State of Maine, Dept. Agriculture and MSEA, and MSEA and State of Maine, Dept.
of Agriculture, Nos. 83-UC-15 and 91-UC-15, (Dec. 12, 1995). Affirmed by MLRB in
No. 96-UCA-01 (April 8, 1996). See also Interim Order on No. 83-UC-15, 35, 37 & 48. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 83-UC-15 and 91-UC-15 Issued: December 12, 1995 ____________________________________ ) STATE OF MAINE, DEPARTMENT OF ) AGRICULTURE, ) ) Public Employer and Petitioner, ) ) and ) ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Bargaining Agent, ) ) and ) UNIT CLARIFICATION ) REPORT MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Bargaining Agent and Petitioner, ) ) and ) ) STATE OF MAINE, DEPARTMENT OF ) AGRICULTURE, ) ) Public Employer. ) ____________________________________) This unit clarification proceeding was originally initiated on November 19, 1982, when the Governor's Office of Employee Relations, on behalf of the Maine State Department of Agriculture (hereinafter referred to as "State"), filed a petition for unit clarification pursuant to Section 979-E(3) of the State Employees Labor Relations Act ("Act"), 26 M.R.S.A. ch. 9-B. The State's petition sought to exclude 29 classifications (35 positions) from the coverage of the Act. The State alleged that: 24 classifica- tions (27 positions) fell within the exclusion contained in the first clause of 26 M.R.S.A. 979-A(6)(J) ("J-1"), 8 classifica- tions fell within the exclusion contained in the second clause of 26 M.R.S.A. 979-A(6)(J) ("J-2"), and 5 classifications (8 positions) fell within the exclusion contained in Section 979-A(6)(C), The general procedural history of the State's [-1-] __________________________________________________________________ petitions in this and several related cases is outlined in State of Maine, Department of Inland Fisheries and Wildlife, Nos. 83-UC-43 and 91-UC-11, slip op. at 1-2 (Me.L.R.B. May 4, 1993). On January 3, 1991, the Maine State Employees Association, Local 1989, SEIU ("MSEA") filed a petition for unit clarifica- tion, seeking the inclusion of two positions into whichever of the existing bargaining units represented by MSEA would be most appropriate. The general procedural history of the MSEA's petitions in this and several related cases is discussed in State of Maine, Department of Public Safety, Nos. 83-UC-45 and 91-UC-45, slip op. at 2-3 (Me.L.R.B. Feb. 4, 1994). Continuing the practice established in the Department of Inland Fisheries and Wildlife case, the hearing examiner consulted with counsel for the parties and established a timetable for updating the petitions and filing responses thereto. The State filed its amended petition on May 1, 1995, seeking exclusion from the coverage of the Act for the following classifications at the Department of Agriculture: Director of Regulations, Bureau of Public Service (Clayton Davis): J-1 & J-2 Agricultural Quality Assurance Director (David Gagnon): J-1 & J-2 Director of Plant Industry, Bureau of Production (Terry Bourgoin): J-1 & J-2 Director of Production Development (John Harker): J-1 Each classification is followed, in parentheses, by the name of the incumbent employee in the position at issue and, following the colons, the statutory grounds upon which the sought-after exclusions are based. MSEA filed its response to the State's petition on May 16, 1995, denying that any of the positions included in the State's petition qualify for exclusion pursuant to 26 M.R.S.A. 979-A(6)(J). On the same date, MSEA filed its amended petition in Case No. 91-UC-15. MSEA's amended petition seeks to have the following positions included in whatever bargaining unit currently represented by MSEA would be most -2- __________________________________________________________________ appropriate: Chief Accountant - Gary Palmer Executive Secretary, Maine Milk Commission - Robert Plummer Executive Director, Maine Potato Board - David Lavway Secretary to Executive Director, Maine Potato Board - Dorcas Mahan Assistant Executive Director, Maine Potato Board - Michael Corey Administrative Clerk, Maine Potato Board - Carol Adams Administrative Clerk, Maine Potato Board - Vacant Director of Advertising and Quality Control, Maine Potato Board - John Logan The State filed its response to MSEA's petition on May 24, 1995, denying that any bargaining units are appropriate for the positions listed in MSEA's petition and alleging that each and every position mentioned in such petition is properly excluded from bargaining. Evidentiary hearings on the merits of the petitions in these cases were held in the Labor Relations Board Conference Room, Room 714 of the State Office Building, Augusta, Maine, on June 13, June 20, July 11, and August 8, 1995. The State was represented by Sandra S. Carraher, Esq., and MSEA was represented by Timothy L. Belcher, Esq. The parties were afforded full opportunity to examine and cross-examine witnesses, to present documents and other evidence, and to present argument during the course of the hearing. The parties waived the filing of post- hearing briefs. Of the twelve individual positions at issue at the outset of these cases, the parties reached agreement during the course of the proceeding that the three positions listed below, followed by the name of the incumbent employee in each, be included in the State Employee Administrative Services Bargaining Unit: Secretary to Executive Director Maine Potato Board - Dorcas Mahan Administrative Clerk (Maine Potato Board) - Carol Adams Administrative Clerk (Maine Potato Board) - Vacant -3- __________________________________________________________________ On August 8, 1995, the parties filed an Agreement on Appropriate Bargaining Unit, memorializing the above accord. By agreement of the parties, the undersigned hearing examiner convened a formal meeting on August 22, 1995, and orally announced the preliminary unit clarification decision on the merits of both pending petitions in these matters, including relevant findings of fact and conclusions of law. The parties further agreed that, if either of them wished to appeal the unit clarification decision concerning any particular position to the Labor Relations Board, the party seeking such review would, within 15 days of the announcement of the oral decision, request a written decision pertaining only to the classification(s) whose status they wished to challenge on appeal before the Board. The August 22, 1995, oral decision was as follows: Agricultural Quality Assurance Director - David Gagnon: Excluded from bargaining pursuant to "J-1" Director of Production Development - John Harker: Remains in the State employee Supervisory Services Bargaining Unit Director of Regulations, Bureau of Public Service - Clayton Davis: Excluded from bargaining pursuant to "J-1" Director of Plant Industry, Bureau of Production - Terry Bourgoin: Excluded from bargaining pursuant to "J-1" Executive Director, Maine Potato Board - David Lavway: Excluded from bargaining pursuant to "J-1" Assistant Executive Director, Maine Potato Board - Michael Corey: Excluded from bargaining pursuant to "J-1" Director of Advertising and Quality Control, Maine Potato Board - John Logan: Excluded from bargaining pursuant to "J-1" Executive Secretary, Maine Milk Commission - Robert Plummer (had recently retired at the time of the evidentiary hearing and the position was vacant): Excluded from bargaining pursuant to "J-1" Chief Accountant, Department of Agriculture - Gary Palmer: Assigned to State employee Supervisory Services bargaining unit On August 25, 1995, Attorney Carraher requested a written decision concerning the position of Chief Accountant at the -4- __________________________________________________________________ Department of Agriculture. Accordingly, the bargaining unit status of that position will be the subject of this unit clarification report. JURISDICTION The jurisdiction of the executive director to hear and decide these matters and to make a unit clarification decision herein lies in 26 M.R.S.A. 979-E(3). FINDINGS OF FACT AND DISCUSSION PRELIMINARY MATTERS The unit clarification provision of the Act, Section 979- E(3) contains five prerequisites which must be established before the merits of any unit clarification petition may be evaluated. The parties have stipulated to four of the prerequisites. The State of Maine is the public employer within the meaning of Section 979-A(5) of the employee whose classification is in contention in this case. MSEA is the certified bargaining agent within the meaning of Section 979-A(1) for the State employee Supervisory Services Bargaining Unit--the unit to which the parties have stipulated the classification at issue should be assigned if it is non-exempt. The MSEA is the petitioner in the instant case. The parties are unable to agree on the modification being sought through the petition and there is no pending question concerning representation. The final prerequisite is a finding that the circumstances surrounding the formation of the bargaining unit involved have changed sufficiently to warrant modification in the composition of the unit. In the instant case, the position at issue was created in 1990, at which time it was excluded from bargaining by the State. The discussion concerning the impossibility of determining the unit status of classifications prior to their being created contained at page 6 of Department of Public Safety, supra, also applies here. -5- __________________________________________________________________ The State averred that the Chief Accountant was properly excluded from the coverage of the Act pursuant to 26 M.R.S.A. 979-A(6)(C) and/or (J). These portions of the Act are as follows: 6. State Employee. "State employee" means any employee of the State of Maine performing services within the executive department except any person: . . . C. Whose duties necessarily imply a confidential relationship wtih respect to matters subject to collective bargaining as between such person and the Governor, a department head, body having appointive power within the executive department or any other official or employee excepted by this section: or . . . J. Who substantially participates in the formulation and effectuation of policy in a department or agency or has a major role other than a typically supervisory role, in the administration of a collective bargaining agreement in a department or agency; . . . . MERITS OF MSEA'S PETITION No evidence was presented relating to the Chief Accountant's having had any involvement in collective bargaining on behalf of the State; therefore, the position is not excluded from the coverage of the Act pursuant to Section 979-A(6)(C). Second, little relevant evidence was presented tending to establish that the Chief Accountant should be exempt as a J-2 employee. The latter section was discussed in State of Maine, Department of Public Safety, supra, slip op. at 19-20, as follows: The only known interpretation of J-2 in an official proceeding was that by the hearing officer in State of Maine and Maine State Employees Association, No. 83-UC-36, slip op. (Me.L.R.B. Apr. 11, 1986) ("D.O.T. decision"). Relying heavily on an analogous section of New York Law--New York Civil Service Law Section 201.7(a)--the hearing examiner held that J-2 excluded from bargaining those who, through the exercise of independent judgment (as contrasted with performance of routine or clerical functions), assure that the terms of a collective bargaining agreement are observed and -6- __________________________________________________________________ interpret such agreement on behalf of the employer both within and outside the context of the contractual grievance procedure. Id. slip op. at 9. Most supervisors ensure that their direct subordinates adhere to the terms and conditions of the labor agreement and most supervisors also serve as the first step of the contractual grievance procedure for the employees they directly supervise. The Legislature explicitly stated in J-2 that performing typically supervisory functions will not warrant granting a J-2 exclusion; therefore, something more is required. To constitute a major role in contract administration within the meaning of J-2, one must exercise independent judgment in enforcing a collective bargaining agreement and interpreting such agreements on behalf of management, through the grievance procedure or otherwise, in regard to employees other than those under the direct supervision of the individual for whom the exclusion is sought. The only evidence in the record concerning the Chief Accountant, which is arguably relevant to a J-2 exclusion, was the promulgation of the "Office Policy" memorandum--Joint Exhibit 169. While this document could be construed as being an interpretation of the collective bargaining agreement(s) on behalf of the State, it was directed exclusively at the employees that Mr. Palmer directly supervises. In the circumstances, issuance of the "Office Policy" memorandum constitutes an exercise of normal supervisory authority and does not rise to the level of activity required to warrant a J-2 exclusion. The bulk of the evidence presented relating to the Chief Accountant was intended to establish that the position should be exempt from the coverage of the Act pursuant to J-1. The controlling section of the Act has been interpreted as follows: The hearing examiner in the D.O.T. decision found New York public sector labor relations case law, concerning that jurisdiction's managerial employee exclusion, persuasive in interpreting J-1. Paraphrasing the standard outlined at page 4 of the D.O.T. decision, executive branch employees who formulate policy by selecting among options and who put policies into effect or who regularly participate in the essential process which results in policy proposals and in the decision to put such proposals into effect are exempted -7- __________________________________________________________________ from the coverage of the Act by clause J-1. The policy matters relevant in this context are the development of particular objectives for a department or agency in fulfillment of its mission and selection of methods, means and extent of meeting such aims. The determina- tion of methods of operation that are merely technical in nature does not constitute the formulation of policy within the ambit of J-1. Persons who do not participate in the decision-making process but who merely draft language for the statement of policy and those whose only role is to provide research or collect data necessary for policy develop- ment are not excluded from the coverage of the Act by J-1. D.O.T. decision, at 4. Others beyond the ambit of J-1 include persons temporarily ("even for as long as a year or more") assigned to policy analysis work, Id. at 42, or those who provide technical evaluations of complex systems to those in the decision-making process. Id. at 52-3. Except for those who occupy a position with express authority to do so, most attorneys in State service are not engaged in policy making within the meaning of J-1. Id. at 44-5. State of Maine, Department of Inland Fisheries and Wildlife, supra, slip op. at 18. The Chief Accountant at the Department of Agriculture supervises the Finance Unit of the Department's Administrative Services Division. The Chief Accountant reports to the Director of Administrative Services, who has a masters degree in business administration. The two are in constant contact and keep each other informed so that the Chief Accountant can replace the Director when the latter is out. The Board has held that participation in collective bargaining is the general rule for State employees; therefore, the exemptions from the coverage of the Act are narrowly drawn and should be strictly construed. State of Maine and Maine State Employees Association, No. 82-A-02, slip op. at 6, 6 NPER 20-14027, Interim Order (Me.L.R.B. June 2, 1983). As noted in Public Safety, supra, slip op. at 28, " . . . if filling in on a short term basis for exempt employees constituted adequate grounds for exclusionary designations, there would be many more such exclusions than necessary." -8- __________________________________________________________________ The mission of the Finance Unit is to provide the Department of Agriculture and its several boards and commissions with a full range of centralized fiscal and financial support services, including annual budgeting, fund management, accounting for income and expenditures, cash control, financial planning and reporting, purchasing, and inventory control. The Chief Accountant's primary job functions include: managing and directing the department's centralized fiscal and financial functions; supervising a staff that includes professional accountants and clerical employees; planning and coordinating preparation of the biennial budget, work programs, budget orders, and financial orders; planning, organizing, and supervising the work of subordinate employees; exercising fiscal control of all departmental funds and financial transactions; and providing general administrative technical assistance and financial planning assistance to program managers. These job functions were discussed in detail in State of Maine, Department of Inland Fisheries and Wildlife, No. 93-UC-05, slip op. (Me.L.R.B. June 9, 1994), aff'd, No. 95-UCA-01 (Me.L.R.B. Dec. 27, 1994), and found to constitute highly responsible, professional work as an accountant or as an accounting supervisor; however, the nature of the work was limited to the implementation of policy and did not involve policy formulation. The Chief Accountant is responsible for controlling building management, clearing individuals for after-hours access. He serves as the departmental telephone coordinator, setting up service and determining the number of lines needed, and as the MFASIS Coordinator and Security Coordinator, assigning passwords pursuant to security clearance decisions made by the Bureau of Accounts and Control. Each of these functions involves only the implementation, and not the formulation, of policy. The Chief Accountant has daily contact with the Commissioner and the Deputy Commissioner. The nature of such contact was illustrated through two exhibits, Joint Exhibits 166 and 165, -9- __________________________________________________________________ which essentially constituted the substance of the Chief Accountant's first meeting with the new Commissioner and Deputy Commissioner appointed by Governor King. The first five items included in Joint Exhibit 165 all related to the technical means of accomplishing certain operations. The Chief Accountant provided the relevant technical facts and the Commissioner made the policy decisions by selection from the available options. The sixth item related to the possible increased cost to the department and a possible loss of income to the Chief Accountant personally as a result of the instant proceeding. The former concern was addressed in the current biennial State budget for all affected positions and the latter is inherent in these proceedings. In any event, such concerns did not relate to the policy matters relevant in the J-1 context--"the development of particular objectives for a department or agency in fulfillment of its mission and selection of the methods, means and extent of meeting such aims." State of Maine, Department of Inland Fisheries and Wildlife, supra, slip op. at 18. The Chief Accountant further testified that he trained the Commissioner in how the budget and accounting systems work in the Department. That process involved providing a technical analysis of complex systems to a decision-maker and, as noted in the J-1 test, does not warrant a J-1 exclusion. The Chief Accountant's role in the review of pending legislation is to prepare fiscal impact statements which are then provided to the Legislative Office of Fiscal and Program Review. Such involvement in the legislative process was discussed in Department of Public Safety, supra, as follows: Employee review of L.D.'s to determine whether proposals will have fiscal or other impact on an agency or department and, if so, preparation of a description of the nature of such impact, is the functional equivalent of performance of technical evaluations of complex systems and presentation of such reports to those involved in the decision-making process. Performance of such duties does not constitute -10- __________________________________________________________________ significant involvement in policy-making within the meaning of J-1. Nos. 83-UC-45 and 91-UC-45, slip op. at 14-15. The next group of activities allegedly warranting an exclusionary designation pursuant to J-1 was the Chief Accountant's involvement with the Seed Potato Board. When the Seed Potato Board lost its accountant in 1988 or '89, the Chief Accountant was the only person in the finance section who had enterprise accounting experience; therefore, he took over the Board's accounting function. The Chief Accountant audited the Board's needs, set up an accounting system, and discovered that STA CAP (the State cost allocation formula) was being charged to an asset account and such formula should only apply to payables when they are paid. To correct this problem, the Chief Accountant sent a memo to the State Budget Officer, requesting that STA CAP not be charged to the account in question, and the correction was made. These actions by the Chief Accountant involved only the implementation of established policy-- generally accepted accounting principles"-- and did not include policy formulation. When he wanted greater detail of seed farm expenditures, the Chief Accountant set up several reporting sub-organizations within established character and object codes to generate the detail desired. This activity implicated selection of the technical means of operation only and does not warrant a J-1 exemption. Prior to the Chief Accountant's assuming their accounting function, the Seed Board has been issuing Internal Revenue Service Forms W-2 to their casual farm laborers. Such laborers did not occupy positions within the State Human Resources classification system. Consistent with I.R.S. regulations, the Chief Accountant caused Forms 1099 to be issued to the laborers to report their annual incomes from Seed Board employment, in -11- __________________________________________________________________ lieu of the Forms W-2, and recommended that "temporary positions" be established for the laborers within the human resources system. This activity was limited to selection of technical means of satisfying established I.R.S. policy and did not involve the development of policy. The Chief Accountant's final activity in connection with the Seed Potato Board cited in support of a J-1 exclusion was his involvement with a particular potato virus program in June of 1991. Funds had been provided by the Federal Government to acquire a laboratory to assist in halting the spread of the virus in question. The Chief Accountant set up an account through the State Controller to properly record transactions involving such funds. The Chief Accountant also helped to decide that a double- wide mobile home would be purchased to house the lab and created the financial orders required to encumber the funds to purchase the lab and its equipment. The policy decision involved in this instance was whether the lab should be acquired, thereby committing the department to participating in the effort to stop the virus from spreading to other states. As was testified to earlier in this proceeding, this decision was made by the Director of Plant Industry in the Bureau of Production and was part of the basis for the J-1 exclusionary designation for that position. The Chief Accountant's role in setting up the separate account was limited to implementation of the policy, once it had been established. The decision of whether to acquire the double- wide mobile home to house the lab involved the selection of the technical means of operation and, again, did not constitute policy formulation. The next item cited in support of the sought-after J-1 exclusion was the issuance of the Financial Unit Office Policy, Joint Exhibit 169, discussed in the context of clause J-2 at page 7 above. As was noted at that juncture, this memorandum merely summarized employment policies concerning flexible work week options available to employees. Such options had been -12- __________________________________________________________________ established either through applicable collective bargaining agreements or in the State personnel policy. The "office policy" document is evidence of involvement only in the implementation of policy and does not establish participation in the development of policy. During a periodic audit of one of the department's boards, the State Department of Audit noted an exception from accepted practices because the board in question had failed to maintain required vehicle usage records. To correct the deficiency, the Chief Accountant designed a "Monthly State Vehicle Travel Report" booklet, containing forms with spaces for all of the information required to be reported by the State "Policy and Procedures on the Use of State-Owned Vehicles," and required department employees claiming mileage reimbursement to use it. The Chief Accountant's actions were limited to selection of the technical means of implementing the established State vehicle use policy. In February of 1991, the Department of Agriculture initiated an effort to remove asbestos from its headquarters building in Augusta. In his role as building coordinator, the Chief Accountant was responsible for finding work space for the employees and equipment, who were normally located in the areas where the asbestos abatement activities would occur, for coordinating their move to such space, and for coordinating their return to their original work locations, once the asbestos work was completed. Approximately one year later, the Chief Accountant was required to perform the same functions when the roof of the headquarters building required additional bracing and the employees working on the top floor had to be relocated during the construction project. While these were no doubt substantial tasks, the Chief Accountant's activities did not involve the development of any sort of policy; but, rather, were limited to selection of the technical means of implementing the policy decisions that the existing asbestos be abated or removed and that the roof be braced. -13- __________________________________________________________________ The Chief Accountant has assisted various boards in the department who do not have their own staff in writing contracts. In the example cited in the record, the Harness Racing Promotion Board had entered into a contract with a particular vendor, the contract had placed the vendor in the position to control the relationship, and substantial cost overruns had been incurred. The Chief Accountant reviewed the contract and found that it did not conform to the relevant requirements established by the Bureau of Purchases. Working with the board, the contract was re-written, incorporating standard language developed by the Bureau of Purchases that resulted in the board's being in control of the relationship. The re-negotiated contract also had additional provisions addressing the issue of cost overruns. In this case, the Chief Accountant drafted an instrument to reflect existing Bureau of Purchases policy. This effort involved only the implementation of established policy. The Chief Accountant set up a "one write" accounts receivable system. In the past, the department used separate invoices and receipts for each transaction. The Chief Accountant decided to computerize the operation and directed the programmer to devise a system where invoices and receipts could be produced in a single operation. Adoption of this system resulted in a significant saving of staff time, reducing the process time from 40 hours per week to 40 hours per month, enabling the staff to handle twice the revenues to boot. While a notable achievement, the Chief Accountant's action did not change the objectives of the Finance Unit; but, rather, was limited to the selection of the technical means of accomplishing the organization's mission. This decision does not warrant a J-1 exemption. In two separate instances described in the record, the Chief Accountant participated in special projects whose missions were to provide input in the formulation and implementation of policy. When MFASIS was first established in approximately 1990, the Chief Accountant served on a committee with the State Controller -14- __________________________________________________________________ and Deputy Controller, a representative of the State Treasurer, the State Purchasing Agent, and other accountants from various departments which each had specialized accounts. The Committee evaluated and purchased appropriate software, in light of the wide range of needs that its members represented. The Chief Accountant subsequently set up the department's account structure within MFASIS. Although there was no evidence that the Chief Accountant played any role in the major policy decision to acquire MFASIS, the committee on which the Chief Accountant served in effect determined the particular objectives which MFASIS could achieve and, by selecting from several options, determined the means, methods and extent to which MFASIS would meet such goals. The Chief Accountant was then involved in implementing the MFASIS when he installed the department's accounts into the system. Second, at the time of the evidentiary hearing in this matter, the Chief Accountant was serving on the Joint Service Center Working Group as part of the state-wide Productivity Realization Task Force effort. The Joint Service Center Working Group consisted of the Directors of Administrative Services for the Departments of Agriculture, Conservation, and Environmental Protection and their chief fiscal and human resources lieutenants. The group analyzed the central accounting and personnel functions of the three executive departments represented to study the feasibility of creating a central unit that could perform some of the functions for all three departments. The group identified common administrative "line" functions which could be performed by a multi-department unit, as distinguished from administrative "staff" functions which "are part of essential department management" and should continue to be performed within each department. The group recommended the creation of an inter-departmental administrative service center to provide the designated administrative "line" functions to the three departments. The group's activity clearly implicated the particular objectives not only for the proposed administrative -15- __________________________________________________________________ service center but also for the respective administrative services units within each department. Furthermore, the team examined several alternatives and selected from among them in recommending the means, methods, and extent to which such objectives would be accomplished, The group's recommendations were incorporated in a report to the Commissioners of the three departments for their review and submission to the Productivity Realization Task Force. The Chief Accountant's involvement in both the MFASIS and joint service center committees involved both the development and the implementation of policy, as those terms are contemplated in J-1; however, in both cases, the policy work was performed in the context of ad hoc committees created for specific purposes. This activity is analogous to one's being assigned to policy work, temporarily and with the understanding that such duties are of limited duration. The hearing officer discussed such temporary assignments in the Department of Transportation decision as follows: The hearing officer has concluded that temporary assignment--even for as long as a year or more--to [the department's Office of] Policy Analysis to work on special projects, even if they rise to the level of "substantially contributing to the formulation of policy," does not rationally force a conclusion that the individuals or positions should be excluded from coverage under SELRA either during the term of their assignment to OPA or as a disqualification once they return to their regular positions or other positions in a bargaining unit. Professionals through the exercise of mature judgment can contribute effectively to "policy formulation" while on temporary assignment and return to a bargaining unit position without compro- mising the Department's interests or their standing as members of a bargaining unit. No. 83-UC-36, slip op. at 42. In the circumstances of this case, the Chief Accountant's participation in policy formulation was for discrete periods of limited duration and, while intimately related to the normal job duties of the position, the activities were undertaken in the context of special, one-time projects. -16- __________________________________________________________________ In the hearing examiner's opinion, the nature of such involvement is qualitatively different from that of those positions which have been granted exclusionary designations in the State unit clarification cases which have been decided to date. The individuals in the latter positions have been found to substantially participate in policy formulation and implementation as inherent aspects of their normal job functions and, in the hearing examiner's view, that is the level of participation required to warrant a J-1 exemption. The hearing examiner concludes that the Chief Accountant at the Department of Agriculture is not properly excluded from the coverage of the Act pursuant to clause J-1. The parties have stipulated that in the event the Chief Accountant is assigned to a bargaining unit in the instant proceeding, the position should be assigned to the State employee Supervisory Services bargaining unit. Given the legal conclusion discussed above and consistent with the parties' stipulation, the Chief Accountant at the Maine Department of Agriculture is assigned to the State employee Supervisory Services bargaining unit. ORDER On the basis of the foregoing stipulations, findings of fact and discussion and by virtue of and pursuant to the provisions of 26 M.R.S.A. 979-E(3), it is hereby ordered: The petition of the Maine State Employees Association in Case No. 91-UC-15 is granted, in part. The classification of Chief Accountant at the Maine Department of Agriculture falls within the definition of State employee contained in 26 M.R.S.A. 979-A(6) -17- __________________________________________________________________ (1988), and said position is assigned to the State employee Supervisory Services bargaining unit. Dated at Augusta, Maine, this 12th day of December, 1995. MAINE LABOR RELATIONS BOARD /s/______________________________ Marc P. Ayotte Executive Director The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 979-G(2) (Supp. 1994), 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 the issuance of this report. See rules 1.12 and 7.03 of the Board's Rules and Procedures for the full requirements. -18- __________________________________________________________________