Case No. 03-UC-04
                                      Issued:  October 29, 2003   

               Petitioner,         )    
                                   )     UNIT CLARIFICATION     
     and                           )           REPORT
TOWN OF FAIRFIELD,                 )
               Public Employer.    )

                       PROCEDURAL HISTORY

     This unit clarification proceeding was initiated on May 27,
2003, when Kenneth Eaton, Recording Secretary and Business Agent
for the Teamsters Local Union No. 340 ("Teamsters" or "union"),
filed a Petition for Unit Clarification with the Maine Labor
Relations Board ("Board") for a determination whether the
position of Assistant Treasurer[fn]1 should be added to the Town
of Fairfield clerical bargaining unit pursuant to 26 M.R.S.A.
 966(3) of the Municipal Public Employees Labor Relations Law
("MPELRL").  On June 11, 2003, the Town of Fairfield ("town")
filed a timely response to this petition, arguing that the
position should be excluded from the bargaining unit as a


     1 The position in question is identified in the petition as an
"Assistant Treasurer."  In response, the town has maintained that the
position is an "Assistant Treasurer/Human Resources Director."  This
confusion stems from the fact that the position was titled the
"Assistant Treasurer" when the position was advertised, but was later
titled the "Assistant Treasurer/Human Resources Director" in the final
job description, created after the hiring of the incumbent (Exh. No.
U-5).  The title itself is essentially irrelevant; the hearing
examiner must instead examine the duties of the position as of the
date of the hearing.  Therefore, while acknowledging that the full
title of the position is "Assistant Treasurer/Human Resources
Director," the hearing examiner will refer to the position as
"Assistant Treasurer" for the remainder of this report, for ease of
reference only.

"confidential" employee within the meaning of 26 M.R.S.A.
     A hearing notice was issued on June 24, 2003, and was posted
for the benefit of affected employees.  The hearing examiner
conducted a prehearing conference by telephone in this matter on
August 8, 2003.  The Prehearing Conference Memorandum and Order
is incorporated herein by reference.
      The hearing was conducted on August 28, 2003.  The union
was represented by Kenneth Eaton.  The town was represented by
Matthew Tarasevich, Esq.  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 union, Pamela Perro, former Tax Clerk, and
Gloria Blanchet, Tax Clerk; for the town, Paul Blanchette, Town
Manager.  Written closing arguments for both parties were
submitted by September 22, 2003.

     The jurisdiction of the executive director or his designated
hearing examiner to hear this matter and make a determination
lies in 26 M.R.S.A.  966(1) and (3).  The subsequent references
in this Report are all to Title 26, Maine Revised Statutes
     The parties stipulated to the following facts:

     1.  Deputy Treasurer and Deputy Tax Collector was a
recognized bargaining unit position in the collective bargaining
agreements (pre-2001) until the current agreement (2001-2004). 
It was mutually agreed upon in successor agreement negotiations
to change/strike reference to Deputy Treasurer and Deputy Tax
Collector and replace it with Tax Clerk.


     2.  Copies of all documents will serve in lieu of originals.
     3.  Paul Blanchette was Executive Head of the Town of
Fairfield on January 3, 2003, and at all relevant times hereto,
pursuant to 26 M.R.S.A.  962(6)(C) and 30-A M.R.S.A.  2636.

     The following union exhibits were introduced without
objection of the town:

     Exhibit No.    Title/Description

          U-3       Assistant Treasurer job advertisement
          U-5       Letter dated April 29, 2003, from Paul
                    Blanchette to Kenneth Eaton with attached 
                    job description for Assistant Treasurer/
                    Human Resources Director
          U-6       Report of Appellate Review of Unit
                    Determination Hearing, dated November 27,

     The following town exhibits were introduced without
objection of the union:

     Exhibit No.    Title/Description

          R-1       Copy of 2001-2004 Collective Bargaining
          R-2       Job Description of Town of Fairfield
                    Assistant Treasurer/Human Resources Director
          R-3       Copy of 1998-2001 Collective Bargaining

     The following union exhibits were introduced despite the
objection as to relevance of the town:

     Exhibit No.    Title/Description

          U-1       Assistant Treasurer job description dated
                    August 5, 2002
          U-2       Assistant Treasurer job description dated
                    December 10, 2002


          U-4       Letter dated December 13, 2002, from Susan
                    Carey to Pamela Perro with attached job
                    description for Tax Clerk

                        FINDINGS OF FACT

     1.  The union was certified as the bargaining agent for the
Town of Fairfield clerical bargaining unit in 1979.  At that
time, the unit consisted of three positions:  Social Worker,
Deputy Treasurer/Deputy Tax Collector and Deputy Tax Collector.
     2.  In 1998, the parties filed an Agreement on Appropriate
Bargaining Unit with the Board agreeing that the following
positions were in the unit:  Deputy Tax Collector, Deputy
Treasurer, and Tax Clerk.
     3.  The three positions in the bargaining unit have
performed some distinct duties, which have changed over time. 
For instance, the Tax Clerk performed accounts payable duties for
the town from about 1992 to 2002.  The Deputy Treasurer did the
town payroll for many years until about 2001, when the function
was given to a payroll company. 
     4.  The three positions in the bargaining unit have also
performed some similar, interchangeable duties such as serving
citizens who come to the town office, issuing licenses and
registrations, and accepting tax payments.
     5.  In the most recent collective bargaining agreement,
effective July 1, 2001, to June 30, 2004, the recognition clause
was altered to describe the bargaining unit as consisting of all
"clerical" positions in the town.  After this, all three
positions became known as "Tax Clerks" and were placed on the
same (highest) pay scale.
     6.  In addition to the three Tax Clerks, the following non-
bargaining unit positions were employed at the town office prior
to the hire of the Assistant Treasurer:  Town Manager, Town
Clerk, Treasurer, Assessor, and Assistant Assessor/Assistant Town


     7.  In 2002, the town auditor recommended that additional
office staff was needed, specifically an assistant for the
Treasurer.  Funding for the position was approved by vote at the
town meeting in May, 2002.
     8.  In creating a list of job duties for the prospective
Assistant Treasurer, the Town Manager and the Treasurer decided
that the accounts payable function (performed at that time by a
Tax Clerk) would be given to the new position.  Although the Tax
Clerk who performed this function was assured that her position
would be preserved even if the accounts payable function were
removed, she resigned from her position.
     9.  Another Tax Clerk was hired to replace the Tax Clerk who
resigned.  Despite the hiring of a new Assistant Treasurer and
the shifting to this position of some Tax Clerk job functions,
the Town continues to employ three Tax Clerks.
    10.  The Assistant Treasurer position was first advertised in
August, 2002.  At that time, the proposed job description
included some of the following duties:  supervising office
support staff (the Tax Clerks), monitoring expenditures and
issuing checks, forecasting town revenues, assisting the
Treasurer in managing cash investments, and performing other
related fiscal functions (Exh. U-2).
    11.  The Town Manager did not receive r,sum,s from applicants
he deemed acceptable after the position was first advertised. 
The position was advertised again later in the fall of 2002.  The
town manager found the resumes received at this point more
acceptable and an incumbent was hired, with a start date of
January 6, 2003.
    12.  The job description for the Assistant Treasurer position
was re-drafted several times between August, 2002, and April,
2003, when a final version was created (Exh. No. U-5).  The final
job description added the title of "Human Resources Director" to 


the position title of "Assistant Treasurer."  The final job
description also added a variety of human resources duties
including recruiting and assisting in the selection of employees,
maintaining employee records (insurance coverage, pension plans),
maintaining collective bargaining notes, positions, and
negotiation materials, analyzing existing benefit policies, and
notifying employees of changes in benefit plans.
    13.  Since her hire in January, 2003, the new Assistant
Treasurer has performed the following fiscal duties:  performed
accounts payable functions, assisted the Treasurer in her fiscal
duties, and (since April, 2003) done the town payroll.  The Town
Manager decided to return the payroll function to a town employee
as a money-saving measure.
    14.  In addition, the Assistant Treasurer has acted as a
supervisor to the Tax Clerks.  She participated in the hiring and
subsequent firing of one Tax Clerk.
    15.  The Assistant Treasurer has performed the following
human resources duties since her hire:  completed paperwork for
new hires, answered benefit questions from employees, and
maintained the vacation/sick time books.  These are all functions
previously performed by the Treasurer, although the Treasurer did
not hold the title "Human Resources Director."
    16.  Since the Town Manager's hire in March, 2000, he has
participated in the negotiation of collective bargaining agree-
ments for all four organized bargaining units in the Town: 
police (two agreements), fire (two agreements), public works (one
agreement), and clerical (one agreement).  When he was hired, he
could not find copies of any of the collective bargaining
agreements on computer hard drive or disk.  The Town Manager
typed all of the collective bargaining agreements on the word
processing program of his computer and stored them there for
future negotiations.


    17.  The negotiating team for the town has consisted of the
Town Manager and two of the Town Councillors.
    18.  Until the hire of the Assistant Treasurer, the Town
Manager did most of his own typing.  He typed documents related
to collective bargaining, including the agreements, proposals and
strategy memos.  The Town Manager did not use the Town Clerk to
perform this function because he did not find her secretarial
skills sufficient.  Since the hiring of the Assistant Treasurer,
the Town Manager has decided to use her to perform some
secretarial duties for him, including secretarial duties relating
to collective bargaining.  The Town Manager decided to use the
Assistant Treasurer in this fashion because of his increased work
load and because of her skills.
    19.  The Assistant Treasurer is the only town employee whom
the Town Manager uses to perform these collective bargaining
    20.  Since the hiring of the Assistant Treasurer, the town
has negotiated two collective bargaining agreements, one with the
police bargaining unit and one with the firefighters bargaining
unit.  The negotiations for each began in February and ended in
May-June, 2003.  In each case, the Assistant Treasurer typed some
of the town proposals and strategy memos.  The Town Manager also
typed some of the documents himself.  The Town Manager consulted
with the Assistant Treasurer about the town's positions on such
items as health insurance and wages.  The Assistant Treasurer
helped formulate the town proposals, strategies and counter-
proposals.  The Assistant Treasurer attended a caucus with the
town negotiating team after one negotiating session.
    21.  The Assistant Treasurer alone has access to the Town
Manager's computer, office, and files, including all confidential
material contained therein.  They have adjoining offices.
    22.  The Town Manager and the Assistant Treasurer have had
preliminary discussions about the Town's positions in the  


negotiations for the clerical bargaining unit which will take
place in 2004. 
     The parties stipulated that the various threshold require-
ments for a unit clarification petition, defined in  966(3), are
present in this matter.  Specifically, the parties stipulated
that the creation of the Assistant Treasurer position is a
sufficient change in the circumstances surrounding the formation
of the clerical bargaining unit to warrant consideration of the
modification to the unit proposed.  As the Assistant Treasurer
position was created in 2002, the unit clarification proposed
could not have been raised prior to the close of bargaining
agendas for the 2001-2004 collective bargaining agreement. 
Further, the parties stipulated that they are unable to agree on
appropriate modifications to the bargaining unit and there is no
question concerning representation.  Therefore, the Board has
jurisdiction to consider this unit clarification petition.
     The sole argument raised by the employer is that the
Assistant Treasurer position is a "confidential" position, and
therefore not a "public employee" within the meaning of the
MPELRL.  Section 962(6)(C) provides that "public employee" means
any employee of a public employer, except any person:
     C.  Whose duties as deputy, administrative assistant or
     secretary necessarily imply a confidential relationship
     to the executive head, body, department head or
     division head.

The exception for a confidential employee is not intended to
exclude 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)][No. 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
     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).     
     In addition, the Board has held that "[i]n many if not most
cases, 'confidential' supervisory employees need access to at
least one 'confidential' clerical employee, in order to carry out
their 'confidential' duties."  State of Maine and Maine State
Employees Association, No. 82-A-02, slip op. at 28.  This 


decision was rendered over 20 years ago, however, prior to the
present state of technology which enables many confidential
supervisory employees to efficiently handle most of their own
correspondence and reports.  As a hearing examiner has more
recently suggested regarding the Board's position on the need for
confidential clerical assistance:

     The Board's position . . . is a statement of fact
     rather than a statement of policy.  It is simply a
     recognition that confidential supervisory employees may
     need a confidential clerical support person.  It does
     not suggest that the confidential supervisory employee
     has any particular entitlement to a confidential
     clerical support person.

Lewiston Food Service Manager Ass'n/MEA/NEA and Lewiston School
Committee, No. 99-UD-10, slip op. at 24-25 (MLRB May 27, 1999). 
      As a final consideration, the statutory language requires
that the duties of the position "necessarily imply" a
confidential relationship.  Using this language, other hearing
examiners have denied the exclusion of employees where the
employer has placed excessive numbers of bureau chiefs from the
same department on the bargaining team, or where the employer has
given minimal confidential secretarial duties to an employee who
did not previously have a confidential relationship with the
employee's superior.  AFSCME, Council 93 and Town of Sanford, No.
92-UD-03, slip op. at 38-39 (Feb. 21, 1992); Lincoln Sanitary
District and Teamsters Union Local No. 340, No. 92-UC-02, slip
op. at 13-15 (Nov. 17, 1992).  The Board has found that employers
should make an affirmative effort to centralize confidential
functions, to the maximum extent practicable.  State of Maine and
Maine State Employees Association, No. 82-A-02, slip op. at 19-
     In the present matter, there is no question that the Town
Manager is a confidential employee.  The Town Manager is, along
with two Councilmen, a member of the negotiating team for the 


Town and thus is involved in all aspects of collective bargaining
for the town.  The Town Manager is the ultimate supervisor of all
town employees.  He is therefore permanently assigned to
collective bargaining matters, having complete access to the
town's collective bargaining positions and labor relations policy
decisions.  The parties have also stipulated that he is the
"executive head" of the town, as defined in  626(6)(C).  
     The question remains whether the Assistant Treasurer serves
as a "confidential" clerical employee to the Town Manager.  The
uncontradicted testimony of the Town Manager was that the
Assistant Treasurer serves in this role.  The Town has negotiated
two collective bargaining agreements since the hiring of the
Assistant Treasurer.  In bargaining both these agreements, the
Town Manager used the Assistant Treasurer to type confidential
documents, such as contract proposals and strategy memos.  The
Assistant Treasurer, alone, has access to files and to the Town
Manager's computer, both of which contain confidential
information related to the town's collective bargaining
positions.  Further, the Assistant Treasurer performed some tasks
relating to collective bargaining that went beyond the role of
simply a clerical to the Town Manager.  The Town Manager and the
Councilmen who made up the town bargaining team consulted with
the Assistant Treasurer in formulating town strategies, proposals
and counter-proposals.  She also attended one caucus during the
     The union here does not so much dispute that the Assistant
Treasurer, in fact, performs these confidential functions as
questions the motive of the Town Manager in giving her these
functions.  Before the hiring of the Assistant Treasurer, the 

     2 An employee who simply serves as an "information provider" is
not necessarily a confidential employee.  State of Maine and Maine
State Employees Association, No. 78-A-09, slip op. at 8 (Mar. 2,
1979).  The Assistant Treasurer served as more than an information
provider; she helped to formulate strategies and proposals.


Town Manager performed most of his own typing; he typed the
town's confidential collective bargaining proposals and related
documents, including the typing of all four town collective
bargaining agreements into his computer when he could not locate
them in this format.  In addition, the job description for the
Assistant Treasurer position expanded a great deal from when it
was originally conceived and advertised in August, 2002 (Exh. No.
U-1) to when the final job description was created in April,
2003, several months after the Assistant Treasurer was hired
(Exh. No. U-5).  The position went from being "Assistant
Treasurer," performing solely fiscal functions, to being
"Assistant Treasurer and Human Resources Director," performing
additional human resources functions, including those related to
collective bargaining as already described.  These facts
certainly caused the hearing examiner to carefully consider the
union's argument regarding motive and whether the confidential
duties performed by the Assistant Treasurer are an inherent part
of her job duties and responsibilities.
     Ultimately, however, the union never undermined the town's
explanation of these facts.  The Town Manager testified, without
contradiction, that his job duties have increased over time and
that he decided that he needed assistance with clerical
functions.  He further testified that he did not previously use 
the Town Clerk in this role because he did not think that her
skills were adequate to the task (Tr. at 84).  The Assistant
Treasurer had clerical skills and some background in human
resources, and the Town Manager therefore decided to rely on her
in this manner.  The facts in this case are in sharp contrast to
the facts in Lincoln Sanitary District and Teamsters Union Local
No. 340, No. 92-UC-02 (MLRB Nov. 17, 1992).  In Lincoln Sanitary,
the district superintendent often performed his own clerical
work, maintained exclusive access to his confidential files and
computer, and did not generally maintain a confidential work 


relationship with the clerical employee in question, a secretary-
bookkeeper.  The employer in Lincoln Sanitary established that
the secretary-bookkeeper had typed only one truly confidential
document, a summary of the employer's collective bargaining
strategy.  Here, the Assistant Treasurer and the Town Manager
have a confidential work relationship, the Assistant Treasurer
has full access to confidential information, and has typed and
handled a significant number of documents relating to the
employer's collective bargaining strategy.  She has even helped
to develop some of these documents.
     The union further argues that the town should be made to
"consolidate" the confidential function, such as by having the
Town Clerk or some other position already excluded from the
bargaining unit perform the confidential work now being performed
by the Assistant Treasurer.[fn]3  While the Board has suggested that 
an employer should make an affirmative effort to "centralize" the 
confidential function to the maximum extent practicable, this 
related to the "passive diffusion" of labor relations and 
collective bargaining functions throughout various departments 
of state government.  State of Maine and MSEA, No. 82-A-02, slip 
op. at 19-20.   The hearing examiner does not believe that this 
language empowers her to direct which employee an employer must 
select to perform confidential duties in a case such as this, 
when only one employee is being so used. 
     The union also argues that the Assistant Treasurer performs
many of the same tasks that were previously performed by the 

     3 In its brief, the union argues that the confidential duties now
performed by the Assistant Treasurer (typing of bargaining proposals
and agreements) were performed by the Town Clerk--a position excluded
from the bargaining unit--and that these functions should be returned
to the Town Clerk.  Union's Brief at p. 1.  The present Town Manager
has not used the Town Clerk to perform these confidential duties since
his hire in 2000 (Tr. at 67).  The record was unclear whether the Town
Clerk ever performed such duties, perhaps for a former Town Manager
(Tr. at 30, 58).  The hearing examiner can only consider the duties as
presently performed by the positions in question.


bargaining unit Tax Clerks and that, therefore, this either
establishes that the Assistant Treasurer position shares a
community of interest with the bargaining unit or that the
"bargaining unit work" should be returned to the unit.  Union's
Brief at 1, 3.  The Assistant Treasurer does, in fact, perform
duties formerly performed by the Tax Clerks, such as accounts
payable and payroll, in addition to her other duties.  This fact
may support a finding of community of interest, in some cases. 
The hearing examiner need not examine community of interest here,
however, because the position must be excluded as confidential. 
The law is clear that if a position falls within a statutory
exclusion of  962(6), the position is excluded from the coverage
of the collective bargaining law and may not be included in any
bargaining unit.   966(1).  The hearing examiner has no
authority to "return" work to a bargaining unit, per se.  In
this, the union protests too much, as the number of bargaining
unit positions has remained constant for years.  The work of the
town has apparently increased sufficiently to continue to require
the employment of three Tax Clerks and to hire a new Assistant
Treasurer as well.
     For these reasons, the hearing examiner finds that the
newly-created position of Assistant Treasurer is a "confidential"
employee within the meaning of  962(6)(C) and, excluded from the
definition of "public employee" in the MPELRL, may not be
included in a bargaining unit.                              

     The union's petition for unit clarification is denied. 
The position of Assistant Treasurer shall be excluded from the
Fairfield clerical bargaining unit because the position is a
confidential employee within the meaning of 26 M.R.S.A.

Dated at Augusta, Maine, this 29th day of October, 2003.

                                MAINE LABOR RELATIONS BOARD

                                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.