STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 83-UC-20 and 91-UC-20
Issued: October 14, 1994
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)
STATE OF MAINE, DEPARTMENT OF )
CONSERVATION, )
)
Public Employer and Petitioner, )
)
and )
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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 )
CONSERVATION, )
)
Public Employer. )
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This unit clarification proceeding was originally initiated
on November 18, 1982, when the Governor's Office of Employee
Relations, on behalf of the Maine State Department of
Conservation (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 20 classifi-
cations (31 positions) from the coverage of the Act on the
grounds that they fell within the exclusion contained in the
first clause of 26 M.R.S.A. 979-A(6)(J) ("J-1"). In addition,
the State claimed that 3 classifications (6 positions) of the 20
classifications allegedly excludible pursuant to J-1 should be
excluded from the coverage of the Act because they fall within
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the exemption created by the second clause of 26 M.R.S.A. 979-
A(6)(J) ("J-2"). The petition also sought exclusion of three
additional positions pursuant to 26 M.R.S.A. 979-A(6)(C). The
general procedural history of the State's 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 seven positions into whichever of
the existing bargaining units represented by MSEA would be
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 September 9,
1993, seeking exclusion from the coverage of the Act for the
following classifications at the Department of Conservation:
Clerk Steno III (Lori Blier): C
Business Manager II (Karen Michaud): J-1, J-2, C
State Park Maintenance & Operations Director (Steve Curtis):
J-1, J-2, C
Resource Administrator (Forestry), (Tom Wood): J-1, J-2
Resource Administrator (Parks), (Sheila MacDonald): J-1, J-2
Resource Administrator (Geology), (Mike Foley): J-1, J-2
Resource Administrator (Bureau of Public Lands), (Steve
Oliveri): J-1, J-2, C
Resource Administrator (Land Use Regulation Commission),
(David Mercier): J-1, J-2, C
Supervisor, Snowmobiles/All-Terrain Vehicles (Scott Ramsey):
J-1, J-2
State Entomologist (David Struble): J-1
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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
exclusion is based. MSEA filed its response to the State's
petition on September 23, 1993, 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)(C) or (J). On the same date, MSEA filed
its amended petition in Case No. 91-UC-20. The positions
mentioned in MSEA's original petition which remain at issue are:
Administrative Secretary (Ross)
Clerk IV (Andrews)
Director of Boating Facilities (Skinner)
Director, Division of Forest Utilization Management
(Bourassa)
Land Use Regulation Commission Division Manager (Todd)
In lieu of a second Land Use Regulation Commission (LURC) division
manager position and a position named GTS administrator, which
were placed in contention through its original petition, MSEA is
now seeking unit inclusion for the following position:
Director, Division of Policy, Planning and Information (Doak)
The State filed its response to MSEA's petition on October 5,
1993, alleging that: (1) All of the positions at issue are
properly excluded pursuant to 26 M.R.S.A. 979-A(6)(C) and/or
(J); (2) MSEA's petition is barred pursuant to Board Rule 1.16(A);
(3) if MSEA's petition is not completely barred by Rule 1.16(A),
the Rule bars consideration of the unit status of the director,
Division of Policy, Planning and Information; and (4) the
circumstances attendant to the administrative secretary and clerk
IV positions, at the time that the unit(s) to which such positions
might properly be assigned, have not changed sufficiently to
warrant modification of such unit(s). On October 18, 1993, MSEA
moved to dismiss its petition in connection with the
administrative secretary (Ross) position. The State had no
objection to the motion to dismiss and it was granted. The
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administrative secretary position remains excluded from the
coverage of the Act.
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 September 28,
October 5 and 26, November 3, 9 and 23, and December 1, 1993. The
State was represented by Sandra S. Carraher, Esq., and MSEA was
represented by Jack Hunt, 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 filed post-hearing briefs.
The State's brief was received on February 4, 1994, and MSEA's on
February 7, 1994.
JURISDICTION
The jurisdiction of the executive director to hear and decide
these matters and to make unit clarification decisions 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 all of the employees whose positions are in
contention in these cases. MSEA is the certified bargaining agent
within the meaning of Section 979-A(1) for five bargaining units
of State employees, including the Supervisory Services and
Administrative Services Bargaining Units--the units which include
the classifications at issue in the State's petition and those to
which the positions included in MSEA's petition would be assigned,
if non-exempt. The State is the petitioner in one case and MSEA
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is in the other. The parties are unable to agree on the
modifications being sought through the petitions and there is no
question concerning representation.
The final prerequisite is a finding that the circumstances
surrounding the formation of the bargaining units involved have
changed sufficiently to warrant modification in the composition of
those units. The substantial changes underlying the State's
petition were fully discussed in Department of Public Safety,
supra, slip op. at 5-6, and those findings apply equally here.
Other than the alleged changes relating to the two clerical
positions included in MSEA's petition, each of the other four
classifications was created after the State employee units were
constituted. 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
also applies here. In light of the fact that the petition as it
relates to the administrative secretary position was withdrawn
during the course of proceeding and that MSEA conceded in its
post-hearing brief that the clerk IV position "should probably be
declared confidential under Subsection C," I will not reach the
issue of whether sufficient substantial change was established in
connection with these two positions.
The State has moved to dismiss MSEA's petition in its
entirety on the basis of Rule 1.16(A)(2). The relevant facts
concerning all of the positions mentioned in MSEA's petition,
except for those in connection with the director of the Division
of Policy, Planning and Information, are analogous with those
underlying the decision in Maine State Employees Association and
State of Maine, Department of Inland Fisheries and Wildlife, No.
93-UC-05, Interim Order (Me.L.R.B. Sept. 29, 1993). The reasoning
outlined in the interim order applies here; therefore, the State's
motion to dismiss the entire MSEA petition is denied.
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The facts relating to the application of Rule 1.16(A)(2) to
the director, Division of Policy, Planning and Information are
different because that position was first placed in contention
through MSEA's amended petition of September 23, 1993. In its
post-hearing brief, MSEA conceded that "[i]n consideration of all
the testimony and exhibits relating to this position, it should
probably remain confidential." With this development, I do not
need to decide whether Rule 1.16(A)(2) bars consideration of the
unit status for this position.
MERITS OF THE STATE'S PETITION
The State's petition seeks exclusionary designations for ten
particular positions at the Department of Conservation
("department") and MSEA's petition, as amended by a subsequent
withdrawal of one position and concessions concerning two others,
seeks unit inclusion for three positions in the department that
had previously been excluded from the coverage of the Act. The
department, which is under the overall direction of the
Commissioner of Conservation, consists of six functional units:
the Office of the Commissioner, including Divisions of Realty
Engineering, Administrative Services, and Planning and Program
Services; the Land Use Regulation Commission; the Maine Geological
Survey; the Bureau of Forestry; the Bureau of Parks and
Recreation; and the Bureau of Public Lands. There are
approximately 506 employees in the department, including 21 who
are currently excluded from the coverage of the Act. The latter
group includes: the Commissioner of Conservation (excluded as a
department head pursuant to 26 M.R.S.A. 979-A(6)(D)); the deputy
commissioner, the assistant to the commissioner, the assistant to
the commissioner for public information, the director of the
Division of Administrative Services, the director of the Maine
Geological Survey, the executive director of the Land Use
Regulation Commission, the director of the Bureau of Parks and
Recreation, the director of the Bureau of Public Lands, the
director of the Bureau of Forestry, the forest insect manager in
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the Bureau of Forestry, and the state supervisor of forest fire
operations in the Bureau of Forestry (all designated as major
policy-influencing positions by 5 M.R.S.A. 935 and excluded
pursuant to 26 M.R.S.A. 979-A(6)(I)); the administrative
secretary, the personnel manager, the personnel specialist, two
personnel assistants, one clerk IV, and the director of the
Division of Policy, Planning and Information in the Bureau of
Forestry (the genesis of which exclusions are unknown, but which
are not at issue herein), the director of the Division of Forest
Management and Utilization in the Bureau of Forestry, the Land Use
Regulation Commission division manager, and the director of
Boating Facilities in the Bureau of Parks and Recreation--the last
three positions being those placed at issue in MSEA's petition.
Before turning to the positions in the State's petition which
remain in dispute, the hearing examiner notes that, during the
course of the proceeding, MSEA withdrew its petition as it relates
to the position of administrative secretary. Furthermore, MSEA
conceded in its posthearing brief that two positions claimed
exempt in the State's petition, the resource administrator at the
Land Use Regulation Commission and the state entomologist, were
properly excluded from the coverage of the Act pursuant to J-2 and
J-1, respectively. MSEA also agreed in its posthearing brief that
the clerk IV (Andrews) and the director of the Division of Policy,
Planning and Information in the Bureau of Forestry could properly
be excluded from the coverage of the Act pursuant to 26 M.R.S.A.
979-A(6)(C). The ensuing unit clarification order will reflect
these concessions. The hearing examiner commends MSEA for its
action and urges both parties not to hesitate to re-evaluate their
respective cases, once they have heard the evidence concerning the
classifications at issue in any of the pending unit clarification
cases.
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The J-1 Exclusions
The first clause of Section 979-A(6) (J) exempts from the
coverage of the Act those executive branch employees "[w]ho
substantially participate in the formulation and effectuation of
policy in a department or agency." The scope of the J-1 exemption
was discussed in Department of Inland Fisheries and Wildlife as
follows:
[E]xecutive branch employees who formulate policy by
selecting [from] 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
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
development are not excluded from the coverage of the
Act by J-1. Others beyond the ambit of J-1 include
persons temporarily ("even for as long as a year or
more") assigned to policy analysis work, or those who
provide technical evaluations of complex systems to
those in the decision-making process. 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.
Department of Inland Fisheries and Wildlife, Nos. 83-UC-43 and
91-UC-11, slip op. at 18 (citations omitted).
State Park Maintenance and Operations Director
The Operations and Maintenance Division is the largest major
organizational unit in the Bureau of Parks and Recreation and
includes the majority of the Bureau's employees. The Division
develops, operates and maintains all state parks, historic sites,
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the Allagash Wilderness Waterway, the Penobscot River Corridor,
boat access sites and undeveloped properties administered by the
Bureau. The director oversees the activities of the division and
directly supervises nine employees--the assistant division
director, five regional directors, a clerk stenographer III, a
historian, and an interpretive specialist.
There is ample evidence in the record establishing that the
director has material involvement in the development of Bureau
policy. The director makes recommendations, which are usually
followed, in connection with the following: setting maintenance
priorities among existing state parks and historic sites;
reviewing, approving or rejecting new uses and activities at
existing parks (e.g., whether to allow mountain bike use at Camden
Hills State Park or whether to permit hunting in state parks); and
deciding which land should be acquired for future park land,
either through purchases by the Land for Maine's Future Board or
through acceptance of parcels as gifts by private citizens. In
one instance, a bill had been introduced in the Legislature which
would have caused the revenues generated at Fort Knox to be
retained for the maintenance of that facility. The director
approached the bill's sponsor and explained that other facilities
had greater maintenance needs and the bill would set a bad
precedent, thereby persuading the sponsor to withdraw the bill.
Inherent in each of the instances cited in the preceding
paragraph is the selection from among competing needs and options
in determining particular goals for the Bureau of Parks and
Recreation and direction on the means, methods and extent through
which such objectives are attained. In each case, the director
was involved in implementing the decisions reached, either through
exercise of supervisory authority over the division or through
direct action. On the basis of participation in the activities
noted in the preceding paragraph, the director of State Park
Operations and Maintenance is excluded from the coverage of the
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Act pursuant to clause J-1.
In contrast with the director's foregoing responsibilities
are those which do not warrant a J-1 exclusion. Those cited by
the State, but which fall into the latter group, are being
discussed in order to give the parties guidance in future cases.
Other than the specific examples cited above, the type of rules
with which the director is involved do not rise to the level of
constituting policy within the meaning of J-1. In most instances,
the rules regulating visitor conduct contained in Joint Exhibits
51 and 55, as well as the division's Manual of Procedures to the
extent that it was described in the testimony, do not implicate
the Bureau's mission. Such regulations comprise the technical
means through which the Bureau's objectives are met. In
connection with the larger consumer issues such as hunting or
mountain bike use, the director's involvement in promulgating and
supervising the enforcement of the rules cited constitutes
participation in the implementation of policy--the second
necessary element in J-1.
In recent years, the director's role in determining user fees
for the facilities administered by the Bureau can be more
accurately described as determining the technical means of meeting
the Bureau's objectives, rather than constituting the development
of policy. While it was a closer question whether fee adjustments
based on a combination of market pressures, reducing the
perception that public facilities were competing unfairly with
private campgrounds, and attempting to meet the legislative Audit
and Program Review Committee's revenue targets constituted the
development of policy, adjusting fees to offset general fund
reductions does not. The latter is limited to a determination of
the extent to which the Bureau can meet its established policy
goals.
The final activity cited in support of a J-1 exclusionary
designation was the director's involvement in the legislative
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process. The nature and extent of participation in the
legislative process required to give rise to a J-1 exclusion was
discussed in Department of Public Safety as follows:
Many executive branch employees review proposed
legislation for a variety of purposes. 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 significant involvement in policy-
making within the meaning of J-1. On the other hand, if
the L.D. in question involves "the development of
particular objectives for a department or agency in
fulfillment of its mission" or alters the mission itself
and an employee makes recommendations as to whether the
agency should present testimony on the L.D. and
determines the nature of such testimony (subject to
review by the political head of the agency), and such
recommendations are usually followed, the employee is
significantly involved in policy formulation within the
meaning of J-1. Employees who merely provide research
or collect data used by an agency to formulate its
position on an L.D. or who draft testimony, once the
agency's stance has been determined, are not excluded
from collective bargaining by virtue of J-1.
Department of Public Safety, supra, slip op. at 14-15. Among the
legislative proposals with which the director has had some
involvement was one allowing the use of credit cards for
campground reservations and another ending the practice of
refunding campground deposits where consumers change their plans.
The director recommended that the Bureau support the former
measure and oppose the latter; both recommendations were followed.
This legislation affected only the technical means through which
the Bureau accomplishes its mission and did not implicate the
mission itself; therefore, this involvement does not warrant a J-1
exclusion. The balance of the director's involvement in
legislation cited in support of a J-1 exemption was: reviewing
L.D.s, determining their fiscal impact on the Bureau, recommending
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whether the Bureau should take a position on bills and, if so,
what that position should be. For the reasons noted in Department
of Public Safety, participation in the first two activities does
not warrant a J-1 exclusion; however, depending on the substance
of the legislation, the last item could. Of the legislative pro-
posals discussed at the hearing, only that concerning the Fort
Knox revenues rose to the level of policy within the meaning of
J-1.
Supervisor of Snowmobile/ATV Programs
The supervisor of Snowmobile and All-Terrain Vehicle ("ATV")
programs, which are also referred to as the Off-Road Vehicle
Division, within the Bureau of Parks and Recreation, supervises
the development and maintenance of snowmobile and ATV trails by
division staff and private contractors and promotes such develop-
ment and maintenance activity through giving technical assistance
and awarding grants for such purposes to municipalities, counties,
clubs, or individuals. The snowmobile/ATV programs are funded
through a special revenue account primarily financed by a
percentage of the state gasoline tax revenues. The supervisor
follows State and departmental guidelines in deciding where to
commit staff time and in deciding which grants to fund. Since its
revenue source is unaffected by pressures on the general fund, the
division funds approximately 95 percent of the grant requests it
receives at the level requested.
The grounds alleged in support of an exclusionary designation
for this position do not warrant that result. Merely monitoring
proposals as they wend their way through the legislative process
does not add anything to the development of policy. Second, the
supervisor's testimony on L.D. 543 and the legislation itself were
only tangentially related to the division's mission; therefore,
such participation by the supervisor does not rise to the level of
constituting substantial involvement in the development of policy.
Furthermore, the change in L.D. 543 that resulted from the
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supervisor's involvement--using signage to mark portions of public
ways designated as snowmobile access routes--is limited to the
technical means of implementing the division policy and does not
implicate the policy itself.
While the supervisor attended and participated in meetings of
the committee that studied Maine's ATV laws, kept minutes of the
meetings, and helped to draft and review the committee's final
report and recommendations (Joint Exhibit 30), the nature of the
supervisor's input in the process was unclear. The only portion
of the document even remotely related to the mission of the Off-
Road Vehicle Division is found at pages 18 and 19 and is
exclusively a review of the facts relating to the extent of ATV
access to public lands in the State. The only recommendation
included in this section of the report is that the Bureau of
Public Lands should review its policy regarding ATV operation in
public reserved lands--a review that apparently was underway at
the time the report was being prepared; see, the first full
paragraph on page 19. As was noted in Department of Inland
Fisheries and Wildlife, supra, Nos. 83-UC-43 and 91-UC-11 slip
op. at 9, merely providing research and factual information to, or
drafting language for, those making policy decisions does not
warrant a J-1 exclusion. The supervisor testified that he does
not propose legislation directly, but does provide information and
drafting assistance to user groups in their efforts to propose
legislation. This latter activity is even more remote from the
policy-making process than is the former.
The supervisor was involved in developing the rules for the
ATV program, essentially copying those of the successful
snowmobile program. The supervisor is also involved in amending
both the snowmobile and ATV rules approximately each year. While
the former effort may constitute significant participation in
policy formulation, a single instance of involvement in the
development and effectuation of policy is not sufficient to
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warrant a J-1 exclusion. Department of Transportation, No.
83-UC-36, slip op. at 41-42 (Me.L.R.B. Apr. 11, 1986). The two
examples of rule amendments cited in the testimony--one concerning
the size and amount of reflectivity of snowmobile trail signs and
one raising the per-trail-mile grant maximum from $35 to $50 and
raising the total grant allowance maximum from $1050 to $1500--are
both limited to the technical means of accomplishing the
division's mission. Neither of these changes affected the
particular objectives of the division. While the question
presented was fairly close, the nature and extent of the
involvement in policy formulation of the supervisor of
Snowmobile/ATV programs does not rise to the level required to
justify a J-1 exclusion.
State Entomologist
MSEA has essentially conceded that this position ought to be
excluded from the coverage of the Act pursuant to 26 M.R.S.A.
979-A(6)(J). Brief on behalf of MSEA at 11. In light of this
development, the entomologist position will only be discussed
briefly. While there was no basis in the record for excluding
this classification pursuant to J-2, some of the grounds cited by
the State in its brief do warrant a J-1 exemption. The state
entomologist's regular involvement in the following activities
requires that the position be excluded from collective bargaining:
(1) defining which pests will be studied and attacked and
determining the means by which those selected will be controlled;
(2) participating in the legislative process on proposals which
have a direct impact on the Insect and Disease Management
Division's mission, including that intended to limit the
division's activities to commercial forests and another which
would have assigned the responsibility for eradicating Lyme
Disease exclusively to the division; and (3) developing quarantine
rules pursuant to the Forest Practices Act and crafting variances
from such rules.
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Resource Administrator, Maine Land Use Regulation Commission
While their specific duties and responsibilities vary from
division to division, the resource administrators at the
Department of Conservation function at the bureau level much like
the Bureau of Administrative Services directors do at the
departmental level. While the latter are generally designated as
major policy-influencing positions in Title 5 of the Maine Revised
Statutes, the question presented here is whether the resource
administrators' combination of fiscal, personnel and legislative
monitoring activities are sufficient to justify an exclusionary
designation pursuant to section 979-A(6)(J). MSEA has conceded
that the resource administrator at LURC is properly excluded from
the coverage of the Act pursuant to J-2; therefore, the J-2
considerations relating to the position will be discussed later in
this report.
The policy-making body at the Land Use Regulation Commission
is the Commission itself, whose 7 members are appointed by the
Governor, confirmed by the Legislature, and serve staggered 4-year
terms. It is interesting to note that practically none of the
testimony related to the relationship between the research
administrator and the Commission. As is suggested on page 2 of
the incumbent employee's FJA-1 (Joint Exhibit 10), a State
agency's budget reflects the organization's mission and
objectives; it does not establish such goals. In the case of
agencies with independent boards such as LURC, policy decisions
and priorities are established by the Commission itself with input
from the chief executive officer and the staff. The budget
submission reflecting such priorities is then reviewed by the
legislative Appropriations Committee as well as the committee of
jurisdiction before being considered by the Legislature as a
whole. While important, preparation of the initial budget
submission and allocation of the sum ultimately appropriated by
the Legislature through an agency work program merely implement
policy already formulated and do not warrant a J-1 exclusion.
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Turning to the adjustments required to balance the Bureau's
budget, the testimony indicated that the strategic decision
reflected in the amended budget was reached by the Bureau director
and the division directors, utilizing the quantitative analysis
embodied in the Program Decision Unit Statements for the Bureau's
divisions to meet the target reduction figure received from the
commissioner. As the Bureau's chief fiscal officer, the resource
administrator would necessarily have been involved in providing
current financial data and costing out various alternatives under
consideration. It was not clear from the testimony whether the
resource administrator's involvement extended beyond providing
detailed cost information and "crunching the numbers." The J-1
test does make clear that "those who provide technical evaluations
of complex systems to those involved in the decision-making
process" are not themselves excludible pursuant to J-1.
Neither the resource administrator's work toward development
of a "one-stop" permit shopping process nor service as the Bureau
rule-making liaison warrants a J-1 exclusion. The former activity
did not involve changes in the criteria required to be met for the
issuance of permits and merely implicated the technical means
through which permits are issued. As the rule-making liaison, the
resource administrator has drafted the Bureau's rule-making agenda
and sent it on to the department's rule-making coordinator and
prepared a fact sheet and basic statement in connection with
proposed changes in the Bureau's fee structure. Neither of these
actions constituted substantive involvement in the development of
Bureau policy.
The resource administrator's primary role in connection with
the legislative process is to review legislative documents, flag
those which affect the Bureau, bring them to the attention of the
Bureau director, ensure that the Bureau's response is timely
submitted, and track bills through the legislative process. The
resource administrator tracked approximately 170 bills during the
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last legislative session. In the Bureau director's absence, the
resource administrator represents the Bureau in legislative
hearings and work sessions. The Board has held that the public
policy of the State of Maine embodied in Section 979 of the Act is
that State employees have the right to participate in, and have
the terms and conditions of their employment be determined
through, the collective bargaining process; therefore, the
exemptions contained in Section 979-A(6) were narrowly drawn and
must 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). Applying this
policy, the hearing examiner held in Department of Public Safety,
supra, slip op. at 28, that " . . . 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."
Second, the nature of the resource administrator's
involvement in the legislative process does not warrant a J-1
exclusion. Merely drafting legislative proposals does not
constitute a substantial involvement in the development of policy
within the meaning of J-1 and neither does providing research or
data necessary for the formulation of policy. The resource
administrator's involvement with L.D. 268 is an example of the
latter activity. The legislative Taxation Committee was
considering the elimination of six positions in the Bureau. By
identifying funds collected by the Bureau in previous years, the
resource administrator was able to persuade the Legislature to
partially avert the proposed reduction in staff and only one
position was lost.
The resource administrator did have substantial involvement
in the development of planning in connection with energy
production issues, particularly concerning LURC's response to
wind-generated power facilities. The resource administrator
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traveled to California to see wind-powered generators in operation
and later considered the range of possible responses to wind power
development and made recommendations on regulations concerning the
siting of wind power generation equipment. This single
involvement in the development of policy is not sufficient to
warrant a J-1 exclusion. Department of Transportation, supra,
slip op. at 41-42. In sum, the resource administrator provides
important fiscal and administrative support to the executive
director of LURC; however, the duties and responsibilities of the
position do not rise to the level required to justify an
exclusionary designation pursuant to J-1.
Resource Administrator, Bureau of Public Lands
The mission of the Bureau of Public Lands is to manage the
reserved lands, other public lands, and state-owned submerged
lands and coastal islands to maintain a sustained yield of these
multiple-use resources. As noted in connection with the preceding
position, the duties and responsibilities of the resource
administrators vary from bureau to bureau within the Department of
Conservation; therefore, the holding in regard to one will not be
dispositive as to the unit status of any of the others. At the
Bureau of Public Lands, the resource administrator not only
administers the Bureau's fiscal and personnel functions but also
manages the submerged lands program and the coastal islands
registry.
Neither the resource administrator's involvement in the
legislative process nor the position's fiscal duties warrant a J-1
exclusion. The testimony established that the resource
administrator drafts responses to legislative initiatives
affecting the Bureau and proposes legislation under the
supervision of the Bureau director. The resource administrator
also redrafts Bureau responses to assure that they are in an
acceptable format. The commissioner prefers that testimony at
legislative public hearings be presented by bureau directors;
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however, the resource administrator attends and answers questions
at work sessions. The resource administrator's primary role in
the budget process is to provide financial data concerning the
current biennium to the Bureau director, regional managers, and
staff specialists and to fit the numbers reflecting the priorities
established by the management group into the appropriate lines of
the budget proposal. These activities, drafting documents to
reflect policies determined by others or providing information to
those directly engaged in the policy-making process, do not
constitute the sort of involvement in the formulation of policy
required for a J-1 exemption.
While the resource administrator manages both the submerged
lands program and the coastal islands registry, the testimony
focused exclusively on the former program. The State has a
proprietary interest in all land extending seaward from the mean
low-water mark to the 3-mile territorial State marine boundary,
that lying below the mean low-water mark of tidal rivers upstream
to the natural reaches of the tides, and land below the natural
low-water mark of the great ponds--lakes and ponds of 10 acres or
more in size. Except for certain specified uses of such submerged
lands, those not available to the general public require an
easement or submerged land lease from the Bureau. Issuance of
such legal interest is controlled by the Bureau's Submerged Lands
Rules. Of the approximately 40 easement or lease applications
received each year, 90 percent are squarely addressed in the rules
and are routinely handled by the two-person submerged lands
program staff, 8 percent are somewhat unique and are handled by
the resource administrator, and in 2 percent of the cases the
resource administrator is unable to successfully resolve the
issues presented and the matter must be handled by the Bureau
director. Applying established rules and supervising the staff
constitute typical supervisory functions and do not warrant a J-1
exclusion; however, in addition to discharging these duties the
resource administrator has also been involved in reshaping the
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Submerged Lands Rules themselves.
The Submerged Land Rules were first adopted in 1986; but, due
to a dramatic increase in demand for use of the resource in the
late 1980s, legislative changes, and the growth of activity of
LURC and the Department of Environmental Protection, the rules
needed to be revised in 1992. Starting with the 1986 rules and
based on his own knowledge, training, and experience administering
the program as well as pursuant to discussions with the Bureau
director and staff, the resource administrator formulated
wholesale changes in the rules. The resource administrator
amended or deleted existing sections and added new ones, including
for the first time objective standards controlling issuance or
denial of easements and leases. After review by the Bureau
director and staff, the final draft was submitted to the
Administrative Procedures Act rule-making process. While the
Bureau director chaired the public hearings, the resource
administrator outlined the proposed rules, answered questions from
the public, redrafted the proposal incorporating some of the
comments received, and drafted the basis statement of adoption of
the amended rules. During this process, the resource
administrator weighed competing interests and selected from among
several alternatives in establishing the particular objectives for
the rules, thereby setting the aims of the submerged lands program
and determining the methods and means through which such ends can
be achieved. As the program manager, the resource administrator
was directly involved in implementing the rules, once they were
formally adopted.
The resource administrator has been involved in the
development of policy beyond the submerged lands program in at
least one instance discussed in the record. As in the case of
submerged realty, the Bureau regulates uses of public lands
through leases and easements issued pursuant to established
standards. While such policies are extensive and cover most
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scenarios, a situation occasionally arises that does not fit
neatly into the established criteria. In such cases, the Bureau
develops a response consistent with its mission and objectives and
that approach constitutes precedent to guide resolution of similar
circumstances in the future. The example cited in the record
concerns the Bureau's lease to the Town of Carrabasset Valley of
land used for a ski touring center which the town operates in
cooperation with Sugarloaf Mountain Corporation. When Sugarloaf
decided to use the leased premises for purposes in addition to
cross-country skiing, the resource administrator reviewed all past
transactions, determined that the proposed use had never been
previously addressed by the Bureau, and met with the Bureau
director and a staff specialist to work out a solution. The
resource administrator's substantive involvement in the
development of standards controlling the submerged lands program
and in formulating evolving Bureau policy, as illustrated by the
Carrabasset Touring Center situation, warrants a J-1 exclusion.
Resource Administrator, Maine Geological Survey
The mission of the Maine Geological Survey--a bureau within
the Department of Conservation--is to map, interpret and publish
geological information, provide advice to the mineral industry,
supply interpretive information to planning and regulatory
agencies, and regulate prospecting and mineral development on
40,000 acres of public land. The resource administrator provides
administrative support to the Bureau director--the state
geologist--and assists in the development of policies for
administration of the Bureau's programs, attends to personnel
matters in the Bureau, manages the technical and mineral services
program, and prepares and monitors the Bureau's budget and work
programs. Five grounds were asserted in support of the granting
of an exclusionary designation pursuant to J-1 for this position.
First, the resource administrator monitors general trends and
emerging issues in the discipline which may ripen into issues
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which the Bureau will be required to address in the future. The
resource administrator discusses such developments with the state
geologist who may, as a result, decide to alter the general focus
of the agency. This sort of global discussion falls far short of
constituting the development of particular objectives for the
Bureau and the selection of the methods, means and extent of
meeting such aims. Second, one would expect that, as a trained
and experienced professional, the state geologist would be aware
of the trends and issues within his or her area of expertise.
The resource administrator produces the budget and financial
work programs for the Bureau and has been involved in making
adjustments to those documents as necessary in response to
shortfalls in State revenues in recent years. Within the Bureau,
the budget process consists of meetings attended by the Bureau
director, unit chiefs, and the resource administrator during which
the needs for the upcoming biennium are reviewed. After such
meetings, the resource administrator prepares the actual budget
documents for the Bureau. As noted above, the mere drafting of
documents to reflect policy decisions does not warrant a J-1
exclusion.
In one round of budget cuts described in the record, the
Bureau's primary goal was to preserve existing positions; however,
the Bureau's reduction target was too large and a position would
have to be lost. Since the salary savings accrued by eliminating
the lowest-paid science position were sufficient to achieve the
required budget cut, the resource administrator recommended that
that position be proposed for elimination and the recommendation
was incorporated in the appropriate budget proposal. The policy
decision here was that to retain as many positions as possible;
elimination of the lowest-paid scientific position merely
constituted implementation of the policy. Since the Department of
Environmental Protection (DEP) required the work product of the
employee in the position selected for elimination, that department
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offered to provide the money to fund the position and it was
reinstated. The resource administrator helped to put together the
memorandum of understanding, between the DEP and the Bureau,
through which the Bureau would receive the funding for the
position in question. The resource administrator's efforts merely
implemented the policy decision reached by the DEP and did not
itself constitute policy formulation.
The resource administrator replaces the state geologist in
the latter's absence. For the reason stated in response to the
analogous allegation regarding the LURC resource administrator,
this activity does not warrant a J-1 exclusion.
The next ground cited in support of the sought-after
exclusionary designation was the resource administrator's role in
connection with the legislative process. The record established
that the resource administrator identifies and tracks every
legislative proposal that might have even a remote impact on the
Bureau, determines whether they may have a fiscal impact, and,
subject to review by the Bureau director, drafts responses to
legislative proposals within his area of expertise--economic
geology. As noted in Department of Public Safety, supra, slip op.
at 14-15, reviewing L.D.s to determine whether they may have
fiscal impact and, if so, preparing a fiscal impact statement is
tantamount to analyzing complex systems and reporting on the
results to those directly involved in the decision-making process.
Second, the resource administrator testified that he only drafts
responses to L.D.s within his area of technical expertise,
strongly suggesting that his input may be limited to providing
analysis based on his education, training, and technical
expertise, in which case it would not rise to the level required
for a J-1 exclusion. Other than a passing reference to a failed
proposal concerning mineral development, no examples of
legislation with which the resource administrator has been
involved were presented; therefore, it is impossible to determine
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the nature of either the legislation or the resource
administrator's involvement therewith. In the circumstances, no
justification for a J-1 exemption was established.
Finally, the resource administrator was involved in a task
force which produced rules for mineral extraction in Maine. The
resource administrator testified that the primary agencies
involved were DEP and LURC and that his role and that of the state
geologist were to provide economic data to the task force. Merely
providing factual data to those engaged in formulating policy does
not constitute the significant participation in such process
required to warrant a J-1 exclusion.
Resource Administrator, Bureau of Forestry
The mission of the Bureau of Forestry, which is widely known
as the Maine Forest Service, is to protect, manage, plan for and
guide the use of all Maine forest resources. The resource
administrator at the Bureau of Forestry serves as the senior staff
person to the Bureau director. Four areas of activity were
advanced in support of an exclusionary designation for this
resource administrator position.
First is the resource administrator's involvement with
preparation and management of the Bureau's budget and work plans.
The resource administrator testified that he prepared 10 budget
submissions for the Bureau during the 1992-93 biennium. The
Bureau receives funding from the State general fund, federal
funds, and special revenue funds and its budget has 18 separate
lines, each with a distinct set of limitations and restrictions.
The resource administrator is intimately familiar with the
intricacies of the budget and he utilizes that knowledge in
matching Bureau programs and activities to the appropriate line(s)
of the budget. While critical to the implementation of Bureau
policy, this activity does not constitute policy formulation.
The resource administrator testified that he is the only
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person in the Bureau with both a global view of its budget and of
the various collective bargaining agreements and their bumping
provisions. The resource administrator projected the fiscal
impact of the several options under consideration during the
successive rounds of budget deappropriations in recent years.
In performing that function, the resource administrator was able
to advise the Bureau director of the actual salary savings which
would accrue from the various personnel actions being contem-
plated, in light of the bumping rights which would likely be
exercised. Providing a factual analysis of a complex system or
situation does not constitute the sort of involvement in the
decision-making process required for a J-1 exclusion.
The second major area of activity cited was the resource
administrator's role in the legislative process. The resource
administrator prepares fiscal impact statements on all legislative
proposals which may affect the Bureau and drafts testimony on
behalf of the Bureau director. While the Bureau director solicits
broad input from Bureau supervisors concerning legislative
proposals, the Bureau's director of Policy, Planning and
Information and the director are the persons who exercise
discretion in determining the Bureau's response to pending
legislation. It is the latter activity which warrants a J-1
exclusion. As noted earlier, merely analyzing the fiscal impact
of legislative proposals or drafting testimony for others does not
justify a J-1 exemption.
The third major area mentioned was the resource
administrator's involvement in the process that resulted in
adoption of the Forest Practice Act Rules. The director of
Policy, Planning and Information was responsible for the
substantive policy formulation in connection with the Forest
Practice Act Rules. The resource administrator's role was mainly
a ministerial one--scheduling the public hearing, recording public
comment, publishing the rules, filing them with the appropriate
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agencies, and preparing and distributing the required public
notices of rule making. The resource administrator's role in
connection with the spark arrestor rules and other rules was
essentially the same as that with the Forest Practice Act Rules.
While necessary to the Administrative Procedures Act rule-making
process, the resource administrator's activity did not involve
policy formulation within the meaning of J-1.
The final activity upon which the sought-after exclusionary
designation might be based was the resource administrator's
development of internal policies concerning the Bureau computers
which interface with those at the Bureau of Information Services.
The resource administrator formulated standards for the
acquisition of hardware and software and worked with Bureau of
Information Services staff to help them develop similar criteria.
Selection of the technical means through which policy is
implemented does not constitute involvement in policy formulation.
Even if establishment of the procurement standards did rise to the
level required to constitute policy development, a single instance
of substantive participation in such activity does not warrant a
J-1 exclusion. In summary, the resource administrator is the
senior administrative staffer to the Bureau director and is an
invaluable source of the information upon which the director
relies in establishing policy and managing the Bureau; however,
none of the resource administrator's duties and responsibilities
described in the record require excluding the position from the
coverage of the Act.
Resource Administrator, Bureau of Parks and Recreation
The mission of the Bureau of Parks and Recreation is to
acquire, develop, operate, and maintain the state parks, historic
sites, boat launching sites, the Allagash Wilderness Waterway, the
Penobscot Corridor, portions of the Appalachian Trail, and the
Bigelow Preserve. The Bureau also administers the federal Land
and Water Conservation Fund, provides technical and financial
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assistance to local recreation and parks programs, provides grants
for snowmobile or ATV trail development and maintenance, and
conducts research and planning projects related to recreation in
Maine. The resource administrator serves as the senior
administrative staff to the Bureau director.
Three general areas of activity were cited as warranting an
exclusionary designation for this position. The first was the
resource administrator's preparation of the Bureau's budget and
work programs. As noted previously, preparing a budget is the
functional equivalent of drafting policy statements which reflect
the decisions of others--neither activity constitutes substantial
involvement in policy formulation within the meaning of J-1.
During recent budget reductions, the resource administrator costed
out the impact of the several options under review and provided
this information to the Bureau director and the Bureau's director
of Operations and Maintenance who then selected from among such
options in formulating the Bureau's deappropriations strategies.
This latter activity would support a J-1 exclusion; however, the
resource administrator's role, which was limited to analyzing a
complex system and providing the factual results to those directly
involved in policy development, does not.
The second category of responsibility relied upon in support
of excluding this position from the coverage of the Act is the
resource administrator's involvement with the legislative process.
The resource administrator brings bills that could affect the
Bureau to the attention of the Bureau director and, once the
director decides to recommend whether the department should
support, oppose or seek amendment in each proposal, drafts
testimony on behalf of the director. The resource administrator
also prepares fiscal impact statements on pending legislation and
tracks bills throughout the legislative process. In one instance,
the resource administrator presented testimony on behalf of the
Bureau director; however, the resource administrator usually
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accompanies the Bureau director or division chiefs to legislative
hearings and work sessions to monitor developments. Preparing
fiscal impact statements--a function analogous to analyzing
complex systems--drafting and delivering testimony which reflects
policy decisions made by others, and monitoring legislative
developments do not justify a J-1 exclusion.
The third allegation in justification of excluding the
position pursuant to J-1 is the averment that the Bureau director
frequently solicits the resource administrator's opinion on
matters important to the Bureau and often follows such
recommendations. While the Bureau director does seek financial
information from the resource administrator concerning matters
under consideration, such factual input is analogous to
preparation of fiscal impact statements regarding pending
legislation. There is a collegial atmosphere in the Bureau and,
willing to talk with everyone on a wide range of matters, the
Bureau director weighs everything in formulating policy. On the
other hand, the resource administrator testified that she did not
know and could not presume that her suggestions are followed and
she could not recall any which had been. In the circumstances, no
J-1 exclusion is justified for this position.
Business Manager II
The Business Manager II is the primary exclusively financial
person in the Department of Conservation, reporting directly to
the director of Administrative Services who has overall
responsibility for all fiscal and personnel functions in the
department. Although the director's professional background is in
personnel rather than financial matters, he is very familiar with
the department's budget and accounts and he--not the business
manager--presents the fiscal perspective when the department's
senior management team meets to formulate budget strategies. The
business manager oversees the day-to-day financial affairs of the
department. The duties of the position include supervising the
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accounting, auditing, purchasing, contracting, and property
management functions as well as coordinating preparation of the
department's budget and work programs.
The first ground cited in support of the exclusionary
designation being sought is the business manager's involvement
with the department's budget and work programs. As is obvious
from earlier discussion, the department's budgetary process is
quite decentralized, with each Bureau director and his or her
division chiefs establishing the budget for their Bureau which is
then physically prepared by the Bureau's resource administrator.
The business manager coordinates the budget preparation process by
distributing and explaining the Bureau of the Budget guidelines
and timelines to the resource administrators, assuring that the
timelines are met, collecting the budget submission from each
bureau, putting all such submissions into the proper format, and
incorporating all of the bureau budgets into a single departmental
budget, which is then forwarded to the Bureau of the Budget. As
the department's main contact with the latter bureau, the business
manager responds to any request from them for additional
information. While the budget is pending before the Legislature,
the business manager is the primary source of detailed budget
information for the commissioner or deputy commissioner in
answering budget questions. Supervising timely preparation of the
budget and putting it into final form constitute involvement only
in the implementation, and not formulation, of policy. Supplying
factual information to those directly involved in the decision-
making process that results in the formulation of policy does not
constitute a significant involvement in such process within the
meaning of J-1.
During the course of the fiscal year, the business manager
assures the financial integrity of the various programs and
accounts in the department. Applying standard accounting
standards and procedures, the business manager monitors revenues
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and expenditures to ensure that the various accounts are within
the work plan and that the department as a whole maintains a
balanced budget. If necessary, the business manager will, as
directed by the director of Administrative Services, prepare and
process financial orders to effect transfers of funds among
accounts to meet operational needs. This professional supervisory
accounting work is essential to the effective management of the
department; however, it constitutes only policy implementation,
not policy formulation.
The business manager has arranged for computerized "runs,"
costing out the financial impact of various personnel cuts being
contemplated during the deappropriation process in recent years.
As noted in the J-1 test, providing "technical evaluations of
complex systems to those in the decision-making process" does not
constitute substantial involvement in policy formulation. The
exercise of discretion in selecting from among several policy
options is an essential element of the latter process. Evaluating
the fiscal impact of proposed action is the functional equivalent
of providing technical analysis of complex systems.
The second area of activity noted in support of excluding the
position from the coverage of the Act is the business manager's
involvement with the Administrative Services Division budget. The
business manager testified that because of the nature of its
operation, preparation of the division's budget is a fairly
routine task. There is no discretion in the area of personal
services--one merely plugs in the range, step and longevity
information for each employee, usually there is no capital line in
the budget, and the "all other" amounts are determined by
adjusting the actual expenditures for each character and object
code during a specified base year utilizing a formula issued by
the Bureau of the Budget. Merely drafting a budget in these
circumstances does not rise to the policy-making level required
for a J-1 exclusion.
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The business manager was involved in selecting a position for
elimination within the Administrative Services Division; however,
that action was dictated by the circumstances and did not result
from the exercise of policy-making authority by the business
manager. During the successive rounds of deappropriations in
recent years, the commissioner, deputy commissioner and Bureau
directors assigned budget reduction targets to each bureau and
component of the commissioner's office. The business manager
played no role in determining reduction target amounts. Because
of the limited flexibility in its budget, the only way the
division could achieve its reduction target during one round of
cuts was to reduce its personal services expenditures. The
department's personnel manager drew up a list of the positions
which might be eliminated, the business manager costed out the
potential savings accrued from eliminating each position on the
list, and the director, the personnel manager, and the business
manager decided which position would be lost. While affecting the
quantity of work which can be performed, elimination of the
position affected neither the mission of the division nor the
specific objectives established to achieve such mission;
therefore, this action did not constitute policy formulation
within the meaning of J-1.
Third, the State alleges that the business manager should be
excluded pursuant to J-1 because the incumbent provides guidance
and opinions to the director of Administrative Services. The only
example cited clarifying this broad assertion was that the
business manager had recommended that the division's computer
system ought to be revamped. Decisions and recommendations
concerning the technical means through which a department or
agency accomplishes its mission do not implicate policy
formulation within the J-1 test.
The fourth item allegedly warranting a J-1 exemption was the
business manager's drafting a manual of financial procedures for
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the department. The record established that the business manager
started with the State manual of financial procedures, proceeded
to explain various common accounting and purchasing practices so
that they could be more easily understood by staff in the field,
and added particular details concerning the department to the
general instructions found in the state-wide manual. Explaining
established policy so that it is more readily understood
facilitates its implementation; however, it does not in any way
alter the mission or objectives of the department or agency
involved. This activity does not warrant a J-1 exclusion.
The final activity which allegedly requires that the position
be excluded pursuant to J-1 is the business manager's membership
on a state-wide task force considering expense reimbursement
issues. The Governor appointed the Commissioner of Conservation
to chair the task force and the commissioner, in turn, named the
business manager to be a member. No evidence was produced
concerning either the nature of the business manager's input on
the task force or the product of the group's effort; therefore, it
is impossible to determine whether the task force engaged in
policy formulation within the meaning of the J-1 test or whether
the business manager's role was a "substantial" one. In any
event, a single instance of participation in the development and
implementation of policy is not sufficient to justify a J-1
exemption.
The J-2 Exclusions
J-2, the second clause in 26 M.R.S.A. 979-A(6)(J), excludes
from the definition of State employee and, hence, from the
coverage of the Act, those executive branch employees who have "a
major role, other than a typically supervisory role, in the
administration of a collective bargaining agreement in a
department or agency." The meaning and scope of the J-2 exemption
have been described as follows:
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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 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 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.
Department of Public Safety, supra, slip op. at 19-20. The
department's personnel manager testified that the resource
administrators at LURC, the Bureau of Public Lands, and the Bureau
of Forestry all have grievance handling responsibilities. Neither
the facts cited in the State's post-hearing brief nor the
testimony in the record tend to generate the J-2 issue in
connection with the resource administrator classification in the
Bureau of Forestry; therefore, that position will not be discussed
further in this context. One of the facts mentioned in the
State's post-hearing brief concerning the business manager II
might arguably relate to a J-2 exclusion and that position will be
discussed herein.
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Resource Administrator, Land Use Regulation Commission
MSEA conceded in its post-hearing brief that this position
may properly be excluded from the coverage of the Act pursuant to
J-2. In light of this development, the position will be discussed
only briefly. The bargaining agent based its decision not to
contest the sought-after exclusion on the basis of the resource
administrator's role in adjusting grievances and managing workers'
compensation cases concerning Bureau employees. The hearing
examiner concurs that these activities are important to the J-2
inquiry; however, an additional relevant consideration, which also
supports the J-2 exemption, is the resource administrator's
involvement in interpreting collective bargaining agreement
provisions on behalf of the employer for Bureau employees. The
resource administrator testified that he determines whether the
various provisions of the collective bargaining agreement control
in certain circumstances and he also interprets sections of the
agreement in response to inquiries by Bureau employees. As a
result of engaging in the activities mentioned in this paragraph,
the resource administrator is exempted from the coverage of the
Act pursuant to J-2.
Resource Administrator, Bureau of Public Lands
This resource administrator position has been excluded from
bargaining pursuant to J-1; therefore, it will be discussed only
briefly. The record established that the resource administrator
answers questions on behalf of the employer concerning interpre-
tation of the collective bargaining agreement raised by Bureau
employees, particularly those stationed in the field offices. The
resource administrator's role in the grievance procedure was not
well established and the only grievance with which he has been
involved concerned a position which he supervises. In the
circumstances, it is impossible to determine whether the resource
administrator's grievance handling role is wider than that
inherent in the normal exercise of supervisory authority. Second,
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it was unclear whether, in answering questions concerning the
bargaining agreement, the resource administrator exercised
independent judgment or how often the resource administrator was
involved in this activity. No J-2 exemption was justified in
connection with this position.
Business Manager II
The only fact relating to the business manager which might,
in some circumstances, support a J-2 exclusion was the incumbent
employee's involvement in selecting a position for elimination
during one round of budget cuts. Exercising typical supervisory
authority, a supervisor would play an active role in determining
which of his or her subordinate positions should be eliminated as
part of any reduction in force. In the instant case, the position
designated for elimination was in the same office as the business
manager; however, it is unclear from the record whether the
classification eliminated was directly supervised by the business
manager. In the circumstances, no grounds were established
warranting a J-2 exclusion for this position.
The Confidential Employee Exclusions
The last group of exclusionary designations being sought by
the State in this proceeding is based on 26 M.R.S.A. 979-A(6)(C)
[the "C" exemption]. Executive Branch employees "[w]hose duties
necessarily imply a confidential relationship with 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 . . . " are excluded from the coverage of
the Act pursuant to the confidential employee provision. The
rationale for this exemption is as follows:
This exclusion reflects the legislative policy of
avoiding predicaments where employees could face
substantial conflicts between the loyalty owed to their
employer and the self-interest potentially served by
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surreptitiously revealing the public employer's
collective bargaining strategies to their bargaining
agent. Such a dilemma can arise when bargaining unit
employees have access to the employer's bargaining
positions and strategies in advance of such information
surfacing at the bargaining table. Armed with such
information gained outside the normal collective
bargaining process, a bargaining agent would have unfair
leverage or advantage over the public employer,
jeopardizing the latter's positions and strategies.
Lincoln Sanitary District and Teamsters Union Local 340,
No. 92-UC-02, slip op. at 12 (Me.L.R.B. Nov. 17, 1992)
Department of Public Safety, supra, slip op. at 22. As
established in that case, collective bargaining in the context of
the unique language of the Act includes not only the actual
negotiation of a collective bargaining agreement but also those
instances in contract administration where the public employer and
the bargaining agent are pitted against each other as adversaries
and where clandestine disclosure of the employer's strategies and
analysis would jeopardize the employer's position in the grievance
and arbitration process. In Department of Public Safety, supra,
slip op. at 24-25, for example, a clerk typist II was excluded
from the coverage of the Act pursuant to Section 979-A(6)(C) in
part because the employee maintained all of the department's
grievance files which contained management's evaluation of the
merits in pending cases.
A second relevant consideration in evaluating whether an
employee should be excluded on confidential grounds is whether
involvement in confidential activities is an inherent element of
the individual's job duties and responsibilities or whether such
functions could, through a reasonable reassignment of duties, be
concentrated in a limited number of persons within each State
department or agency. Department of Public Safety, Nos. 83-UC-45
and 91-UC-45, slip op. at 23 (Me.L.R.B. Feb. 4, 1994), aff'd, No.
94-UCA-01 (Me.L.R.B. July 1, 1994)
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The public policy of the State of Maine embodied in Section
979 of the Act is to promote an improved relationship between the
State as the public employer and the executive branch employees by
permitting the latter to negotiate the terms and conditions of
their employment through collective bargaining. The exemptions
contained in Section 979-A were narrowly drawn by the Legislature
and must, therefore, be strictly construed. Department of Public
Safety, Nos. 83-UC-45 and 91-UC-45, supra, slip op. at 22.
Recognizing that employees who have a significant involvement in
formulating, determining and effectuating the employer's
collective bargaining positions, policies and strategies generally
need access to one confidential clerical employee in order to
carry out their collective bargaining functions, Id., at 23, the
Board has added the following caveat:
The State seems to aver that the passive diffusion of
labor relations and collective bargaining functions
throughout the various State departments and agencies,
if the same is accomplished without the subjective
intent to thereby deprive employees of collective
bargaining rights, is acceptable, within the ambit of
the Act. We believe that the structure envisioned in
and, to an extent mandated by, Section 979-A(5) of the
Act is that the State make an affirmative effort to
centralize such functions. While recognizing that total
centralization of said operations is not possible, the
State should attempt to do so to the maximum practicable
extent.
Id., at 23, quoting from, State of Maine and Maine State Employees
Association, No. 82-A-02, slip op. at 19-20, 6 NPER 20-14027,
Interim Order (Me.L.R.B. June 2, 1983). The inquiry as to whether
an employee is confidential will focus, therefore, on both the
nature of the information to which the individual in question has
access and whether such access is an inherent portion of his/her
duties or whether the duties giving rise to such access could
reasonably be reassigned to other confidential employees in the
department.
At the outset of the instant proceeding, there were two
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confidential clerical employees in the department--the
administrative secretary, who is the secretary to the
commissioner, and the clerk IV, who is the secretary to the
director of Administrative Services and the personnel manager for
the department. Initially, MSEA challenged the exclusionary
status of both individuals; however, it withdrew its claim
concerning the administrative secretary during the course of the
evidentiary proceeding and, in its post-hearing brief, took the
position that the clerk IV "should probably be declared
confidential under Subsection C." The unit status of the latter
position will be discussed briefly when the merits of MSEA's
petition are considered later in this opinion. In its petition,
the State seeks exclusionary designations pursuant to C for the
following positions: clerk stenographer III (Lori Blier);
business manager II (Karen Michaud); State Park Maintenance and
Operations director; resource administrator, Bureau of Public
Lands; and resource administrator, Maine Land Use Regulation
Commission.
The last three positions which the State is seeking to have
excluded pursuant to C have been exempted from the coverage of the
Act on other grounds; therefore, their confidential status will be
discussed only briefly herein. No evidence was cited indicating
that any of the three have been engaged in negotiating collective
bargaining agreements on behalf of the employer. The LURC
resource administrator's involvement in grievance handling and
workers' compensation case management may justify a C exemption as
well as one pursuant to J-2; however, the nature of the
information to which the resource administrator has access was not
clearly established so as to warrant such a conclusion herein.
None of the other activities described in the record engaged in by
the persons in these classifications are relevant to a
confidential exclusion.
Clerk Stenographer II (Lori Blier)
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The Office of the Commissioner at the Department of
Conservation consists of the following positions: the
commissioner, the deputy commissioner, the administrative
secretary, the clerk stenographer III, an assistant to the
commissioner for affirmative action, legislation and special
projects, and an assistant to the commissioner for public
information. The two clerical positions in the office are the
administrative secretary, who is the secretary to the
commissioner, and the clerk stenographer III, who provides
clerical support to the other three officials in the office. The
work stations of the administrative secretary and the clerk
stenographer III are located in the same area of the office--an
alcove between the commissioner's personal office and that of the
deputy commissioner. The State bases its claim for a confidential
designation for the clerk stenographer on the incumbent employee's
involvement in six areas of activity.
The clerk stenographer manages the flow of paperwork within
the department in connection with pending legislation. The clerk
stenographer flags bills which may impact the various units in the
department and distributes and collects the appraisal forms which
contain the bureau or division directors' recommendations
concerning the department's response to pending legislation.
Conflicting recommendations are resolved at senior management team
meetings which are not attended by the clerk stenographer. Recent
legislation has included proposals to combine the department with
other natural resource departments, budget bills, and workers'
compensation reform.
As noted in the introduction to this section of the decision,
employees who, as a necessary component of their employment, have
access to information which, if revealed to the bargaining agent
outside of the normal processes of negotiating and administering
collective bargaining agreements, could jeopardize the public
employer's positions or strategies in such processes are excluded
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from the coverage of the Act as confidential employees.
Departmental responses to proposed legislation are not
confidential within the meaning of the Act for several reasons.
First, legislation is considered and enacted by the Legislature in
public session and is not negotiated by the public employer and
any bargaining agent. Second, departmental responses are
inherently non-confidential in any sense. To effectively support,
oppose or secure amendment to pending legislation, such responses
must be made public and, as suggested in earlier sections of this
opinion, they are usually reduced to writing and are presented
orally by the commissioner or a bureau director in legislative
public hearings. Third, while the untimely revelation of a
department's position on pending legislation might be embarrassing
or might somehow undercut that position, an employee's status as a
State employee within the meaning of the Act results in no greater
likelihood that the individual would reveal the department's
response than would the individual's political affiliation or
membership in any non-labor organization having an interest in the
outcome of pending legislation--considerations which generally
cannot be considered in hiring executive branch employees. See,
5 M.R.S.A. 7052 and 7056(4). In fact, the established public
policy of the State of Maine is that executive branch employees,
regardless of their status in regard to collective bargaining, are
protected from retaliation by their employer if they offer
testimony before the Legislature concerning current or proposed
programs, even if such testimony is at odds with the position
being taken by the testifying employee's department or agency.
See, 5 M.R.S.A. 21, et seq. In light of this statutory right,
it is difficult to argue that intra-departmental discussions
concerning pending legislation are in any way confidential. Since
departmental responses to pending legislation are not confidential
within the meaning of the Act and since the risk of disclosure of
such responses is unrelated to collective bargaining status, the
clerk stenographer's role in connection with the legislative
process does not warrant a confidential exclusion.
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The second major area of activity cited in justification of
the sought-after exclusionary designation is that the clerk
stenographer opens all mail addressed to the commissioner, the
deputy commissioner, and the affirmative action officer, unless it
is marked confidential. In some circumstances, engaging in the
activity might support a confidential designation; however, the
clerk IV, Judy Andrews, testified that confidential mail from the
Bureau of Employee Relations goes directly to the director of
Administrative Services or the personnel manager and is opened and
handled exclusively by the clerk IV. Furthermore, any possible
contact by the clerk stenographer with confidential collective
bargaining materials could easily be avoided by labeling the
envelopes containing such materials "confidential."
Third, the clerk stenographer performs photocopying for the
commissioner and the deputy commissioner. There was no evidence
in the record that the clerk stenographer photocopied any
confidential collective bargaining documents. Even had such
evidence been presented, the question would remain whether such
photocopying was an inherent element of the clerk stenographers
job duties or whether such limited function could readily be
performed by an employee who is currently confidential. The only
allegedly confidential items noted in the State's post-hearing
brief as having been copied were budget documents which contained
various reduction scenarios. Two points are relevant: other than
the provision for furloughs, shut-downs, and reduced work weeks,
the budget reductions were not negotiated with any bargaining
agent and, as noted at pages 7 and 8 of Department of Inland
Fisheries and Wildlife, No. 93-UC-05, budget documents are not
confidential within the meaning of the Act.
The next basis asserted as warranting a confidential
designation for the clerk stenographer is the contention that the
clerk has access to all of the same files as the administrative
secretary. The record established that only the commissioner and
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the administrative secretary have access to the files kept in the
commissioner's private office and that the clerk stenographer was
not even aware of the existence of such files. This latter fact
sheds considerable light on the nature of the professional
relationship between the commissioner and the clerk stenographer
and also indicates that, although the two work in close physical
proximity, the administrative secretary and the clerk stenographer
do not have equal access to information in the office.
The next to last basis cited for excluding this position is
that the clerk stenographer set up the computer access password
for the affirmative action officer and, therefore, has the
password. The department has a one-half time computer system
administrator which it shares with the Department of Agriculture.
When that person is unavailable, the clerk stenographer uses the
system password to attempt to troubleshoot problems with the
operation of the system. It was not established in the record
that confidential collective bargaining information is stored in
the system or that, if it is, the clerk stenographer can access
it. In the circumstances, no confidential designation can be
based on the clerk stenographer's level of computer access.
Lastly, the clerk stenographer replaces the administrative
secretary when the latter is out of the office on vacation, sick
leave, or furlough. Despite replacing the secretary to the
commissioner periodically, there was no evidence in the record
that the clerk stenographer ever performed any confidential work
within the meaning of the Act. The clerk stenographer testified
that the administrative secretary performs all of the confidential
clerical work for the commissioner. The administrative secretary
testified that when she is out of the office, the commissioner
assigns budget and personnel work which he deems confidential to
Clerk IV Judy Andrews. Unless an employee actually performs
confidential work, he/she is not excluded from the coverage of the
Act on confidential grounds. In summary, the record does not
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disclose that the clerk stenographer III has access to any
information which is confidential within the meaning of the Act;
therefore, the position will remain in the appropriate bargaining
unit.
Business Manager II
The last position for which a confidential designation is
being sought is that of Business Manager II Karen Michaud. The
general duties and responsibilities of this position were
described earlier in this opinion. The chief financial officers
in the various State departments occupy positions analogous to
that of the director of Administrative Services in Conservation
and many are excluded from the coverage of the Act pursuant to
Section 979-A(6)(I) since they are designated as major policy-
influencing positions in Title 5 M.R.S.A. Those chief fiscal
officers not exempted pursuant to the foregoing provision
traditionally have been excluded as confidential because they were
involved in costing-out bargaining proposals on behalf of the
employer. The basis for such exemptions is as follows:
The rationale for excluding those who cost out bar-
gaining proposals from the coverage of the Act is that
performance of spread sheet analysis on the fiscal
impact of specific proposals, given the demographics of
the work force affected by such proposals, could reveal
the limits of the management team's settlement
authority. Portland Administrative Employee Association
and Portland Superintending School Committee, No.
86-UD-14, slip op. at 15 (Me.L.R.B. Oct. 27, 1986),
aff'd on other grounds, No. 87-A-03 (Me.L.R.B. May 29,
1987)
Department of Inland Fisheries and Wildlife, No. 93-UC-05, slip
op. at 6-7 (Me.L.R.B. June 9, 1994).
In the instant case, the business manager did not testify
that she has ever played any role whatsoever in connection with
the collective bargaining process. By pointing out that the
director of Administrative Service's background is in personnel,
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rather than in accounting, the State may be suggesting in its
post-hearing brief that the business manager may be called upon to
cost out collective bargaining proposals on behalf of the employer
at some future time. Although the director does not have a
financial background, the business manager testified that the
director of Administrative Services is very familiar with the
fiscal considerations in the department. Furthermore, the
introduction of MFASIS permits more costing work to be performed
centrally by the Department of Administrative and Financial
services, decreasing the employer's reliance on separate financial
analysis within each department in order to successfully carry out
its collective bargaining functions. Department of Public Safety,
supra, slip op. at 27-28. In fact, the business manager testified
that when the department wanted greater detailed financial
analysis by bureau or by particular location, the department
downloaded the information from the central location of the Bureau
of Accounts and Control into its own computer system and then
performed the analytical operations required. In any event, unit
decisions are based on the actual duties and responsibilities of
the positions at issue and not on future intended responsibil-
ities. Id., slip op. at 17.
No confidential designation can be based on the business
manager's involvement with the department's budget and work
programs. The business manager testified that her role in the
budget preparation process includes distributing and explaining
the guidelines and timelines determined by the Bureau of the
Budget, assuring that the timelines are met, collecting the
submission from each bureau, and putting all such submissions into
the proper format in the final departmental submission which is
forwarded to the Bureau of the Budget and appears in the
"Governor's budget which is submitted to the Legislature. The
ministerial act of putting a budget request (a public document)
into final form does not involve access to information which is
confidential within the meaning of the Act.
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As discussed earlier, in one of the several rounds of the
deappropriations process in recent years, the expenditure
reduction target amount assigned to the Division of Administrative
Services was so large that meeting it required elimination of one
position in the division. The business manager costed out the
potential savings which could be accrued by eliminating each of
the positions on a list drawn up by the personnel manager. The
director of Administrative Services, the personnel manager and the
business manager then used the savings information and determined
which position would be proposed for elimination. While clearly
affecting a unit employee, this process did not involve
information which was confidential within the meaning of the Act.
First, the position elimination was not negotiated with any
bargaining agent; therefore, any untimely or unauthorized release
of information to the union could not possibly jeopardize the
position of the employer. Second, as in every round of the
deappropriation process, legislative action was required before
any personnel action occurred. Prior to legislative action, the
deappropriation proposal for all of State government was
published, detailing all proposed position eliminations and other
changes and containing a statement outlining the impact of each
proposed action on the program involved. Anyone, including the
bargaining agent, wishing to challenge any specific deappropria-
tion proposal had complete access to this public information and
could mount their challenge during public hearings and through
other lobbying activity. Third, while the business manager was
involved in selecting which subordinate position would be proposed
for elimination, the person who actually lost his or her job as a
result of the position elimination was determined by application
of the seniority article of the relevant collective bargaining
agreement.
The final activity cited in support of a confidential
exclusion for the business manager was preparation of the
department's work programs. Work programs are defined in
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5 M.R.S.A. 1667 as being documents in which each executive
department or agency allots its total annual appropriation among
the various components designated by character and object codes of
the three primary budget lines--personal services, capital
expenditures, and all other departmental expenditures--and among
each of the quarters of the fiscal year. By law, the Bureau of
Accounts and Control of the Department of Administrative and
Financial Services maintains the "official system of general
accounts, unless otherwise provided by law, embracing all the
financial transactions of the State Government." 5 M.R.S.A.
1541(1). The Bureau audits and approves all "bills, invoices,
accounts, payrolls and all other evidences of claims, demands or
charges against the State Government." 5 M.R.S.A. 1541(3). On
a monthly basis, the Bureau prepares and provides to the Governor,
the state auditor and the head of the department or agency
involved, a report covering the current status of the agency's
receipts, expenditures, appropriations, allotments, encumbrances,
and authorized payments. 5 M.R.S.A. 1541(5). The Bureau of
Accounts and Control, therefore, maintains detailed financial
records for each executive department or agency and such records
should be identical with those maintained internally by each
department. Title 5 M.R.S.A. 1546 states:
The books, accounts, vouchers, affidavits and other
records and papers in the office of the State Controller
relating to the public business shall be open for
inspection to the citizens of this State at all
reasonable times and for all proper purposes.
Since such records are available for public inspection and
copying, access to and monitoring of departmental work programs
and other financial records cannot give rise to an exclusionary
designation pursuant to Section 979-A(6)(C). In summary, although
she performs professional work as an accountant and accounting
supervisor, no grounds were established in the record for
excluding the business manager II from the coverage of the Act on
confidential employee grounds.
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MERITS OF MSEA'S PETITION
At the close of the evidentiary record in this proceeding,
MSEA was seeking unit inclusion for the following positions:
Clerk IV (Judy Andrews), director of the Boating Facilities
Division of the Bureau of Parks and Recreation, director of the
Division of Forest Management and Utilization of the Bureau of
Forestry, Supervisor of Land Use Planning of the Maine Land Use
Regulation Commission, and director of the Policy, Planning and
Information Division of the Bureau of Forestry. The merits for
each of these positions will be evaluated separately below. In
examining each of the positions at issue, if at some point the
evidence in the record requires that the position be excluded
pursuant to any provision of Section 979-A(6)--principally J-1,
J-2 or C--the inquiry will end and the position will remain
exempt.
Clerk IV (Judy Andrews)
The clerk IV position that was in contention in this case
provides clerical support to the director of Administrative
Services, the department's personnel manager, and the business
manager II. In its post-hearing brief, MSEA stated that the clerk
" . . . should probably be declared confidential under Subsection
C." The hearing examiner commends MSEA for withdrawing its
challenge to the exclusionary status of this position which is
patently confidential within the meaning of the Act. The
following job duties establish the confidential status of the
clerk IV. The clerk: (1) opens all mail from the Bureau of
Employee Relations and routes it to the director of Administrative
Services or the personnel manager, as appropriate, delivering
sensitive material in-hand; (2) does all confidential typing and
photocopying for the director and personnel manager, including
memoranda to the Bureau of Employee Relations concerning pending
discipline and grievances; (3) files and retrieves material from
the personnel files, including the director's confidential files;
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(4) types drafts of preliminary ideas from the director of
Administrative Services to the commissioner which affect positions
and programs; (5) types sensitive material for bureau directors
concerning matters such as employee discipline and workers'
compensation; (6) types appraisals rating the work performance of
excluded employees; (7) has access to workers' compensation
materials, including medical evaluation reports; and (8) while
Clerk Stenographer III Lori Blier performs some of the functions
of the administrative secretary when the latter is out of the
office, handles sensitive work for the commissioner during such
times. This position is an excellent example of the concentration
of confidential collective bargaining functions in a single
clerical employee which the Board recommended in Case No. 82-A-02
cited earlier, and the State is to be commended for its efforts in
this regard.
Director, Boating Facilities Division, Bureau of Parks and
Recreation
The mission of the Boating Facilities Division is to plan
for, acquire, develop, and maintain public boat launching
facilities and to plan for, place, and maintain aids to navigation
in State waters. Employed as the division's director since 1989,
the incumbent in the position supervises 18 year-round and 7
seasonal employees. None of the testimony in the record nor the
facts cited in the State's post-hearing brief generated J-2 or C
issues and only the J-1 exemption is arguably relevant.
The director's involvement with inland aids to navigation is
limited to the implementation of established policy. The policy
question underlying the waterways marking program was whether
navigational aids would be installed in State waters. Decisions
concerning the shapes and colors of such devices were, as Joint
Exhibit 64 indicates, required to be consistent with those
established by the Coast Guard and used in tidal and marine
waters. Furthermore, such decisions had already been made in the
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State of Maine before the division director position existed.
Decisions within the director's discretion, such as where to place
the aids and which bodies of water to mark first, concern the
technical means of implementing the established policies, with the
former being dictated by the natural underwater features
encountered in the field and the latter being a reflection of
budgetary constraints.
Similarly, the director's involvement with changes in the
waterway marking system rules does not involve policy-making
within the meaning of J-1. Rules which constitute policy within
the J-1 context are those which, by selecting from among the
available options, establish the particular objectives for a
department or agency and determine the methods, means and extent
of meeting such aims. Rather than establishing objectives for the
division, the waterway marking rules are intended to determine the
'rules of the road' for the boating community, protect those
navigational aids which are installed from vandalism or other
damage, and regulate the use of similar aids by other governmental
or private organizations. Second, in the course of testimony, the
director mentioned that he was working on changing the rules for
public use of boat launch facilities; however, the rules were not
introduced into evidence and it is unclear whether such rules
regulate public conduct or establish limits for the division's
activity. In the circumstances, no J-1 exemption was established
based on the director's involvement in rule making.
The next area of activity cited in support of the exclusion-
ary designation is the director's role in the legislative process.
The director testified that he prepares impact statements on
pending legislation. As discussed earlier, such work is analogous
to performing technical evaluations of complex systems and does
not constitute a significant involvement in policy making within
the meaning of J-1. The Bureau director usually attends and
presents testimony at legislative public hearings and the division
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director often attends legislative workshops on bills which may
affect the boating facilities program. The only legislation
identified in the record with which the division director was
directly involved was that which raised the percentage of the
gasoline tax allocated to fund the division. That legislation was
enacted in 1988, prior to the creation of the division director
position. The division director's involvement in the legislative
process as described in the record does not justify a J-1
exclusion.
The division director has a relatively free rein in deciding
which parcels to acquire for development as boat launch facilities
and which maintenance projects should be undertaken within each
budget cycle. Once a parcel is selected for acquisition, the
director visits the site to determine whether it is suitable for
development and, if so, meets with the owner and negotiates a
sales price. The director also has the authority to accept offers
of gifts of land for boating facility development. Implicit in
the acceptance of such parcels is the division's commitment to
develop, operate and maintain boat launching facilities thereon.
In considering the unit status of a similar position in the
Department of Inland Fisheries and Wildlife case, the following
corollary to the J-1 test was noted:
The hearing examiner in the D.O.T. decision mentioned
federal precedent which recognizes that employees, who
may through exercise of independent professional
judgment commit substantial employer resources to
further the best interest of the employer, have an
inherent involvement in policy formulation and
effectuation. The degree of discretion exercised must
be considerable and must not fall within "relatively
unimportant areas." Maccabees Mut. Life Ins. Co. v.
NLRB, 757 F.2d 767, 769 (6th Cir. 1985). Among the
factual considerations examined in this context is the
authority to select vendors, award bids, negotiate the
prices and terms and conditions of purchases, and issue
purchase orders for substantial sums of money. D.O.T.
decision at 5.
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Nos. 83-UC-49 and 91-UC-11, supra, slip op. at 45. Like the
supervisor of Land Acquisition and Development in the earlier
case, the division director exercises broad discretion in
committing substantial division resources in acquiring and
developing land for boating facilities and, to a considerably
lesser extent, in deciding the order in which maintenance
activities will be undertaken. Unlike right-of-way negotiators
whose acquisition decisions are considerably constrained by the
planned location of a road or railway line, the director's
acquisition decisions involve much greater exercise of discretion.
The director selects or rejects parcels and negotiates the terms
and conditions under which those selected are acquired, thereby
determining the particular aims of the division and selecting the
means and methods by which such objectives will be met. The
extent to which the division can accomplish its mission depends on
the purchase price which the director negotiates for land
acquisition and the cost of the development and maintenance
projects which the director determines will be performed within
the budget period. The director's authority to effectively commit
substantial division resources through exercise of discretion in
land acquisitions and facilities development and maintenance
justifies the exclusion of the position from the coverage of the
Act pursuant to J-1.
Director, Division of Forest Management and Utilization, Bureau of
Forestry
The mission of the Division of Forest Management and
Utilization is to promote sound forest land management, increased
utilization and marketing of wood products through programs of
education and direct technical assistance to private non-
industrial forest landowners, communities, and operators of
primary and secondary processing plants. A registered
professional forester with a degree in forestry, the incumbent
employee has occupied the director position since 1990 or 1991.
There are a total of thirteen employees in the division.
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None of the facts in the record tended to establish that the
director is confidential within the meaning of Section 979-A(6)(C)
of the Act. The only possible ground contained in the record upon
which the director might arguably be exempt pursuant to J-2 was
his role in selecting two forester II's for lay-off, rather than
two forester I's, in meeting a budget reduction target. Like the
other division chiefs, the director argued during the particular
round of the deappropriation process in question that the best
interests of the State would be served by keeping his division
intact and, if personnel reductions were necessary, they should be
incurred elsewhere. The Bureau director decided that the Forest
Management and Utilization Division would lose two positions at
that time. The two positions, which the director selected for
elimination, were both directly supervised by the director--a
field supervisor and the director's assistant. The two particular
positions were selected because the duties of one of them could be
transferred to an existing, vacant federally-funded position and
the director could assume the duties of the other; therefore,
elimination of the two selected would have the least negative
impact on the division's programs. While selecting positions for
elimination could justify a J-2 exclusion in some circumstances,
selecting positions for elimination in times of budget shortfalls
which one supervises directly is a typical supervisory function.
The director is not exempt pursuant to J-2.
Several areas of activity were cited in the State's post-
hearing brief tending to support a 3-1 exclusion for the director.
First, the director is responsible for preparing the divisional
budget and work program. As discussed in the context of the J-1
analysis for the business manager II position, formulating a
divisional budget may not involve a significant amount of
discretion. Although the director and many others in State
government who are involved in the budget process have spent a
disproportionately large percentage of time preparing and revising
budget documents and participating in budget exercises in recent
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years, given the limitations inherent in legislatively-mandated
programs, budget preparation is limited to the effectuation of
policy and does not warrant a J-1 exclusion.
The next item cited in support of the director's exclusionary
status is his involvement in the legislative process. Although
the director is asked to provide input on legislation which may
affect the division's programs, usually this input is limited to
answering technical questions concerning such matters as the
impact of harvesting trees of varying minimum trunk sizes upon the
population of given species. Similarly, the director provides
factual information to the Bureau director concerning forest
management and wood products marketing issues. Providing this
sort of factual technical information to those directly involved
in the policy-making process does not justify a J-1 exemption.
The director did testify that he provides advice as requested on
policy issues. No examples of the types of policies or the nature
of such advice was cited; therefore, it is impossible to determine
the nature of the director's input. No J-1 exclusion has been
established on the basis of the director's input into policy
development at either the legislative or departmental levels.
Finally, the director was involved in one major policy
decision--that concerning closure of the State nursery. Several
years ago, the State nursery began losing money. It secured a
capital loan from the Legislature which allowed it to operate for
an additional five years; however, it continued to lose money.
Ultimately, the decision was made to lease the nursery to a
private operator. Bids were received and the successful bidder
assumed the obligation to provide seedlings for forest landowners.
The lessee essentially went bankrupt, failing to pay the rent
money owed to the State. The director recommended declaring the
lessee in default of the lease, shutting the nursery, and selling
the facility. Because the Bureau wanted to retain the proceeds of
the sale, legislative action was required. The division director
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helped to prepare testimony supporting the sale and retention of
the sales revenues by the Bureau and attended work sessions on the
legislation. At the work sessions, the division director's role
was limited to providing technical information, including such
things as the number of acres involved and the types and sizes of
trees at the facility. The legislation was adopted. Even if the
director's involvement in the decision to close the nursery and
sell the property was of the nature required for a J-1 exclusion,
a single instance of substantial participation in the development
and implementation of policy is not sufficient to justify
exempting a position from the coverage of the Act. Department of
Transportation, No. 83-UC-36, supra, slip op. at 41-42. In sum,
the director of the Division of Forest Management and Utilization
is a well-qualified professional who plays an important role in
promoting responsible forest management practices in an aggregate
area constituting one-half of the land area of the State; however,
the evidence in the record did not justify excluding this position
from being represented for purposes of collective bargaining.
Given the primarily supervisory nature of the director's duties
and responsibilities, the position will be assigned to the State
employee Supervisory Services bargaining unit.
Manager of Land Use Planning and Zoning Division, Maine Land Use
Regulation Commission
The Land Use Regulation Commission serves as the planning and
zoning board for all areas of the State which do not exercise land
use control functions at the local level. The Commission's
jurisdiction extends to approximately one-half of Maine's land
area. The mission of the Land Use Planning and Zoning Division is
to establish and update the basic rules governing LURC's
operations and the comprehensive plan that forms the basis for
such rules. The incumbent employee has a bachelor's and a
master's degree in resource economics and has occupied the
position at issue since it was established on January 1, 1990.
The evidence in the record relating to the position did not even
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arguably justify either a J-2 or a C exemption therefor.
As development pressures change in response to changes in the
economy or available technology or population migration patterns,
LURC must update its Comprehensive Land Use Plan to respond to
such new challenges. For example, prior to the 1980s metallic
mining had not been economically viable in Maine; therefore, no
rules regulating such activity had been developed for the areas
within LURC's jurisdiction. When such projects became viable,
several companies expressed interest in starting mining operations
in Maine and LURC responded with the adoption of metallic mining
rules. Other rule changes have been required as a result of the
Commission's experience with administering earlier rules. Prior
to 1990, lakefront development proposals had been addressed on a
case-by-case basis, regardless of the uniqueness of the particular
lake involved. This approach had resulted in development
pressures that the Commission perceived to be counter to its
statutory mandate. In 1986, sufficient staff resources existed to
address the issue and begin the process that culminated in the
adoption of amendments to the relevant land use plan and rules in
1990.
When rule changes become necessary, the manager of land use
planning assigns relevant research projects to various staff
members, reviews the resulting technical reports, and formulates a
general approach to address the situation requiring attention.
The manager presents the working concept to individual members of
the Commission in order to ascertain their concerns and to gain a
sense that he is moving in the right direction. The manager then
convenes a task force consisting of representatives of the parties
who have a stake in the outcome of the rule-making process--major
conservation groups, sportsmen's organizations, major landowners
from both industrial and non-industrial sectors, and one or two
Commission members--to discuss and consider the proposed rule
change ideas. At the conclusion of such discussion, the manager
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incorporates ideas generated through the task force, the original
approach, and Commission members' concerns into draft rules. The
manager presents and explains the draft rules to the Commission
and, upon their preliminary approval, submits the draft for rule
making. During the latter process, the manager is the chief
responder on behalf of the agency, responding to public comments
and incorporating those which he feels are appropriate into the
final draft rules, which the manager then presents to the
Commission for final consideration and adoption.
The manager formulated two major changes that the Commission
incorporated into its comprehensive land use plan and rules in
1990. Rather than reviewing proposed lakeside development on a
case-by-case basis as required under the existing rules, the
manager proposed classifying lakes into five categories, ranging
from lakes where no development would be allowed to those where
extensive development would be permitted, and providing a process
through which landowners seeking to develop their land could
approach the Commission and propose a plan for a lakeside
development which, while varying somewhat from the established
classifications, would nevertheless achieve the proper balance
between development and conservation--the "concept plan" approach.
Pursuant to this approach, a landowner could negotiate with the
Commission over such items as clustering development, increased
setback requirements for a structure from the lake, increased
frontages, tighter clearing standards between structures and
lakes, and setting aside certain shorelands from development in
perpetuity in order to ensure preserved lake water quality and
scenic values while permitting some development. The manager
formulated the initial concepts and, after gaining the initial
go-ahead from Commission members, devised five different lake
classifications, including the technical criteria for each
category, and formalized the "concept plan" idea. The manager
convened and met several times with the task force, which, because
of the significance attached to the amendments under considera-
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tion, included three Commission members as well as the usual
stakeholders. During the course of the task force meetings, one
sportsmen's group identified a sixth type of lake and other
concerns were aired. At the conclusion of one and one-half years
of deliberation, the task force completed its work and the manager
finalized the proposed rules which were adopted with some changes
through the process described in the preceding paragraph.
Subsequent to adoption of the new lakes program rules, the
manager successfully negotiated three concept plans, one of which
had been adopted by the Commission as of the date on which the
manager testified in this case. The plan adopted by the
Commission covered approximately 17,000 acres, including three
large lakes and a number of small ones. The negotiated result,
enforced through easements and deed restrictions, permitted some
development near certain lakes, primitive backcountry development
elsewhere, and no development near other lakes, while recognizing
that the entire area was a working forest subject to the cycle of
clearcutting and regeneration. Now that precedent-setting concept
plans have been negotiated, the manager will probably delegate
future negotiations to members of the division staff.
Since the entire process of amending the lakes program rules
took four years to complete, some landowners in areas targeted for
no or very limited development attempted to circumvent the pending
regulations by accelerating their development plans. Aware of
this activity, the manager formulated a rule, initially adopted by
the Commission without hearing as an emergency rule and later
formally adopted as a regular rule, that placed such identified
areas under a development moratorium, pending adoption of the new
lakes program rules by the Commission.
The manager has played a role similar to that described above
in connection with the lakes program rules in the following
instances: changes in the rule protecting deer wintering yards,
creation of the maritime development subdistrict to preserve
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access by commercial fishermen to working harbors and to protect
such access from residential encroachment, and a rule allowing the
Department of Environmental Protection to enforce its existing
sludge spreading practice rules in areas within LURC's
jurisdiction.
In each of the instances cited above, the manager played a
substantive role, involving the exercise of discretion, in
selecting goals and objectives for LURC in accomplishment of its
mission and in determining the means, methods and extent to which
such ends can be achieved through involvement in changing the
Commission's primary regulatory tools. The manager of the
Planning and Zoning Division is properly excluded from the
coverage of the Act pursuant to J-1.
Director, Division of Policy, Planning and Information, Bureau of
Forestry
The primary mission of the Division of Policy, Planning and
Information is the implementation of the Forest Practices Act
through the promulgation, interpretation, and enforcement of rules
regulating forest harvesting and regeneration practices. Other
responsibilities undertaken by the Division include educating the
public about forest ecosystems and operating the computer system
for the Bureau of Forestry. MSEA's post-hearing brief stated that
the Division director position "should probably remain
confidential"; the hearing examiner agrees.
Since the unit status of this classification is essentially
uncontested, the grounds justifying its exclusion from the
coverage of the Act will only be outlined briefly. The evidence
in the record did not suggest that the director should be exempt
pursuant to either J-2 or C; however, ample evidence was presented
requiring a J-1 based exclusion. First, the director develops
goals and objectives for the Bureau and allocates funds for
special projects in furtherance of long-range planning for the
Bureau. Second, the director played the central substantive role
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in the formulation, adoption, and implementation of the Forest
Practices Act rules. Unlike the Bureau resource administrator,
who played only a ministerial role in the rule-making process, the
director collected the technical input from the various
specialists in the Bureau, conceived the substantive aspects of
the rules, reduced the concepts to writing, attended the public
hearings, and decided whether to incorporate points raised in
public comment into the draft or to reject the same and explain
why. Subsequent to their adoption, the director has been
responding to questions from Bureau employees and the general
public about the intent and interpretation of the rules and has
been involved in enforcing the rules, ensuring consistency in
enforcement efforts. In the course of conduct described above,
the director selected from among available options in developing
specific aims in implementing the statute and in determining the
means, methods and extent to which such objectives will be met and
has been directly involved in the enforcement of the rules. The
director's duties and responsibilities in connection with the
Forest Practices Act rules require a J-1 exclusion for the
position.
Further supporting the exclusionary status was the director's
role in connection with the legislative process. Unlike many of
the positions discussed earlier, who only provide technical
analysis or factual information in connection with pending
legislation, the director collects such information, reviews
drafts of proposed responses to pending legislation to determine
whether they are consistent with Bureau policy, and effectively
recommends Bureau positions on legislation. Furthermore, the
director often represents the Bureau at legislative hearings and
work sessions, with full authority to present the Bureau's views
and positions in helping to shape pending legislation.
The director has developed inter-divisional policies within
the Bureau of Forestry including those regarding the export of
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unprocessed timber to foreign countries and the dissemination of
public information by Bureau staff. In each area of activity
cited, the director exercises considerable discretion in helping
to determine Bureau policy. This level of involvement in the
formulation and effectuation of policy warrants a J-1 exclusion.
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) (1988), it is hereby ORDERED:
1. That the Motion to Dismiss filed by the State of
Maine in Case No. 91-UC-20 is denied.
2. That the following classifications fall within the
exclusion contained in the first clause of 26
M.R.S.A. 979-A(6)(J) (1988) and are, therefore,
excluded from the coverage of the Act:
State Park Maintenance and Operations Director
State Entomologist
Resource Administrator, Bureau of Public Lands
3. That the following classification falls within the
exclusion contained in the second clause of 26
M.R.S.A. 979-A(6) (J) (1988) and is, therefore,
excluded from the coverage of the Act:
Resource Administrator, Land Use Regulation
Commission
4. That the balance of the Petition for Unit
Clarification filed by the State of Maine in Case
No. 83-UC-20 is dismissed.
5. That the classification Director, Division of
Forest Management and Utilization within the Bureau
of Forestry, Department of Conservation falls
within the definition of State employee contained
in 26 M.R.S.A. 979-A(6) (1988), and said position
is assigned to the State employee Supervisory
services bargaining unit.
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6. That the balance of the Petition for Unit
Clarification filed by the Maine State Employees
Association in Case No. 91-UC-20 is dismissed.
Dated at Augusta, Maine this 14th day of October, 1994.
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. 1993), 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 full requirements.
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