory employees, yet supervisory employees are granted collective bargaining rights while confidential employees are not. Waterville Police Department and Teamsters Local Union No. 48, 78-A-06, slip op. at 2-3 (Oct. 4, 1978). For these reasons, the hearing officer does not find that the Commandant/Port Captain is a "confidential" position within the meaning of 1022(11)(C) and may not be excluded from the Administrative Staff bargaining unit on that basis. ____________________ 4 For instance, the creation of new positions and the process of hiring is all coordinated through the Office of Human Resources. All hiring decisions must be ultimately approved by the Vice President of Administration and Finance and the President. [Tr. 121-122]. -19- ______________________________________________________________________ The Academy's second argument for statutory exclusion, that the Commandant/Port Captain is "on par" with Vice Presidents at the Academy, needs less lengthy consideration. In creating this bargaining unit, the parties agreed to exclude the five Vice President positions that existed at that time, along with some other positions. The position of Commandant/Port Captain was not excluded. The parties use the term "exempt" to describe those positions excluded by agreement from all three bargaining units at the Academy. However, as has been noted in a previous decision, parties may enter into unit agreements for many reasons; the fact that the parties have agreed to exclude a position does not necessarily mean that said position would be excluded under statute, if that determination were to be made by the Board after hearing. See Town of Topsham and District Lodge #4, IAMAW, Interim Unit Clarification Report, No. 02-UC-01, slip op. at 6 (MLRB Dec. 21, 2001). The only statutory exclusion in the UMSLRA arguably applicable to a managerial position is 1022(11)(B). This exclusion requires that the position be "appointed by the Board of Trustees" as a " . . . vice-president, dean, director or member of the . . . president's immediate staff." By the clear language of the statute, only a position appointed by the Board of Trustees can be excluded. The position of Commandant/Port Captain is not appointed by the Board of Trustees, therefore this exclusion cannot be applied to his position.[fn]5 Whether or not the position is "on par" with a Vice ____________________ 5 The Academy did not argue that the Commandant/Port Captain position was actually appointed by the Board of Trustees, only that the position was "on par" with that of a Vice President. All of the positions at the Academy are "appointed" by the Board of Trustees, many after the fact [Tr. 127]. The Board of Trustees is only truly involved in the search for and appointment of the President and the Academic Dean [Tr. 128]. The MLRB has found that the act of "appointing" implies some sort of formal process; there must be some greater significance or formality to appointments than is the case with the general hiring process. See Teamsters Local 340 and Presque Isle, No. 92-UD-10 (MLRB Aug. 18, 1992) (when city -20- ______________________________________________________________________ President is irrelevant as, by its own terms, the exclusion cannot be applied to the position. For these reasons, the Commandant/Port Captain is not excluded from the definition of "Academy employee" under 1022(11) and may not be removed from the Administrative Staff bargaining unit on this basis. Community of interest The Academy finally argues that the Commandant/Port Captain and the Marine Operations Manager are supervisors and, as such, should not be placed in the same bargaining unit as those employees whom they supervise. The Academy argues that leaving these supervisory positions in the bargaining unit creates inherent conflict of interest, and that these positions do not share a community of interest with the remaining positions in the bargaining unit. The Legislature has not created a supervisory bargaining unit at the Academy and the parties have not petitioned to create such a unit. The effect of the Academy's argument is to remove the positions at issue from any bargaining unit. At the outset of an examination of the Academy's argument, the hearing examiner will first explore whether the statute itself allows such an outcome. The statutory provisions of the UMSLRA on questions of bargaining unit determination and ____________________ charter gives the city council discretion to make one-year appointments to all employment positions in city, this is not "appointment" within the meaning of the MPELRL); Bangor Education Association and Bangor School Committee, No. 80-UC-02 (MLRB Nov. 16, 1979) ("election" of Director of Title I by School Committee insufficient as appointment under 962(6)(B) where no statute, ordinance or resolution was in evidence and all teachers were "elected" in same manner). Since the Academy Board of Trustees "appoints" all positions to the Academy, many after the fact, this cannot be considered a true "appointment" as required by the statute. -21- ______________________________________________________________________ community of interest are very different from similar provisions in either the MPELRL or the SELRA. Neither the MPELRL nor the SELRA describes with specificity the bargaining units that may be created under the law (professional employees, supervisory employees, administrative employees, etc.). Rather, as long as an employee is a "public employee" or "state employee," as defined, proper unit configuration and placement is left to the parties or, if the parties cannot agree, to the executive director. Both the MPELRL and the SELRA provide the same language regarding bargaining unit standards and determination, at 966(1) and 979-E(1): In the event of a dispute between the public employer and an employee or employees as to the appropriateness of a unit for purposes of collective bargaining or between the public employer and an employee or employees as to whether a supervisory or other position is included in the bargaining unit, the executive director or his designee shall make the determination, except that anyone excepted from the definition of [public employee under section 962][state employee under section 979-A] may not be included in a bargaining unit . . . . Both the MPELRL and the SELRA contain similar language regarding bargaining unit compatibility: The executive director of the board or his designee shall decide in each case whether, in order to insure to employees the fullest freedom in exercising the rights guaranteed by this chapter and in order to insure a clear and identifiable community of interest among employees concerned, the unit appropriate for purposes of collective bargaining shall be the public employer unit or any subdivision thereof. 966(2) In order to insure to employees the fullest freedom in exercising the rights guaranteed by this chapter, to insure a clear and identifiable community of interest among employees concerned, and to avoid excessive fragmentation among bargaining units in State -22- ______________________________________________________________________ Government, the executive director of the board or his designee shall decide in each case the unit appropriate for purposes of collective bargaining. 979-E(2) The UMSLRA is structured very differently from either the MPELRL or the SELRA in terms of bargaining unit configuration and compatibility. Only in the UMSLRA did the Legislature create bargaining units by description, citing its intent to "foster meaningful collective bargaining" and to "avoid excessive fragmentation whenever possible." 1024-A(1). For the Academy, the Legislature created only three bargaining units: faculty, administrative staff, and classified employees. The Legislature did not create a supervisory bargaining unit for the Academy, as it did for both the University System and the Technical College System.[fn]6 Unlike either the MPELRL or the SELRA, if the parties cannot agree upon unit placement under the UMSLRA, 1024-A(4) specifically directs the executive director to place covered employees in one of the bargaining units created by the Legislature: In the event of a dispute over the assignment of jobs or positions to a unit, the executive director shall examine the community of interest, including work tasks among other factors, and make an assignment to the appropriate bargaining unit set forth in subsection 1, 2 or 3. Additional bargaining units can be created, but only by petition of the parties to the executive director pursuant to 1024-A(5). In considering such a petition, the executive director must take ____________________ 6 Both the University System and the Technical College System have six bargaining units designated in the Law, including a supervisory unit for each system. The failure to create a supervisory unit for the Academy was, perhaps, due to the relatively small size of the Academy when compared to the other two systems. The specific absence of a designated supervisory bargaining unit for the Academy suggests that supervisory employees, not otherwise excluded by statute, should be placed in one of the three bargaining units designated in the Law. -23- ______________________________________________________________________ into account the community of interest standard and the declared legislative intent to avoid fragmentation whenever possible and to insure employees the fullest freedom in the exercise of the rights guaranteed by the UMSLRA. The Academy here has emphasized that it is not seeking the creation of a separate supervisory bargaining unit, into which these positions could be placed (Academy's brief at p. 14). In addition, supervisory status is treated in a different manner in the UMSLRA. In all of the Maine labor relations laws, supervisors are granted the right to be represented for purposes of collective bargaining (in contradistinction to the National Labor Relations Act). However, in both the MPELRL and the SELRA, whether an employee holds a supervisory position, as defined, is specifically described as a factor in whether or not such position should be excluded from a bargaining unit. See 966(1) and 979-E(1). The Board has long found these statutory provisions to support the creation of a separate supervisory unit, except when a one- or two-person unit would result. In Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, No. 85-A-01, slip op. at 8 (MLRB Feb. 6, 1985), for instance, the Board stated: Section 966(1) does not require the exclusion of supervisory employees from bargaining units composed of the employees whom they supervise but relegates the decision of the supervisory employee's unit status to the sound discretion of the hearing examiner. MSAD No. 14 and East Grand Teachers Association, MLRB No. 83-A-09, at 12 (Aug. 24, 1983). Except in instances where the resulting one- or two-member supervisory unit would contravene our policy of discouraging the proliferation, through fragmentation, of small bargaining units, we have approved the creation of such separate supervisory units. . . . The purpose of creating separate supervisory employee bargaining units is to minimize potential conflicts of interest within bargaining units, between supervisors and their subordinate employees, as well as to lessen conflicts of loyalty for supervisors between duty to their -24- ______________________________________________________________________ employer and allegiance to fellow unit employees. The UMSLRA utilizes the same definition of "supervisory employee" as the MPELRL and the SELRA, but does not utilize this definition in terms of bargaining unit determination by the executive director; rather, the definition correlates to the legislatively- created supervisory bargaining units for both the University and the Technical College Systems, only. The hearing examiner believes that the language of the UMSLRA regarding bargaining unit creation, placement and supervisory status is so different from the language of either the MPELRL or the SELRA that it does not allow the outcome that the Academy seeks here. If an employee (including a supervisory employee) is not statutorily excluded from collective bargaining under the UMSLRA and the parties cannot agree to an appropriate bargaining unit placement, the Legislature has directed the executive director to make a decision regarding bargaining unit placement amongst the units that the Legislature created. Clearly, neither the Commandant/Port Captain nor the Marine Operations Manager should be placed in the faculty or the classified bargaining units at the Academy. Therefore, these positions must remain in the Administrative Staff bargaining unit. If the Academy (or the Association) is not satisfied with this outcome, either party may petition for the creation of a new and more appropriate bargaining unit and the executive director can act upon that petition.[fn]7 Even if the UMSLRA contained similar language to the MPELRL and the SELRA regarding bargaining unit creation, the outcome ____________________ 7 No doubt the parties have, over the years, agreed to exclude from all three of the legislatively-created Academy bargaining units certain employees who might not be found statutorily excluded under the definition of "Academy employee." As stated earlier in this report, the parties may make agreements to unit placement for a variety of reasons--and with results that might differ if the matter were brought to the executive director for decision. -25- ______________________________________________________________________ would not be different here. The Academy's argument that the Commandant/Port Captain and the Marine Operations Managers do not share a community of interest with the other employees in the Administrative Staff bargaining unit clearly rests on the fact that these are both supervisory positions. As supervisors, the Academy argues, the positions perform work dissimilar and distinct from the other unit employees, thus destroying the community of interest and creating conflict of interest.[fn]8 In the face of such argument, the Board has approved the creation of a separate supervisory bargaining unit when a sufficient number of supervisory employees will make up the unit. See, e.g., Town of Kennebunk and Teamsters Local Union No. 48, No. 83-A-01 (MLRB Oct. 4, 1982)(approving the creation of a police supervisory unit consisting of lieutenant and corporals); Teamsters Local Union No. 48 and City of Saco, No. 80-UD-34 (MLRB June 20, 1980) (approving unit of police captains). In other cases, when faced with the prospect of a one- or two-member bargaining unit, the Board's policy of discouraging the proliferation of small bargaining unit has been considered, and a supervisory employee included in the same bargaining unit as those whom they supervise. See, e.g., MSAD No. 14 and East Grand Teachers Association, No. 83-A-09 (MLRB Aug. 24, 1983)(leaving principal in certified professional bargaining unit); Lubec Education Association/MTA/NEA and MSAD No. 19 Board of Directors, No. 83-UD-17 (MLRB Apr. 13, 1983)(including the head bus driver in the ____________________ 8 There are several factual problems with this argument. For example, none of the Academy witnesses could produce a single instance of actual conflict that has been created by the fact that the Commandant/Port Captain and the Marine Operations Manager are supervisors in the same bargaining unit as some of the employees whom they supervise. In addition, the bargaining unit has long contained a wide variety of positions, including supervisory positions in addition to the positions of Commandant/Port Captain and the Marine Operations Manager. For purposes of argument, however, the hearing examiner will assume that the supervisory nature of these positions undermines the community of interest. -26- ______________________________________________________________________ educational support staff bargaining unit); and Council 74, AFSCME and Rockland Waste Water Treatment Facility, No. 82-UD-03 (MLRB Aug. 12, 1981)(including the chief operator in the facility bargaining unit). The Board has never, to this hearing examiner's knowledge, approved what the Academy seeks here--the removal of one or two supervisors from a bargaining unit when no supervisory bargaining unit is available for their placement and none is being sought. The hearing examiner believes that this outcome would not be approved by the Board, even under the MPELRL or the SELRA. CONCLUSION The Petition for Unit Clarification filed on October 2, 2002, by Leonard Tyler, President of the Maine Maritime Academy, seeking a determination whether the positions of Commandant/Port Captain, Assistant Commandant, and Marine Operations Manager should be excluded from the Administrative Staff bargaining unit, is denied. These positions will remain as part of the presently- configured bargaining unit. Dated at Augusta, Maine, this 21st day of January, 2003. MAINE LABOR RELATIONS BOARD /s/_________________________ Dyan M. Dyttmer Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4), to appeal this report to the Maine Labor Relations Board. To initiate such an appeal, the party seeking appellate review must file a notice of appeal with the Board within fifteen (15) days of the date of issuance of this report. See Chapter 10 and Chap. 11 30 of the Board Rules. -27- ______________________________________________________________________