STATE OF MAINE MAINE LABOR RELATIONS BOARD
No. 90-UD-02
Issued: November 22, 1989
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)
TEAMSTERS UNION LOCAL 340, )
)
Petitioner, )
)
and ) UNIT DETERMINATION REPORT
)
THE TOWN OF KITTERY, )
)
Public Employer. )
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This unit determination proceeding was initiated on June 30, 1989,
when Teamsters Union Local 340 (Teamsters) filed a petition for unit deter-
mination with the Maine Labor Relations Board (Board) pursuant to 26
M.R.S.A. 966 (1988) and the Board's Unit Determination Rules.[fn]1 The
Teamsters' petition seeks a determination that the position of Secretary to
the Chief of the Kittery Police Department constitutes an appropriate, one-
person collective bargaining unit. A full evidentiary hearing on the
issues raised by the petition was conducted by the undersigned at the
Board's offices in Augusta, Maine, on August 15, 1989. The Teamsters are
represented in this proceeding by Teamsters Vice President and Business
Agent Harvard Brassbridge. The Town of Kittery (Employer) is represented
in this matter by Duncan McEachern, Esquire.
At hearing the parties were afforded the opportunity to present evi-
dence and argument and the opportunity to cross-examine witnesses. The
Teamsters elicited testimony from Ms. Lana Rae Small, the Secretary to the
Chief of the Kittery Police Department. The Employer elicited testimony
from Police Chief Edward F. Strong and Town Manager Philip McCarthy. The
following documents were marked for identification as indicated: Town
Exhibit number 1, a one-page document entitled "An Ordinance to Amend . . .
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1 Processing of the petition was initiated upon receipt, on July 13,
1989, of proof of service of the petition upon the Town of Kittery.
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"The Personel Position Classification Plan," of the Kittery Town Code to
Include a Job Description for the position of Secretary to the Chief of
Police;" Town Exhibit number 2, a four-page document entitled "Proposed
Contract Changes 1989-1990;" Town Exhibit number 3, a twenty-three page
document entitled "Management Proposals." All three exhibits were admitted
without objection by the Teamsters. The Teamsters submitted no documentary
evidence. Neither party expressed a desire to file briefs in the matter.
The transcript was completed on October 4, 1989.
JURISDICTION
The undersigned Hearing Examiner's jurisdiction to conduct a unit
determination hearing herein and to issue a report thereof lies in 26
M.R.S.A. 966 (1988).
STIPULATIONS
In prehearing off-the-record discussions the parties reached the
following stipulations:
1. The Town of Kittery is a public employer within the meaning of 26
M.R.S.A. 962(7) (1988).
2. But for the Employer's contention that the Secretary to the Police
Chief is a confidentinal employee, neither party asserts that she is other-
wise excluded from the definition of the term "public employee" contained
in 26 M.R.S.A. 962(6) (1988).
3. The Secretary to the Police Chief constitutes an appropriate one-
person collective bargaining unit.
4. There is no certification or contract bar to the instant unit
determination petition.
5. Teamsters Union Local 340 is a lawful organization having as its
primary purpose the representation of public employees, which seeks to
represent the Secretary to the Police Chief as an exclusive collective
bargaining agent within the meaning of 26 M.R.S.A. 962(2) (1988).
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POSITIONS OF THE PARTIES
The Teamsters contend that the Secretary to the Police Chief
(Secretary) has no access to material kept confidential from any other
employee of the Police Department. The Employer contends that the
Secretary is excluded from the definition of the term "public employee"
because she has access to a variety of confidential information in the
discharge of her job functions, which if disclosed to the bargaining agent
would be detrimental to the Employer. The Employer contends the Secretary
lacks a community of interest with employees in any of the three existing
Police Department collective bargaining units.
FINDINGS OF FACT
There are presently eleven employees in the Kittery Patrolmen's unit,
which was originally certified on December 16, 1977, and amended on
April 1, 1984. The patrolmen's unit, presently represented by the
Teamsters, is described:
INCLUDED: Kittery Police Department Patrolmen, Detectives and
Youth Aid Officer
EXCLUDED: All other employees of the Town of Kittery
There are presently five employees in the Kittery Police Dispatch unit,
which was originally certified on December 16, 1977. The Dispatch unit,
presently represented by the Teamsters, is described:
INCLUDED: Dispatchers of the Town of Kittery
EXCLUDED: All other employees of the Town of Kittery
There are presently three employees in the Kittery Police Supervisory unit,
which was certified on April 21, 1983. The supervisory unit, presently
represented by the Teamsters, is described:
INCLUDED: Kittery Police Department Sergeants
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EXCLUDED: All other employees of the Town of Kittery[fn]2
Edward F. Strong has been the Chief of Police for four years and has
held the ranks of Acting Chief, Sergeant and Patrolman during his eleven-
year tenure with the Town. With the exception of the present year when the
Town met with the supervisory and patrolmen's bargaining units together,
the Town has conducted annual negotiations on a rotating basis among the
department's three bargaining units. Until last year the Chief and the
Town Manager constituted the Town bargaining team for Police Department
contracts. Last year two Town Council members were also members of the
bargaining team, and in the most recent negotiations the Chief and Town
Manager have been assisted by a representative of the Maine Municipal
Association. Although the Town Manager ultimately decides which proposals
to recommend to the Town Council for their approval, the Police Chief is an
active participant in negotiations and has provided the Town Manager with
prioritized proposals for contract changes in advance of negotiations.
The Chief has informed the Town Manager of these proposed changes by memo,
over the phone and in person at bargaining caucuses. The Town Manager has,
by memo, requested that the Chief render tactical bargaining recommenda-
tions and cost analyses of proposals, such as recently in regard to
"switching" the retirement plan.
The Department's criminal investigations are done by the detectives in
internal affairs. Contract grievance investigations regarding the patrol
or dispatch units are conducted by sergeants. The Chief conducts his own
investigations regarding supervisors. The Chief makes confidential recom-
mendations to the Town Manager, supplementing his summary denials at his
step of the grievance procedure. These recommendations, the Chief's memos
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2 The Board's records indicate that the following additional Town and
School Kittery employee units exist: Kittery Administratve Clerical
Employees Bargaining Unit, Kittery Technical Employees Bargaining Unit,
Kittery General Employees Bargaining Unit, Kittery Water District Employees
Bargaining Unit, Kittery Highway, Sewer and Water Department Bargaining
Unit, Kittery Teachers Bargaining Unit, Kittery School Department
Custodians Bargaining Unit, Kittery School Committee School Lunch Program
Bargaining Unit and Kittery School Committee Principals and Assistant
Principals Bargaining Unit.
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to the file and final reports promulgated prior to and in anticipation of
grievance hearings are typed either by the Chief or by the Secretary to the
Police Chief. The Chief has rarely conducted grievance investigations by
himself in the last few years. The Chief did do investigations regarding
two employees he terminated within the past four years.
The position of Secretary to the Chief of Police was approved, and the
Town Code's Personnel Position Classification Plan amended to include a job
description therefor, on September 9, 1988. The job description requires
confidential secretarial and administrative support to the Chief. Ms. Lana
Rae Small (Small), the present Secretary to the Police Chief, has been
employed by the Town of Kittery for eleven years. An unspecified portion
of her tenure with the Town at the beginning was as clerk to the Chief.
In her present capacity Small supplies all the Chief's typing requirements,
opens all the departmental mail, composes the department payroll, performs
filing, bookkeeping and computer work and issues gun permits. Small also
performs typing work for supervisors and other departmental employees.
Small has never been present in contract negotiations. Small has typed
proposals for changes in contracts which the Chief has submitted, during and
in preparation for negotiations, to the Town Manager. Small has typed up
some of the reports of departmental investigations relating to grievance
and arbitration hearings.
Small is responsible for typing up any investigative report promul-
gated by the Chief with respect to sergeants. Small keeps a "personal"
file in her desk in which she keeps the Chief's correspondence to and from
the Town Manager. The Chief keeps a private locked file cabinet in his
office, in which all pending grievance matters are kept. Additionally, the
Chief keeps negotiations proposals locked in his desk, to which only he has
the key. The department's three supervisors, like Small, have access to
the department's personnel files. Small typed the Chief's analysis of
the retirement plan "switch" on the word processor to which the Systems
Controller, a member of an unspecified town bargaining unit, also has
access. Plans are in effect which will isolate the matter input at the
chief's terminal, from access through the main computer, without a password
which will be known only by Small and the Systems Controller. Incidents of
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access by the controller will under these plans be verifiable. Strong has
admonished Small in the past about opening his personal mail which is
marked "personal." Strong has no problems with Small opening business mail
marked personal. A half-time dispatcher/half-time secretary, Julie
Ruggeri, also performs departmental clerical duties. Ruggeri does some
typing for supervisors, all the typing for Detective Avery and Juvenile
Officer Hackett and, when Small is busy, performs unspecified work for the
Chief. Ruggeri has access to all department records that Small has access
to, with the exception of the department's personnel files which are kept
in the Chief's office. Ruggeri does not have access to any of the
materials prepared by the Chief and typed by Small, respecting negotiations
with any of the collective bargaining units. Ruggeri has never typed up
any such materials. Ruggeri has typed up reports of investigations
relating to grievance and arbitration hearings for the Detective.
Small's work space is just outside the door to the Chief's office on
the second floor of the police department building. The juxtaposition of
Small's work station to that of the Chief, in practicality, renders Small
privy, on all subjects, to discussion taking place in the Chief's office
and to at least the Chief's end of all phone conversations. Such is the
case even with the Chief's door closed. The Chief's work station is one
eighth of a mile from Town Hall. The Chief visits the Town Hall at least
once per day. There are no other confidential employees in the police
department.
Philip O. McCarthy has been Kittery Town Manager for seven and a half
months. The Town Clerk and to a lesser degree the Deputy Town Clerk, a
bargaining unit employee, provide secretarial services to the Town Manager.
The Town Manager has received two or three typed memos from the Chief
respecting labor relations matters. There are clerical employees distrib-
uted throughout the Town's general government as follows: One secretary
works in the Recreation Department, one part-time and two full-time clerks
work at the town office, the Town Clerk and Deputy Town Clerk perform
secretarial duties, and one clerk works at public works. With the excep-
tion of the Town Clerk and the Public Works Clerk, all of the town cleri-
cals are presently members of the Kittery Administrative/Clerical Employee
Bargaining unit, represented by the Kittery Employees Association in a
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unit certified March 6, 1986, and described:
INCLUDED: Assistant Town Clerk, Recreation Clerk, Administrative
Clerk, Assessor's Clerk, Clerk/Bookkeeper (Sanitation
Department)
EXCLUDED: All other employees of the Town of Kittery
The only other Town employee who may have handled confidential labor rela-
tions materials as a clerical responsibility, in addition to the Police
Chief's Secretary and the Town Clerk, is the public works department cleri-
cal. Notices of the hearing regarding the unit placement of the Secretary
to the Police Chief were duly posted.
DISCUSSION
The evidence establishes that the Kittery Chief of Police has con-
sistently participated as a member of the Kittery Police Department
bargaining team. The Chief has been called upon by the Town Manager to
formulate and prioritize proposals for modification of the Town's three
Police Department collective bargaining agreements. The Chief synthesizes
the modification suggestions of subordinate supervisors regarding the
patrolmen and dispatchers' unit contracts. The Chief has participated as
the longstanding sole police department collective bargaining negotiations
resource person, and has assisted the Town Council in executive session to
formulate the Town's labor relations strategy. The Town bargains with
three departmental units and has recently been involved in successor police
department negotiations on what has come to be an annual basis. The record
reflects that the Secretary to the Police Chief is exposed to a great deal
of oral and written confidential information in the ordinary and routine
performance of her job responsibilities. Many of these confidences have no
bearing on whether she is appropriately designated a confidential employee
and excluded from the coverages of the Municipal Public Employees Labor
Relations Law. Two specific variations of her exposure to confidential
matters are, however, dispositive of the issue of her confidential status.
The record establishes that Small has routinely been called upon to type
all of the contract modification proposals, proposal prioritizations and
analyses which the Chief has been called upon to prepare for the Town
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Manager. Additionally, Small is routinely exposed to the incoming and
outgoing memo interplay with the Town Manager regarding the Chief's initial
proposals. The Chief uses no other employee in any manner having a labor
relations nexus sufficient for confidential designation. Apparently among
all of the balance of Town employees only the Town Clerk regularly performs
clerical duties with a labor relations nexus.
A discussion of the Board law relating to the underlying purpose and
stringent application of confidential designation is set forth in the case
styled Kittery Employees Association and Town of Kittery, Nos. 86-UD-06
and -08 (Me.L.R.B. Feb. 13, 1986). The pertinent portions of that decision
bear repeating here:
The Municipal [Law] negatively defines the term "public
employee" by providing seven specific exceptions which, when
applicable, operate to deprive employees of public employers sta-
tus. See 26 M.R.S.A. 962(6) (Supp. 1985-1986). These excep-
tions are narrowly construed by the Board in order to prevent
unnecessary abridgment of the statutory collective bargaining
rights guaranteed to public employees by 26 M.R.S.A. 961 and
963 (Supp. 1985-86). See Teamsters Local Union No. 48 and Town
of Lisbon, Hearing Examiner's Unit Determination Report [81-UD-17], slip op.
at 4 (Me.L.R.B. June 8, 1981), quoting, State of Maine v. Maine
Labor Relations Board, No. CV-77-135 (Me. Super. Ct. Ken. Cty.,
Oct. 10, 1980). See generally Teamsters Local Union No. 48 and
City of Biddeford, Hearing Examiner's Unit Determination Report [80-UD-22],
slip op. at 5 (Me.L.R.B. Apr. 9, 1980). The Act provides one
such specific exception for employees of public employers
"[w]hose duties as . . . deputy, administrative assistant or
secretary necessarily imply a confidential relationship to the
executive head, body, department head or division head." In
determining the applicability of this "confidential" exception
the Board balances the bargaining rights of employees concerned
wtih the statutory right of their public employers to require a
reasonable number of employees to assist them in preparing for
and engaging in collective bargaining negotiations. See
generally M.S.E.A. and Maine Maritime Academy, Hearing Examiner's
Unit Determination Report [82-UD-04], slip op. at 7-8 (Me.L.R B. Jan. 22,
1982); Teamsters Local Union No. 48 and City of Biddeford.
Hearing Examiner's Unit Determination Report [78-UD-34], slip op. at 2
(Me.L.R.B. Aug. 4, 1978); Teamsters Local Union No. 48 and Town
of Fairfield, Hearing Examiner's Unit Determination Report [78-UD-42], slip
op. at 4 (Me.L.R.B. July 31, 1978).
The underlying purpose of the exclusion of confidential
employees from bargaining units is to prevent such employees from
being subjected to an irreconcilable conflict of interest in
which their loyalties are divided between their employer, who
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expects confidentiality, and their union, which may seek disclo-
sure of confidential employer labor relations material to gain
advantage in bargaining. An employee in possession of confiden-
tial information not connected with labor relations matters is
not generally subjected to such divided loyalty. Union member-
ship is not incompatible with an employee's duty of loyalty to
the employer when that duty requires confidentiality regarding
matters other than labor relations. See Town of Fairfield and
Teamsters Local 48, Report of Appellate Review of Unit Deter-
mination Report [78-A-08], slip op. at 3 (Me.L.R.B. Nov. 27, 1978).
Furthermore, only involvement in aspects of collective bargaining
negotiations is sufficient to support "confidential" designation.
Involvement in contract administration and grievance adjustment
is not. See State of Maine and Maine State Employees Associa-
tion, No. 82-A-02, slip op. at 9 (Me.L.R.B. Aug. 9, 1983).
The Board has stated that the following standards are to be
applied in determining whether an employee is "confidential,"
within the meaning of the Municipal Act:
We have often stated that, to be a confidential
employee," one must be "permanently involved in collec-
tive bargaining matters on behalf of the public
employer or that the duties performed by the employee
involve the formulation, determination and effectuation
of the employer's employee relations policies.
Waterville Police Department and Teamsters Local Union
No. 48, Report or Appellate Review of Unit Determina-
tion Report [78-A-06], slip op. at 3 (Me.L.R.B. Oct. 4, 1978).
Maine School Administrative Distirct No. 14 and East Grand
Teachers Association, No. 83-A-09, slip op. at 8-9 (Me.L.R.B.
Aug. 24, 1983), quoting, State of Maine and Maine State Employees
Association, No. 82-A-02, Interim Order at 18 (Me.L.R.B. June 2,
1983).
This requirement, that the employee's participation in
collective bargaining matters be significant, does not
set out a strict empirical formula mandating the inclu-
sion or exclusion of employees from collective bargain-
ing. That determination must be made on an ad hoc
basis by the hearing examiner on the facts developed
through the unit hearing process. The requirement of
significance of an employee's participation in collec-
tive bargaining matters may be satisfied either when
the individual's involvement is substantial, although
it is performed rarely, or when the activity is rela-
tively minor but is undertaken on a regular basis as
part of the employee's job functions. The significance
of the employee's involvement turns on the nature of
his or her access to information which could, if
revealed to the bargaining agent, jeopardize the
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employer's collective bargaining position, Town of
Fairfield [and Teamsters Local Union No. 48, Report of
Appellate Review of Unit Determination Hearing [78-A-08], slip
op. at 3 (Me.L.R.B. Nov. 27, 1978)], and also on what
the employee does with such information. The employee
must use said information in the formulation and deter-
mination of the employee's labor relations policies or
collective bargaining proposals in order to be found to
be a confidential employee.
Penobscot Valley Hospital and Maine Federation of Nurses and
Health Care Professionals, No. 85-A-01 slip op. at 9-10
(Me.L.R.B. Feb. 6, 1985), quoting, Maine School Administrative
District No. 14 and East Grand Teachers Association, No. 83-A-09,
slip op. at 8-9 (Me.L.R.B. Aug. 24, 1983). The Board has also
opined that:
Clerical employees who do not formulate or determine
the employer's labor relations policies may, neverthe-
less, be found to be confidential employees. This
conclusion is in recognition of the fact that "in many
if not most cases, 'confidential' supervisory employees
need access to at least one 'confidential' clerical
employee, in order to carry out their confidential
duties.
Penobscot Valley Hospital and Maine Federation of Nurses and
Health Care Professionals, No. 85-A-01, slip op. at 10 (Me.L.R.B.
Feb. 6, 1985).
The Chief's involvement in collective bargaining matters is indisput-
ably significant and permanent. I find that Small's access to the collec-
tive bargaining negotiations' proposals, prioritizations and analyses of
the employer also constitutes significant involvement of a permanent nature
in collective bargaining. Mindful of the Board standards set forth in the
quoted passages above and in light of the fact that the Chief's present and
past clerical requirements having a labor relations nexus have been con-
centrated solely in Small, I find her designation as a confidential
employee to be warranted.
Having so found it is not necessary to resolve the further issue of
whether, given the Board's policy against the unnecessary over-
proliferation of single person units and the existence of an established
Town of Kittery Administrative/Clerical bargaining unit, the stipulation of
the parties regarding the appropriateness of a single-person Police Chief's
Secretary collective bargaining unit should be accepted without further
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inquiry by the hearing examiner.
APPROPRIATE UNIT DETERMINATION
On the basis of the parties' stipulation, the foregoing findings of
fact and discussion and by virtue of and pursuant to the provisions of 26
M.R.S.A. 966 (1988), I conclude that the Secretary to the Kittery Police
Chief is a confidential employee within the meaning of 26 M.R.S.A
962(6)(C) (1988). The Teamsters petition for unit determination is there-
fore DISMISSED.
Dated at Augusta, Maine, this 22nd day of November, 1989.
MAINE LABOR RELATIONS BOARD
s/s___________________________________
M. Wayne Jacobs
Designated Hearing Examiner
The parties are hereby advised of their rignt, pursuant to 26 M.R.S.A.
968(4) (1988), to appeal this report 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 the
issuance of this report. See Board Unit Determination Rule 1.10. Board
General Provisions Rule 6.03.
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