Order dated Aug. 30, 1989, 
Supplemental Order dated Sept. 22, 1989
Unit Clarification Report dated Feb. 22, 1990.


STATE OF MAINE                      MAINE LABOR RELATIONS BOARD
                                    Case No. 90-UC-03         
                                    Issued:  August 30, 1989

_____________________________________
                                     )
TOWN OF THOMASTON,                   ) 
                   Petitioner,       )
                                     )
and                                  )           ORDER     
                                     ) 
TEAMSTERS LOCAL UNION NO. 340,       )
                                     )
                   Bargaining Agent. )
                                     )         
_____________________________________)                           

    On August 4, 1989, pursuant to section 966(3) of the Municipal Public
Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A.  966(3) (1989), and
Maine Labor Relations Board ("Board") Rule 1.13, the Town of Thomaston
("Town") filed a petition for unit clarification with the Board, seeking
to exclude the town clerk and the secretary to the town manager from the
existing Town of Thomaston bargaining unit.  Teamsters Local Union No. 340
("Union"), the bargaining agent for the existing unit, opposes the exclusion
of these two positions.
         
    Upon due notice a public evidentiary hearing was scheduled for 9:00 a.m.
on Wednesday, August 30, 1989, in Room 714 of the State Office Building,
Augusta, Maine.
         
                               JURISDICTION
         
    The Town is a public employer within the meaning of 26 M.R.S.A.  962(7)
(1988).  The Union is the bargaining agent within the meaning of 26 M.R.S.A.
 962(2) (1988), for a bargaining unit composed of patrolmen, sergeants,
clerical employees, operators (wastewater), public works employees and
dispathers employed by the Town.  The jurisdiction of the hearing examiner
to hear this matter and to rule on the petition for unit clarification lies
in 26 M.R.S.A.  966 (1988).

                                  [-1-]
_____________________________________________________________________________

                             FINDINGS OF FACT

    Upon review of the entire record, the hearing examiner finds:
         
    1.  The Town filed its petition for unit clarification with the Board
on August 4, 1989.
         
    2.  The Town served the Union with a copy of the petition by certified
mail, return receipt requested, and addressed to Adelard LeCompte.  The
receipt, filed with the Board on August 11, 1989, shows receipt of the
petition by the Union on August 3, 1989.
         
    3.  By letter dated August 10, 1989, sent certified mail, return
receipt requested, the Board informed both the Town and the Union that a
unit clarification hearing was scheduled for Wednesday, August 30, 1989,
at 9:00 a.m., in Room 714 of the State Office Building, Augusta, Maine.
         
    4.  A hearing notice prepared by the Board was included in the August 10th
letter to the parties, and copies of the notice were sent to Jerry Laliberte,
Town Manager of Thomaston, for posting in all locations where notices are
normally posted for the benefit of the Town's employees.  The notice con-
tained the time and location of the unit clarification hearing.    

    5.  The return receipt addressed to the Union at its business address,
P.O. Box 2290, South Portland, Maine 04106, shows receipt of the August 10th
letter and hearing notice by the Union on August 11, 1989.
         
    6.  Town Manager Laliberte received the hearing notice and posted it on
the employee bulletin board.
         
    7.  Linda D. McGill, Esquire, appeared at the hearing on behalf of the
Town.  She was accompanied by Mr. Laliberte and Mark W. Strong, Thomaston
Selectman.  No one appeared on behalf of the Union.
         
    8.  After waiting a reasonable time for the Union to make an
appearance, the hearing was formally convened at 9:38 a.m. and adjourned
at 9:42 a.m., Wednesday, August 30, 1989.

                                  [-2-]
_____________________________________________________________________________
         
                                  ORDER
         
    On the basis of the foregoing Findings of Fact and pursuant to the pro-
visions of 26 M.R.S.A.  966 (1988), it is hereby ORDERED:
         
         The Town's unit clarification petition seeking exclusion
    of the town clerk and the secretary to the town manager from the
    Town of Thomaston bargaining unit is granted, conditioned on the
    right of the Union, within 15 days of the date of this Order, to
    show, in writing, just cause for its failure to appear at the
    August 30, 1989 evidentiary hearing.
         
         
Dated at Augusta, Maine, this 30th day of August, 1989. 
         
                                    MAINE LABOR RELATIONS BOARD
         
         
                                    /s/________________________
                                    JUDITH A. DORSEY
                                    Designated Hearing Examiner
         
         
The parties are hereby advised of their right, pursuant to 26 M.R.S.A.
 968(4) (1988), to appeal this Order to the Maine Labor Relations Board.
To initiate such an appeal, the party seeking appellate review must file
a notice of appeal with the Board within fifteen (15) days of the date of
issuance of this report.  See Board Rules 1.10 and 6.03.
         
                                  [-3-]
_____________________________________________________________________________

STATE OF MAINE                                 MAINE LABOR RELATIONS BOARD
                                               Case No. 90-UC-03
                                               Issued:  September 22, 1989

______________________________________
                                      ) 
TOWN OF THOMASTON,                    )    
                   Petitioner,        )
                                      )           
and                                   )            SUPPLEMENTAL ORDER
                                      )
TEAMSTERS LOCAL UNION NO. 340,        )
                                      ) 
                   Bargaining Agent.  )            
______________________________________)                       
        
    On August 4, 1989, pursuant to section 966(3) of the Municipal Public
Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A.  966(3) (1988), and
Maine Labor Relations Board ("Board") Unit Determination Rule 1.13, the
Town of Thomaston ("Town") filed a petition for unit clarification with the
Board, seeking to exclude the town clerk and the secretary to the town
manager from the existing Town of Thomaston bargaining unit.  Teamsters
Local Union No. 340 ("Union"), the bargaining agent for the existing unit,
opposes the exclusion of these positions.
        
    Upon due notice a public evidentiary hearing was scheduled for 9:00 a.m.
on Wednesday, August 30, 1989, in Room 714 of the State Office Building,
Augusta, Maine.  Linda D. McGill, Esquire, appeared at the hearing on
behalf of the Town, accompanied by the town manager and a selectman.  No
one appeared on behalf of the Union.
        
    After waiting approximately 40 minutes for the Union to make an
appearance, the hearing examiner briefly convened the hearing for the pur-
pose of establishing that the Union had received proper notice of the
hearing.  That same day, an Order was issued granting the Town's petition,
conditioned on the right of the the Union to show just cause, within fif-
teen days, for its failure to appear; the contents of that Order are incor-
porated herein by reference.  On September 11, 1989, the Union filed a
motion for relief, accompanied by an affidavit to support its position that
the failure to appear was excusable neglect.  The Town filed a motion in
opposition on September 18, 1989.
                                                              
                                   -1- 
_____________________________________________________________________________
       
                               JURISDICTION
        
    The jurisdiction of the hearing examiner to hear this matter lies in 26
M.R.S.A.  966 (1988).
        
        
                             FINDINGS OF FACT
        
    Upon review of the entire record, the hearing examiner finds:
        
    1.  On August 30, 1989, as a result of the Union's failure to appear at
a unit clarification hearing, the hearing examiner ordered the following:
        
               The Town's unit clarification petition seeking
         exclusion of the town clerk and the secretary to the town
         manager from the Town of Thomaston bargaining unit is
         granted, conditioned on the right of the Union, within 15
         days of the date of this Order, to show, in writing, just
         cause for its failure to appear at the August 30, 1989
         evidentiary hearing.
        
    2.  The Union filed a Motion for Relief from Order and Request for
New Hearing, dated September 8, 1989, and received by the Board on
September 11, 1989.  The motion was accompanied by the affidavit of Adelard
LeCompte, which stated that Mr. LeCompte was unaware of the August 30
hearing "as a result of excusable neglect as the hearing notice was never
transmitted to me by my office staff."
        
    3.  The Town filed a Memorandum in Opposition to Motion for Relief from
Order and Request for New Hearing, dated September 15, 1989, which was
received by the Board on September 18, 1989.
        
                                DISCUSSION
        
    The facts in this matter are simple and undisputed.  The Union was
informed by the Board, by certified mail, of the date, time and place of the
unit hearing.  Due to a failure of the Union's internal office procedures,
however, the Union representative assigned to handle the Thomaston matter
on behalf of two Thomaston employees did not know about the hearing and
failed to appear.  The Union argues that the failure was excusable neglect,
and the Town, relying on recent decisions by the Board in connection with
the failure of parties to appear at prehearing conferences in prohibited
practice cases, argues that it is not.  The appropriateness of sanctions
for failure to appear at a unit hearing is apparently a case of first

                                   -2-
_____________________________________________________________________________
        
impression, and requires careful consideration.

    Hearings in prohibited practice cases are adversarial proceedings.
The Board's powers are broad; it is authorized to order parties to cease
and desist from prohibited practices, and to "take such affirmative
action...as will effectuate the policies of this chapter."  26 M.R.S.A.
 968(5)(C) (1988).  Attorney's fees and/or expenses or costs have been
assessed in appropriate circumstances.  Washburn Teachers Assoc. v. Barnes,
No. 83-21, 6 NPER 20-14039 (Me.L.R.B. Aug. 24, 1983); Sanford Fire
Fighters Assoc. v. Sanford Fire Comm., No. 79-62 (Me.L.R.B. Dec. 5, 1979).
        
    In addition, Board Prohibited Practice Complaint Rule 4.07(A) expressly
authorizes sanctions for failure to attend a prehearing conference --
dismissal of the complaint in the instance of a complainant, and default in
the instance of a respondent.  Dismissal or default is with prejudice
unless failure to attend is the result of excusable neglect.  Similar
sanctions are expressly authorized for failure of a party to file a
required brief.  Rule 4.08.  The Board is also authorized to impose the
sanctions of General Provisions Rule 6.07 for personal misconduct at a
hearing.  Rule 4.14.
        
    Thus the Board's handling of prohibited practice cases in many respects
resembles a judicial proceeding, where parties seek redress for alleged
wrongs, with the attendant procedures, and sanctions for failure to follow
those procedures.
        
    Unit determinations are a different matter.  In passing the MPELRL, it
was the intent of the Maine Legislature to "provid[e] a uniform basis for
recognizing the right of public employees to join labor organizations of
their own choosing and to be represented by such organizations in collective
bargaining for terms and conditions of employment."  26 M.R.S.A.  961
(1988).  26 M.R.S.A.  966(1) states:
        
         1.  Bargaining unit standards.  In the event of a dispute
         between the public employer and an employee or employees as
         to the appropriateness of a unit for purposes of collective
         bargaining ... , the executive director or his designee shall
         make the determination, except that anyone excepted from the
         definition of public emp1oyee under section 962 may not be
         included in a bargaining unit....[Emphasis added.]

                                   -3-
_____________________________________________________________________________
        
The remainder of subsection 1, and subsections 2 and 3, more specifically
set out the criteria for bargaining unit determinations and clarifications.
        
    The hearing is investigatory rather than adversarial, and its purpose
is to "develop a full and complete factual record."  Rule 1.09(D).  The
hearing examiner is authorized to render a decision, and "may also take
other appropriate action."  Rule 1.09(F).  The only sanction explicitly
authorized is for misconduct at a hearing.  Rule 1.09(G).  There the sanc-
tion affects the right of the guilty individual or organization to appear
before the hearing examiner, rather than the outcome of the hearing itself.
Rule 6.07.
        
    Thus the unit hearing, which is the forum for the determination of the
right of public sector employees to collective bargaining, is more akin to
a fact-finding.  Taken as a whole, the statute and the Board's rules pro-
vide a framework to ensure that this right, which lies at the heart of all
of Maine's public sector labor laws, is granted to public sector employees
in all reasonable circumstances.
        
    In that context, the right to a unit hearing should not be denied
lightly.  In particular, a decision that an employee is not covered by the
collective bargaining laws should be made on the merits.  While there may
be circumstances so egregious that default is appropriate, the instant
case does not present such a situation.
        
    Even were the hearing examiner to find that the same standard that is
expressly mandated by the Board's rules in prohibited practice cases should be
applied to defaults in unit matters -- that is, that excusable neglect
should be the standard for a default in unit matters -- a default would
not be appropriate in the instant case.
        
    Petitioner is correct that in Council 93, AFSCME v. Bath Bd. of Educ.,
No. 86-21, 9 NPER ME-18001 (Me.L.R.B. Aug. 6, 1986), the Board refused to
regard inadequate office procedures as excusable neglect.  However, the
union representative had in fact received personal notice of the hearing
(which included a warning regarding sanctions for failure to appear), but
had failed to note the date on the office calendar, as was his usual
practice.  Subsequently, he was called away from the office by a death in

                                   -4-
_____________________________________________________________________________
        
his family, and no one else in the office knew about the conference.  When
AFSCME failed to appear, the prehearing officer instructed Board staff to
contact the union at its Augusta offices; after receiving notice, it sent
no one to the prehearing conference even to ask for a continuance.
        
    The facts in Auburn Firefighters Assoc. v. Morrison, No. 83-10
(Me.L.R.B. Dec. 29, 1982) (Interim Order), are much closer to the facts in
the instant case.  There the Board refused to find an employer in default
when notice of a prehearing conference had been received by a secretary but
had never been brought to the attention of her direct supervisor, the town
manager, or his assistant.  The Board stated its policy that a party
would be held in default only when it deliberately failed to attend or
otherwise abused its rules or procedures.  Id. at 2.
        
    In Quintal v. Maine DOT, No. 87-A-06 (87-09), 9 NPER ME-18011 (Me.L.R.B.
Jan 27, 1987), cited by the petitioner, the Board did indeed dismiss the
complaint of a pro se complainant for failure to attend a pretrial con-
ference due to confusion about the time and place of the conference and the
meaning of communications from the Board.  However, the complainant had in
fact personally received the notice, which contained the warning of sanc-
tions for failure to appear.  In addition, the Board took note of the fact
that the complainant had three grievances in progress (through his union)
that addressed the matters addressed in his prohibited practice complaint,
and that they were more appropriately resolved through the grievance proce-
dure.  Thus, deferral in that case was likely, and dismissal of Quintal's
complaint for failure to appear at the prehearing conference did not
totally deny him the right to a hearing on his allegations of employer
misconduct.
        
    In MSEA V. Baxter State Park Authority, No. 84-20, 7 NPER 20-15014
(Me.L.R.B. May 16, 1984), cited by the petitioner, the Board found a
union in default for its failure to appear at a prehearing conference.
Once again, however, the union representative had personally received
notice of the hearing, including the warning.  Due to "heavy involvement
in other matters," he had simply set the notice aside without putting the
hearing date on his calendar.

                                   -5-
_____________________________________________________________________________
        
    The difference, then, between personally receiving the notice and warning,
and then failing to appear, and failure to appear because the notice was
not received by the individual responsible for appearing, is not incon-
sequential in the Board's line of cases, citation by the Board in the
Baxter case to One 1977 Blue Ford Pick-Up Truck, 447 A.2d 1226 (Me. 1982),
notwithstanding.  Where the Board has seen fit to make such a distinction
in prohibited practice cases, it would be inappropriate to hold parties in
unit hearings to a higher standard, particularly in light of the importance
of such hearings in determining employees' collective bargaining rights.
       
    None of this is to say that the hearing examiner condones the fact that
the Union has failed to establish office procedures sufficient to avoid the
expense and inconvenience to which it has put the petitioner.  In fact, the
most appropriate sanction would be to impose attorney's fees and costs,
including witness costs.  That sanction was imposed in the Auburn case,
discussed earlier.  While the Board refused to find the employer in that case in
default for its inadequate office procedures, it did think it "only fair and
appropriate to remedy any prejudice suffered by [the union] as a result of the
[employer's] failure to attend the conference."  Id. at 2.  Because it is not
clear whether the authority of a hearing examiner to "take other appropriate
action," as provided in Rule 1.09(F), includes the authority to award expenses
in these or other circumstances, the hearing examiner declines to
do so.
        
                
                                   ORDER
       
    On the basis of the foregoing Findings of Fact and discussion and pur-
suant to the provisions of 26 M.R.S.A.  966 (1988), it is hereby ORDERED:
        
         1.  That the Union's Motion for Relief from Order and
             Request for New Hearing is granted.

                                   -6-
_____________________________________________________________________________

         2.  That the parties appear for a hearing in this matter
             at 9:00 a.m. on Tuesday, October 17, 1989, in Room 714,
             State Office Building, Augusta, Maine.

        
Dated at Augusta, Maine, this 22nd day of September, 1989.
        
        
                                  MAINE LABOR RELATIONS BOARD
        
        

                                  /s/________________________________________
                                  JUDITH A. DORSEY 
                                  Designated Hearing Examiner


The parties are hereby advised of their right, pursuant to 26 M.R.S.A.
 968(4) (1988), to appeal this Order to the Maine Labor Relations Board.
To initiate such an appeal, the party seeking appellate review must file
a notice of appeal with the Board within fifteen (15) days of the date of
issuance of this Order.  See Board Rules 1.10 and 6.03.
     

                                   -7- 
_____________________________________________________________________________

STATE OF MAINE                     MAINE LABOR RELATIONS BOARD
                                   Case No. 90-UC-03
                                   Issued:  February 22, 1990

_____________________________________
                                     )
TOWN OF THOMASTON,                   )
                                     )
                       Petitioner,   )
       and                           )
                                     )    UNIT CLARIFICATION REPORT
TEAMSTERS LOCAL UNION NO. 340,       )
                                     )
                   Bargaining Agent. )
                                     )
_____________________________________)
       
       
    On August 4, 1989, pursuant to section 966(3) of the Municipal Public
Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A.  966(3) (1988), and
Maine Labor Relations Board ("Board") Rule 1.13, the Town of Thomaston
("Town") filed a petition for unit clarification with the Board, seeking
to exclude the town clerk and the secretary to the town manager from an
existing Town of Thomaston bargaining unit. Teamsters Local Union No. 340
("Union"), the bargaining agent for that unit, opposes the exclusion of these
two positions.
       
    The bargaining unit in question, by agreement[fn]1, consists of "Patrolmen,
Sergeant, Clerical, Operator (wastewater), Public Works, and Dispatcher."
The Town seeks exclusion of the secretary to the town manager as a confidential
employee, 26 M.R.S.A.  962(6)(C); it seeks to exclude the town clerk under
either 26 M.R.S.A.  962(6)(B) (appointment to office pursuant to statute, ordi-
nance or resolution for a specified term by the executive head or body of the
public employer); or (D) (a department head or division head appointed as in (B)
for an unspecified term).  The Union argues that the Town is estopped from

____________________             
       
   1 Recognition clause of collective bargaining agreement between the Town and
the Union dated July 24, 1989, effective January 1, 1989, to December 31, 1991
("current agreement").

                                      -1- 
_____________________________________________________________________________
       
seeking the exclusions; that the town clerk fits into neither exclusion asserted
by the Town; and that the secretary to the town manager is not a confidential
employee.
       
    The evidentiary hearing originally scheduled for Wednesday, August 30, 1989,
was rescheduled and held at 9:00 a.m. on Wednesday, November 15, 1989, in Room
714 of the State Office Building, Augusta, Maine.  Linda D. McGill, Esquire,
appeared on behalf of the Town, and Howard T. Reben, Esquire, appeared on behalf
of the Union.  No one requested to intervene in the proceeding or otherwise
requested participation as an interested party.  The jurisdiction of the hearing
examiner to hear this matter and to make a unit clarification decision lies in
26 M.R.S.A.  966(3) (1988).  The August 30, 1989 Order and the September 22,
1989 Supplemental Order that were issued in connection with the need to resche-
dule the hearing are incorporated herein by reference.
       
    At the hearing the parties were afforded the opportunity to present evi-
dence and argument and to cross-examine witnesses.[fn]2  Upon completion of the
hearing, the parties, by agreement, waived oral argument and filed written
briefs, the last of which was received on January 12, 1990.  The Town's reply
brief was due to be mailed on January 19, 1990; counsel for the Town chose not
to file said brief.
      
    Prior to commencement of the formal hearing, the parties met with the
hearing examiner in an informal conference.  The stipulations reached by the
parties at that time have been incorporated herein.  Participating in the infor-
mal conference and appearing as witnesses at the hearing, in addition to the
representatives of record for each party, were:
       
    On behalf of the Town:
       
         Frances Hernandez (bookkeeper)
       
         Jerry Laliberte (town manager)
       
         Mark W. Strong (selectman)

___________________
       
    2 The transcript of this proceeding was completed on December 19, 1989.
Counsel for the Union requested a partial transcript -- of one place in the
record reflecting his objection to a question asked by counsel for the Town.
That portion of the transcript has been provided.  Otherwise, neither party
requested a copy of the transcript.

                                      -2- 
_____________________________________________________________________________
       
    On behalf of the Union:
       
         Doris Ervin (former town clerk)
       
         Linda Greenlaw (secretary to the town manager)
       
         Adelarde LeCompte (secretary/treasurer)
       
The following documents were admitted into the record by stipulation (documents
offered by the Petitioner marked with a "P" and those offered by the Respondent
marked with an "R"):
       
         P-1  Collective bargaining agreement between the Town and the Union
              dated July 24, 1989, effective January 1, 1989, to December 31,
              1991.
       
         P-3  Oath of town clerk, Doris Ervin, dated April 11, 1989.
       
         P-4  Excerpts from Thomaston warrant (2 pp.).
       
         P-5  Excerpt from September 25, 1989 Board of Selectmen's minutes
              (page 2 only).
       
         P-8  July 25, 1989 letter from Michael Wing (MMA) to Adelard LeCompte.
       
         P-9  July 7, 1989 letter from Michael Wing to Adelard LeCompte.
       
         P-10 July 1, 1989 letter from Adelard LeCompte to Michael Wing.
       
       
The following were admitted by the hearing examiner at the time of the hearing:
       
         P-2  Selectmen's appointment of Doris Ervin to position of town clerk
              dated April 10, 1989.
       
         P-6  Position description - town clerk
       
         P-7  Position description - secretary to the town manager
       
         R-1  Oct. 1, 1988 classified ad for Town of Thomaston counter clerk/ 
              secretary
       
The following documents were submitted subsequent to the hearing, by agreement 
of the parties, and admitted by the hearing examiner:
       
     Joint-1  1986-88 collective bargaining agreement between the Town and
              Teamsters Local 48.

     Joint-2  Oct. 3, 1988 Board of Selectmen's minutes

                                      -3- 
_____________________________________________________________________________       
       
     Joint-2  Oct. 3, 1988 Board of Selectmen's minutes
       
The following document was submitted after the hearing, at the request of
the hearing examiner, without objection by either party:
       
     Board-1  April 10, 1989 Board of Selectmen's minutes (excerpts - 5 pp.).
       
       
                                 STIPULATIONS
       
    In prehearing discussion, the parties reached the following factual and
legal stipulations:
       
    1.  Petitioner is the Town of Thomaston, which is a public employer within
the meaning of 26 M.R.S.A.  962(7) (1989 Suppl.).
       
    2.  Respondent is Teamsters Local No. 340, which is the bargaining agent,
within the meaning of 26 M.R.S.A.  962(2) (1988), for a unit composed of
"Patrolmen, Sergeant, Clerical, Operator (wastewater), Public Works, and Dis-
patcher," all of which job classifications are public employees within the
meaning of 26 M.R.S.A.  962(6) (1988).
       
    3.  Teamsters Local No. 340 is the successor in interest to Teamsters
Local 48.
       
    4.  Currently there are no bargaining units constituted of Town employees
other than the one described in Stipulation 2.
       
    5.  No employee proposed for exclusion from the unit is appropriately
excluded on the basis of the supervisory exclusion contained in 26 M.R.S.A.
 966(1) (1988).
       
    6.  No employee proposed for exclusion from the unit is a professional
employee within the meaning of 26 M.R.S.A.  966(2) (1988).
       
    7.  Neither the position of secretary to the town manager nor the position
of town clerk has previously been the subject of either a unit determination or
a unit clarification before this Board.
       
    8.  There is no question concerning representation to operate as a bar to
the petition under 26 M.R.S.A.  966(3) (1988).
       
    9.  The current agreement between the Town and the Union was signed on July
24, 1989.  On July 7, 1989, before signing the agreement, the Town requested

                                      -4-
_____________________________________________________________________________
       
that the Union voluntarily agree to the two exclusions at issue; the Union
declined.  Thus the parties are unable to agree on whether the two positions
should be excluded.
       
   10.  Frances Hernandez, who is currently employed by the Town, was hired on
November 16, 1988.
       
   11.  Linda Greenlaw, who is also employed by the Town, was hired on Octo-
ber 16, 1989.
       
   12.  But for the alleged confidential duties of the secretary to the town
manager, that position would be included in the bargaining unit, since clericals
are included in the unit pursuant to the recognition clause of the current con-
tract.
       
                                 FINDINGS
       
    Upon review of the entire record, the hearing examiner makes the following
additional factual and legal findings:
       
     1.  Prior to October of 1988, neither the position of town clerk nor the
position of secretary to the town manager ("secretary") existed.  Until sometime
in 1986, the town manager and town clerk functions were performed by one person,
and the secretary's duties were performed by the deputy town clerk.
       
    2.  In 1986, duties were rearranged to create the separate positions of
town manager and town clerk/secretary.  That arrangement lasted until October
of 1988.  Prior to his leaving the position of town manager in November of
1988, Bill Judson had raised the issue of the need for confidential clerical
support during contract negotiations.  As a result, on October 3, 1988, at a
workshop meeting, the Town's Board of Selectmen voted to separate the functions
of town clerk and secretary, and to create the position of secretary to the town
manager.  Meanwhile, Doris Ervin was hired to carry out the town clerk/secretary
duties on a part-time, temporary basis, because Dora Williams, the town clerk/
secretary, had just retired.
       
Secretary to the town manager
       
    3.  Frances Hernandez began working in the newly created position of secre-
tary to the town manager on November 16, 1988, to perform the secretarial duties

                                      -5-
_____________________________________________________________________________
       
that had previously been performed by the town clerk/secretary.    
    4.  Negotiations for the current agreement started sometime between
November 9, 1988, and February of 1989.  Paul Perkins, who became acting town
manager on November 9, 1988, was a member of the Town's negotiating team.
       
    5.  Gerald Laliberte is currently Thomaston's town manager; he has held
that position since April 24, 1989.  Upon his appointment, Mr. Laliberte took
Mr. Perkins' place in the negotiations.
       
    6.  As secretary to Mr. Laliberte, Ms. Hernandez typed his notes from the
negotiations, his recommendations to the selectmen regarding negotiating stra-
tegy and ratification, and his collective bargaining correspondence.  She also
filed the documents she had typed.
       
    7.  Doris Ervin, who was the interim town clerk and then town clerk during
the negotiations for the current contract, did not type any negotiations-related
materials for the town manager.
       
    8.  In October of 1989, Ms. Hernandez left her position as secretary to be-
come the bookkeeper.  Linda Greenlaw was hired on October 16, 1989, to replace
Ms. Hernandez as secretary.  Mr. Laliberte intends to continue using his secre-
tary for clerical duties in connection with future collective bargaining nego-
tiations.
       
Town clerk
       
    9.   In mid-October, 1988, pursuant to the decision of the selectmen to
separate job functions, Doris Ervin, who had been carrying out the duties of
town clerk/secretary on a temporary basis, was appointed town clerk; the
appointment was on an interim basis, through March of 1989, the end of the muni-
cipal year.
       
   10.  On April 10, 1989, Ms. Ervin was appointed by vote of the selectmen to
the position of town clerk.  The minutes of the April 10th meeting do not indi-
cate the length of the appointment.  However, the certificate of appointment of
the same date, signed by the selectmen, states that the appointment was "for the
ensuing year."  In addition, by statute the term of all municipal officials is
one year, unless otherwise specified.  30-A M.R.S.A.  2601(2) (1989 Suppl.).
"Municipal official" means any elected or appointed member of a municipal
government.  30-A M.R.S.A.  2001(11) (1989 Suppl.)

                                      -6-
_____________________________________________________________________________

   11.  In September of 1989, Ms. Ervin left her job.  On September 25, 1989,
the selectmen voted to appoint Joan Linscott as town clerk, "to fill the unex-
pired term."  She continues to serve in that position.
       
   12.  Under the town manager form of government in Maine, town officials such
as the town clerk may be elected at town meeting, or they may be appointed, if
the town so designates.  30-A M.R.S.A. 2631(2) (1989 Suppl.).  The power to
appoint town officials is granted to the town manager, unless otherwise provided
by town ordinance.  30-A M.R.S.A.  2636(6) (1989 Suppl.).  By warrant at town
meeting, the Town authorized the selectmen to appoint the town clerk beginning
with municipal year 1973.  Prior to that time, the town clerk had been elected.
       
   13.  The duties of the town clerk include the issuance, or supervising the
issuance, of marriage licenses, hunting and fishing licenses, dog licenses and
birth, marriage and death certificates; recording and maintenance of vital sta-
tistics; oversight of nomination papers, ballot and warrant printing, issuance
of absentee ballots and the conduct of elections; preparation and submission of
the annual report, as well as various other reports for state agencies; and
maintenance of and providing access to public records. The town clerk need not
have secretarial skills, although she types licenses and other similar documents.
       
   14.  The old position of town clerk/secretary was a full-time position.
When the duties of that position were separated, the new position of town clerk
was designated part-time, 25-30 hours per week.  Article 3 of the current
agreement defines "employee" as follows:  "Whenever the word employee or regular
employee is used, it shall refer to all employees who work at least a 37 hour
week, with the exception of the Town Clerk who shall also be an employee."  The
reference to the town clerk did not appear in the prior agreement; presumably it
was added to ensure that the town clerk's part-time status would not eliminate
her from the unit.  Whatever the reason for the addition, the current agreement
expressly includes the town clerk in the bargaining unit.
       
General
       
   15.  The selectmen's decision to divide the duties of the town clerk/secre-
tary preceded negotiations for the current agreement between the Town and the
Union.  When the two new positions were filled, the Town began paying both the
town clerk and the secretary wages that were below what the town clerk/secretary
had been receiving.  When the Union complained, their wages were increased to

                                      -7- 
_____________________________________________________________________________
    
the rates in the collective bargaining agreement then in effect.
       
   16.  During negotiations with the Union, the Town did not raise either
exclusion of the town clerk or exclusion of the secretary to the town manager.
The issue of exclusions was first raised on July 7, 1989, after a final tenta-
tive agreement on the successor collective bargaining agreement had been
reached.  The letter, from Michael Wing of the Maine Municipal Association to
Mr. LeCompte, stated:
       
              At a recent meeting of the Thomaston Board of
         Selectmen, the Board requested that the Union volun-
         tarily agree to delete the Town Clerk and the Town
         Manager's Secretary from the bargaining unit.  Please
         consider this request and advise me as soon as possible
         regarding the Union's position on this matter.
       
       
   17.  On July 11, 1989, Mr. LeCompte responded:
       
             Regarding your letter dated July 7, 1989 and your
        request that the Union agree to delete the Town Clerk
        and the Town Manager's Secretary from the bargaining unit.
        It is Local 340's position that negotiations have been com-
        pleted and that the town had ample time during negotiations
        to include this in their proposals.
       
             Why they have not acted on the agreement that we nego-
        tiated by now is a mystery to everyone concerned.  If the
        Town has not approved the agreed to contract because of this
        matter, then they certainly are not negotiating in good faith.
       
             I trust that we will recieve (sic) an answer in the
        next few days regarding our contract agreement.
       
       
   18.  On July 25, 1989, one day after the current agreement was signed by the
parties, the Town informed the Union of its intent to file a unit clarification
petition.  The letter stated that the "Town's agreement to a successor contract
should not be construed as a waiver of our right to file the petition."
       
       
   19.  Article 33 of the current agreement states in part:
       
             This Agreement incorporates the complete understanding
        of both parties on all items which were or could have been
        negotiated for possible inclusion herein.

                                        -8-
_____________________________________________________________________________

   20.  The Town filed its petition on August 4, 1989; in response to the
question regarding changed circumstances, the petition stated:
       
        In October, 1988 the new position of Secretary to the
        Town Manager was created.  Previously the duties of
        Secretary to the Town Manager had been performed as
        part of the duties assigned to the Town Clerk.  The
        position of Secretary to the Town Manager was filled in
        November, 1988.
       
The petition goes on to provide the statutory basis for each of the proposed
exclusions.
       
       
                                   DISCUSSION
       
Threshold Issues
       
    This proceeding was conducted pursuant to 26 M.R.S.A.  966(3) (1988) and
Unit Determination Rule 1.13.  Section 966(3) of the municipal statute states:
       
              Unit clarification.  Where there is a certified or
         currently recognized bargaining representative and where the
         circumstances surrounding the formation of an existing bar-
         gaining unit are alleged to have changed sufficiently to
         warrant modification in the composition of that bargaining
         unit, any public employer or any recognized or certified
         bargaining agent may file a petition for a unit clarification
         provided that the parties are unable to agree on appropriate
         modifications and there is no question concerning represen-
         tation.
       
The parties have stipulated and the record indicates that three of the four
requirements for filing a unit clarification petition have been met -- the
Union is the currently recognized bargaining representative, the parties do not
agree on the exclusions at issue, and there is no question concerning repre-
sentation.
       
Rule 1.13(A), in addition to restating section 966(3), provides:
       
         Unit clarification petitions may be denied if (a) the de-
         scription of the job categories contained in the bargaining
         unit is clear and unequivocal, (b) the question raised should
         properly be settled through the election process, or (C) the
         petition attempts to modify the composition of the bargaining
         unit as negotiated by the parties and the alleged changes
         therein have been made prior to negotiations on the collective
         bargaining agreement presently in force.

                                      -9-
_____________________________________________________________________________

    The requirement for changed circumstances, like the other three requirements,
"is a threshold question on which the petitioner, in a unit clarification pro-
ceeding, 'bears the burden of alleging the requisite change and, further, of
establishing the occurrence of said change in the unit then at issue.'"      
MSAD No. 14 and East Grand Teachers Assoc., No. 83-A-09, slip op. at 7, 6 NPER
20-14036  (Me.L.R.B. Aug. 24, 1983), quoting from State of Maine and MSEA, No.
82-A-02, slip op. at 16, 6 NPER 20-14035 (Me.L.R.B. June 2, 1983) (Interim
Order).  As section 966(3) of MPELRL and Rule 1.13(A) indicate, both the nature
and the timing of the change are critical.
       
    According to the Town's petition, the change that prompted the petition was
the decision by the Town to separate the duties of the town clerk/secretary and to
create the position of secretary to the town manager.  If that change consisted
solely of dividing the duties of the town clerk/secretary to create two posi-
tions, and the original position had been included in the unit, there is little
doubt in the hearing examiner's mind that the change would be insufficient to
warrant unit modification.[fn]3  On the other hand, a change in the appointment pro-
cess for the town clerk, or a change in duties for one or both positions at the
time of the split -- for instance, assigning the new secretarial position to
perform confidential work that the old town clerk/secretary had not performed
-- would be sufficient.    
    
    Evidence presented at the hearing established that the town clerk is
appointed by the Board of Selectmen, as was the old town clerk/secretary.  If
appointment of the clerk entitles the Town to exclusion of that position on the
basis of 26 M.R.S.A.  962(6)(B), the exclusion has been available since the
selectmen began appointing the clerk in municipal year 1973.  Evidence at the
hearing also established that with one possible exception, the duties of the
town clerk and those of the secretary to the town manager, when taken together,
are the duties of the old position of town clerk/secretary.  The fact that the
____________________       
       
    3 A simple division of duties of a bargaining unit position is not analogous
to the creation of a new job classification, which normally does meet the
requirement for changed circumstances.  See Prof. and Tech. Employees Assoc.
and City of Portland, No. 88-UC-01 (Me.L.R.B. Sept. 24, 1987) (Hearing
Examiner's Interim Report); Council 74, AFSCME and State of Maine and MSEA,
No. 84-UC-07 (Me.L.R.B. Apr. 2, 1985) (Hearing Examiner's Report).

                                     -10-
_____________________________________________________________________________
       
town clerk need no longer have secretarial skills, and that the secretary need
not perform town clerk duties, simply reflects the split in duties of the origi-
nal position.  It does not reflect a change in duties of the type contemplated
by the requirement for changed circumstances.
       
    The one change that would have constituted a sufficient change with regard
to the secretarial position -- a change in the performance of confidential
duties -- was not addressed by the Town.  Both the current town manager and
a selectman testified that the split in the town clerk/secretary's duties
occurred as a result of the need for confidential clerical support during
upcoming contract negotiations.  Yet the town manager, when asked whether the
the town/clerk secretary had performed those duties for previous contract nego-
tiations, stated that he did not know.  If she did not perform those duties, the
decision to create a position to perform them would constitute a change suf-
ficient to warrant unit modification, at least with respect to that position.
If she did, the Town's reliance on the Board's unit clarification procedure to
accomplish the exclusion is misplaced, unless it can establish that this or some
other relevant change took place even earlier.  If the criteria are met for
excluding a position from the definition of public employee under the municipal
statute, the employer is entitled to the exclusion, as long as the requirements
of section 966(3) of the MPELRL are met.  Since the Town has not met its burden
to show changed circumstances, the petition must be dismissed.[fn]4
       
    Were the hearing examiner to give the Town the benefit of the doubt and
assume that changed circumstances had occurred, the timing of the Town's peti-
tion would nevertheless warrant its dismissal under Rule 1.13(A).  That rule
reflects a statutory preference for unit placement by agreement of the parties.
(Unit placement questions are resolved by the executive director or her designee
only when the parties cannot agree.)
___________________       
 
    4 Nor can the petition be treated as a unit determination petition, since it
was not filed either during the window period of the prior agreement, or after
expiration of that agreement but before a new one was signed.  Rule 6.08.  In
addition, the Board "has never approved the use of a unit determination petition
to modify an existing unit when no claim for recognition was present."  City
of Bangor and Local 1599, IAFF, No. 80-A-03, slip op. at 5, 2 NPER 20-11034
(Me.L.R.B. July 18, 1980).

                                     -11-  
_____________________________________________________________________________
      
    The decision to split the town clerk/secretary's duties and to create the
position of secretary to the town manager occurred in October of 1988, prior to
negotiations for the current agreement and 8-9 months before that agreement was
signed.  By its complaint to the Town regarding the reduced wages for the two
new positions, the Union put the Town on notice that it considered those posi-
tions to be included in the bargaining unit.  For some reason, however, the Town
failed to bring up the subject of statutory exclusions until after negotiations
had been completed and a tentative agreement had been reached.[fn]5  In fact, the
town clerk was specifically named in the new agreement, apparently to ensure
that her part-time status would not exclude her from the unit.  With regard to
the secretary to the town manager, the Town has put forth no argument that that
position is not a "clerical," as that term is used in the bargaining unit
description.  In fact, the Town stipulated that but for her proposed exclusion
as a confidential employee, the secretary would be a member of the bargaining
unit.
       
    When its last-minute efforts to obtain voluntary exclusion failed, the Town
signed the new agreement and then informed the Union that it intended to pursue
the proposed exclusions through a unit clarification petition.  Had the Town
raised the issue during negotiations, and failing an agreement thereon, put the
Union on notice of its intention to file a petition before the agreement was
signed, there would be no problem.[fn]6  It did not do so.  The clear language
___________________       
       
    5 During the hearing, the Town attempted to categorize its July 7th request
to the Union for voluntary exclusion as a request made "during negotiations."
While neither the correspondence between the parties nor the uncontroverted
testimony of Mr. LeCompte suggest that any discussion of exclusions took place
until after a tentative agreement had been reached, it matters little.  If the
the subject had been brought up in negotiations, the Town's failure to preserve
its rights in a timely fashion would be even more damning, since signing the
agreement (which includes the two positions, as well as an integration clause),
coupled with the failure to preserve its rights, could fairly be construed as an
abandonment of the Town's position on the proposed exclusions.
       
    6 Since bargaining unit composition is a permissive subject, the Town could
not force the Union to discuss the subject.  However, had it taken the proper
steps to preserve its right to pursue the matter with the Board, those steps
would have rebutted the usual presumption that signing an agreement consti-
tutes a representation that the signatories are in accord with its contents.
Council 74, AFSCME v. City of Bath, No. 81-09, slip op. at 4, 3 NPER 20-12012
(Me.L.R.B. Mar. 4, 1981); WNYS-TV (WIXT) and Nat'l Assoc. of Broadcast
Employees and Technicians, 239 NLRB 170 (Nov. 1, 1978); Peerless Publications
and Newspaper Guild of Greater Phila., 190 NLRB 658 (May 28, 1971).

                                     -12-
_____________________________________________________________________________
 
of the agreement that the Town signed includes the two positions at issue, and      
the integration clause of Article 33 of the agreement states that the agreement
"incorporates the complete understanding of both parties on all items which were
or could have been negotiated for possible inclusion herein."  These facts, in
combination, leave the hearing examiner with no choice but to dismiss the
petition under Rule 1.13(A)(a) and (c).  See Augusta Uniformed Firefighters
Assoc. and City of Augusta, No. 85-A-02, 8 NPER ME-16012 (Me.L.R.B. Feb. 21,
1985).  To do otherwise would do substantial damage to the parties' bargaining
relationship.[fn]7
       
    It might be argued that section 966(1) of the MPELRL requires the executive
director or designee to hear requests for unit modification based on statutory
exclusions, in spite of the statutory requirement for changed circumstances
and the Board's Rule 1.13(A).  Section 966(1) states in part:
       
              Bargaining unit standards:  In the event of a dispute
         between the public employer and an employee or employees as
         to the appropriateness of a unit for purposes of collective
         bargaining . . . , the executive director or his designee
___________________

    7 National Labor Relations Board precedent is instructive. The Board will
entertain a UC petition filed after a contract is signed, in specific, limited
circumstances: 1) when it is asked only to determine whether a particular
employee fits into a unit inclusion or exclusion clearly specified in the
contract [Washington Post Co. and Washington-Baltimore Newspaper Guild, 254 NLRB
168 (Jan. 14, 1981); Western Colorado Power Co. and IBEW, Local No. 57, 190 NLRB
564 (May 28, 1971)]; 2) when there is an ambiguity or contradiction in the
contract language [NLRB v. Detective Intelligence Service, 448 F.2d 1022 (9th
Cir. Aug. 24, 1971)]; or 3) when a new position is created after the contract is
signed, and the unit description does not by its terms address that position
[Safeway Stores and Teamsters Local 70, 216 NLRB 819 (Feb. 27, 1975)].  Because
of the disruptiveness to the bargaining relationship, the Board will not enter-
tain such a petition where the petitioner seeks to include or exclude employees
clearly excluded or included by the contract, even if the terms of the contract
are contrary to statute.  Wallace-Murray Corp. and Local 1148, United Steel
Workers of America, 192 NLRB 1090 (Aug. 27, 1971).  An exception is made only
where the sought-after inclusion or exclusion is raised during negotiations; the
petitioner did not abandon its position in exchange for some concession; and it
preserved its rights by putting the other party on notice, during negotiations,
of its intent to pursue the matter through legal channels. Baltimore Sun Co.
and Baltimore Newspaper Graphic Commun. Union Local 31, 296 NLRB No. 131 (Sept.
29, 1989); St. Francis Hosp. and St. Francis Fed. of Nurses and Health Profs.,
282 NLRB 950 (Feb. 4, 1987); Arthur C. Logan Mem. Hosp. and District 1199,
RWDSU, 231 NLRB 778 (Aug. 30, 1977); Massey-Ferguson and UAW, 202 NLRB 193 (Mar.
5, 1973).

                                     -13-
_____________________________________________________________________________
       
         shall make the determination, except that anyone excepted
         from the definition of public employee under section 962
         may not be included in a bargaining unit.  (Emphasis added.)
       
Thus, the argument goes, if an employer chooses to file a unit clarification
petition to exclude employees from a unit whom it had previously agreed to
include, but who in fact are not public employees, it can do so at any time; the
changed circumstances surrounding formation of the unit would be simply that the
employer had changed its mind.  Since the original agreement to include them was
strictly voluntary, this argument holds some appeal.  In the very limited
instance where an employer has, from the inception of the unit, voluntarily
granted bargaining unit status to a non-public employee, and the bargaining
agent will not agree to the employee's removal, an employer's changing his
mind may be a change sufficient to satisfy 966(3), if the petition is timely
filed within the meaning of Rule 1.13(A)(c); otherwise, the employer is left
with nothing other than a self-help remedy.
       
    The hearing examiner need not decide this issue, since the Town has not
presented the hearing examiner with that dilemma.  Rather, the Town has asserted
that changed circumstances exist, but has failed to prove its assertion.
Equally important, the Town signed a new agreement including the two positions
at issue, and then immediately moved to have them excluded by the Board.  The
hearing examiner will not condone the Town's actions by ignoring both Rule
1.13(A) and the requirement for changed circumstances, which is imposed by sta-
tute, particularly since the statute contains no language that may reasonably be
interpreted as a grant of discretion with regard to that requirement.
       
    The history of the statutory unit clarification procedure is also instruc-
tive.  The right to request modification of an existing unit through unit clari-
fication was established in 1975.  Until 1979, however, petitioners were forced
to wait until the window period to file their unit clarification petitions, even
though changed circumstances had occurred, as required.  In 1979, the Maine
Legislature saw fit to remove the window period restrictions for unit clarifica-
tions, presumably because changed circumstances by their very nature provide
sufficient reason for modifying the terms of a contract (that is, for modifying
the composition of the unit) at the time the change occurs.  Ignoring the
requirement for changed circumstances, in the absence of a window period require-

                                     -14-
_____________________________________________________________________________
           
ment, would turn that logic on its head.   
       
     Finally, it is worth noting that refusing to ignore the changed circum-
stances requirement in the present case does not conflict with the statutory
prohibition of section 966(1) against the placement by the hearing examiner of
a non-public employee in a bargaining unit of public employees. It was not the
hearing examiner who put the town clerk and the secretary to the town manager
in the Thomaston bargaining unit.  It was the parties.
       
       
Merits of Proposed Exclusions
       
    Since the parties have expended time and resources presenting evidence and
argument on the two proposed exclusions, the hearing examiner believes it would
be useful, for the purposes of future negotiations between the parties, to pro-
vide some guidance on the likely outcome of a hearing held in the future pur-
suant to a properly filed and defended petition.
       
1. Town clerk
       
    The Town sought exclusion of the town clerk on two bases: section 962(6)(B)
(appointment to office for a specified term), and section 962(6)(D) (department
or division head appointed for an unspecified term).  The facts adduced at the
hearing support the (6)(B) exemption.
       
    The town clerk of Thomaston is appointed by the selectmen of the Town, pur-
suant to a town warrant authorizing appointment beginning in municipal year
1973.  Prior to that time, the town clerk was elected.  The certificate of
appointment for the April 1989 appointment of Doris Ervin states that the
appointment was "for the ensuing year."  Testimony by one of the selectmen
corroborated the one-year appointment, as did Joan Linscott's appointment "to
fill the unexpired term" when Doris Ervin left.  In addition, 30-A M.R.S.A.
 2601(2) (1989 Suppl.) states that the term of town officials is one year
unless otherwise specified.
       
    The Union argues that the (6)(B) exemption is inapplicable to the town clerk
for two reasons: first, that the selectmen have no authority to appoint the town
clerk, because 30-A M.R.S.A.  2636 grants appointment authority to the town
manager; and second, that annual appointment/reappointment is in effect appoint-
ment for an unspecified term.  Neither argument holds up under scrutiny.

                                     -15- 
_____________________________________________________________________________       
    
    In making its first argument, the Union ignores the clear language of 30-A
M.R.S.A.  2636(6) (1989 Suppl.), which grants appointment powers to the town
manager unless otherwise provided by town ordinance.  By warrant at town
meeting, the selectmen were given the authority to appoint the town clerk
beginning in municipal year 1973.  Although it does not say so, apparently the
Union believes that the warrant was not an "ordinance" capable of conferring
appointment authority on the selectmen.
       
    30-A M.R.S.A.  3002 outlines the procedure for enactment of ordinances,
including the following:
       
              3.  Question.  The subject matter of the proposed
         ordinance shall be reduced to the question: "Shall an
         ordinance entitled ' ' be enacted?" and shall be sub-
         mitted to the town meeting for action either as an article
         in the warrant or a question on a secret ballot. (Emphasis
         added.)
       
The Thomaston warrant stated the question simply as "To see if the town will
vote to authorize the selectmen to appoint the Town Clerk beginning with munici-
pal year 1973."  Its failure to phrase the question precisely as required in
section 3002(3) is not fatal.  As the Supreme Judicial Court pointed out in
1983, regarding 30 M.R.S.A.  2153(3) [which was in effect when the warrant was
voted on and which is now 30-A M.R.S.A.  3002(3)]:
       
         The statute, however, does not explicitly condition the
         validity of an ordiance on precise compliance with the
         statutory enactment procedure.  In the absence of such an
         explicit provision, substantial compliance is sufficient.
         . . .     
       
              The notice afforded by a warrant is designed to
         facilitate meaningful debate and informed voting.
       
Crosby v. Inhabitants of Town of Ogunquit, 468 A.2d 996, 998 (Me. 1983).  The
hearing examiner does not believe that use of the precise language of section
3002(3) would have been more likely to facilitate meaningful debate and informed
voting than the language actually used in the Thomaston warrant.  Consequently,
the hearing examiner finds that the selectmen do have the authority to appoint
the town clerk, as they have been doing.
       
    The Union's second argument is equally unconvincing.  In Sewall v. Portland
Water District, No. 86-17, 9 NPER ME-18003 (Me.L.R.B. Aug. 19, 1986), relied on

                                     -16- 
_____________________________________________________________________________
       
by the Union to argue that the town clerk is not appointed for a specified term,
the Board found that an employee was appointed for an indefinite term, because
1) the employee understood that his appointment was to a life-time position; and
2) the bylaws of the water district did not require yearly reconfirmations, but
simply stated that department heads were to be appointed by and to serve at the
pleasure of the general manager, after confirmation by the Board of Trustees.
       
    The situation with respect to Thomaston's town clerk is not analogous.
The April 1989 certificate of appointment for Doris Ervin, the appointment of
Joan Linscott to fill an unexpired term, and the statutory mandate that terms of
municipal officials are for one year unless otherwise specified, taken together
leave no doubt in the hearing examiner's mind that the town clerk is appointed
for a fixed term.  The fact that a town clerk may be reappointed to successive
terms is irrelevant.  A desire for continuity does not undercut the presumed
purpose of the exemption -- allowing the town to maintain an element of politi-
cal responsiveness in certain town positions.  The hearing examiner finds that
once the Town has satisfied the Board's requirements for seeking exclusion of
the town clerk under section 962(6)(B), it will clearly be entitled to the
exclusion.
       
    It is equally clear that the Town is not entitled to exclude that position
from the bargaining unit on the basis of section 962(6)(D).  In addition to the
fact that the appointment for the clerk is for a specified and not an unspe-
cified term, no evidence was presented at the hearing to suggest that the town
clerk is a department head as the Board defines that term.
       
    At the heart of the department head determination is the distinction be-
tween managerial and operational duties, and the percentage of time the em-
ployee spends on each.  As the Board stated so succinctly in Teamsters Local
48 and Town of Wells, No. 84-A-03, slip op. at 6, 6 NPER 20-15012 (Me.L.R.B.
Apr. 11, 1984):
       
              Our cases establish that for an employee to be a
         "department head" within the meaning of Section 962(6)(D),
         the employee's primary responsibility must be that of
         managing or directing the affairs of the department, as
         opposed either to acting as a supervisor or to performing
         the day-to-day work of the department.
       
In that case, the Board found that the code enforcement officer, who was re-
sponsible for administering the code enforcement program (issuance and enforce-

                                     -17-  
_____________________________________________________________________________
       
ment of building, plumbing, health and other permits, and enforcement of
zoning, subdivision and building construction ordinances), maintaining records
for his office, and preparing the annual report, was not a department head.
The hearing examiner sees no difference between the types of duties performed by
the town clerk and those performed by a code enforcement officer.  Neither oral
testimony at the hearing nor the job description provided by the Town estab-
lished that the town clerk spends any time managing or directing (performing
planning functions or formulating policy, for instance).  Rather, she performs
the day-to-day work of the "department," such as it is, and has some supervisory
responsibilities.  In addition to issuing or supervising the issuance of li-
censes and certificates, she conducts elections, allows public access to
records, writes some reports and maintains the town's records, which "is more
of a clerical job than an administrator's duties."  Wells, slip op. at 9.  While
the hearing examiner agrees with the Town that the town clerk performs important
town functions, they do not make her a department head.
       
2. Secretary to the town manager
       
    There are several criteria by which the Board has measured whether or not an
employee is a confidential under 26 M.R.S.A.  962(6)(C), depending on the
nature of the position.
       
    As pointed out in Town of Fairfield and Teamsters Local 48, No. 78-A-08
Me.L.R.B. Nov. 30, 1978), the purpose of the (6)(C) exemption is to minimize the
potential for conflicting loyalties; in that context, confidential duties
related to collective bargaining are the major focus in an inquiry regarding an
employee's duties, because disclosure of confidential information would provide
the bargaining agent with an unfair advantage at the bargaining table.
       
     In addition, in State of Maine and MSEA, 82-A-02, slip op. at 19, 6 NPER 20-
14035 (Me.L.R.B. June 2, 1983) (Interim Order), the Board pointed to the
language of (6)(C) [that is, to the language of 26 M.R.S.A.  979-A(6)(C), which
in relevant part is the same as the language of the municipal statute] in its
finding that the hearing examiner is required to look at whether or not the con-
fidential aspects of the employee's work are inherent in the job.  The Board
also stated its position that "in many if not most cases, 'confidential' super-
visory employees need access to at least one 'confidential' clerical employee,
to carry out their 'confidential' duties." Id. at 28.

                                     -18-
_____________________________________________________________________________
       
    The town manager of Thomaston, the secretary's direct supervisor, is a
member of the Town's negotiating team for collective bargaining with the Union.
As part of her duties, the secretary types and files negotiation notes, recom-
mendations to the selectmen regarding negotiating strategy and ratification, and
collective bargaining correspondence.  She also files those documents.  No evi-
dence was presented at the hearing to suggest that anyone else performs any con-
fidential duties for the town manager.  In the opinion of the hearing examiner,
the position of secretary to the town manager fits squarely within the parame-
ters of the (6)(C) exemption.
       
    The Union's reliance on Penobscot Valley Hosp. and Maine Feder. of Nurses
and Health Care Profs., No. 85-A-01, 8 NPER ME-16011 (Me.L.R.B. Feb. 6, 1985),
is misplaced.  There is no doubt in the hearing examiner's mind that were the
secretary to the town manager to reveal the information in the collective
bargaining documents that she types and files, the Union's bargaining agent
would obtain unfair advantage therefrom.  That information is not related to
contract administration; it does not consist of employee policies, disciplinary
notices, employee evaluations or lay-off lists, as in Penobscot. It is infor-
mation that is directly related to and an integral part of labor negotiations.
       
    The Union's assertion that confidential duties should be performed by the
Board of Selectmen's recording secretary or by the town clerk is also unper-
suasive.  The recording secretary takes minutes of public meetings of the
selectmen; according to undisputed testimony, no minutes are taken at executive
sessions, where collective bargaining matters are discussed.  Nor was any testi-
mony presented that the recording secretary is performing other confidential
duties that would trigger the Board's requirement for centralization of confi-
dential functions.  Since it is the town manager who participates in direct
negotiations, and not any of the selectmen, the town manager's secretary is the
logical choice for these duties.
       
    The fact that the old town clerk/secretary may have performed confidential
duties (and it is not clear that she did), is irrelevant.  Since collective
bargaining only occurs once every two years for the Thomaston bargaining unit,
the Union would rather the Town concentrated the (6)(B) and (6)(C) exemptions by
assigning the town clerk to perform confidential collective bargaining duties.
While that desire is understandable, the Town is under no obligation to do so.

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    In sum, it is clear that absent the Town's failure to show changed cir-
cumstances, and to raise the issue of exclusions in a timely manner with the
Union, the Town would be entitled to exclude the town clerk and the secretary to
the town manager from the Thomaston bargaining unit.  At this point, its best
course of action would be to raise the issue in negotiations for the next
contract, at which time the Union will presumably agree to the exclusions.
Barring such an agreement, the Town is free to return to the Board for a deter-
mination of its rights, provided it files its request in a timely manner or
otherwise preserves its right to do so.
       
       
                                     ORDER
       
    On the basis of the foregoing stipulations, supplemental findings and
discussion and pursuant to the provisions of 26 M.R.S.A.  966 (1988), it is
hereby ORDERED:
       
         The Town's unit clarification petition, filed on August 4,
         1989, and seeking exclusion of the town clerk and the
         secretary to the town manager from the Town of Thomaston
         bargaining unit, is dismissed.
       
       
Dated at Augusta, Maine, this 22nd day of February, 1990.
       
       
                                    MAINE LABOR RELATIONS BOARD
       
       
                                    /s/________________________
                                    JUDITH A. DORSEY
                                    Designated Hearing Examiner
       
       
The parties are hereby advised of their right, pursuant to 26 M.R.S.A.
 968(4) (1988), to appeal this Order to the Maine Labor Relations Board.
To initiate such an appeal, the party seeking appellate review must file
a notice of appeal with the Board within fifteen (15) days of the date of
issuance of this report.  See Board Rules 1.10 and 6.03.
       
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