Reversing, in part, No. 03-UC-02, Jan. 21, 2003. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 03-UCA-01 Issued: May 15, 2003 ____________________________________ ) MAINE MARITIME ACADEMY, ) ) Appellant, ) ) DECISION AND ORDER ON and ) UNIT CLARIFICATION ) APPEAL MAINE STATE EMPLOYEES ASSOCIATION, ) ) Appellee. ) ____________________________________) Maine Maritime Academy filed this unit clarification appeal on February 3, 2003, pursuant to 26 M.R.S.A. 1028(2) of the University of Maine System Labor Relations Act (the "Act") and Chapter 11, 30 of the Rules and Procedures of the Maine Labor Relations Board ("Board"). The unit clarification report which is the subject of this appeal was issued on January 21, 2003, following an evidentiary hearing on the Academy's petition. In the unit clarification proceeding, the Academy sought a deter- mination that the positions of Commandant/Port Captain, Assistant Commandant, and Marine Operations Manager should be excluded from the existing Administrative Staff bargaining unit. The Maine State Employees Association ("MSEA"), the recognized bargaining agent for the Administrative Staff bargaining unit, objected to the employer's petition. The hearing examiner concluded that there was no basis for removing any of the three positions from the existing unit. The employer appeals that decision. After providing the parties the opportunity to submit written briefs, the Board met March 27, 2003, to hear oral argument. Thomas Johnston, Esq., represented the Maine Maritime Academy and Timothy Belcher, Esq., represented the Maine State Employees Association. At oral argument, the Academy withdrew its appeal with respect to the Assistant Commandant and the [-1-] _____________________________________________________________________________ Marine Operations Manager. After reviewing the decision below and the record of evidence before the hearing examiner, we reverse in part and hold that the Commandant/Port Captain must be excluded from bargaining under section 1022(11)(B) of the Act. JURISDICTION The Maine Maritime Academy is an aggrieved party within the meaning of 26 M.R.S.A. 1028(2) and the Maine State Employees Association is the bargaining agent within the meaning of 26 M.R.S.A. 1022(1-B) for the Administrative Staff bargaining unit at the Academy. The jurisdiction of the Maine Labor Relations Board to hear this appeal and to render a decision lies in 26 M.R.S.A. 1028(2). STANDARD OF REVIEW The standard of review used to evaluate a hearing examiner's findings of facts and conclusions of law is that they will be overturned if they are "unlawful, unreasonable, or lacking in any rational factual basis." City of Bath and Council 74, AFSCME, No. 81-A-01 (Dec. 15, 1980), at 6; Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, AFT, No. 85-A-01 (Feb. 6, 1985), at 2; Topsham and Local S/89 District Lodge #4, IAMAW, No. 02-UCA-01 (Aug. 29, 2002). DISCUSSION The Act governing collective bargaining at the Maine Maritime Academy, the University of Maine System, and the Maine Technical College System, covers all regular employees except those who are: A. Appointed to office pursuant to law; B. Appointed by the Board of Trustees as a vice-president, dean, director or member of the chancellor's, superintendent's or Maine Technical -2- _________________________________________________________________ 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. 26 M.R.S.A. 1022(11). The primary issue raised in this appeal is whether the Commandant/Port Captain, Jeffrey Loustaunau, is excluded from the definition of Maine Maritime Academy employees covered by the Act. If the Commandant/Port Captain is excluded from coverage, he must be removed from the Administrative Staff bargaining unit. The Academy argues that the Commandant/Port Captain is equivalent to a vice-president excluded under paragraph B and that he is also a confidential employee within the meaning of paragraph C. The employer argues in the alternative that the Commandant/Port Captain should be removed from the unit because he does not share a community of interest with the other unit employees. There is very little Board case law on unit issues under the University Act, as the Board has only been called upon to decide a substantive unit issue under it on one prior occasion. AFSCME and MSEA and Univ. of Maine, No. 77-A-04 (Feb. 24, 1977) (affirming hearing examiner's community of interest analysis for Police Unit and the inclusion of police sergeant). Although not holding the same precedential value as Board decisions, two hearing examiner reports have addressed the scope of the confidential employee exclusion contained in section 1022(11)(C). Maine Teachers Assoc. and Teamsters and Univ. of Maine, Nos. 80- UD-10 & 80-UD-12, May 16, 1980) (excluding certain secretaries to Academic Deans) and MSEA and Maine Maritime Academy, No. 82-UD-04 (Jan. 22, 1982) (excluding the Executive Secretary to the -3- _________________________________________________________________ Superintendent).[fn]1 This is the first case heard by either the Board or a hearing examiner on the meaning of the exclusion contained in section 1022(11)(B). The plain meaning of section 1022(11)(B) is to exclude the employer's top management positions from coverage of the Act.[fn]2 This conclusion is readily apparent from the language of the exclusion and a comparison with Maine's other collective bargain- ing laws. At the time the University Act was enacted in 1976, the Municipal Public Employees Labor Relations Law had been in operation for seven years. P.L. 1969, c. 424. That Act excludes department heads, division heads, school superintendents and assistant superintendents, as well as elected officials and certain political appointees. 26 M.R.S.A. 962(6). Those positions constitute the top management group in Maine's cities, towns and school systems. Similarly, the State Employees Labor Relations Act, effective in 1974, also excludes political appointees, department heads and division heads.[fn]3 P.L. 1973, c. 774. When the Legislature extended collective bargaining rights to Maine's higher education institutions, it excluded the top management group at those entities in a similar fashion, using the terminology customary in academia of vice- president, dean and ____________________ 1 In addition, Board hearing examiners have issued unit determin- ation reports in three other University cases, two of which concerned faculty units (AFUM and Univ. of Maine, No. 77-UD-02, and Law Faculty Assoc. and Univ. of Maine, No. 77-UD-03, both issued Aug. 4, 1978), and one creating the service and maintenance bargaining unit (Teamsters and MSEA and Univ. of Maine, Nos. 78-UD-18 & 78-UD-19, Feb. 1, 1978). 2 It also excludes members of the president's or chancellor's immediate staff. 3 The State Act has been amended a number of times since 1976 to exclude, for example, "major policy-influencing positions" designated in statute, departmental personnel officers, and attorneys working in the Department of the Attorney General. See, 26 M.R.S.A. 979-A(6). -4- _________________________________________________________________ director to describe the top management group.[fn]4 The hearing examiner correctly stated that to be excluded under section 1022(11)(B), one must be "appointed by the Board of Trustees" as a "vice-president, dean, director or member of the . . . [Academy President's][fn]5 immediate staff." (Decision at p. 20). The hearing examiner found that the Board of Trustees was not involved in hiring Mr. Loustaunau other than approving his hire after the fact, and that this was not sufficient to meet the appointment requirement of subsection 11(B). In the absence of any Board decision providing guidance, she correctly concluded that she must apply the statute as written and give meaning to all of its words. We conclude, however, that the hearing examiner made a legal error in that conclusion because she focused on the facts surrounding the initial appointment of the Commandant/Port Captain in April of 2000, rather than on the subsequent change that was the basis of the employer's unit clarification petition. Section 1024, subsection 7 of the Act enables either party to file a unit clarification petition, . . . 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 . . . . The employer's petition to have the Commandant/Port Captain excluded was based on the change in the position that occurred in 2002 after the former Director of Waterfront Services retired. ____________________ 4 P.L. 1975, c. 603, eff. 7/1/76, enacted 26 M.R.S.A. c. 12 granting collective bargaining rights to University of Maine employees. P.L. 1975, c. 671, eff. 10/1/76, amended the Act to cover employees of the Maine Maritime Academy. The terms used to describe the top management group did not change. 5 Section 1022(11)(B) still refers to the Academy President as the "superintendent," the position title when the Act was amended to cover Maine Maritime Academy. -5- ______________________________________________________________________ It is this expansion of the job that the employer contends warrants modification of the unit because, when combined with other changes made over the years, it establishes that the position is a top management position equivalent to a vice- president. If that is the basis for the exclusion, it makes no sense to focus on whether the Trustees appointed Mr. Loustaunau when he was initially hired. The hearing examiner found that there was a significant realignment of responsibilities following the retirement of the Director of Waterfront in 2002. Rather than filling that position and having it continue to report to the Vice President for Administration and Finance, the position of Marine Operations Manager was created which reported to the Commandant/Port Captain instead. Prior to this change, the Commandant/Port Captain was responsible for the Regiment of Midshipmen and the Academy's primary training vessel, the 500-foot State of Maine. After the change, the Commandant/Port Captain also assumed overall responsibility for all aspects of the waterfront operations, including the boat acquisition program and the maintenance and operation of the 75 boats on the waterfront. The hearing examiner's findings on this matter merely state that "the Academy" made these changes, without specific reference to the involvement of the Trustees. Because we consider the 2002 change to be the operative event in this case, we have reviewed the record for evidence regarding those changes. The Vice President for Administration and Finance testified that the decision to expand the responsibilities of the Commandant/Port Captain was made by the President and the Board of Trustees together. We consider this level of involvement by the Trustees to be sufficient to meet the appointment requirement given the particular circumstances of this case. We do not think it is necessary for the Board of Trustees to have formally appointed Mr. Loustaunau to a position he already held, simply because the -6- _________________________________________________________________ responsibilities of that position were expanded. For these reasons, we disagree with the hearing examiner's conclusion that the Commandant/Port Captain cannot be excluded because he was not "appointed by the Board of Trustees" as required by subsection (11)(B). We do agree with the hearing examiner's observation that for the appointment requirement to have any meaning, there must be some greater significance to the appointment than is the case with the general hiring process. We note with approval other hearing examiners' rejection of employer attempts to use the literal language of statutory exclusions to deny collective bargaining rights on a broad basis. See, e.g., AFSCME and MSEA and Univ. of Maine, Nos. 77-UD-10 & 11, at p. 7 (P&SL 1865, ch. 532, authorizing University to hire various personnel not sufficient to exclude campus police officers as persons "appointed pursuant to statute" under section 1022(11)(A) as it would be inconsistent with obvious purpose of statute); Teamsters and City of Presque Isle, No. 92-UD-10 (Aug. 18, 1992), p. 21 (Cannot nullify law granting municipal employees collective bargaining rights by allowing towns to exclude all employees under section 962(6)(B) simply by passing ordinances making all appointments for fixed terms.) In the present case, there is no suggestion that the employer is attempting to stretch the meaning of "appointment" to exclude someone who should not be excluded. The Union argues, with merit, that the Academy decided for itself what hiring process to use for this top management group and should not be allowed to avoid the consequences of its own failure to have the Trustees make the appointments. We agree in principle but conclude that given the particular circumstances of this case, the Trustees were sufficiently involved in the reorganization of responsibilities to satisfy the "appointed by the Board of Trustees" element of the section 1022(11)(B) exclusion. The hearing examiner did not discuss whether the -7- _________________________________________________________________ Commandant/Port Captain was "on par with" the Academy's vice presidents because she concluded the appointment requirement of the subsection (11)(B) exclusion was not met. We have reviewed the hearing examiner's findings and the record and conclude that the Commandant/Port Captain held a top management position equivalent to the "vice president, dean or director" roles specified in the statute. Although the exclusion of the top administrators from the collective bargaining act covering the Academy is significantly different than the department head exclusion under the Municipal Act,[fn]6 there are certain principles in common. The most important is that, regardless of the job title, the inquiry must focus on the actual function of the position at issue. AFSCME v. Town of Paris, No. 97-UD-14 (Oct. 1, 1997), at 10, (department head or division head exclusion under the Municipal Act depends on the primary function of the position, not the job title); Teamsters and Town of Wells, No. 84-A-03 (Apr. 11, 1984), aff'd sub nom. Inhabitants of the Town of Wells v. Teamsters Local Union No. 48, CV-84-235, York Sup. Ct. (Feb. 28, 1985) (department head status based on primary responsibility of position). In the present case, the evidence shows that the Commandant/Port Captain is responsible for a very significant part of the Academy's overall mission and is the functional equivalent of a vice president.[fn]7 There are two primary components to the Academy's educational mission: the academic component and the practical training component. As is the case at higher education institutions generally, the Academic Dean/Provost is the top management position with overall responsibility for the academic ____________________ 6 26 M.R.S.A. 962(6)(D) excludes any person "Who is a department head or division head appointed to office pursuant to statute, ordinance or resolution for an unspecified term by the executive head or body of the public employer." 7 The fact that his job title does not include the words "vice president," "dean" or "director" is immaterial. -8- _________________________________________________________________ component of the Academy's mission. Similarly, the Commandant/ Port Captain is the top management position at the Academy with overall responsibility for the practical training component. The practical training component includes the Regiment of Midshipmen itself, the required cruise on the training vessel State of Maine, as well as the hands-on training regarding various boat operations, seamanship and waterfront operations. With respect to budgetary and asset management issues, the Commandant/Port Captain's responsibilities are substantial. He has overall responsibility for maintenance and operation of about 75 vessels including the 500-foot training ship, the 88-foot schooner Bowdoin, the research vessel, the tug, and many other types of smaller craft used in training the students. The Commandant/Port Captain's total budget is $1.6 million. The number of employees in his areas of responsibility ranges from 40 up to 60 during the summer months. He is the Commandant of the Regiment of Midshipmen, a disciplined, military-style program required for majors leading to a U.S. Coast Guard unlimited license.[fn]8 There are 415 students enrolled in the regiment division out of a total enrollment at the school of 719. The Commandant/Port Captain's function as one of the Academy's top managers is also demonstrated by the fact that he reports directly to the President and is a member of the President's Executive Committee. The hearing examiner noted that the decision to have the Commandant report directly to the President was apparently motivated by a desire to "raise the profile" of the regimental program. That does not mean, however, that the change was merely window dressing. Reporting directly to the President enables the Commandant/Port Captain to provide ____________________ 8 The U.S. Coast Guard license to operate ships in the merchant marine, either as an engineering officer or a deck officer, requires the licensee to go through a minimum of three years in a regimented program. The license also requires participation in 60-day training cruises. -9- _________________________________________________________________ input on management matters and represent the interests of the regiment, the training ship, and the waterfront to the other members of the Executive Committee. As a final observation, we note that the current position of Commandant/Port Captain is strikingly similar to the Vice- President of Training position excluded from the bargaining unit by agreement when the parties created the unit in 1988. We agree with the hearing examiner that the fact the parties agreed to ex- clude a position does not control whether the Board must consider it excluded under the statute. Tracing the evolution of the Commandant/Port Captain position simply supports our conclusion that it is functionally equivalent to a vice president. When the parties created the Administrative Staff bargaining unit by agreement, the Vice President of Training was one of five vice-president positions excluded. At that time, the Vice President of Training also served as the Master of the Training Vessel. The Director of Waterfront Services and the Commandant both reported to the Vice President of Training.[fn] Thus, when the unit was created, the Vice President of Training had overall responsibility for the regiment, the training vessel, and waterfront services. When he retired, the position was not filled and his responsibilities were divided and redistributed. The Commandant position began to report to the Academic Dean and became the Commandant/Port Captain with full responsibility for the training vessel while it was in port. The new Master of the Training Vessel reported to the Commandant/Port Captain. The Director of Waterfront Services began to report to the Vice President of Administration and Finance. With the change made in early 2002 moving the waterfront operations back under the Commandant/Port Captain, the reporting relationships and ____________________ 9 Finding #10 is incorrect in saying that the Master of the Training Vessel has been supervised by the Commandant/Port Captain since the inception of the unit. -10- _________________________________________________________________ distribution of responsibilities came nearly full circle. In summary, we conclude that the Commandant/Port Captain must be removed from the Administrative Staff bargaining unit because he is excluded from the definition of employees covered by the Act. We need not consider the Academy's argument that he is a "confidential" employee within the meaning of paragraph C nor that he lacks a community of interest with the other unit employees. ORDER On the basis of the foregoing findings of fact and discussion, and by pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 1028(2) it is ORDERED: 1. The hearing examiner's conclusion in the January 21, 2003, Unit Clarification Report that the Commandant/Port Captain is not excluded from the definition of employee is reversed. The Commandant/ Port Captain is excluded from the definition of Academy employee under section 1022(11)(B). Dated at Augusta, Maine, this 15th day of May, 2003. MAINE LABOR RELATIONS BOARD The parties are advised of /s/___________________________ their right to seek review Jared S. des Rosiers of this decision and order Chair by the Superior Court by filing a complaint pursuant to 26 M.R.S.A. 1028(2) and in /s/___________________________ accordance with Rule 80C of Richard L. Hornbeck the Rules of Civil Procedure Employer Representative within 15 days of the date of this decision. /s/___________________________ Wayne W. Whitney Employee Representative -11- _____________________________________________________________________________