State of Maine and MSEA, No. 78-UC-06, affirmed by 78-A-09.

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD     
                                                   [Case No. 78-UC-06]  
                                                   [Issued:  August 10, 1978]
         and           )                  UNIT CLARIFICATION REPORT
ASSOCIATION            )
     As the result of the filing of a Petition for Unit Clarification by Lanning S.
Mosher, Director, Office of State Employee Relations,[fn]1 on behalf of the State of
Maine, on April 3, 1978, Unit Clarification hearings were conducted on May 25 and
June 1, 1978, at the State Office Building, as provided in 26 MRSA Section 979-E.

     Present at the hearing for the petitioner were:
          John J. Sears, Esquire               Counsel, Office of State
                                               Employee Relations

          David Longmuir                       Chief Negotiator, Office of
                                               State Employee Relations
          Dean F. Clukey                       Captain, Maine State Police
          Ron Eccles                           Lieutenant, Maine State Police
          G. Paul Falconer                     Captain, Maine State Police
          Albert Jamison                       Major, Maine State Police
          Rupert Johnson                       Captain, Maine State Police
          Edward Wilson                        Lieutenant, Maine State Police
     Present for the Maine State Employees Association was:
          John J. Finn, Esquire                Counsel, Maine State Employees
     Also present was the undersigned, Robert I. Goldman, hearing examiner, as
designee of the Executive Director of the Maine Labor Relations Board.
     By its petition the State of Maine seeks to exclude the positions of State
Police Captain and State Police Lieutenant from coverage under the State Employees
Labor Relations Act (hereinafter, "the Act").  The said employees are now included
in the Supervisory Services bargaining unit of State employees and the State seeks
not only to have the positions detached from this unit, but excluded entirely from
coverage under the Act.  The State's claim, simply stated, is that since the
     1 The Office of State Employee Relations (hereinafter, "OSER") is the designee
of the Governor for the purpose of engaging in collective bargaining on behalf of
the executive branch of state government under the State Employees Labor Relations
Act.  Section 979-A, Paragraph 5 provides, ". . . It is the responsibility of the
executive branch to negotiate collective bargaining agreements and to administer
such agreements.  To coordinate the employer portion in the negotiation of agree-
ments, the Legislative Council or its designee shall maintain close liaison with
the Governor or his designee representing the executive branch relative to the
negotiation of cost items in any proposed agreement.  The Governor's office or
its designee is responsible for the employer functions of the executive branch
under this chapter, and shall coordinate its collective bargaining activities
with operating agencies on matters of agency concern. . . ."


original unit determination hearings concluded back in June 1976, there have been
various changes in the Bureau of State Police and in the job content of these
positions which are now sufficient to warrant their exclusion pursuant to Section
979-A, Paragraph 6(C) of the Act; that is, they are now confidential employees with
respect to matters subject to collective bargaining.[fn]2  The second string to the
State's bow is the claim that the Captains and Lieutenants should be recognized
as managerial employees and excluded as a matter of policy even though there is
no such explicit exclusionary provision in the Act.
     The Maine State Employees Association (hereinafter, "MSEA") is the certified
bargaining agent for the employees in the Supervisory Services bargaining unit
and it seeks to have the Petition dismissed claiming it is untimely, fails to
allege a material change in circumstances, and fails to state a claim upon which
relief can be granted.  MSEA has substantive objections as well, i.e., 1) that any
alleged changes are not sufficient to warrant modification in the composition of
the bargaining unit, 2) that the earlier decision considered the more important
aspects of the positions and the State's attempt here is really an appeal for re-
consideration, and 3) that the legislation contains specific and limited grounds
for exclusion and "managerial" or "administrative" are not among them.
     In the latter part of 1975 and during the first half of 1976, the Executive
Director of the Board conducted extensive hearings on the various requests then
pending for the establishment of appropriate units of State employees under the
Act.  He ultimately found seven state-wide units to be appropriate, including a
State Police Services unit comprised of Troopers, Corporals and Sergeants employed
in the Bureau of State Police, and the aforementioned Supervisory Services bar-
gaining unit.[fn]3  During the course of those hearings OSER steadfastly sought the
     2 Section 979-A.  Definitions
       * * *
       "6.  State employee.  "State employee" means any employee of the State of
Maine performing services within the executive department except any person:
       A.  Elected by popular vote; or
       B.  Appointed to office pursuant to statute, ordinance or resolution for
       a specified term by the Governor or by a department head or body having
       appointive power within the executive department; or
       C.  Whose duties as deputy, administrative assistant or secretary neces-
       sarily imply a confidential relationship with respect to matters subject
       to collective bargaining as between such person and the Governor, a depart-
       ment or body having appointive power within the executive branch; or
       D.  Who is a department or division head appointed to office pursuant to
       statute, ordinance or resolution for an unspecified term by the Governor
       or by a body having appointive power within the executive department; or
       E.  Who has been employed less than 6 months; or
       F.  Who is a temporary, seasonal or on-call employee; or
       G.  Who is serving as a member of the State Militia or National Guard."
     3 The bargaining units for State employees are: Administrative Services;
Professional and Technical Services; Institutional Services; Law Enforcement,
Public Safety and Regulatory Services (Non Police); State Police Services;
Operations Maintenance and Support Services; and Supervisory Services.
     Supervisory employees are not excluded from the protections of the Act,
even though they may exercise judgment in adjusting grievances, applying estab-
lished personnel policies and procedure and enforcing a collective bargaining
agreement.  Section 979-E, Paragraph 1.


exclusion of State Police Captains and Lieutenants from inclusion under the Act on
the same grounds urged in the current Unit Clarification proceeding.  The Executive
Director placed each of the positions in question therein in the Supervisory Services
unit.  The determination of the Executive Director was appealed to the Board which
confirmed the unit placement of the Captain position.  In the course of its decision
the Board stated, "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 Act . . . ."[fn]4  Both OSER and MSEA have the decision of the
Board under appeal to the Superior Court of Kennebec County where the matter is
pending.[fn]5  Some time after the appeal to the Board was entered, the parties in
interest, including OSER, entered into a stipulation which, inter alia, confirmed
the placement of the Lieutenant position in the Supervisory Services unit.[fn]6
     During the course of the hearings in the instant proceeding, it became evident
that various changes of significance have occurred within the Bureau of State Police
and with respect to the Captain and Lieutenant positions.  Clearly there have been
changes, both organizational and operational, which have affected the roles of Captains
and Lieutenants and which have been energized by the new philosophy affecting the com-
mand of the State Police which has asserted itself over the past two years.  The ques-
tion is whether the changes are of a character and dimension that requires a change in
the unit placement of these positions, or a change in their treatment under the Act.
     On July 1, 1976, Colonel Allan Weeks, who had been Deputy Chief, assumed
command of the Bureau, having been appointed Chief of the Bureau and Commissioner
of the Department of Public Safety.[fn]7  With his succession to the command position
     4 Decision of Appellate Proceedings before the Maine Labor Relations Board
dated March 17, 1977.
     5 State Police Captains are but one of a number of positions involved in
the appeal.
     6 The reason for the abandonment of OSER's exclusionary claim with respect
to the Lieutenant position is unexplained.
     7 The Department of the State Police was reorganized by the Legislature in
1971.  P.L. 1971, c. 592.  The reorganization was completed in 1975, resulting
in a Department of Public Safety intended "to strengthen the department to
assure the safety and well being of Maine Citizens in the efficient management
of law enforcement responsibilities of the State . . ."  P.L. 1975, c. 579.
     Under the new organization the Department consists of:  the Bureau of
State Police, the Bureau of Liquor Enforcement, the Office of the State Fire
Marshal, and the Maine Criminal Justice Academy.  25 MRSA, Section 2901.  In
addition, the Legislature, in 1978, transferred responsibility for the Bureau
of Capitol Security to the Commissioner of Public Safety. P.L. 1978, c. 138.
The Legislature has mandated that appointment of the Chief of the Maine State
Police be made from among the commissioned officer ranks of the State Police
and has further provided that the Governor may appoint the same person to serve
as Commissioner of Public Safety and Chief of the Maine State Police.  25 MRSA,
Section 1501.  This is the procedure that has been followed since 1971.
    The Commissioner is the chief executive officer of the Department and in
that capacity he is responsible for coordinating and supervising the activities
and programs of the several bureaus.


there came a "new philosophy of participatory management," which in the operational
sense, and as practiced, placed greater managerial and administrative responsibil-
ities in the hands of Troop and Division commanders.  To effectuate this, in
January 1977 Colonel Weeks revised the divisional set-up of the Bureau with the
intent of decentralizing management responsibility.  The evidence shows that after
full discussion with all commissioned officers, and responding to the enthusiasm
of Captain Falconer who had represented him in a recent seminar held in Boston
which dealt with advanced trends in state police organization, Colonel Weeks
established three Field Divisions, each under command of a Captain, to replace
the old positions of field forces commander.  The jurisdiction of the Divisions
approximates proportional geographical areas of the State.  The effect of this was
to place greater responsibility, in the operational and administrative sense, at
the Field Division and Troop level.  There are eight field Troops, each under the
command of a Lieutenant.  Each Division, therefore, has two or three Troops
directly responsible to it.
     As part of the process of decentralization, and in itself evidence of the
repositing of more responsibility in the hands of line officers, the central
criminal investigation office was disbanded and a Criminal Investigation Division
(CID) was attached to each Field Division and was physically placed in the barracks
of a centrally located Troop in the Division.  Each CID is under the command of a
Lieutenant and its resources are available at the Troop level as needed; obviously
this has improved the access of this resource with respect to Troop or Division
investigations.  At approximately the same time the Legislature authorized a
Division of Special Investigation (DSI) with its own legislative appropriation
which is not budgeted through the Bureau.  DSI is under the direction of a State
Police Captain who reports to the Operations Major of the Bureau.  There is the
expectation that within the near future this office will come under civilian direction.
     In addition to the foregoing changes, on or about June 1977, changes were made
in the Planning and Research office expanding the role of that office measurably,
and it is claimed that it is "now a critical part of management."  The role of
that office, formally attached to the Department of Public Safety, is impressive
indeed, although it may reflect somewhat the capability of the Lieutenant currently
in charge of the office.  It was testified that the Planning and Research office
has responsibility for the overall planning for the entire Department, including
program planning, obtaining and digesting information of funding sources and the
types of programs for which the funds are available, grant writing, and follow
through.  This office, or the current incumbent, has been responsible for advocating
various programs and, once they have been approved, managing the acquisition and
on-line installation of same, including a new state-wide communications system,
a highly sophisticated computer operations system which is, or will be, capable
of interconnecting with a Northeast regional information sharing system, and the
Division of Special Investigations, among others.
     Unquestionably the reorganization, the results of which have been only par-
tially outlined above, has meant that the roles of specific offices in the Bureau,
and consequently the responsibilities of officers in charge of the individual offices,
have been rather dramatically expanded and broadened.  These include the Crime

Laboratory (reporting to the Operations Major and administered by a Lieutenant),
Planning and Research Office (reporting to the Administrative Major and administered
by a Lieutenant), Division of Special Investigations (under the command of a Captain),
Communications Operations (headed by a Lieutenant), Personnel Office (headed by a
Captain), Director of Special Support Services (commanded by a Captain and having
under his aegis such varied support offices as the Uniform Crime Reporting Division
and the Supply Division), the three Criminal Investigation Divisions (each adminis-
tered by a Lieutenant).  This variety of roles, shared as they are by Captains and
Lieutenants alike, impresses upon the observer not only the range and importance of
matters which are administered by persons holding these positions in the Bureau,
but adds emphasis as well to the repeated theme in the testimony that it is part of
the tradition in the Bureau to expose all commissioned officers to a variety of
roles in the Bureau in the course of their service, so that each will be soundly
versed in the many aspects of the Bureau's operations.  Thus each officer is pre-
pared insofar as possible for ease of transition when promoted, assuming a new role,
or when utilizing a specific Bureau service in connection with his normal duties.
     The hearing examiner accepts the contention of the State that Captains in
charge of Field Divisions and Lieutenants in command of individual Troops have
acquired roles of a significantly enhanced managerial stature under the reorgani-
zation.  The Troop commander hires support personnel; he adopts schedules for his
Troop.  He may transfer personnel within his troop; he deploys men and materials;
he may commit significant sums for equipment or other needs; he is consulted on
policy and programs; he has attended advanced managerial seminars.  He may be in
charge of important criminal investigations and coordinate related anti-crime
missions or strikes.  He is preparing himself for managerial advancement within
the Bureau or Department; he has charge of maintenance of facilities; he makes
performance appraisals of personnel and equipment; he makes recommendations for
promotions and transfers.  His responsibility in the area of budget has increased.
More and more as the Division and Troop commanders assume greater responsibility,
approval of upper echelon superiors has become more perfunctory.  It was testified
that the activities of Troop commanders in the area of their responsibilities are
exercised without the close scrutiny of the Division Captain or other superiors.
The role of the Captain in the managerial and administrative sense is equally
clear.  It was testified that the Division organization has meant a greater degree
of uniformity in carrying out policy in the Bureau.  Since the Division Captains
can resolve areas of doubt by consultation, this necessarily means the Troops
under their direction will operate on a more uniform and administratively coherent
basis.  In sum, it would appear that a Troop Commander may be likened to a Precinct
Captain in a metropolitan police force, and the Division Captain to his next superior.
     The changes that have been wrought in the Bureau are substantial, and considering
the policy of the current Chief of the Bureau to place decision making in the hands
of the commanders at the Troop and Division level (insofar as practicable), it is
clear the positions of Captain and Lieutenant are more managerial or administrative
positions than at the time of the original unit hearings.  This conclusion is reached
without considering their role in the collective bargaining area.  However, under
the statutes and decisions that govern this determination, that is not enough to


justify excluding these positions from the coverage of the Act.  Although there
may be persuasive policy reasons fortified by determinations in other jurisdictions
for establishing a management class of employees and then exempting it from the
scope of the law, neither the Legislature nor the Board[fn]8 has seen fit thus far to
expand the exclusions found in Section 979-A, Paragraph 6, of the Act.  Nor is
the direction of other jurisdictions consistently compelling in this regard.[fn]9
     As indicated above, the question remains whether each position, since the
earlier hearings, have or have not been transformed into that of "deputy, admini-
strative assistant or secretary necessarily implying a confidential relationship
with respect to matters subject to collective bargaining as between such person
and the Governor, a department head or body having appointive power within the
executive department."[fn]10  Or as stated by the Board in its Decision of March 17,
1977, the position to be exempt must be "permanently assigned to collective bar-
gaining, employee relations matters or renders advice on a regularly assigned
basis to management personnel regarding either collective bargaining or employee
relations matters."[fn]11
     It is clear that neither Division Captains or Troop Commander Lieutenants,
nor the officers in charge of any of the offices enumerated herein, may be classi-
fied as a deputy, administrative assistant or secretary to the head of the depart-
ment (either the Bureau or the Department of Public Safety).  However, testimony
of witnesses shows that Captains and Lieutenants have been involved in the collective
bargaining process as it relates to the non-commissioned officers and troopers unit.
The Chief Negotiator for the State, Mr. Longmuir, testified that it was his modus
operandi to seek out and consult with the personnel in the organization who had
the greatest familiarity with the "real world" of State Police operations and
organization; that is, those who held positions at the critical junctures of the
organization vis-a-vis its operational functions.  As a result of his own persis-
tence and the emerging re-organizational patterns within the Bureau, Mr. Longmuir
found himself consulting with the officers representing the two positions now in
question.  This coming together was also consonant with Colonel Weeks' view that
the Captains and Lieutenants were a critical level of management in terms of advising
on policy and then carrying it out.  Meetings were then held on a fairly regular
basis and they were both informational, concerning Mr. Longmuir's need to know how
the Bureau operated and was administered, and advisory in terms of his seeking the
views of these employees and sharing with them many of the developments as nego-
tiations proceeded.  In fact, Mr. Longmuir felt it personally necessary to clear
     8 Managerial control duties, including the exercise of judgment in adjusting
grievances and enforcing a collective bargaining agreement, are recognized in the
Act as typical indicia of supervisory status and justify inclusion, rather than
exclusion, under the Act.  See Unit Determination Report of the Executive Director
dated September 22, 1976 [Nos. 75-UD-04, et al.], and Decision of Appellate Proceedings before the Maine
Labor Relations Board dated March 17, 1977 [No. 77-A-02].
     9 See Matter of City of Tacoma, Wash PERB, 710 GERR 13 (April 8, 1977).  For
a discussion of the problem see review by Professor Tim Bornstein, University of
Massachusetts in 718 GERR 11 (July 25, 1977).
    10 Section 979-A, Paragraph 6(C).
    11 Decision of Appellate Proceedings, supra, fn. 2.

final language with them on such matters as grievance procedure and management
rights.  As phrased by Mr. Longmuir, he wanted to be sure "it was something they
could live with" because they would be the administrators most directly affected.
It is clear then that these meetings involved discussions of substance and were
not mere formalities.  The testimony also showed that the formal negotiating com-
mittee on behalf of management included a Major and two Captains, who were appointed
or designated by someone other than the body of Captains and Lieutenants as a group.
It does not appear that these negotiators reported back to the Captains and Lieu-
tenants as a group, or felt the responsibility to do so.  However, some time well
after negotiations began a system of rotation was initiated whereby each Captain
was to have the opportunity to sit in on actual negotiations, but the collective
bargaining agreement was concluded before every officer enjoyed that opportunity.
Captains and Lieutenants as a body apparently had no formal structure for the
purpose of their meetings with Mr. Longmuir, or with respect to their involvement
in the process as otherwise outlined herein; the collective bargaining role of the
two positions is not the subject of any formal orders or edicts issued by the
Bureau command.[fn]12
    The participatory role of the Captains and Lieutenants has continued beyond
contract negotiations.  Meetings have been held to prepare line level officers for
their role in the administration of the collective bargaining agreement.  Meetings
are also held to review problems of administering the agreement and to prepare for
the coming negotiations on a successor agreement.  Troop Commanders may be conceived
as front line collective bargaining administrators in that they may be involved in
grievances, disciplinary hearings, contract interpretation on questions of pay, and
so on.  That is clearly the case.  But it is also true that they had a similar role
before the current collective bargaining agreement became operative.  It was testified
that the substance of many of the contract provisions existed previously, but that
the process for dealing with the subject matter had been changed in the provisions
of the agreement.  The evidence does not support the conclusion that a major and
primary role in administering the collective bargaining agreement had devolved on
the Troop Commanders or the Field Division Commanders, as contrasted with other
levels of the Bureau, as the result of the consummation of the agreement.
    Maine State Police commissioned officers are an impressive group of citizens
by any measure.  They are articulate, bright, learned and dedicated.  They justi-
fiably believe in the Bureau, its mission, and its standards.  The record shows
that it takes a minimum of nine years of service in the Bureau for appointment to
Lieutenant, and a minimum of 11 years, more probably 15, for appointment to Captain.
As stated earlier, there apparently is a policy to provide the widest possible
experience within the Bureau for its officers.  All the officers who testified
have had a distinguished breadth of service in their years with the organization.
    A recent change of policy has been adopted whereby each Captain fills in for
the Operations Major on a rotating basis whenever he is away or off duty; similarly,
Troop Commanders cover for their Division Captain on a rotating basis.  When so
    12 At least none were submitted as evidence, other than the job descriptions
which stipulate a role in grievance and discipline matters.


doing any officer is responsible for and is expected to fulfill all the duties of
his superior, not merely innocuous administrative tasks.  As emphasized by the
State in its post-hearing memorandum, it is apparent from the testimony of all the
witnesses that the intensity of the identity with management of the entire group
of Captains and Lieutenants has increased measurably as a result of the organi-
zational changes and philosophical bent of the regime since July 1, 1976.  Whereas
at the earlier hearing there was no expression of preference in the record con-
cerning the desires of the disputed group of employees, the instant record is
alive with the unanimity of their desire to be considered managerial employees
and to be excluded from any unit for collective bargaining purposes.
    The State's position as articulated in its memorandum, accompanied as it is
by an extensive review of the treatment of "managerial" employees in other juris-
dictions, is impressive.  But, when viewed in the light of the character of the
evidence in the record, it is not enough.  The Captains and Lieutenants simply
cannot be considered as deputies, administrative assistants or secretaries to the
head of their department, whose duties necessarily imply a confidential relationship
with respect to matters subject to collective bargaining.  Their duties do not
necessarily imply a confidential relationship of the type contemplated by the
statute.  It is not enough that they may be taken into the confidence of the State
negotiators during contract discussions or that they are versed in and have a role
in contract administration.  The record did not indicate that as a body or indi-
vidually they are permanently assigned to collective bargaining functions, employee
relations matters or render advice on a regularly assigned basis to management
personnel regarding either collective bargaining or employee relations matters,
as the Board would require by its March 17, 1977 decision.  From all that the
record demonstrates they well may be considered management or administrative
employees, but that alone is not sufficient to provide exclusion from the collective
bargaining process of the Act.  Neither the statute nor the Board by its decisions
has so authorized.  It must be kept in mind that OSER has been created to handle
the responsibility for the employer functions of the executive branch under the
Act and coordinates collective bargaining activity with operating agencies on
matters of agency concern.[fn]13  It is apparent that OSER, which employs skilled
labor relations personnel in various disciplines, performs much of the work on
behalf of the State or State agencies in the collective bargaining area.  It is
the negotiator of collective bargaining agreements and it administers such agree-
ments.  Therefore, it would appear that agencies within the executive branch would
have a reduced or lesser role in the labor relations area, depending somewhat on
the capacity of OSER to perform its mandate within the limits of its staff and
    This being the case and given the foregoing as background, it does not seem the
best judgment to select out a few of the contested positions which may individually
warrant exclusion.  MSEA agrees that the Personnel Officer might be properly excluded.
Grounds may be found to do the same with the Planning Research Officer or the head
of the Division of Special Investigation.  However, the State did not request
specific exclusions and the evidence was not directed particularly toward that
     13 See fn. 1, supra.


possibility.  Furthermore, based upon the record of this proceeding, it does not
seem proper to begin fragmenting this body of officers unless there is accord on
the matter.  There is persuasive justification to honor the peculiar cameraderie
and sense of identity shared by the group as a whole.  No one has sought a separate
operational bargaining unit of the commissioned officers of the State Police and the
hearing examiner does not see the need to address that matter in this report.
    The Motions of MSEA, assuming their acceptability in this type of proceeding,
are denied.  The State did state a claim within the Unit Clarification provisions;
there have been significant changes in the positions; and the petition is not
untimely.  The fact that an appeal is pending to review the earlier decision of
the Board with respect to the position of State Police Captain is no reason to
withhold a determination on the instant Petition for Unit Clarification filed by
the State, since it is based upon an allegation of changed or new conditions
affecting the position.
    Based upon the evidence there is no justification under the State Employees
Labor Relations Act for excluding the positions of State Police Captain and State
Police Lieutenant from the coverage of the Act or from the Supervisory Services
bargaining unit of State employees.  SO ORDERED.
Dated at Augusta, Maine, this 10th day of August, 1978.
                                          MAINE LABOR RELATIONS BOARD

                                          Robert I. Goldman 
                                          Hearing Examiner, designee of the
                                          Executive Director