Town of Fairfield and Teamsters Local 48, No. 78-A-08, affirming No. 78-UD-42 STATE OF MAINE MAINE LABOR RELATIONS BOARD [No. 78-A-08] [Issued: November 30, 1978] ________________________ ) TOWN OF FAIRFIELD ) ) and ) REPORT OF APPELLATE REVIEW ) OF TEAMSTERS LOCAL UNION ) UNIT DETERMINATION HEARING NO. 48, STATE, COUNTY, ) MUNICIPAL AND UNIVERSITY) EMPLOYEES ) ________________________) This case originally came to the Maine Labor Relations Board ("Board") by way of a Petition for Appropriate Unit Determination filed May 31, 1978 by Richard R. Peluso, International Trustee, Teamsters Local Union No. 48. By its Petition, Teamsters Local Union No. 48 ("Local No. 48") seeks formation of a proposed bargaining unit composed of the Social Worker, Deputy Tax Collector, and Deputy Treasurer/Deputy Tax Collector job classifications in the Town Office of the Town of Fairfield ("Town"). On July 20, 1978, a hearing examiner for the Board conducted a unit determina- tion hearing on the Petition, pursuant to 26 M.R.S.A. 966. As a result of the unit determination hearing, a Unit Determination Report was issued by the hearing examiner on July 31, 1978. In the Report, the hearing examiner found, among other things, that the duties performed by the person holding the Deputy Treasurer/Deputy Tax Collector position did not necessarily imply a confidential relationship to an executive head within the meaning of 26 M.R.S.A. 962(6) (C), and that the Deputy Treasurer/Deputy Tax Collector position was appropriate for inclusion in the pro- posed bargaining unit. Counsel for the Town on August 3, 1978 filed with the Board pursuant to 26 M.R.S.A. 968(4) a letter appealing the July 31, 1978 Unit Determination Report. The appeal was heard by the Board on September 12, 1978 in Augusta, Maine, Chair- man Edward H. Keith presiding, with Paul D. Emery, Employer Representative and Michael Schoonjans, Employee Representative. Present at the hearing for the Town were: Richard L. Hornbeck, Esquire Attorney for the Town of Fairfield Dale Green Witness and Town Manager, Town of Fairfield Elwood Osborne Witness and Former Acting Town Manager, Town of Fairfield Present for Local No. 48 were: Jonathan G. Axeirod, Esquire Attorney for Local 48 Richard R. Peluso Witness and International Trustee, Teamsters Local Union No. 48 Virginia H. Joseph Witness and Deputy Treasurer/ Deputy Tax Collector, Town of Fairfield [-1-] ____________________________________________________________________________________ Gloria A. Sturtevant Witness and Resident, Town of Fairfield At the close of the hearing, a briefing schedule was established. All briefs were filed by September 25, 1978, and the Board proceeded to deliberate over the appeal at a conference held in Augusta, Maine on October 27, 1978. Neither party has challenged the jurisdiction of the Board to hear this appeal, and we conclude that the Board has jurisdiction to hear and render a decision on this appeal as provided in 26 M.R.S.A. 968(4). After reviewing the record developed at the September 12, 1978 hearing and the July 31, 1978 Unit Determination Report, the Board finds that: 1. A Petition for Appropriate Unit Determination was filed with the Board on May 31, 1978 by Richard R. Peluso. A unit determination hearing was held on July 20, 1978. 2. The job classifications under consideration at the unit determina- tion hearing were Social Worker, Deputy Tax Collector, and Deputy Treasurer/Deputy Tax Collector in the Town Office of the Town of Fairfield. 3. The Unit Determination Report in this matter was issued July 31, 1978. 4. Counsel for the Town of Fairfield filed an appeal of the July 31, 1978 Unit Determination Report on August 3, 1978. 5. The duties performed by the Deputy Treasurer/Deputy Tax Collector include collecting excise and real estate taxes, selling automobile stickers, posting taxpayer cards, balancing Town receipts, prepar- ing unpaid tax lists, answering tax inquiries from the public, pre- paring monthly bills, writing checks for the Town, collecting liens, issuing receipts, preparing the Town payroll, and typing correspond- ence and documents. Appellant Town contends on appeal that the hearing examiner erred as a matter of fact and as a matter of law in finding that the duties performed by the Deputy Treasurer/Deputy Tax Collector do not necessarily imply a confidential relation- ship with the Town Manager within the meaning of 26 M.R.S.A. 962(6)(C). Because of these errors and in light of 26 M.R.S.A. 966(1), counsel for the Town asserts, the Deputy Treasurer/Deputy Tax Collector position was improperly included in the proposed unit with the Social Worker and Deputy Tax Collector positions. Appellee Local No. 48 argues on appeal that the hearing examiner correctly found that the duties performed by the Deputy Treasurer/Deputy Tax Collector do not imply a con- fidential relationship with the Town Manager. Title 26 M.R.S.A. 962(6)(C) pro- vides in pertinent part that an employee whose duties as a secretary necessarily imply a confidential relationship to an executive head is not a "public employee" covered by the provisions of the Municipal Public Employees Labor Relations Act. Title 26 M.R.S.A. 966(1) states in part that anyone excepted from the definition of public employee under Section 962 may not be included in a bargaining unit. After carefully reviewing the record and the applicable legal precedent, we are of the opinion, for the reasons discussed below, that the duties performed by the Deputy Treasurer/Deputy Tax Collector do not imply a confidential relationship with the Town Manager. Consequently, we will affirm the July 31, 1978 Unit Determina- tion Report and deny Appellant's appeal. A corollary issue which was raised in this proceeding but which we need not here decide is whether documentary evidence -2- ____________________________________________________________________________________ which existed prior to the unit determination hearing but which was not offered at the hearing may be introduced at the appeal hearing before the Board. At the September 12, 1978 appeal hearing, counsel for the Town introduced 15 ex- hibits which were not offered at the July 20, 1978 unit determination hearing. At the conclusion of the hearing, the Board requested that the parties file briefs arguing whether the introduction of these exhibits were proper. After reviewing the new exhibits, however, we conclude that we need not decide that issue here because the evidence contained in the exhibits is not persuasive in establishing that the findings of the hearing examiner were erroneous. In determining confidential employee status, this Board's critical inquiry is whether the alleged confidential employee is permanently assigned to collective bargaining functions or employee relations matters, or renders advice on a regu- larly assigned basis to management personnel regarding either collective bargain- ing or employee relations matters, see Report of Appellate Review of Unit Deter- mination Hearing, Waterville Police Dept. and Teamsters Local Union No. 48 (1978) [No. 78-A-06]. As we stated in Waterville Police Dept., supra,: "To show that an employee's duties imply a confidential relationship under Section 962(6)(C), then, it is necessary to show that the employee is permanently involved in collective bargaining matters on behalf of the public employer or that the duties performed by the employee involve the formulation, determination and effectua- tion of the employer's employee relations policies . . . Absent such a showing, an employee will not be a "confidential employee" within the meaning of Section 962(6)(C). As for a claim that the duties of a secretary imply the confidential relationship, this Board will "exclude as a confidential secretary someone . . . who may handle documents for the 'public employer' which could jeopardize his bargaining position," Unit Determination Report, Gray-New Gloucester Ass'n of Paraprofessionals and Non-Teaching Personnel and S.A.D. #15 Board of Directors (1975) [No. 75-UD-21]. The reason for our inquiry into whether the duties performed by the alleged confidential employee involve collective bargaining or employee relations matters is clear: an employee who is included in a bargaining unit and whose duties involve confidential matters could, depending upon the nature of the confidential matters, be faced with a substantial conflict of loyalty between his or her employer and his or her bargaining agent. The legislature has attempted to minimize this potential conflict of loyalty by providing in 26 M.R.S.A. 962(6)(C) that em- ployees whose duties involve such confidential matters are not "public employees" entitled to be included in bargaining units under 26 M.R.S.A. 966(1). The confidential matters which might create this conflict of loyalty are the public employer's confidential collective bargaining or employee relations ideas, positions or policies which, if disclosed to the bargaining agent, could provide the bargaining agent with unfair leverage or advantage over the public employer. Because confidential information regarding matters other than collec- tive bargaining or employee relations would not in most cases provide the bargain- ing agent with undue advantage, an employee whose duties involve such other con- fidential matters is not subject to the same potential conflict of loyalty as is the employee whose duties involve confidential collective bargaining or employee relations matters. Consequently, we focus upon whether the employee's duties involve collective bargaining or employee relations matters when deciding whether -3- ____________________________________________________________________________________ the employee is a "confidential employee" under 26 M.R.S.A. 962(6)(C). Here the record does not show that the duties performed by the Deputy Treasur- er/Deputy Tax Collector involve either collective bargaining functions or employee relations matters. The Deputy Treasurer/Deputy Tax Collector had not, prior to the July 20, 1978 unit determination hearing, handled documents for the Town which could jeopardize the Town's bargaining position. Testimony at the September 12, 1978 hearing shows that the Deputy Treasurer/ Deputy Tax Collector performs a variety of duties associated with the maintenance of the Town's books and records and the collection of Town taxes. The Deputy Treasurer/Deputy Tax Collector also types for the Town Manaqer on occasion, although performing secretarial duties for the Town Manager is not the employee's primary duty. Other employees in the Town Office also perform secretarial duties, includ- ing typing, for the Town Manager. Prior to the July 20, 1978 unit determination hearing, the Deputy Treasurer/Deputy Tax Collector had never been informed that she was considered by Town officials to be a "confidential secretary." The exhibits introduced by counsel for the Town at the September 12, 1978 hearing, which include documents typed by the Deputy Treasurer/Deputy Tax Collector, do not show that the employee has been permanently involved in collective bargain- ing or employee relations matters. Appellant's Exhibit No. 2, a collective bargain- ing proposal by the Town, was typed by the Deputy Treasurer/Deputy Tax Collector subsequent to the July 20, 1978 unit determination hearing. We believe that the time at which an employee's confidential status is to be determined is the date of the unit determination hearing. If the employee's duties change so as to imply a confidential relationship subsequent to the unit determination hearing, then the correct procedure is for the public employer to file a Petition for Unit Clarifica- tion pursuant to 26 M.R.S.A. 966(3) and in accordance with Rule 1.13 of the Board's Rules and Procedures, Waterville Police Dept., supra. Testimony at the September 12, 1978 hearing establishes that Appellant's Exhibit No. 2 is the first Town bargaining proposal ever typed by the Deputy Treas- urer/Deputy Tax Collector. All other Town bargaining proposals have been typed in recent times by the employees of the professional negotiator hired to conduct nego- tiations on behalf of the Town. These bargaining proposals are locked by the Town Manager in his office safe, to which the Deputy Treasurer/Deputy Tax Collector has no access. As previously indicated, we do not consider evidence of a change in duties subsequent to the unit determination hearing to be probative on an appeal of the unit determination report. Similarly, Appellant's Exhibit No. 4, a letter involving a grievance by a re- serve police officer, was typed subsequent to the July 20, 1978 unit determination hearing. We also note that the grievance was not a confidential matter in any event, because the Town Manager had discussed the grievance with residents of the Town who were not Town officials prior to the Town Manager's decision on the griev- ance. Appellant's Exhibit No. 5, a graph showing wage differentials in Maine which was used by the Town in wage re-opener negotiations, does not contain confidential information. Unrebutted testimony at the hearing shows that all typewritten infor- mation contained in the graph was public information at the time the Deputy -4- ____________________________________________________________________________________ Treasurer/Deputy Tax Collector typed the graph. Appellant's Exhibit Nos. 6, 10, 16 and 17, which are letters to a bargaining agent concerning commencement of negotiations and new wage rates approved by the bargaining agent, also do not contain confidential information. The letters were sent directly to the bargaining agent, and thus hardly can be said to involve con- fidential matters which if disclosed would afford the bargaininq agent an undue advantage over the public employer. Appellant's Exhibit No. 7, a Town Manager's report to the Town Council, con- tains a report on the bargaining agent's collective bargaining proposals to the Town. Again, such information is hardly that which would provide the bargaining agent with unfair leverage. Even if the report did contain confidential informa- tion, the typing of one confidential document in over four years of employment would not constitute the permanent involvement in collective bargaining or employee relations matters which is necessary to show that an employee's duties imply a confidential relationship under 26 M.R.S.A. 962(6)(C), Waterville Police Dept., supra see also Swift & Co., 129 N.L.R.B. 1391, 1393 (1961). Appellant's Exhibit No. 8, a letter to the Board of Selectmen of Vinalhaven, Maine requesting an evaluation of a former Vinalhaven employee, also contains no confidential information. Any job applicant expects that the prospective employer will inquire into the applicant's previous job record. Additionally, the record shows that the Deputy Treasurer/Deputy Tax Collector is not aware of any response from the Vinalhaven Board of Selectmen. The Deputy Treasurer/Deputy Tax Collector does not open any of the Town Manager's mail, as all mail addressed to the Town Manager is opened by the Town Manager himself. Appellant's Exhibit No. 9, a letter to an employee and to a bargaining agent regarding the posting of a job position in response to a grievance, does not con- tain any confidential information. Additionally, the Deputy Treasurer/Deputy Tax Collector testified that she was unaware of the nature of the grievance mentioned in the letter. Appellant's Exhibit Nos. 11 and 12, letters to Town employees re- garding long distance telephone calls and irregular work days, do not contain con- fidential information which would provide undue advantage to a bargaining agent. Similarly, Appellant's Exhibit No. 13, a letter to the Town Council regarding a shift conversion, contains no confidential information. Finally, Appellant's Exhibit Nos. 14 and 15, letters to the City Administrator of Waterville and to the Maine Municipal Association, do not concern labor rela- tions matters. In sum, the record developed at the September 12, 1978 hearing does not support Appellant Town's contentions that the findings in the Unit Determination Report are erroneous. The fact that an employee may type for an executive head is not suffi- cient to show that the employee's duties necessarily imply a confidential relation- ship under 26 M.R.S.A. 962(6)(C), absent a showing that the employee is permanently involved in collective bargaining or employee relations matters on behalf of the public employer. We consequently must affirm the July 31, 1978 Unit Determination Report. The appeal entered by counsel for the Town of Fairfield on August 3, 1978 is DENIED, and the Executive Director of the Board is directed to proceed with a secret ballot election as specified in 26 M.R.S.A. 967(2) and Rule 3.01, et seq. of the Board's Rules and Procedures for the office workers' unit in the Town of -5- ____________________________________________________________________________________ Fairfield. Nothing in this Report is intended to prejudice the right of the Town of Fairfield to petition this Board for clarification of the office workers' unit should the duties performed by any of the employees in that unit change so as to imply a confidential relationship with an executive or department head. Dated at Augusta, Maine this 27th day of November, 1978. MAINE LABOR RELATIONS BOARD /s/_______________________________ Edward H. Keith Chairman /s/_______________________________ Michael Schoonjans Employee Representative Paul D. Emery, Employer Representative, files a separate concurring opinion, as follows: A review of the exhibits introduced before the Board has caused me to have some reservations concerning the decision rendered by the Hearing Examiner. I conclude, however, that his decision cannot be held to be clearly erroneous, and I therefore must concur in the order affirming the Unit Determination Report. I am concerned, however, lest the Board's line of reasoning might deprive a public employer of access to any confidential assistance in many cases, thereby thwart- ing the declared policy of the Act, which is "to promote the improvement of the relationship between public employers and their employees. . . . ." It is hard to conceive of a situation in which such improvement can take place in the absence of a confidential relationship between the public employer and at least one of his employees. In the absence of such a relationship, management cannot adequately function. Section 962(6)(C) excludes from the definition of "public employee" any per- son whose duties "necessarily imply a confidential relationship to the executive head, body head, department head or division head." The Report of Appellate Review stresses an erroneously assumed requirement for a permanent involvement or permanent assignment to collective bargaining or other personnel functions or the performance of such functions as a primary duty. I submit that this is an unwarranted extension of the statutory language and will be effective to deny to all but the largest municipalities the machinery for dealing with labor and personnel matters as well as other matters depending on confidentiality. -6- ____________________________________________________________________________________ Fairfield is a relatively small municipality. As such, it cannot justify hiring an employee who will be permanently involved in or permanently assigned to collective bargaining or personnel affairs. It cannot even justify having an employee whose primary duties are limited to such areas. This is true even if the duties extend to areas of confidentiality not related to labor relations. Yet, Fairfield must handle such matters when faced with them. Counsel for the union acknowledged at the hearing that Fairfield is entitled to one confidential employee. Certainly it will never have such an employee if the artificial test of permanent assignment or primary duties is to be imposed. I cannot agree with the majority's interpretation of 26 M.R.S.A., 962(6)(C), which it reaches by analogizing this section to the legislative intent expressed in the subsequent enactments pertaining to other employees in the public sector. Unlike either 979-A(6)(C) of the State Employees' Labor Relations Act (26 M.R.S.A., 979, et seq.) or 1022(11)(C) of the University of Maine Labor Relations Act (26 M.R.S.A., 1021, et seq.), Section 962(6)(C) of the Municipal Public Employees Labor Relations Act does not provide that the duties performed by the alleged con- fidential employee must necessarily imply a confidential relationship "with respect to matters subject to collective bargaining." Had the legislature intended to ex- clude from coverage by the Municipal Public Employees Labor Relations Act only those whose duties involved collective bargaining or employee relations matters, it could have so provided in Section 962(6)(C), as it did provide in 26 M.R.S.A., 979-A(6) (C) and 26 M.R.S.A. 1022(11)(C). By failing to amend 26 M.R.S.A. 962(6) (C), at the time of enactment of the State Employees Relations Act in 1974 or the University of Maine Labor Relations Act in 1975, I would conclude that it was the legislative intent to differentiate between employees covered by those Acts and those covered by the Municipal Public Employees Labor Relations Act. Certainly, as the subsequent legislation was drafted and debated, this difference was noted. One must ask why the earlier Act was not amended to conform to the later ones. To ask the question is to answer it. The legislature did not intend conformity in that instance. Consequently, I do not agree with the majority's statement that our inquiry under Section 962(6)(C) is only whether the duties performed by the employee involve collective bargaining or employee relations matters. In my opinion, we should not "read into" Section 962(6)(C) language which the legislature has not expressly in- cluded in the Section. I would find that an employee is a "confidential employee" within the meaning of Section 962(6)(C) if the employee's duties imply a confidential relationship to an executive head with respect to any matters. Such a finding would fully comport with the language contained in Section 962(6)(C). Since I believe that the evidence in this case is not clear that the duties performed by the Deputy Treasurer/Deputy Tax Collector imply a confidential rela- tionship with respect to any matter, I am compelled to concur with the result of the Report of Appellate Review. I disagree, however, with the majority's interpre- tation that Section 962(6)(C) requires a showing that the alleged confidential employee has been permanently assigned to collective bargaining functions or employee relations matters or that she is primarily involved with such matters or with -7- ____________________________________________________________________________________ confidential matters, in general. I suggest that the lack of clarity in defining the duties of the employee in this case results from the sporadic need for con- fidential services rather than the absence of such need and that as the municipality progresses in the matter of labor relations and other areas where confidentiality is vital, the duties of this employee or some other employee will be demonstrably such as to entitle such employee to the exemption contemplated by Section 962(6)(C). Dated at Augusta, Maine, this 30th day of November, 1978. /s/_____________________________ Paul D. Emery Employer Representative -8- ____________________________________________________________________________________