State Police Services Unit, Appeal of UD Report of Sept. 22, 1976 No. 75-UD-04
	No. 77-A-02 (Jan. 17, 1977)
Decision and Order on Motions to Dismiss
	No. 77-A-02 (Jan. 17, 1977 Motions to Dismiss)
Interlocutory Decision of Appellate Proceedings
	No. 77-A-02 (Feb. 2, 1977 Interlocutory Decision)
Maine Labor Relations Board Appellate Decision
	No. 77-A-02 (March 17, 1977 Board Decision), affirmed CV-77-135.






STATE OF MAINE                                   MAINE LABOR RELATIONS BOARD                                                                                                                                                                                            
                                                 [Case No. 77-A-02]
                                                 [Issued:  January 17, 1977]

_______________________________
                               )
IN THE MATTER OF THE APPEAL    )
OF THE UNIT DETERMINATION      )               DECISION AND ORDER
REPORT OF SEPTEMBER 22, 1976,  )                       ON
REGARDING STATE EMPLOYEES      )           STATE POLICE SERVICES UNIT
_______________________________)
  
  
     Subsequent to the issuance of a Unit Determination Report dated
September 22, 1976, by Parker Denaco, Executive Director of the Maine
Labor Relations Board, an appeal under 26 M.R.S.A. 979-G was filed by
Robert Bourgault, Director of Field Services, Maine Teachers Association,
on October 6, 1976; by Charles W. Sherburne, Executive Director, Council
#74, American Federation of State, County & Municipal Employees, on
October 7, 1976; by John W. Litwinowich, Maine Coastal Warden, on
October 7, 1976; by John J. Finn, Staff Counsel, Maine State Employees
Association on October 7, 1976; and by John J. Sears, Director of Repre-
sentation, Office of State Employee Relations on October 7, 1976.  This
matter came to be heard by the Maine Labor Relations Board on November 5,
1976; November 17, 1976; November 24, 1976; December 6, 1976; and
December 7, 1976, Chairman Walter E. Corey presiding, with Robert D.
Curley, Employer Representative and Michael Schoonjans, Employee Representative.
  
     Upon a review of the letters of appeal and documents submitted at
the hearing, as well as having observed the demeanor of the witnesses
testifying at the hearing, we find that:
  
            1.  The establishment of a State Police Services
                Unit by the Executive Director has not been
                appealed.
  
            2.  The Appellants have not challenged the appro-
                priateness of the inclusion of trooper, corporal
                and sergeant in the State Police Services Unit.
  
            3.  The Appellants have not proposed the inclusion
                of job positions other than those of trooper,
                corporal and sergeant in the State Police Services
                Unit.

                                     [-1-]
________________________________________________________________________________

     We conclude that the purposes of the State Employees Labor Relations
Act as defined in 26 M.R.S.A. 979 would best be effectuated by proceeding
with a secret ballot election in the State Police Services Unit and direct
the Executive Director proceed with a secret ballot election as specified
in 26 M.R.S.A. 979-F(2) and Rule 3.01 et seq. of the Rules and Procedures
of the Maine Labor Relations Board for the State Police Services Unit.
 
Dated at Augusta, Maine, this 17th day of January, 1977.


  
                                       /s/________________________________________
                                       Walter E. Corey, Chairman



                                       /s/________________________________________
                                       Robert D. Curley, Employer Representative



                                       /s/________________________________________
                                       Michael Schoonjans, Employee Representative
  
                                      -2-
________________________________________________________________________________
  
  
STATE OF MAINE                                   MAINE LABOR RELATIONS BOARD
                                                 [MLRB No. 77-A-02]
                                                 [Issued:  January 17, 1977]

______________________________
                              )
IN THE MATTER OF THE APPEAL   )
OF THE UNIT DETERMINATION     )                    DECISION AND ORDER ON
REPORT OF SEPTEMBER 22, 1976, )
REGARDING STATE EMPLOYEES     )                     MOTIONS TO DISMISS
______________________________)


          Three Motions to Dismiss were made in the process of appeals
under M.R.S.A. Section 979-G by Robert Bourgault, Director of Field Services,
Maine Teachers Association on October 6, 1976; by Charles W. Sherburne, Executive
Director, Council #74, American Federation of State, County & Municipal Employees,
on October 7, 1976; by John V. Litwinowich, Maine Coastal Warden, on October 7, 1976;
by John J. Finn, Staff Counsel, Maine State Employees Association, on October 7,
1976; and by John J. Sears, Director of Representation, Office of State Employee
Relations, on October 7, 1976, to the Unit Determination Report issued by Parker
Denaco, Executive Director of the Maine Labor Relations Board, on September 22,
1976.  The first Motion to Dismiss was submitted by John J. Sears, Director of
Representation, Office of State Employee Relations (the State agency responsible
for the position of the State of Maine in collective bargaining), on October 8,
1976, and moved that the appeal filed in this matter by John V. Litwinowich on
October 7, 1976, be dismissed for the following reasons:
  
   
     (1)  The appeal constituted an untimely petition end intervention
          pursuant to, and does not conform with, the requirements of
          Rules 1.03, 1.05 and 1.08 of the Rules and Procedures of the
          Maine Labor Relations Board,
   
     (2)  The appeal was barred by the February 12, 1976, order of the
          Executive Director which established March 1, 1976, as the
          final date by which to petition and to participate in the
          State Unit Determination Proceedings,
   
     (3)  The Appellant John V. Litwinowich was not a party in interest
          under Rule 1.10 of the Rules and Procedures of the Maine Labor
          Relations Board.
   
     Upon a review of the letters of appeal, the documents submitted to the Executive
Director during the Unit Determination Hearing and the documents submitted to the
Maine Labor Relations Board at the Appeals Hearing, as well as having observed the
demeanor of the witnesses testifying at the hearing, we find that John W. Litwinowich
did not submit a Petition for Appropriate Unit Determination as required by Rules 1.03,
1.05 and 1.08 of the Rules and Procedures of the Maine Labor Relations Board and is
barred from filing such a petition by the February 12, 1976, order of the Executive
Director which established March 1, 1976, as the final date by which to participate in the

                                     [-1-]
________________________________________________________________________________

State Unit Determination Proceedings and that John W. Litwinowich is not a party
in interest under Rule 1.10 of the Rules and Procedures of the Maine Labor Relations
Board.  We, therefore, grant the motion filed by John J. Sears on October 8, 1976.
   
     The second Motion to Dismiss was submitted by John J. Finn, Staff Counsel,
Maine State Employees Association on October 20, 1976, and moved that the appeals
of Council #74, American Federation of State, County & Municipal Employees concerning
the Administrative Services Unit, the Professional and Technical Services Unit, and
the Supervisory Personnel Services Unit be dismissed for the following reasons:
   
     1)  Council #74 lacks standing to appeal the Executive Director's
         Administrative Services, Professional and Technical Services and
         Supervisory Personnel Services Unit Determination.
   
     2)  Council #74's appeals are overbroad, frivolous and intended to
         obstruct and delay.
   
     3)  Council #74's interest in appeals from the Executive Director's
         Unit Determination lie more appropriately, if at all, in the
         Composition of the Institutional Services Unit and the Operations,
         Maintenance and Support Services Unit and appeals from those
         determinations are now untimely,
   
     4)  To the extent that Council #74's appeals are directed at the
         Executive Director's placement of state job classifications
         included in Council #74's original petitions pertaining to the
         Bureau of Social Welfare, and Department of Human Services,
         Council #74 presented no evidence at the unit determination
         hearings pertaining to those petitions and failed to pursue
         those petitions during the hearing and cannot now appeal such
         issues not raised or pursued below.
   
     The Office of State Employee Relations, by letter dated November 9, 1976, and
the Maine Teachers Association, by letter dated November 15, 1976, supported the
Motion to Dismiss dated October 20, 1976, and requested the motion be granted.
 
     Upon a review of the letters of appeal, the documents submitted to the Executive
Director during the Unit Determination Hearing and the documents submitted to the
Maine Labor Relations Board at the Appeals Hearing, as well as having observed the
demeanor of the witnesses testifying at the hearing, we find that:
   
     1)  The appeal filed by Charles W. Sherburne, Executive Director,
         Council #74, American Federation of State, County & Municipal
         Employees, appealed the Unit Determination Decision of
         September 22, 1976, concerning the Administrative Services Unit,
         the Professional and Technical Services Unit and the Supervisory
         Personnel Services Unit.
   
     2)  The appeal filed by Charles W. Sherburne, Executive Director,
         Council #74, American Federation of State, County & Municipal
         Employees, did not appeal the Unit Determination Decision of
         September 22, 1976, concerning Institutional Services, Law
         Enforcement, Public Safety and Regulatory Services (non-police),
         State Police Services, and Operations, Maintenance and Support
         Services.

                                      -2-
________________________________________________________________________________   
   
     3)  At the unit determination hearings below, Council #74 did not
         petition for an Administrative Services, Professional and Technical
         Services, or Supervisory Personnel Services Unit, and has not filed
         a 30 percent showing of interest for such units.
   
     4)  The time for appeal of the Unit Determination Report issued by
         Parker A. Denaco, Executive Director, Maine Labor Relations Board,
         on September 22, 1976, expired on October 7, 1976.

     5)  The testimony presented at the Appeals Hearing by Council #74,
         proposed variations in the Administrative Services, Professional
         and Technical Services and Supervisory Personnel Services units,
         which were not supported by a 30 percent showing of interest and
         were not positions presented to the Executive Director at the Unit
         Determination hearings.  Council #74 has not presented a showing
         of interest to the Executive Director or the Maine labor Relations
         Board for the Administrative Services Unit, the Professional and
         Technical Services Unit, and the Supervisory Personnel Services Unit.
           
     Title 26, M.R.S.A. Section 979-E states that "in the event of the disput. between
the public employer and an employee or employees as to the appropriateness of a unit
for purposes of collective bargaining... the Executive Director shall make the deter-
mination...."  The statute contemplates that the Executive Director make the initial
determination of the appropriate bargaining unit and his determination may be appealed
under 26 M.R.S.A. Section 979-G to the Maine labor Relations Board.  The proposals pre-
sented to the Maine Labor Relations Board by Council #74 on appeal were not the same
proposals submitted to the Executive Director at the Unit Determination hearings.  Rule
1.05 of the Rules and Procedures of the Maine Labor Relations Board requires that pro-
posals for unit determination be accompanied by a 30 percent showing of interest and to
permit a party to submit proposals at the appellate stage without the requisite showing
of interest would subvert the requirements of Rule 1.05 of the Rules and Procedures of
the Maine Labor Relations Board and defeat the purposes of the Act.  We conclude that
Council #74, American Federation of State, County & Municipal Employees lacked standing
at the unit determination proceeding to present its current proposals and, consequently,
lacks standing to present the proposals on appeal.  Since the resolution of Council 74's
appeal for lack of standing results in a resolution of the entire appeal presented by
Council #74, it is unnecessary to consider the other allegations contained in the Motion
to Dismiss.
   
     The third Motion to Dismiss was submitted by John J. Finn, Staff Counsel, Maine
State Employees Association, on November 17, 1976, and moved that the appeals of the
State of Maine filed by the Office of State Employee Relations from the September 22,
1976, Unit Determination of the Executive Director be dismissed to the following extent
and for the following reasons:
 
     1)  With respect to the State's appeal from the inclusion in bargaining
         units of the job classifications of Administrative Secretary I,
         Administrative Secretary II, and Business Service Manager, the
         Executive Director's determination coincides with the State's position
         below, and the State lacks standing to appeal and the Board lacks
         jurisdiction to consider the State's appeal from the determination.
   
     2)  With respect to the State's appeal from the inclusion of the job
         classification of Civil Engineer IV in the Professional and Technical
         Services Unit, the Executive Director's determination coincides with
         the State's position below and the State lacks standing to appeal and
         the Board lacks jurisdiction to consider the State's appeal from this
         determination.

                                      -3-
________________________________________________________________________________   
   
     3)  With respect to the State's appeal from the inclusion within
         bargaining units of the positions listed on the State's
         Attachment C, except for the positions listed under the job
         classifications of Highway Equipment Engineer and Tabulation
         Equipment Supervisor III, the Executive Director's determina-
         tion coincides with the State's position below and the State
         lacks standing to appeal and the Board lacks jurisdiction to hear
         the appeals from these determinations.
   
     4)  With respect to the State's appeal from the Executive Director's
         determination of unclassified positions, the State did not dispute
         their placement in units before the Executive Director or seek
         their exclusion from units and it lacks standing to appeal and
         the Board lacks jurisdiction to hear the State's appeal from these
         determinations.
   
     Upon a review of the letters of appeal, the documents submitted to the
Executive Director during the determination hearing and the documents submitted
to the Maine Labor Relations Board at the Appeals Hearing, as well as having
observed the demeanor of the witnesses testifying at the hearing, we find that:

     1)  The Administrative Secretary I, Administrative Secretary II, and
         Business Service Manager listed in Attachment A of the State's
         appeal, were included in bargaining units consistent with the
         State's position at the unit determination hearings.
   
     2)  The job classification of Civil Engineer IV listed in Attachment
         B of the State's appeal were included in bargaining units con-
         sistent with the State's position at the unit determination
         hearings.
   
     3)  With respect to the job positions listed in State's Attachment C,
         except for the positions of Highway Equipment Engineer and
         Tabulation Equipment Supervisor III, the Executive Director's
         determination coincides with the State's position at the unit
         determination hearings.
   
     4)  Many unclassified positions were not presented to the Executive
         Director for a determination, however, the State did propose that
         the unclassified positions not included in their petitions be
         excluded from bargaining units.
   
     It is the opinion of the Maine Labor Relations Board that the State of Maine
is not an aggrieved party with respect to Items No. 1 and 2 in the Motion to Dismiss
and therefore, may not appeal the determination of the Executive Director under
Rule 1.10 of the Rules and Procedures of the Maine Labor Relations Bonrd.
  
     With respect to Item No. 3 in the Motion to Dismiss, it is inappropriate at
this time for the State to raise the confidential exclusions alleged in Attachment
C.  Allegations that individuals share a confidential relationship as contemplated
by 26 M.R.S.A. Section 979-A(6)(c) may appropriately be raised at a unit clarifi-
cation proceeding, during the election process by challenging the ballots of such
employees or may be resolved by our subsequent decision pertaining to unclassified
employees.  With respect to Item No. 4 in the Motion to Dismiss, we find that the
motion is factually incorrect and should, therefore, be denied.

                                      -4-
________________________________________________________________________________

                                     ORDER

     0n the basis of the foregoing findings of fact and by virtue of and pursuant
to the powers granted to th Maine Labor Relations Board by the provisions of
Section 979-G of the State Employees Labor Relations Act and Section 968 of the
Municipal Public Employees Labor Relations Act, it is ordered:
   
     1)  That the Motion to dismiss filed by John J. Sears, Director of
         Representation, Office of State Employee Relations, on October 8,
         1976, be GRANTED.
   
     2)  That the Motion to Dismiss filed by John J. Finn, Staff Counsel
         Maine State Employees Association, on October 20, 1976, be
         GRANTED.
   
     3)  That the Motion filed by John J. Finn, Staff Counsel, Maine State
         Employees Association, on November 17, l976, be GRANTED with
         respect to Items No. 1, 2 and 3 in the Motion, and be DENIED with
         respect to Item No. 4 in the Motion.
   
Dated at Augusta, Maine, this 17th day of January, 1977.
                             



                                       /s/________________________________________
                                       Walter E. Corey, Chairman



                                       /s/________________________________________
                                       Robert D. Curley, Employer Representative
                                      
                                      
                                      
                                       /s/________________________________________
                                       Michael Schoonjans, Employee Representative
                                      
                                      -5-
________________________________________________________________________________
 
   
STATE OF MAINE                                   MAINE LABOR RELATIONS BOARD
                                                 [MLRB No. 77-A-02]
                                                 [Issued February 2, 1977] 
                                                  
           
__________________________________________           
                                          )
COUNCIL NO. 74, AMERICAN FEDERATION       )
OF STATE, COUNTY AND MUNICIPAL EMPLOYEES  )
                                          )
                        Petitioner        )
                                          )
and                                       )
                                          )
MAINE STATE EMPLOYEES ASSOCIATION         )
                                          )
                        Petitioner        )
                        & Intervenor      )
                                          )
and                                       )
                                          )
MAINE STATE TROOPERS ASSOCIATION          )
                                          )       INTERLOCUTORY DECISION
                        Intervenor        )
                                          )      OF APPELLATE PROCEEDINGS
and                                       )
                                          )             BEFORE THE
LOCAL 1435, RETAIL CLERKS INTERNATIONAL   )                          
ASSOCIATION                               )     MAINE LABOR RELATIONS BOARD
                                          )
                        Petitioner        )
                                          )
and                                       )
                                          )
OFFICE OF STATE EMPLOYEE RELATIONS of     )
the State of Maine                        )
                                          )
                        Petitioner        )
                                          )
and                                       )
                                          )
MAINE TEACHERS ASSOCIATION                )
                                          )
                        Petitioner        )
                                          )
and                                       )
                                          )
LOCAL 333, UNITED MARINE DIVISION         )
                                          )
                        Petitioner        )
                                          )
and                                       )
                                          )
MAINE STATE NURSES ASSOCIATION            )
                                          )
                        Petitioner        )
                        & Intervenor      )
__________________________________________)           
           
           
     On September 22, 1976, the Executive Director of the Maine Labor Relations
Board issued a Unit Determination Report pursuant to Section 979-E of the State
Employees Labor Relations Act.  That report determined that there should be seven
bargaining units for state employees who are eligible for collective bargaining
and fall within the definition of "state employee" as defined in Section 979-A,
paragraph 6 of the State Employees Labor Relations Act and also assigned the

                                     [-1-]
________________________________________________________________________________

particular job categories involved to the foregoing seven bargaining units.
Subsequent thereto, various appeals were entered to that decision pursuant to
Section 979-G of the State Employees Labor Relations Act.  Two Appellants, the
Maine State Employees Association and the Office of State Employee Relations
both entered appeals on October 7, 1976, said appeals raising issues, among
others, pertaining to unclassified employees in the State service.  Accordingly,
this Interlocutory Decision of the Maine Labor Relations Board will pertain only
to the disposition of unclassified positions in State service on which this Board
is prepared to make a determination as to (a) eligibility for collective bargaining
pursuant to Section 979-A of the State Employees Act and (b) if so eligible,
placement into the appropriate bargaining unit.
           
     The Executive Director of the Maine Potato Commission (U076) should be and
hereby is excluded from inclusion in a bargaining unit under the provisions of
Section 979-A, paragraph 6(D) of the State Employees Labor Relations Act.
          
      Assistant District Attorneys (U20l) should be exempted from coverage under
the State Employees Labor Relations Act because these persons are subject to a
joint employment relationship and for purposes of this Act are tantamount to being
County employees since they are hired by the local District Attorney and their
funding is contingent on County support.  Therefore, we feel that the Assistant
District Attorney classification does not qualify as a "state employee" and
therefore, should be exempted from collective bargaining coverage under the
provisions of Section 979-A, paragraph 6 of the State Employees Labor Relations
Act.
           
      The Chief Medical Examiner (U434) should be and hereby is excluded from
coverage pursuant to Section 979-A, paragraph 6(B) of the State Employees Labor
Relations Act.
           
      The Assistant Program Coordinator (U402) and the Program Coordinator (U401)
at the Bicentennial Commission will become vacant positions in July of 1977.  As
such, it is our conclusion that these persons are temporary employees and should
be and hereby are excluded under the provisions of Section 979-A, paragraph 6(F)
of the State Employees Labor Relations Act.
           
      In the Department of Business Regulation, the positions of Superintendent of
Banks and Banking (U033), Superintendent of Consumer Protection (U036) and
Superintendent of Insurance (U034) are all special appointive positions as
defined in Section 979-A paragraph 6(B) of the State Employees Labor Relations Act
and therefore, should be and hereby are excluded from collective bargaining.
          
      In the Department of Conservation, the positions of Director of Forestry
(U070), Director of LURC (U066), Director of Parks and Recreation (U069) and
Director of Public Lands (U067) are all appointed positions within the contemplation
of Section 979-A, paragraph 6(B) of the State Employees Labor Relations Act and,
therefore, should be and hereby are excluded from collective bargaining.

                                      -2-
________________________________________________________________________________

     In the Department of Education and Cultural Services, we concur with
the agreement of the parties to include the position of Director of Adult
Education, SMVTI (U208) in the Professional and Technical Services Unit.  Both
the Director of the Historic Preservation Commission (U073) and the Director
of the Museum Bureau (U072) should be and hereby are excluded from bargaining
under the provisions of Section 979-A, paragraph 6(D).  The Principal of the
Baxter School (U212) should be and hereby is properly placed in the Supervisory
Services Unit.  The position of Vocational Trades Instructor (U369) is found
primarily in the Department of Education and Cultural Services but also in the
Departments of Mental Health and Personnel.  While this Board is cognizant of
the desires of the Petitioner Maine Teachers Association to establish a separate
bargaining unit for this job category, we feel the establishment of a separate
bargaining unit for those "teachers" who are Vocational Trades Instructors at
the Vocational and Technical Institutes would be in violation of the statutory
mandate to avoid excessive fragmentation as is found in Section 979-E, paragraph
2 of the State Employees Labor Relations Act.  Accordingly, we concur with the
Unit Determination Report below that Vocational Trades Instructors should be
placed in the Professional and Technical Services Unit.  We find further support
for our position by the fact that the Vocational and Trades Instructors sought
to be established in a separate bargaining unit by the Petitioning Maine Teachers
Association represent only a fraction of the total number of Vocational and
Trades Instructors throughout State service.  We believe the policies underlying
public sector collective bargaining are best served by not splitting classifications
into more than one bargaining unit and, accordingly, we reaffirm the placement of
the Vocational and Trades Instructors in the Professional and Technical Services
Unit.
           
     In examining the Comprehensive Employment and Training Act (CETA) Staff, the
positions of Director, Manpower Services Council (U256) and Director of Operations,
CETA (U229) both should be and hereby are placed in the Supervisory Services Unit.
The position of Director, Office CETA Planning (U029) should be and hereby is
excluded from the collective bargaining process as it falls within the exclusion
set forth in Section 979-A, paragraph 6(D) of the State Employees Labor Relations
Act.  We make no decision with respect to the position of Office Manager (U566)
in the CETA Staff Organization as it is our understanding from the testimony
offered that this position is presently empty and therefore, is not ripe for
decision at this time.
           
     It is our understanding that the position of Director, Child and Youth Services
(U708) is scheduled to end on or about January 1, 1977; therefore, we hold this
position to be temporary in nature and thereby exclude it from bargaining under the
provisions of Section 979-A, paragraph 6(F) of the State Employees Labor Relations
Act.  We abstain from rendering a decision on the position of Executive Director
of the Governor's Council on Women (U172) as it is our understanding from the
testimony offered that this position is currently in an "inactive status" which
can be resolved by unit clarification proceedings when and if it is reactivated.

                                      -3-
________________________________________________________________________________
           
     The position of Executive Director, Criminal Justice Planning and
Assistance Agency (U163) should be and hereby is exempted from collective
bargaining pursuant to the provisions of Section 979-A, paragraph 6(D) of the
State Employees Labor Relations Act.
           
      The position of Director, Office Energy Resources (U028) should be and
hereby is exempted from collective bargaining under the provisions of Section
979-A, paragraph 6(B) of the State Employees Labor Relations Act.
           
      We believe the following positions which are considered as personal staff
members to the Governor should be exempted from collective bargaining pursuant
to Section 969-A, paragraph 6(C) of the State Employees Labor Relations Act:
           
                 Canadian Affairs Coordinator (U400)
                 Office Manager (U566)
                 Federal Activities Impact Coordinator (U228)
                 Federal State Coordinator (U455)
                 Municipal Coordinator (U399)
                 Office Coordinator (U227)
                 Policy Coordinator (U215)
                 and Program Coordinator (U401)
           
     In the State Development Office we find that the Director, State Develop-
ment Office (U011) should be and is excluded from collective bargaining pursuant
to the provisions of Section 979-A, paragraph 6(D) under the State Employees
Labor Relations Act.
           
     In the State Planning Office, we affirm the decision of the Executive
Director which established that the Fiscal Officer (U155) should be excluded as a
confidential employee under the provisions of Section 979-A, paragraph 6(C) of
the State Employees Labor Relations Act.  We affirm the agreement of the parties
that the Director of Economic Planning (U424) should be placed in the Supervisory
Services Unit.  The Director of the State Planning Office (U026) should be and
hereby is excluded from collective bargaining under the provisions of Section
979-A, paragraph 6(B) of the State Employees Labor Relations Act.
           
     In the Department of Finance and Administration, the positions of Director,
Alcoholic Beverages (U058), Director Bureau of Public Improvements (U059), State
Purchasing Agent (U060), and State Tax Assessor (U061) should be and hereby are
excluded from collective bargaining under the provisions of Section 979-A,
paragraph 6(C) of the State Employees Labor Relations Act.
          
     The Executive Director of the Human Rights Commission (U042) should be and
hereby is excluded from the collective bargaining process pursuant to Section
979-A, paragraph 6(D) of the State Employees Labor Relations Act.
           
     At the Department of Human Services, the positions of Director, Bureau of
Maine's Elderly (U054) and Director Bureau of Resource Development (U055) should
be and hereby are excluded from the collective bargaining process pursuant to

                                      -4-
________________________________________________________________________________

Section 979-A, paragraph 6(B) of the State Employees Labor Relations Act.

     The Director of the Lottery Commission (U023) should be and hereby is
excluded from the collective bargaining process pursuant to Section 979-A,
paragraph 6(D) of the State Employees Labor Relations Act.
           
     The Manager of the Maine Guarantee Authority (U057) should be and hereby
is excluded from the collective bargaining process pursuant to Section 979-A,
paragraph 6(D) of the State Employees Labor Relations Act.
           
     In the Department of Manpower Affairs, the Chief of the Boiler and Elevator
Division (U180) should remain in the Supervisory Services Unit and in this
respect we affirm the decision of the Executive Director below.  The Director
of the Bureau of Labor (U064) should be and hereby is excluded from collective
bargaining pursuant to Section 979-A, paragraph 6(B) of the State Employees Labor
Relations Act.
           
     In the Department of Mental Health and Corrections, the position of Hospital
Superintendent (U157) should be and hereby is excluded from collective bargaining
pursuant to Section 979-A, paragraph 6(B) of the State Employees Labor Relations
Act.
           
     The position of School Principal (U158) should be placed in the Supervisory
Services Unit and, in this respect, we affirm the decision of the Executive
Director below.
           
     The Executive Director of the Board of Nursing (U168) should be and hereby
is excluded from the collective bargaining process pursuant to Section 979-A,
paragraph 6(D) of the State Employees Labor Relations Act.  The Assistant
Executive Director of the Board of Nursing (U169) should be and hereby is
properly placed in the Supervisory Services Unit.
           
      At the Public Utilities Commission, the Director of Economics and Finance
(U372) and the Director of Transportation (U161) both should be and hereby are
excluded from collective bargaining pursuant to Section 979-A, paragraph 6(D)
of the State Employees Labor Relations Act.  The Secretary of the Public Utilities
Commission (U160) should be and hereby is excluded from collective bargaining
pursuant to Section 979-A, paragraph 6(C) of the State Employees Labor Relations
Act.
           
      The Director of the Maine State Retirement System (U049) should be and
hereby is excluded from collective bargaining pursuant to Section 979-A, para-
graph 6(D) of the State Employees Labor Relations Act.
          
      The Executive Secretary of the Sardine Council (U170) should be and hereby
is excluded from the collective bargaining process pursuant to Section 979-A,
paragraph 6(D) of the State Employees Labor Relations Act.
          
      The position of Director, VTI (U195) results from appointments by the State
Board of Education and, accordingly, we believe should be excluded from the

                                      -5-
________________________________________________________________________________
           
collective bargaining process pursuant to Section 979-A, paragraph 6(D) of
the State Employees Labor Relations Act.
           
     We affirm the agreement of the parties to place the Director of Fraud
Investigation (U174) in the Supervisory Services Unit as stipulated by Form 1
entered on November 19, 1976.  The position of Executive Director of the Arts
and Humanities Commission (U071) should be and hereby is excluded from collective
bargaining pursuant to Section 979-A, paragraph 6(D) of the State Employees
Labor Relations Act.
           
     We refrain from making any ruling as to the position of Houseman (No Class
Code) employed by the Executive Department as it is our understanding from
testimony offered at the appeals hearings that this position is non-existent.
We affirm the decision of the Executive Director below in holding that the
Laundress (U656) and Maid (U658) both employed in the Executive Living Quarters
should be excluded from the collective bargaining process pursuant to Section
979-A paragraph 6(C) of the State Employees Labor Relations Act.  We affirm the
decision of the Executive Director below that the Chef, Blaine House (U661) should
be and hereby is excluded from the collective bargaining process for the same
reasons that the other members of the Governor's personal staff were excluded
earlier in this paragraph.
           
     The positions of Counsel (U373), Assistant Attorney General (U179) and
Senior Attorney General (U204) are all appointed by and serve at the pleasure of
the Attorney General.  Accordingly, we find that none of these job categories has
the specified term required for exclusion under Section 979-A, paragraph 6, sub-
paragraph B, of the State Employees Labor Relations Act.  By the same token, none
of the three foregoing positions are commonly known as a "department or division
head" nor is their appointment for an unspecified term "by the Governor or by a
body having appointive power within the Executive Department," which would justify
excluding these positions pursuant to Section 979-A, paragraph 6, subparagraph D,
of the State Employees Labor Relations Act.  To the extent that either Counsel or
Assistant Attorney General positions are entry level positions, there was no
evidence presented below or to this Board which indicates that the probationary
period for these positions is equal to or less than six (6) months; therefore,
the positions are not, per se, excluded under the provisions of Section 979-A,
paragraph 6, subparagraph E, of the State Employees Labor Relations Act.  There-
fore, we are left with considering whether the three foregoing legal positions
are excluded from coverage under the State Employees Labor Relations Act because
of their "confidential relationship" with respect to the exclusionary provisions
found in Section 979-A, paragraph 6, subparagraph C, of the State Employees
Labor Relations Act.  It is our determination that any employee in the three
foregoing job categories who is permanently assigned to collective bargaining
functions, employee relations matters or renders advice on a regularly
assigned basis to management personnel regarding either collective bargaining or

                                      -6-
________________________________________________________________________________
           
employee relations matters should be and hereby is excluded under the provi-
sions of Section 979-A, paragraph 6, subparagraph C, of the State Employees
Labor Relations Act.  All employees in the three foregoing job categories
who are not excluded because of such assignment(s) should be and hereby are
included in the Professional and Technical Services Unit of the State Employees
Unit Determination Report dated September 22, 1976.
           
     Considering the position of Director of Geology (U068) in the Conservation
Department, it is our finding from OSER Appellate Exhibit #26 that this person
is appointed by the Commissioner for an unstipulated term of office.  Accordingly,
this position would not be excluded from collective bargaining under the provisions
of Section 979-A(6)(D), of the State Employees Labor Relations Act since the
appointment is not for a specified term.  On the other hand, the appointment to
this position is made by the Commissioner, not by "the Governor or by a body
having appointive power within the Executive Department" and, therefore, it is
not excluded under the provisions of Section 979-A(6)(D) of the State Employees
Labor Relations Act.  This Board was not presented with sufficient evidence
to find that the Director of Geology performs functions with respect to
the collective bargaining process which would place him in a "confidential
relationship" such as to exclude the position under the provisions of Section
979-A(6)(C) of the State Employees Labor Relations Act.  Accordingly, this
position, then, should be placed in the Supervisory Services Unit of the
State Employees Unit Determination Report issued on September 22, 1976.  When
and if the manner of appointment of this particular position is clarified so
as to conform to either the (6)(B) or the (6)(D) exclusions set forth in Section
979-A of the State Employees Labor Relations Act, the matter of placement may
be resolved by unit clarification proceedings as contemplated in Section 979-E,
paragraph 3, of the State Employees Labor Relations Act.
           
     Our review of the positions of Director, Civil Emergency Preparedness
(U053) and Director of Veteran Services (U052) indicate (pursuant to OSER
Appellate Exhibit No. 26) that both positions are appointed by and serve at
the pleasure of the Adjutant General.  Accordingly, it is our finding that the
unspecified term for these two positions does not qualify them for exclusion
under the provisions of Section 979-A, paragraph 6, subparagraph B, nor is
their appointment "by the Governor or by a body having appointive power" such
as to exclude them from coverage under the provisions of Section 979-A, para-
graph D, of the Act.  While the salary for both positions is established under
Title 2, MRSA, Section 6, we do not think that this criteria alone is sufficient
to exclude the positions from collective bargaining as there are contract
benefits, in addition to wages, which can be bargained on behalf and in the in-
terest of members of the bargaining unit.  Furthermore, since the financial
package ultimately presented for ratification is subject to legislative approval,
the legislative process to appropriate and approve collective bargaining agree-
ments can also be used to make necessary amendments to Title 2 salary require-
ments if and as negotiated by the parties at the bargaining table.  Presently,

                                      -7-
________________________________________________________________________________
           
it is our opinion that these two positions, Director of Civil Emergency
Preparedness and Director of Veteran Services, should be placed in the
Supervisory Services Unit of the State Employees Unit Determination Report
dated September 22, 1976.  When and if the method of appointment of these
two positions is changed to be consistent with the exclusions set forth in
paragraph 6, subparagraphs B or D of Section 979-A, of the State Employees
Labor Relations Act, the matter of the appropriateness of continuing inclusion
of these job categories in bargaining units may be raised under unit clari-
fication procedures as provided in Section 979-E, paragraph 3, of the Act.
          
     Our examination of the position of Principal Practical School of
Nursing (U213) does not reveal sufficient evidence to exclude it as a
"confidential" position under Section 979-A(6)(C), of the State Employees
Labor Relations Act.  There was no evidence presented below or in the appellate
documents submitted to this Board showing that this position functions within
the collective bargaining procedures established by the State Employees
Labor Relations Act or that the person filling this position is "appointed
by the Governor or by a body having appointive power within the Executive
Department" such as to exclude it under the provisions of Section 979-A(6)(D)
of the SELRA.  It is our understanding that this position has been covered
under the VTI Master Contract in the past and that the person filling this
position is hired as a Principal-Instructor with a "base stipend" beinq paid
for instructor duties and an additional stipend for the Principal duties.
Therefore, we affirm the decision of the Executive Director below and maintain
that this position should be included in the Supervisory Services Unit of the
State Employees Unit Determination Report dated September 22, 1976.
          
     The position of Deputy Director, State Development Office (U156) is
appropriately placed in the Supervisory Services Unit and, accordingly, we
affirm the decision of the Executive Director below with respect thereto.
          
     In the Department of Mental Health & Corrections, the positions of
Director, Corrections (U082); Director, Mental Health (U080); Director, Mental
Retardation (U081) and Prison Warden (U231) were all excluded by the Executive
Director below.  While we are uncertain as to the motives behind these positions
being included on OSHA Appellate Exhibit #27, "State Appeal of Unclassified
Positions by Department," we do not see that they have been raised to this
proceeding by any party adversely affected in interest by the decision below
and, therefore, affirm the decision below excluding these positions from the
coverage of the State Employees Labor Relations Act.
           
     In the Department of Public Safety, the positions of Director, Liquor
Enforcement (U218) and State Fire Marshall (U2l7) were clarified by the subse-
quent testimony of Captain William Brown which indicated the negotiations
procedures and committee structure within that department.  Accordingly, we
can see from additional testimony that these two positions will be actively
involved in the bargaining process involving the Department of Public Safety
and, as such, exclude them as having "a confidential relationship" within

                                      -8-
________________________________________________________________________________
           
the meaning of Section 979-A, paragraph 6, subparagraph C, of the State
Employees Labor Relations Act.  As the result of this additional testimony,
we consciously remove these two positions from the Supervisory Services Unit,
as determined below, and place them in an "excluded" category pursuant to the
foregoing statutory reference.
           
     The position of Director of Program Review and Evaluation (U173), which
is a single incumbent classification within the Department of Audit, is,
pursuant to OSER Appellate Exhibit No. 26, appointed by the State Auditor and
serves at his pleasure.  Accordingly, this method of appointment does not
qualify this position for an exclusion (because of the nature of the appointing
authority) pursuant to Section 979-A, paragraph 6, subparagraph D.  There is no
evidence that this person will be performing collective bargaining or employee
relations duties within the exclusionary contemplation of Section 979-A, para-
graph 6, subparagraph C.  Accordingly, we reverse the decision of the Executive
Director below and direct that this position be carried as an unclassified
position included in the Supervisory Services Unit of the State Employees
Unit Determination Report dated September 22, 1976.  If and when the method
of appointment of this position changes in order to make it suitable for an
exclusion as provided in Section 979-A, paragraph 6, of the State Employees
Labor Relations Act, this matter may be rectified by a unit clarification
proceeding as contemplated in Section 979-E, paragraph 3, of that Act.
          
     In reviewing the position of Director of Staff Development (U027) which
exists at Bangor Mental Health Institute and Pineland Training Center, and
the position of Assistant Director, Vocational Technical Institute (U196),
we find that both of these positions should be excluded from collective bargain-
ing units and, accordingly, affirm the decision of the Executive Director below
with respect thereto.
           
       
                                   * * * * *
           
           
     It is our intention that the issuance of this Interlocutory Decision with
respect to unclassified positions will enable the parties to clarify the
placement of the foregoing unclassified positions within or without the bar-
gaining units established in the State Employees Unit Determination Report of
September 22, 1976.  At such time as our deliberations with respect to classi-
fied positions are completed, an additional report with respect thereto will be
issued and the contents of this report incorporated therein by reference in
order to formulate a complete package regarding both classified and unclassi-
fied positions which were raised to this Board on appeal.

                                      -9-
________________________________________________________________________________

Dated at Augusta, Maine, this 2nd day of February, 1977.

                                       MAINE LABOR RELATIONS BOARD



                                       /s/________________________________________
                                       Walter E. Corey, Chairman



                                       /s/________________________________________
                                       Robert D. Curley, Employer Representative
           
           
           
                                       /s/________________________________________
                                       Michael Schoonjans, Employee Representative
           
                                      -10-
________________________________________________________________________________    

STATE OF MAINE                                   MAINE LABOR RELATIONS BOARD
                                                 [Case No. 77-A-02]
                                                 [Issued:  March 17, 1977]
_________________________________________
                                         )
COUNCIL NO. 74, AMERICAN FEDERATION      )
OF STATE, COUNTY AND MUNICIPAL EMPLOYEES )
                                         )
                        Petitioner       )
                                         )
and                                      )
                                         )
MAINE STATE EMPLOYEES ASSOCIATION        )
                                         )
                        Petitioner       )
                        & Intervenor     )
and                                      )
                                         )
MAINE STATE TROOPERS ASSOCIATION         )
                                         )
                        Intervenor       )
                                         )
and                                      )
LOCAL 1435, RETAIL CLERKS INTERNATIONAL  )              DECISION
ASSOCIATION                              )
                                         )      OF APPELLATE PROCEEDINGS
                        Petitioner       )
                                         )              BEFORE THE
and                                      )
                                         )     MAINE LABOR RELATIONS BOARD
OFFICE OF STATE EMPLOYEE RELATIONS of    )
the State of Maine                       )
                                         )
                        Petitioner       )
                                         )
MAINE TEACHERS ASSOCIATION               )
                                         )
                        Petitioner       )
                                         )
and                                      )
                                         )
LOCAL 333, UNITED MARINE DIVISION        )
                                         )
                        Petitioner       )
                                         )
and                                      )
                                         )
MAINE STATE NURSES ASSOCIATION           )
                                         )
                        Petitioner       )
                        & Intervenor     )
_________________________________________)
          
          
     On September 22, 1976, the Executive Director of the Maine Labor Relations
Board issued a Unit Determination Report pursuant to Section 979-E of the State
Employees Labor Relations Act.  That report determined that there should be seven
bargaining units for state employees who are eligible for collective bargaining
and fall within the definition of "state employee" as defined in Section 979-A,
paragraph 6 of the State Employees Labor Relations Act.  It also assigned the
Job categories of eligible employees to the seven bargaining units.

                                     [-1-]
________________________________________________________________________________

Subsequent to the issuance of the Unit Determination Report, an appeal under
26 M.R.S.A.  979-G was filed by Robert Bourgault, Director of Field Services,
Maine Teachers Association, on October 6, 1976; by Charles W. Sherburne, Execu-
tive Director, Council #74 American Federation of State, County & Municipal
Employees, on October 7, 1976; by John W. Litwinowich, Maine Coastal Warden,
on October 7, 1976; by John J. Finn, Staff Counsel, Maine State Employees Asso-
ciation, on October 7, 1976; and by John J. Sears, Director of Representation,
Office of State Employee Relations, on October 7, 1976.  This matter came to be
heard by the Maine Labor Relations Board on November 5, 1976; November 17, 1976;
November 24, 1976; December 6, 1976; December 7, 1976; and February 22, 1977,
Chairman Walter E. Corey presiding, with Robert D. Curley, Employer Representative
and Michael Schoonjans, Employee Representative.
          
     On January 17, 1977, the Maine Labor Relations Board issued a Decision and
Order on the State Police Services Unit and ordered the Executive Director pro-
ceed with a secret ballot election in the State Police Services Unit.  On January
17, 1977, the Maine Labor Relations Board issued a Decision and Order on the
Motions to Dismiss which were filed during the appeal hearings.  On February 2,
1977, the Maine Labor Relations Board issued an Interlocutory Decision of Appel-
late Proceedings before the Maine Labor Relations Board which addressed the un-
classified positions under appeal, with the exception of the Director, Maine Criminal
Justice Academy, which will be addressed later in this decision.  A stipulation was
filed with the Maine Labor Relations Board on February 2, 1977 and signed by
John J. Sears, Esquire, for the Office of State Employee Relations, John J. Finn,
Esquire, for the Maine State Employees Association and Charles Sherburne, Executive
Director for Council No. 74, American Federation of State, County and Municipal
Employees which stated as follows:
          
     It is hereby agreed and stipulated by the parties hereto that:
       
          1.  Agreements as to bargaining units as entered into by the
              parties to this stipulation on October 20, 1976; October
              21, 1976; November 12, 1976; and November 19, 1976, re-
              spectively, and as filed with the Maine Labor Relations
              Board on October 21, 1976; November 15, 1976; and
              November 22, 1976, respectively, were executed after the
              State Employee Unit Determination Report of September 22,
              1976, with the intention that said Form 1 Agreements would
              eliminate appeals to the Maine Labor Relations Board with
              respect to any job categories listed thereon.
          
          2.  The execution of the aforesaid Form 1 Agreements resulted
              from a finding of a community of interest among the job
              categories listed thereon by the parties who were signatories
              thereto.

     Dated: Feb. 1, 1977               ___/s/  John J. Sears_________________
                                       John J. Sears, Esquire
                                       Office of State Employee Relations
              
     Dated: Feb. 1, 1977               ___/s/  John J. Finn__________________
                                       John J. Finn, Esquire
                                       Maine State Employees Association
              
     Dated: Feb. 2, 1977               ___/s/  Charles Sherburne_____________
                                       Charles Sherburne, Executive Director
                                       Council No. 74, American Federation of
                                       State, County and Municipal Employees

                                      -2-
________________________________________________________________________________
              
     On February 7, 1977, the Maine Labor Relations Board issued a Decision and
Order on the Administrative Services Unit and the Institutional Services Unit and
ordered the Executive Director to proceed with a secret ballot election in the
Administrative Services Unit and the Institutional Services Unit.  The statement in
the Decision and Order dated February 7, 1977 that the position of Administrative
Secretary I remains unresolved should be modified since the position
of Administrative Secretary I was resolved for the purposes of the appellate pro-
ceedings on January 17, 1977 in the Decision and Order on the Motion to Dismiss by
the granting of the Motion to Dismiss filed by John J. Finn, Staff Counsel Maine
State Employees Association, on November 17, 1976, with respect to the job classi-
fication of Administrative Secretary I.  This decision, based upon a review of the
letters of appeal, the documents submitted at the hearing and the stipulations and
aqreements submitted by the parties, as well as having observed the demeanor of the
witnesses testifying at the hearing, will address the remaining job classifications
in dispute and make a determination as to (a) eligibility for collective bargaining
pursuant to Section 979-A of the State Employees Labor Relations Act and (b) if
eligible, placement into the appropriate bargaining unit.
         
     In the Department of Public Safety, the position of State Police Captain (7004) was
placed in the supervisory bargaining unit by the Executive Director.  It is our
determination that the placement by the Executive Director is appropriate unless the
employee in the State Police Captain position is permanently assigned to collective
bargaining functions, employee relations matters or renders advice on a regularly
assigned basis to management personnel regarding either collective bargaining or
employee relations matters.  If a person is engaged in such collective bargaining
activities he should be and hereby is excluded under the provisions of Section
979-A,  6, Sub  C of the State Employees Labor Relations Act.  All employees in the
foregoing position who are not excluded because of such assignments should be and
hereby are included in a Supervisory Services unit of the State Employees Unit Determina-
tion report dated September 22, 1976.  The Liquor Inspector II (7262) was placed in
the Law Enforcement Services Unit by the Executive Director, but because of his super-
visory duties should be and hereby is placed in the Supervisory Services bargaining
unit.
          
     In the Department of Finance and Administration, the positions of Director, Retail
Stores (0240), and Retail Stores Supervisor (0247) do not necessarily imply a confiden-
tial relationship as contemplated by  979-A,  6, Sub  C of the State Employees Labor
Relations Act.  And the foregoing positions should be and hereby are included in the
Supervisory Services bargaining unit affirming the decision of the Executive Director.
The positions Budget Examiner I (0381) and Budget Examiner II (0382) work with
personnel and budget matters which necessarily imply a confidential relationship as
contemplated by  979-A,  6, Sub  C, of the State Employee Labor Relations Act and
should be and hereby are excluded from collective bargaining.  The position of Accounts
Systems Analyst (0325) is privy to confidential information as contemplated by  979-A,
 6, Sub  C, of the State Employees Labor Relations Act and hereby is excluded from
collective bargaining.  The position of Chief Buyer (0254) has sufficient management
control duties as contemplated by  979-E,  1, of the State Employees Labor Relations

                                      -3-
________________________________________________________________________________
          
Act and should be and hereby is included in the Supervisory Services bargaining unit.
The position Administrator Physical Plant (8250) should be and hereby is excluded from
collective bargaining as a confidential employee under  979-A,  6; Sub  C, of the
State Employees Labor Relations Act.  The position of Director, Inheritance Tax, (0513)
is a supervisory position as contemplated by 979-E,  1, of the State Employees Labor
Relations Act, and we hereby affirm the decision of the Executive Director to include
the position in the Supervisory Services bargaining unit.  The position of Electrician
Foreman (8212) was assigned by the Executive Director to the Professional and Technical
Services Unit, but the position has sufficient supervisory duties as contemplated by
 979-E,  1, of the State Employees Labor Relations Act to be and hereby is included
in the Supervisory Services bargaining unit.  The position Deputy State Purchasing
Agent (0253) is a confidential position as defined in  979-A,  6, Sub  C and
should be and hereby is excluded from collective bargaining.
          
     In the Department of Agriculture, the positions Director, Animal Industry (9156);
Director, Animal Welfare (9157); Director, Division of Markets (9166); Director of
Inspection (9184); and Director, Plant industry (9138), were included by the Executive
Director in the Supervisory Services bargaining unit.  We find sufficient supervisory
duties in the foregoing positions as defined in 979-E,  1, of the State Employees
 Labor Relations Act and hereby affirm the decision of the Executive Director including
the foregoing positions in the Supervisory Services bargaining unit.
         
     In the Department of Conservation, the positions Supervisor, Park Acquisition and
Development (9224); Supervisor, Park Management and Operations (9233); and Director,
Forest Management (9440), were included by the Executive Director in the Supervisory
Services bargaining unit.  We find that the foregoing positions have sufficient super-
visory duties as contemplated by  979-E,  1, of the State Employees Labor Relations
Act to be and hereby are included in the Supervisory Services bargaining unit.  We also
affirm the decision of the Executive Director in including the position State Entomolo-
gist (9414) in the Professional and Technical Services bargaining unit.  In the Depart-
ment of Educational and Cultural Services, the position Director, Division of Finance,
Education and Cultural Services (3073) necessarily implies a confidential relationship
as defined in  979-A,  6, Sub  C, of the State Employees Labor Relations Act
and should be and hereby is excluded from collective bargaining.
          
     In the Department of Human Services, the positions Director, Public Information
and Education, Health and Welfare (0825); Director of Social Welfare (5019); Director,
State Health Planning and Administration (5055); and Executive Director, Human Services
Council (5085) necessarily imply a confidential relationship as defined in  979-A,
 6, Sub  C, and should be and hereby are excluded from collective bargaining.

     In the Department of Inland Fisheries and Wildlife, the position Biologist IV
(9354) was included in the Professional and Technical Services bargaining unit by the
Executive Director.  We find that the foregoing position was properly included in the
Professional and Technical bargaining unit and hereby affirm the decision of the Execu-
tive Director.  The positions of Supervisor, Baxter State Park (9428); Assistant Chief
Game Warden (9514); and Director, Recreational Vehicle Registration and Safety (9602)
perform sufficient management control functions as defined by  979-E,  1, and should

                                      -4-
________________________________________________________________________________       
          
be and hereby are included in the Supervisory Services bargaining unit.
          
     In the Lottery Commission, the position of Deputy Director of State Lottery (0583)
is presently a vacant position.  The Board will take no action on the unfilled position
and, if and when the position is filled, a dispute concerning the placement of the
position in a bargaining unit may be resolved by unit clarification proceedings as con-
templated in  979-E,  3 of the State Employees Labor Relations Act.
         
     In the Department of Manpower Affairs, the position of Division Director of Man-
power Affairs (0726) is a confidential position as defined in  979-A,  6, Sub
 C, of the State Employees Labor Relations Act and should be and hereby is excluded
from collective bargaining.
          
     In the Department of Mental Health and Corrections, the position of Chief Account-
ant Mental Health and Corrections (0339) is a confidential position as contemplated by 
 979-A,  6, Sub  C, of the State Employees Labor Relations Act and should be and
hereby is excluded from collective bargaining.  The positions of Deputy Prison Warden
(5224); Assistant Superintendent of Corrections (5238); Director of Probation and
Parole (5264); Director of Mental Health Retardation Facilities (5277); Assistant
Director, Bureau of Corrections (5278); and the Superintendent of the Military and Naval
Children's Home (5301) were determined by the Executive Director to be in the Supervisory
Services unit.  We find that the foregoing positions have been involved with control
duties as contemplated by  979-E,  1, of the State Employees Labor Relations Act,
and we hereby affirm the decision of the Executive Director.  The position, Chief of
Prison Security (5228), has sufficient management control duties as contemplated in
 979-E of the State Employees Labor Relations Act and should be included in the Super-
visory Services bargaining unit.  The position, Clinical Director (5240), necessarily
implies a confidential relationship as contemplated by  979-A,  6, Sub  C, of the
State Employees Labor Relations Act and should be and hereby is excluded from collective
bargaining.  The positions, Mental Retardation Planning Coordinator (4319) and Super-
visor, Special Services, Mental Health and Corrections (4105), should be and hereby
are assigned to the Professional and Technical Services bargaining unit.
 
     In the State Department, the positions of Assistant Director of Motor Vehicles (0610)
and Chief, Bureau of Driver Licenses (7309), have management control duties as de-
fined in  979-E,  1, of the State Employees Labor Relations Act, and we hereby affirm
the decision of the Executive Director including the foregoing positions in the Super-
visory Services bargaining unit.
          
     In the Department of Transportation, the positions of Assistant Director, Bureau
of Administration (0047) and Highway Equipment Engineer (6328) necessarily imply a
confidential relationship as defined in  979-A,  6, Sub  C, of the State
Employees Labor Relations Act and should be and hereby are excluded from collective
bargaining.  The position Civil Engineer IV (6346) was included in the Professional
and Technical Services unit by the Executive Director.  We find that the foregoing
position should be included in the Professional and Technical Services unit and hereby
affirm the decision of the Executive Director.  The position Civil Engineer V (6347)
necessarily implies a confidential relationship as defined in  979-A,  6, Sub
 C, of the State Employees Labor Relations Act and should be and hereby is excluded
from collective bargaining.  The positions of Director, Highway Staff Prograni (7285);

                                      -5-
________________________________________________________________________________

Ferry Service Manager (8475) and Chief Highway Staff Coordinator (7294) have manage-
ment control duties as defined in  979-E,  1, of the State Employees Labor
Relations Act, and we hereby affirm the placement of the foregoing positions in the
Supervisory Services unit by the Executive Director.
          
     In the Department of Marine Resources, the position of Director, Public Relations
and Marketing (9508), should be and hereby is assigned to the Professional and Tech-
nical Services unit.
          
     The positions appealed by the Maine State Employees Association and not appealed
by the Office of State Employee Relations, including the Game Warden Inspector (9517);
Machinist Foreman (8322); Mason Foreman (8222); Painter Foreman (8232); and Plumber
Foreman (8243) were included in the Supervisory Services unit by the Executive Director.
We find that the foregoing positions have management control functions as contemplated
by  979-E,  1, of the State Employees Labor Relations Act, and we hereby affirm the
decision of the Executive Director placing these positions in the Supervisory Services
unit.  The positions of Institutional Business Manager II (0044) and Institutional
Business Manager I (0046) have management control functions as defined in  979-E,
 1, of the State Employees Labor Relations Act and should be and hereby are included
in the Supervisory Services bargaining unit.  The position of Lottery Finance Manager
(0581) necessarily implies a confidential relationship as contemplated by  979-A,
 6, Sub  C, of the State Employees Labor Relations Act, and we affirm the decision
of the Executive Director which determined the foregoing position was a confidential
position.
          
     The final position is that of Director, Maine Criminal Justice Academy (U220)
which was omitted from the decision on unclassified positions.  The foregoing position,
like the positions of Director, Corrections (U082); Director, Mental Health (U080);
Director, Mental Retardation (U081); and Prison Warden (U231) were all excluded by
the Executive Director.  Like the four other positions, the position of Director,
Maine Criminal Justice Academy (U220), has not been raised in this proceeding by any
party in interest adversely affected by the decision below and, therefore, we affirm
the decision of the Executive Director excluding the Director, Maine Criminal Justice
Academy from the coverage of the State Employees Labor Relations Act.
          
     The issuance of this decision resolves all positions appealed as a result of the
Unit Determination Report issued by the Executive Director on September 22, 1976,
which were not resolved by one of the prior decisions in this matter.  We therefore
direct the Executive Director to proceed with a secret ballot election as specified in
26 M.R.S.A.  979-F(2) and Rule 3.01 et seq. of the Rules and Procedures of the Maine
Labor Relations Board for the Professional and Technical Services Unit, Law Enforce-
ment, Public Safety and Regulatory Services Unit, Operations, Maintenance and Support
Services Unit, and the Supervisory Personnel Services Unit.
          
     Any organizations seeking to appear on the ballot for the Professional and Tech-
nical Services Unit, the Law Enforcement, Public Safety and Regulatory Services Unit,
the Operations and Maintenance and Support Services Unit, and the Supervisory Personnel
Services Unit, other than those who have previously filed petition(s) pursuant to
Rule 3.01 of the Rules and Procedures of the Maine Labor Relations Board shall file a

                                      -6-
________________________________________________________________________________

petition and showing of interest with the Maine Labor Relations Board within seven
(7) days from the date of this Decision and Order.
          
Dated at Augusta, Maine, this 17th day of March,l977.
          
                                       MAINE LABOR RELATIONS BOARD



                                       /s/________________________________________
                                       Walter E. Corey, Chairman



                                       /s/________________________________________
                                       Robert D. Curley, Employer Representative



                                       /s/________________________________________
                                       Michael Schoonjans, Employee Representative
          
                                      -7-
________________________________________________________________________________