STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 91-UC-12
                                                   Issued:  February 4, 1991

TOWN OF KITTERY,                   )
                Petitioner,        )
and                                )         UNIT CLARIFICATION REPORT
                Bargaining Agent.  )
     On December 17, 1990, 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 1.16, the Town of Kittery ("Town") filed a
petition for unit clarification with the Board, seeking a determination that the
positions of secretary to the chief of police and secretary/clerk of the Public
Works Department are properly excluded from the Town of Kittery clerical and
administrative bargaining unit.  Teamsters Local Union No. 340 ("Local 340")
opposes the exclusion of these two positions.
     The Town asserts that these exclusions are proper based on the change in
bargaining agent, from the Kittery Employees Association ("KEA") to Local 340
(accomplished through a decertification/bargaining agent election), that occurred
on October 29, 1990.  More specifically, the Town argues that since Local 340
also represents employees in the police department, for which the secretary
to the chief of police performs confidential duties, and employees in the Public
Works Department, for which the secretary/clerk of the Public Works Department
performs confidential duties, inclusion of those positions in the clerical and
administrative unit is inappropriate.
     An evidentiary hearing was convened at 9:30 a.m. on Friday, January 18,
1991, in Room 714 of the State Office Building, Augusta, Maine.  Duncan A.
McEachern, Esquire, represented the Town, and William J. Turkewitz represented

Local 340.  No one requested participation in the proceeding as an interested
party.  In an informal conference with the hearing examiner prior to commence-
ment of the formal hearing, the parties were able to reach a complete stipula-
tion of facts, obviating the need for a formal evidentiary hearing.  The
stipulations reached by the parties at that time are incorporated herein.
Each party briefly argued its position orally.  The parties were also afforded
an opportunity to file written briefs; neither chose to do so.
     Participating in the informal conference, in addition to the representatives
of record for each party, were the following:
         Philip 0. McCarthy (town manager)
         Edward F. Strong (chief of police)
         Lana Rae Small (secretary to the chief of police)
     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).
     In prehearing discussion, the parties reached the following factual and
legal stipulations:
     1.  Petitioner is the Town of Kittery, which is a public employer within
the meaning of 26 M.R.S.A.  962(7) (1990 Suppl.)
     2.  Respondent is Teamsters Local Union No. 340, which is the bargaining
agent, within the meaning of 26 M.R.S.A.  962(2) (1988), for the Town of
Kittery clerical and administrative unit.
     3.  The parties are unable to agree to an appropriate modification to the
clerical and administrative unit, and there is no question concerning represen-
tation to operate as a bar to the petition under 26 M.R.S.A.  966(3) (1988).
     4.  By duly executed Form 1's (agreements on appropriate unit) dated
January 9, 1986, two units -- a bargaining unit for clerical and administrative
employees and a unit for technical employees -- were established.  A third unit


was established, for professional employees, by a unit determination dated
February 13, 1986 (Case No. 86-UD-06 and 08).  On March 6, 1986, KEA was cer-
tified as the bargaining agent for each of the three units.  Thereafter, the
Town and KEA negotiated a collective bargaining agreement that covered all three
     5.  By unit determination dated November 22, 1989, (Case No. 90-UD-02), it
was determined that the position of secretary to the police chief is confiden-
tial within the meaning of 26 M.R.S.A.  962(6)(C) (1988), and therefore could
not constitute an appropriate, one-person bargaining unit as petitioned for by
Local 340, the bargaining agent for three Kittery Police Department units.
     6.  By letter dated January 24, 1990, Local 340, which also represents
employees of the Kittery Public Works Department, withdrew its unit deter-
mination petition seeking to establish a one-person unit for the secretary/clerk
of the Public Works Department (Case No. 90-UD-12).  That withdrawal was based
on discussions preceding the scheduled evidentiary hearing which indicated that
the secretary/clerk of the Public Works Department performs confidential duties
within the meaning of 26 M.R.S.A.  962(6)(C) (1988).  At the time of the
hearing, the Town indicated that it would not necessarily object to including
the position in one of the three units represented by KEA.
     7.  In an Opinion and Award dated August 23, 1990, the Board of Arbitration
and Conciliation ("BAC") found that through correspondence, the Town had agreed
that as of April 17, 1990, the position of secretary/clerk of the Public Works
Department was covered by the collective bargaining agreement then in effect for
the three units represented by KEA.  That agreement expired on June 30, 1990.
     8.  The correspondence upon which the BAC relied for its decision referred
to both the secretary/clerk of the Public Works Department and the secretary to
the chief of police.  Consequently, the current status of these two positions is
the same.
     9.  On October 29, 1990, in a decertification/bargaining agent election,
Local 340 was certified as the new bargaining agent for the three units
previously represented by KEA.


     This proceeding was conducted pursuant to 26 M.R.S.A.  966(3) (1988) and
Unit Determination Rule 1.16.  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
          bargaining unit are alleged to have changed sufficiently
          to warrant modification in the composition of that bargain-
          ing 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-
The parties have stipulated and the record indicates that three of the four
requirements for filing a unit clarification petition have been met -- the
petitioner is a public employer, the parties do not agree on the exclusions at
issue, and there is no question concerning representation.
     The requirement for changed circumstances, like the other three statutory
requirements, "is a threshold question on which the petitioner, in a unit clari-
fication proceeding, '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).
     The Town alleges that the change in bargaining agent for the clerical and
administrative unit, from KEA to Local 340, meets the fourth requirement -- that
is, that it constitutes a change in circumstances sufficient to warrant a
finding that the positions of secretary to the chief of police and secretary/
clerk of the Public Works Department should be excluded from that unit.  The
hearing examiner agrees.
     Section 962(6)(C) of the MPELRL, 26 M.R.S.A.  962(6)(C) (1988), excludes
confidential employees from the definition of "public employee," thereby
excluding such employees from the protections of that statute.  The purpose of
this exclusion is to avoid the conflict for an employee between duty to his/her
employer and loyalty to fellow employees; this conflict flows from the fact that

the employer's confidential collective bargaining "ideas, positions and policies
. . ., if disclosed to the bargaining agent, could provide the bargaining agent
with unfair leverage or advantage over the public employer."  Town of Fairfield
and Teamsters Local Union No. 48, No. 78-A-08, slip op. at 3 (Me.L.R.B.
Nov. 30, 1978).
     There is no dispute that the two secretaries at issue perform duties
related to collective bargaining for the bargaining units in their respective
departments.  However, it might reasonably be argued that (6)(C) should be
interpreted to exclude confidential clerical personnel such as the secretary to
the police chief and the secretary/clerk of the Public Works Department only
from the bargaining unit(s) for which they perform confidential duties, and not
from collective bargaining altogether.[fn]1  Thus, the argument might go, while
these employees could not be included in bargaining units within their own
departments, there is no reason not to include them in the general clerical and
administrative unit that covers town hall employees.  While this argument holds
some appeal[fn]2 where the bargaining agent for the Public Works and Police
Departments is different than the bargaining agent for the town hall unit, that
has not been the case since October 29, 1990.
     Because Local 340 now represents all of the units at issue -- that is, the
Police Department and Public Works Department units as well as the units pre-
viously represented by KEA, including the clerical and administrative unit --
     1 In fact, the Town and KEA were moving in that direction prior to October 29,
     2 The original (1969) version of (6)(C) read as follows:
             C.  Whose duties as deputy, administrative assistant
             or secretary necessarily imply a confidential relation-
             ship to the executive head, body, department head or
             division head of the applicable bargaining unit; or
             [Emphasis added.]
In 1973, in legislation described as a "clarification" of the statute, the
phrase "of the applicable bargaining unit" was removed.  Since there is no such
thing as the "head" of a bargaining unit, a "body" of a bargaining unit, the
"department head" of a bargaining unit, or the "division head" of a bargaining
unit, removal of that phrase in 1973 may have been simply to make the exclusion
gramatically correct; it did not necessarily constitute an intention to change
the meaning of the original exclusion.

the very conflict that the statutory exclusion was meant to avoid is present.
In its contract negotiations, the Town's basic bargaining "ideas, positions and
policies" might well be the same for the town hall, Police Department and Public
Works Department units, even though the job classifications in those units vary
substantially.  There may even be specific provisions of the various contracts
that are very similar if not identical.  While it may well be that the persons
holding the two clerical positions at issue would not reveal confidential
information to Local 340, the employer should not be required to take that risk.
Conducting collective bargaining negotiations under such circumstances would,
at best, be a risky proposition for all concerned.
     On the basis of the foregoing stipulations and discussion and pursuant to
the provisions of 26 M.R.S.A.  966 (1988), it is hereby ORDERED:
          The Town's unit clarication petition, filed on December
          17, 1990, and seeking exclusion of the secretary to the
          chief of police and the secretary/clerk of the Public
          Works Department from the Town of Kittery clerical and
          administrative bargaining unit, is granted.
Dated at Augusta, Maine, this 4th day of February, 1991.
                                       MAINE LABOR RELATIONS BOARD
                                       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) calendar days of the date
of issuance of this report.  See Board Rules 1.12 and 7.03.