State of Maine, Dept. of Public Safety and MSEA, No. 83-UC-45 and 91-UC-45, aff'd 94-UCA-01. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 83-UC-45 and 91-UC-45 Issued: February 4, 1994 ____________________________________ ) STATE OF MAINE, DEPARTMENT OF ) PUBLIC SAFETY, ) ) Public Employer and Petitioner, ) ) and ) ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Bargaining Agent, ) ) and ) UNIT CLARIFICATION REPORT ) MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Bargaining Agent and Petitioner, ) ) and ) ) STATE OF MAINE, DEPARTMENT OF ) PUBLIC SAFETY, ) ) Public Employer. ) ____________________________________) This unit clarification proceeding was originally initiated on December 3, 1982, when the Governor's Office of Employee Relations, on behalf of the Maine State Department of Public Safety (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 thirty-three classifications from the coverage of the Act on the basis 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 averred that twenty-five of the thirty-three classifications allegedly excludible under J-1 should be excluded from the coverage of the -1- Act on the basis that they fell within the exemption contained in the second clause of 26 M.R.S.A. 979-A(6)(J) ("J-2"). The petition also sought exclusion of four additional classifications pursuant to 26 M.R.S.A. 979-A(6)(C). The general procedural history concerning the State's petitions in this and in several related cases is reported at pages 1 and 2 of State of Maine, Department of Inland Fisheries and Wildlife, Nos. 83-UC-43 and 91-UC-11 (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 clarification, seeking inclusion of the Chief Accountant classification in the Department of Public Safety into whichever of the existing bargaining units represented by MSEA where such inclusion would be appropriate. The State filed a response to MSEA's petition on January 9, 1991, together with a motion to dismiss the petition, alleging in part that the MSEA's petition is barred by Rule 1.16(A) and should be dismissed. In Department of Inland Fisheries and Wildlife, supra, slip op. at 13, the hearing examiner concluded that MSEA's petition for unit clarification was barred by Rule 1.16(A)(2), based on alleged substantial change that occurred prior to the negotiations that resulted in the collective bargaining agreements then in effect without MSEA's having raised the unit status issue prior to concluding such agreements. The collective bargaining agreements, whose execution precluded consideration of MSEA's petition in Case No. 91-UC-11, expired on June 30, 1992, and the parties did not reach final tentative agreement on successor agreements until June 11, 1993. Maine State Employees Association and State of Maine, Department of Inland Fisheries and Wildlife, No. 93-UC-05, Interim Order, slip op. at 3 and 5 (Me.L.R.B. Sept. 29, 1993). Subsequent to issuance of the Unit Clarification Report in Case Nos. 83-UC-43 and 91-UC-11 dismissing MSEA's petition in the latter case, counsel for the parties met with the undersigned to discuss how to proceed with -2- the remaining petitions then pending. Without having waived any procedural defenses, the State agreed at the meeting that MSEA's January 3, 1991, petitions were deemed to have been filed on May 14, 1993, and that the State's answers were deemed to have been filed on May 14, 1993. In addition to filing responses to MSEA's petitions of January 3, 1991, the State moved to dismiss such petitions on the basis of the last sentence of Rule 1.16(B). The State withdrew all of its Rule 1.16(B) Motions to Dismiss by letter dated September 29, 1993. Consistent with 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 the filing of updated petitions and responses in this case. On June 22, 1993, the State filed an amended petition for unit clarification, seeking exclusion from the coverage of the Act for the following classifications at the Department of Public Safety: Assistant Director of Liquor Enforcement (Richard Allen): J-1 and J-2 State Police Captain (Charles Love): J-1 and J-2 State Police Captain (Ralph Folsom): J-1 and J-2 State Police Captain (John Whynott): J-1 and J-2 State Police Lieutenant (Internal Affairs) (David Viles): J-1 and J-2 Assistant State Fire Marshall (Ladd Alcott): J-1 and J-2 Administrative Secretary (Sophie Welsh): C Clerk Typist III (Priscilla Martin): C Clerk Steno III (Joan Butler): C Each classification title is followed, in parentheses, by the name of the incumbent employee in the position and by the statutory grounds upon which the sought-after exclusion is based. As agreed by the parties, MSEA filed its response to the State's petition on July 30, 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 informed the hearing examiner that it would not be amending its -3- petition in Case No. 91-UC-45; therefore, the sole classification at issue by virtue of MSEA's petition is: Chief Accountant (Lucinda Russell) The State's original response, filed on January 9, 1991, and deemed to have been refiled on May 14, 1993, applies to the MSEA petition. Evidentiary hearings on the merits of the petition in Case No. 83-UC-45 were held in the Labor Relations Board Conference Room, Room 714 of the State Office Building, Augusta, Maine, on Augusta 31 and September 7 and 15, 1993. Evidentiary hearings on the merits of the petition in Case No. 91-UC-45 were held in the same location on September 21, 1993. The State was represented by Sandra S. Carraher, Esq., and MSEA was represented by Timothy L. Belcher, Esq. The parties were afforded full opportunity to examine and cross-examine witnesses, to present documents and other evidence, and to present argument during the course of the hearing. The parties filed post-hearing briefs on the merits of both petitions. MSEA's brief was received on October 13, 1993, and the State's on October 14, 1993. 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 Section 979-E(3) of the Act sets forth five prerequisites which must be met before the executive director can consider the merits of any unit clarification petition. In the pending cases, the parties have stipulated to four of these statutory -4- prerequisites. MSEA is the certified bargaining agent within the meaning of Section 979-A(1) for the State employee Supervisory Services and Administrative Services bargaining units--the units which include the classifications at issue in the State's petition. The position which is the subject of the Union's petition would be assigned to the Supervisory Services bargaining unit if the petition is granted. The State of Maine is the public sector employer within the meaning of Section 979-A(5) of all of the employees whose classifications are at issue in these cases. The State is the petitioner in one case and MSEA is the petitioner in the other. The parties have been unable to agree on the modifications being sought through the petitions, and there is no question concerning representation. As was the case in Department of Inland Fisheries and Wildlife, the State is basing some of the requested exclusionary designations on statutory provisions enacted several years after the Supervisory Services bargaining unit was created. Since Section 979-A(6)(J) did not exist at that time, exemptions based thereon could not have been contemplated in the unit determination process that resulted in the unit involved in the State's petition. Legislative enactment of additional statutory exemptions subsequent to the formation of a bargaining unit constitutes sufficient substantial change to satisfy the final requirement of section 979-E(3). Department of Inland Fisheries and Wildlife, slip op. at 8. The balance of the exclusionary designations being sought by the State in this proceeding are based on 979-A(6)(C). As will be discussed more fully below, employees excluded from the coverage of the Act on the grounds that they are "confidential" are those who, as an integral element of their duties, have access to information which, if revealed to the bargaining agent outside of the collective bargaining process, would jeopardize the public employer's bargaining positions or strategy. Prior to -5- creation of the several State employee bargaining units and their modification by the Board the following year, no State employees were engaging in collective bargaining within the meaning of the Act; therefore, no State employee could be performing "confidential" duties and be excluded from bargaining on that basis. The advent of collective bargaining and the necessary involvement of some State officials and employees in that process on behalf of the public employer is a sufficiently substantial change in the circumstances surrounding the formation of such units to satisfy the 979-E(3) requirement. Turning to MSEA's petition, the substantial change alleged therein is that "[t]he listed position[] [is] either newly created since these units were established, or the collective bargaining or policy making duties of the positions have been withdrawn making exclusion from bargaining inappropriate." Joint Exhibit 43 establishes that the position which is the subject of MSEA's petition--the Chief Accountant at the Department of Public Safety--was created on or about January 29, 1990, when the Bureau of Human Resources approved the reclassification of the position entitled Chief Accountant Public Safety to that of Chief Accountant. The former classification had been included in the State employee Supervisory Services bargaining unit. It is impossible to consider the bargaining unit status of a classification prior to its coming into existence; therefore, creation of a new classification subsequent to formation of the bargaining unit at issue satisfies the substantial change requirement of the Act. Department of Inland Fisheries and Wildlife, slip op. at 8, citing Portland Public Library Staff Assoc. and Portland Public Library, No. 88-UC-03, slip op. at 9 (Me.L.R.B. June 2, 1988). The State moved for dismissal of MSEA's petition pursuant to Board Rule 1.16(A). The relevant portion of the Rule provides that "[u]nit clarification petitions may be denied if . . . -6- (2) the petition requests the clarification of unit placement questions which could have been but were not raised prior to the conclusion of negotiations which resulted in an agreement containing a bargaining unit description." The collective bargaining agreement in effect at the time that the MSEA petition was filed--the 1989-92 agreement--contained a bargaining unit description. Department of Inland Fisheries and Wildlife, Nos. 83-UC-43 and 91-UC-11, Interim Order, slip op. at 8 (Me.L.R.B. Apr. 9, 1991); however, as noted above, the position in contention was not created until January 1990. Since the position was not in existence prior to the conclusion of the negotiations that resulted in the 1989-92 collective bargaining agreements, its unit status could not have been raised at that time. In the circumstances, MSEA's petition is not barred by Rule 1.16(A)(2). The State had further moved that all of MSEA's petitions, including that involved herein, be dismissed pursuant to Rule 1.16(B). The State withdrew this motion by letter dated September 29, 1993. MERITS OF STATE'S PETITION The State's petition seeks exclusionary designations for nine particular positions at the Department of Public Safety ("department"), and the MSEA's petition seeks unit inclusion for one position at 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 Public Safety, is divided into nine functional units: the Office of the Commissioner (including the Bureau of Administration), the Bureau of Highway Safety, the Bureau of Capitol Security, the Office of the State Fire Marshal, the Maine Drug Enforcement Agency, the Bureau of Liquor Enforcement, the Maine Criminal Justice Academy, the Bureau of State Police, and the Bureau of Emergency Medical -7- Services. The department has approximately 644 employees, including approximately 15 who are currently excluded from the coverage of the Act. The latter group includes: The Commissioner of Public Safety (excluded as a department head pursuant to 979-A(6)(D)); the Assistant to the Commissioner, the Assistant to the Commissioner for Public Information, the Director of the Bureau of Highway Safety, the Director of the Office of State Fire Marshal, the Director and Assistant Director of the Maine Drug Enforcement Agency, the Director of the Bureau of Liquor Enforcement, the Director of the Maine Criminal Justice Academy, and the Chief and two Deputy Chiefs of the Bureau of State Police (all designated as major policy-influencing positions by 5 M.R.S.A. 948 and excluded pursuant to Section 979-A(6)(I); the Director of the Bureau of Administrative Services and the Personnel Manager (the genesis of whose exclusions are unknown, but which are not at issue herein); and the Chief Accountant (the position at issue in MSEA's petition). Before considering the positions included in the State's petition that remain in contention, we note that, in its brief, MSEA agreed that two of the classifications whose unit status was litigated herein may legitimately be excluded from the coverage of the Act. By agreement of the parties, Assistant State Fire Marshal Ladd Alcott is excluded pursuant to Section 979-A(6)(J-1), and State Police Lieutenant David Viles, head of the Internal Affairs Division of the Maine State Police, is excluded pursuant to 979-A(6)(J-2). The hearing examiner commends MSEA for its action and urges that both parties not hesitate to reevaluate their respective cases, once they have heard the evidence concerning the classifications at issue in any of the pending unit clarification cases. The J-1 Exclusions The first clause of 26 M.R.S.A. 979-A(6)(J) excludes from -8- the definition of "State employee" and, hence, 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 parameters of this statutory exclusion were 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 determination 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, slip op. at 18 (citations omitted). Assistant Director, Bureau of Liquor Enforcement The first classification at issue is that of Assistant Director of the Bureau of Liquor Enforcement. Many of the job functions cited by the State as warranting the exclusion of this classification are primarily supervisory in nature and do not mandate the result being sought. Section 979-E(1) contains a -9- descriptive list of supervisory duties. Performance of such duties warrants assignment to a separate bargaining unit, but not exclusion from the coverage of the Act. Among the assistant director's supervisory responsibilities cited are the shifting of personnel to increase the interdiction of unlawful interstate transportation of alcohol along the New Hampshire border and supervising the three area supervisors. Due to the assistant director's position in the departmental organization as the second-in-command in a bureau, performance of supervisory functions may have a significant impact on the implementation of bureau policy; however, they do not involve policy formulation. The same applies to the assistant director's monitoring the "all other" expenditures of the bureau during each fiscal year. The decision to purchase pepper-based, rather than chemically-based, mace, as well as that concerning the securing of concealed weapons permits for officers working in New Hampshire, do not rise to the level of constituting bureau policy, within the ambit of J-1. These decisions merely determined the technical methods of operations for the bureau. On the other hand, there is ample evidence in the record establishing that the assistant director has had material involvement in the formulation and effectuation of bureau policy. Among the policies that the assistant director had a significant role in developing and implementing were those concerning regulation of "BYOB" functions (where attendees bring their own alcoholic beverages), retail sales of beer in kegs, and provision of places used by minors to consume alcohol. In each case, the assistant director was either aware of the underlying problem from his service in the field or learned about the situation from enforcement personnel. Utilizing such knowledge, the assistant director discussed available options with bureau employees and with representatives of the hotel, restaurant and retail grocers associations, selected from among such options, drafted -10- legislative proposals, secured the approval of the Commissioner of Public Safety for submission of such proposals, and submitted the proposals to the Legislature where they were subsequently adopted. Following enactment of each new statute, the assistant director prepared a written summary of it and met with field staff to explain and discuss the changes resulting from the new law. The assistant director proposes similar legislation just about every legislative session and, if the same is enacted, he is directly involved in its implementation. By performing the functions described in this paragraph, the assistant director is excluded from the coverage of the Act pursuant to J-1, the first clause of Section 979-A(6)(J). State Police Criminal Investigation Division Captain Although there is a single classification of State Police Captain occupied by three individuals in the State personnel classification system, it became clear during the course of the evidentiary proceeding that the Captain who commands the State Police Criminal Investigation Division ("CID") has duties and responsibilities which are significantly different from those of the two Captains who each command a State Police Field Division. Consistent with the differences in their employment, the exclusionary status of the CID Captain will be considered independently from that of the Field Division Captains in this opinion. As the head of an operational division of the Maine State Police, a captain occupies a very responsible supervisory position. The CID Captain assigns work to, and reviews and evaluates the work of three CID Lieutenants, the Crime Laboratory Lieutenant, the Supervisor of the State Bureau of Identification, and the Uniform Crime Report Planning and Research Associate I. The Captain coordinates homicide investigations, serving as the State Police liaison with the Attorney General's Office and the Office of the State Medical Examiner. In addition, the Captain -11- monitors the cost of investigations and enforces the dress code for detectives. While essential to the effective operation of the criminal division, performance of none of these supervisory duties mandates exclusion from the coverage of the Act. Further evidence cited in support of granting exclusionary status to the CID Captain was the decision to use two photographers and two cameras at each crime scene and the captain's role in connection with the bureau's use of force policy. The former is an example of the selection of the technical means of operation. The latter involves the Captain in the implementation of bureau policy; however, the record indicates that such policy was developed by a committee, which did not include the Captain, formed in response to the Katherine Hagerty incident. In order to warrant exclusion pursuant to J-1, activity must involve both policy development and implementation. MSEA's post-hearing brief stated that the "[Criminal Investigation Division Captain] has played a meaningful role in developing policies, including the sexual assault kit, handling of sudden infant death cases, and raceway fatalities." In each of the instances cited, the CID Captain was substantially involved in both the development and implementation of policy. In an effort to standardize and assure the quality of the physical evidence available for prosecution in cases of alleged gross sexual assault as well as to provide information to the victims of such crimes, including literature explaining sexually transmitted diseases, medical treatments, and available support services, the Legislature authorized the Departments of Public Safety and Human Services to propose a standardized kit for use in investigating such cases. As a result of the Legislative Resolve, a task force was created with the CID Captain as a member. The task force recommended a procedure for developing a "sexual assault kit" and relevant protocols, and incorporated the results of its deliberations into proposed legislation, which was -12- subsequently adopted by the Legislature. Through participation in drafting the rules defining "approved kits" and actual review of the completed kits received by the crime laboratory to determine whether each was sufficient to provide the basis for prosecution, the CID Captain was involved in implementing the sexual assault kit policy. Sudden infant death syndrome cases involve situations where young children die without any apparent cause. Such cases require a more thorough investigation than do other types of fatalities. In order to develop a systematic approach in these situations, the CID Captain met with Deputy Attorney General Fernand LaRochelle, who is in charge of the Criminal Division of the Attorney General's Office, and the State Medical Examiner. The three agreed on criteria to define the type of situations at issue, determined the number of cases involved, and developed a protocol for handling such instances which is that currently followed by their respective agencies. The question as to which agency or division would investigate motor raceway fatalities involved sorting through apparently conflicting or overlapping jurisdictions. Uniformed troopers investigate traffic accidents, CID detectives probe into homicides and unattended deaths, and the Investigation Division of the Attorney General's Office investigates work place fatalities. The death of a motor speedway driver during the course of competition involves aspects of all three jurisdictions. After review of the relevant statutes, the Captain ascertained that raceway collisions were beyond the statutory definition of traffic accidents; therefore, the uniformed troopers should not be conducting the investigations. After meeting with Deputy Attorney General LaRochelle, the Captain determined that motor raceway fatalities were closer in nature to work place deaths and the Attorney General investigators would handle such cases. The Captain revised -13- protocols to reflect this policy and they have been followed. In addition to the above, the record established that the CID Captain was involved in policy development and implementation through his role in deciding who would investigate allegations involving the sexual abuse of children and in reviewing proposed legislation. Traditionally, State Police detectives have investigated child sexual abuse cases in areas of the state that are not served by local police departments. During the last two or three years, an increase in the number of reported cases of this nature, coupled with a decrease in the number of State Police detectives due to attrition or retirement, and the fact that CID's primary responsibility is the conduct of homicide investigations, have resulted in CID's inability to handle all of the child sex abuse cases that it would have in earlier years. The CID Captain sought to resolve this problem by meeting with district attorneys from around the state, explaining the predicament, and seeking a consensus on available alternatives. These meetings resulted in the decision that uniformed troopers and members of other agencies would be trained to conduct child sexual abuse investigations, and the Captain was involved in providing such training. The State's final argument is that the CID Captain's role in reviewing proposed legislation ("Legislative Documents" or "L.D.'s") warrants exclusion of the classification from the definition of "State employee" pursuant to clause J-1. Since this is the first position for which performance of this particular activity has been alleged as justifying exclusionary status, we will discuss this averment sufficiently in order to provide guidance to the parties for use in evaluating the status of other classifications. 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 -14- 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-l. In the instant case, the CID Captain often reviews proposed legislation (including that which creates particular objectives for the bureau; e.g., the sexual assault kit legislation), recommends whether the bureau should take a position, and determines the nature of testimony that will be presented (subject to departmental review), and his recommendations are usually followed. Furthermore, the Captain has been a member of at least one committee whose purpose was to propose legislation and whose proposals were subsequently enacted into law. The CID Captain's role in connection with the sexual assault kit, the sudden infant death syndrome investigation protocol, motor raceway fatality investigations, and the investigation of child sexual abuse cases warrants exclusion of the classification pursuant to J-1. -15- State Police Field Division Captain The last classification claimed to be exempt pursuant to J-1 is that of Field Division Captain in the Bureau of Maine State Police. The State of Maine has been divided into two geographic areas, each of which constitutes the territorial jurisdiction of a field division of the Maine State Police. The area designated as the Northern Field Division consists of approximately the northern two-thirds of the state's area and the Southern Field Division covers the more populous southern one-third of the state. Each field division has approximately 125 employees, including uniformed troopers and civilian secretarial, communications, and custodial personnel. The uniformed troopers in each division are assigned to one of four troops, with each of the latter being under the command of a State Police Lieutenant. The four troop commanders in each division are under the direct supervision of the Field Division Captain. The mission of a field division is to provide comprehensive law enforcement services to the rural areas of the state. The captain in command of a field division is primarily responsible for evaluating and monitoring compliance with existing policy by the division's component units. The captains schedule all employee performance evaluations within their divisions and make sure that all ratings are completed in a timely fashion. As a superior officer without direct, day-to-day supervisory responsibility over the division's front line staff, the captain visits all facilities within the division and learns the needs and concerns of the division employees and serves as a conduit for information between the front line officers and the bureau's top-level management. Technically, the captains have veto power over all training opportunities for members of their division; however, such authority is seldom exercised and training issues are usually resolved by the troop commanders. Periodically, the captains inspect all personnel, property and equipment within their divisions. Through discharge of these supervisory -16- responsibilities, the captains have a significant impact on policy implementation; however, none of these duties involves the formulation of policy. The captains also implement policy when they temporarily transfer personnel to meet short-term needs within their divisions. The captains coordinate law enforcement activities within their divisional areas, meeting with representatives of other enforcement agencies, prosecutors and members of the judiciary and helping to avoid problems and to resolve those which arise. Again, these duties do not involve policy development. The allegedly policy-making activities cited in support of granting exclusionary status based on J-1 were the captains' attendance at bureau-level meetings where policy is discussed, authority to promulgate policy within their divisions, and review of proposed legislation. The Chief of the State Police, Colonel Skolfield, testified that prior to his assuming command approximately three months before the date on which he appeared as a witness, staff meetings attended by the captains had occurred only sporadically and policy had been developed by the Colonel, Lieutenant Colonel and central bureau staff. Colonel Skolfield expressed the intention to change this top-down management structure and to involve the Field Division Captains in policy-making on a more regular basis. Unit decisions are based on the employees' actual duties and responsibilities and not on the basis of future intended responsibilities. Maine School Administrative District No. 14 and East Grand Teachers Association, No. 83-A-09, slip op. at 9, 6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983). On the basis of the record in this case, the Field Division Captains' participation in infrequent staff meetings, during which they were informed of policies which they were then expected to execute, does not warrant a J-1 exclusion. If Colonel Skolfield's plan includes the captains' -17- involvement in developing policy and in deciding whether to effectuate such proposals, and if such involvement is for an extended period of time, such participation probably would justify a J-1 exclusion, depending on the nature of the policies being developed. The State has stressed that Field Division Captains have the authority to make policy for their divisions, "to the extent [that matters are] not covered by [the bureau's] Standard Operating Procedure or in times of emergency." Brief on behalf of the State at 10. Northern Field Division Captain Whynott testified that the bureau's standard operating procedure is comprehensive and covers most situations; therefore, the captains' ability to develop policy is limited to isolated, infrequent events. The first instance of policy development mentioned by Captain Whynott involved moving roadblocks designed to apprehend drivers operating under the influence closer to "watering holes." This decision involved selection of the technical means of operation and did not alter the objectives of the bureau in fulfillment of its mission. The second example of policy formulation by a captain cited was the decision as to which hour of the work week would constitute the "fortieth-hour" reduction for the division employees. The policy decision involved was a legislative decision to reduce the work week for all executive branch employees by one hour. This decision impacted the means and extent to which the bureau could accomplish its mission. There was no evidence in the record that the captains or anyone else in the bureau played any role in the Legislature's action. The captains' role was limited to implementing the policy in their capacity as the employees' supervisors. The State's final argument is that the Field Division Captains should be excluded from bargaining pursuant to J-1 because they set the goals and objectives for their divisions, -18- based on the needs of the areas that they serve. Captain Whynott testified that each year the Chief of the State Police issues a mission statement and the Field Division Captains are asked to issue goals and objectives as guidance for their respective commands to follow in fulfilling the mission statement. The typical goals and objectives statement submitted into evidence, Joint Exhibit 37, is so general in content that it does not rise to the level of constituting the development of particular objectives in fulfillment of the bureau's mission, and it explicitly leaves selection of the "methods, means and extent of meeting such aims" to the troop commanders. Unlike the CID Captain, who is headquartered in Augusta and who has often been involved in policy development, Captain Whynott could not recall making any particular substantive recommendations concerning pending legislation or submitting legislative proposals during his 29-year tenure. In summary, the Field Division Captains have a significant impact on the implementation of bureau policy, but they have not played a meaningful role in policy formulation. This situation is not unusual given that the Field Division Captains work away from the bureau headquarters and the bureau has had a top-down, quasi- military command structure over the years. On the basis of the record, the Field Division Captains are not excluded from the Act pursuant to clause J-1. The J-2 Exclusions The second clause of 26 M.R.S.A. 979-A(6)(J) ["J-2"] exempts from the definition of State employee 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 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) -19- ("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. As noted earlier, MSEA has conceded that the position of State Police Internal Affairs Lieutenant should be exempted from the coverage of the Act pursuant to J-2. The I.A. Lieutenant is a classic J-2 classification; therefore, the position's duties and responsibilities relating to J-2 status will be outlined in order to provide the parties a reference point to facilitate their evaluation of other classifications claimed exempt pursuant to J-2. The I.A. Lieutenant maintains all grievance files for the Bureau of State Police; is in regular contact with the Bureau of Employee Relations to resolve contractual interpretation questions that arise during the course of grievance investigations; attends all grievance meetings; discusses all -20- pending grievances with the Chief or Deputy Chief and the departmental Personnel Manager; gives his opinion as to what the employer's response should be, with his recommendations usually being followed; discusses grievance settlements with union officials on behalf of the employer and authority to reach settlement; and clears all grievances being settled at the troop level to assure that the settlements are fair and consistent throughout the bureau, from the viewpoint of the employer. This sort of concentrated and significant involvement in interpreting bargaining agreements on behalf of the employer and representing management's interest in the grievance procedure for bureau employees other than those he directly supervises is the type of work contemplated by J-2. The State has argued that the same three classifications which were allegedly exempt pursuant to J-1 are also excluded from the coverage of the Act under J-2. The only relevant testimony concerning any contract administration function performed by the Assistant Director of the Bureau of Liquor Enforcement was preparation of the first-level grievance response on behalf of the State for subordinate employees. All supervisors are the first-level grievance responders for the employees who they supervise; therefore, this activity does not rise to the level required to warrant a J-2 exclusion. Likewise, the CID Captain's only function which is arguably pertinent to J-2 is service as the first level of the grievance procedure for the employees under the Captain's direct supervision. The Field Division Captains are also the first level of the grievance procedure for their immediate subordinates--the troop commanders; otherwise, they have no authority to settle grievances arising under the Maine State Troopers Association agreement (covers all other uniformed personnel in each field division). Colonel Skolfield further testified that questions concerning the interpretation of bargaining agreements that arise within the bureau are directed to the departmental Personnel Manager or to -21- the Bureau of Employee Relations. On the basis of the record in this case, none of the proposed J-2 exemptions, other than the I.A. Lieutenant, are warranted. The Confidential Employee Exclusions The final three exclusionary designations being sought by the State in this case are based on Section 979-A(6)(C) of the Act. That provision exempts from the definition of State employee those 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 . . . ." 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 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 of 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). Collective bargaining by and for state employees is the general rule under the Act and the Board has held that the exemptions contained in Section 979-A were narrowly drawn by the Legislature and must, therefore, 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, -22- 1983). "Confidential employees" are those who have a significant involvement in formulating, determining and effectuating the employer's collective bargaining positions, policies and strategies. Id., at 18. One's involvement is "significant" if it is substantial, though rarely performed, or relatively minor but is performed regularly, and such determination of significance must, of necessity, be made on a case-by-case basis. Id. While recognizing that "confidential employees" generally need access to one "confidential" clerical employee in order to carry out their collective bargaining functions, Id. at 27-28, the Board has held as follows: 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 said 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 19-20. Applying this principle requires the hearing examiner to determine whether, in addition to constituting an inherent portion of a clerical employee's job duties and responsibilities, Lincoln Sanitary District, supra, at 13, confidential collective bargaining functions can, through reasonable reassignment of duties, be concentrated in a limited number of individuals within particular State departments and agencies. State of Maine, No. 82-A-02, supra, at 19. The Department of Public Safety is one of the few executive departments with employees in the State employee Law Enforcement Services bargaining unit; therefore, the department plays a significant role in negotiating the agreement for that unit. The department is the only one that participates in negotiations with -23- the Maine State Troopers Association ("MSTA") for the agreement that covers the employees represented by that bargaining agent. Bargaining proposals from MSEA are distributed for review and comment by the Bureau of Employee Relations to the Commissioner of Public Safety, and to the department's Director of Administrative Services and Personnel Manager. The Bureau of Employee Relations distributes MSTA proposals to the Chief and Deputy Chief of the State Police and to the departmental Personnel Manager. The department's representatives on the State bargaining team for the Law Enforcement Services negotiations are the Assistant State Fire Marshall and the Deputy Director of the Bureau of Liquor Enforcement. Usually, the management bargaining team for negotiations with MSTA consists of the Deputy Chief of the State Police and the departmental Personnel Manager; however, the Chief of the State Police is also participating on the State team in the latest round of negotiations. The departmental Personnel Manager meets with and discusses bargaining proposals with the Commissioner and the Chief of the State Police and drafts proposals and responses on their behalf. In addition to having significant involvement in collective bargaining, the departmental Personnel Manager has a major role in administering MSEA collective bargaining agreements on behalf of the employer within the department. Prior to responding to grievances at step 2 of the grievance procedure, the bureau directors consult with the Personnel Manager in formulating their responses. The Personnel Director usually serves as the Commissioner's designee at the third step of the grievance procedure and represents the department in proceedings before the Bureau of Employee Relations, the last step of the grievance procedure immediately preceding arbitration. Clerk Typist III (Priscilla Martin) Clerk Typist III Priscilla Martin is the secretary to the departmental Personnel Manager. Ms. Martin maintains all personnel and grievance files for the department and collective -24- bargaining files for the Personnel Manager. Grievance files contain management's evaluation of the merits in pending cases. The Clerk Typist III has prepared negotiations materials, including management bargaining proposals and memoranda to the Bureau of Employee Relations concerning the impact of union bargaining proposals upon the department. The departmental Personnel Manager is permanently assigned to, and has been actively involved in, formulating and effectuating collective bargaining positions and strategies on behalf of the State; therefore, access to the employer's confidential collective bargaining information is an inherent part of the duties and responsibilities of the Personnel Manager's secretary. Clerk Typist III Priscilla Martin is excluded from the definition of State employee pursuant to Section 979-A(6)(C). Administrative Secretary (Sophie Welsh) Administrative Secretary Sophie Welsh serves as the secretary to the Commissioner of Public Safety and to the Deputy Chief of the State Police. Ms. Welsh maintains the Commissioner's files and handles all incoming mail for the Commissioner and the Deputy Chief, including correspondence from the Bureau of Employee Relations concerning the State's bargaining positions. The Administrative Secretary has typed letters and memoranda from the Commissioner to the Director of the Bureau of Employee Relations in response to requests by the latter for amplification concerning the former's views on pending bargaining proposals for use by the management bargaining team. Administrative Secretary Sophie Welsh is excluded from the coverage of the Act pursuant to Section 979-A(6)(C). Clerk Stenographer III (Joan Butler) Clerk Stenographer III Joan Butler is the secretary to the Chief of the State Police. The Clerk Stenographer opens and routes all in-coming mail addressed to the Commissioner and the Chief and Deputy Chief of the State Police, including -25- confidential collective bargaining-related correspondence from the Bureau of Employee Relations. Ms. Butler has typed memoranda from the State Police Chief to the Bureau of Employee Relations concerning proposals in the MSTA negotiations, and bargaining proposals developed by the Chief. Ms. Butler maintains the Chief's files, including that containing his personal bargaining notes. While the duties noted in the preceding paragraph are all "confidential" within the meaning of Section 979-A(6)(C), the question arises whether both the Administrative Secretary and the Clerk Stenographer III should be excluded from collective bargaining or whether Ms. Butler's exclusion can be avoided through a reasonable reassignment of some duties. Although neither Ms. Welsh nor Ms. Butler indicated on their Administrative Report of Work Content the approximate percentage of work time spent performing confidential work, it did not appear from the record that there was sufficient collective bargaining activity in the department to require the exclusion of both clerical positions. Since the Commissioner is involved in collective bargaining affecting all of the employees in the department, it is more reasonable to exclude the Administrative Secretary from the coverage of the Act and to concentrate the confidential clerical functions in that position and in that of Clerk Typist III Priscilla Martin. The Commissioner is or has been involved in litigation and has ordered that mail concerning the litigation be delivered to him unopened. Ms. Butler could easily do the same with all mail from the Bureau of Employee Relations or such mail could be opened by Ms. Welsh. Until recently, only the Deputy State Police Chief was involved in the MSTA negotiations. If the Chief opts to continue being part of the management team, the Deputy Chief could readily arrange to coordinate all confidential correspondence between the department and the Bureau of Employee -26- Relations and have all bargaining-related typing and filing be performed by his secretary, Ms. Welsh. In the event that the Administrative Secretary is out of the office for longer than a day or two, whatever confidential duties that arise requiring immediate attention can be assigned to the Clerk Typist III. Clerk Stenographer III Joan Butler will not be excluded as a "confidential" employee. MERITS OF MSEA'S PETITION MSEA's petition seeks unit inclusion for the Chief Accountant classification at the Department of Public Safety. In its response, the State alleged that the Chief Accountant was properly excluded from collective bargaining coverage on the basis of Section 979-A(6)(C) and/or (J). The predecessor classification to that now at issue--Chief Accountant Public Safety--was assigned to the State employee Supervisory Services bargaining unit. The sole evidence in the record in support of an exclusionary designation based on Section 979-A(6)(C) is that the Chief Accountant "[w]ill be expected to cost proposals for MSTA contract as was done by two prior Chief Accountants." Brief on behalf of the State, at 12. As noted above in connection with the State Police Field Division Captains, representation decisions are based on duties actually performed by the employee(s) in the classification(s) at issue. The current Chief Accountant has never costed out collective bargaining proposals on behalf of the State. Second, the department's Director of Administrative Services, a former Chief Accountant whose current position is exempt from the coverage of the Act, testified that he has and will continue to cost out the impact of bargaining proposals upon the department; however, he may need to have the Chief Accountant check his figures. In light of the Director of Administrative Services' ability to cost out proposals and the introduction of MFASIS, permitting more costing work to be -27- performed centrally by the Department of Administrative and Financial Services, the services of the Chief Accountant are not required for the State to successfully carry out its collective bargaining functions in connection with the Department of Public Safety. The Chief Accountant is not excluded from the coverage of the Act on the basis of the 979-A(6)(C) exemption. Several of the Chief Accountant's duties and responsibilities were cited as mandating an exclusionary designation pursuant to the first clause of 979-A(6)(J). Each of these averments will be discussed. First, the State points out that the Chief Accountant replaces the Director of Administrative Services when the latter is away from the office on annual or other short-term leave. The Chief Accountant's sole involvement in costing out the financial impact of various possible individual lay-offs and in recommending which lay-off should be implemented occurred while the Chief Accountant was filling in for the Director of Administrative Services who was on leave at that time. As the hearing examiner pointed out at page 42 of the D.O.T. decision, temporary assignment to policy formulation work, even for periods as long as one year, does not require a J-1 exclusion, either during the term of such temporary assignment or thereafter. Second, 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. Consistent with the provisions of Section 979-E(1) of the Act, supervisory employees are individuals in executive departments whose responsibilities include "such management control duties as scheduling, assigning, overseeing and reviewing the work of subordinate employees, or . . . exercising judgment in adjusting grievances, applying other established personnel policies and procedures and in enforcing a collective bargaining agreement or establishing or participating in the establishment -28- of performance standards for subordinate employees and taking corrective measures to implement those standards." Since implementation of established policy is inherent in the job of every supervisor in State service, such involvement alone does not mandate exclusion from the ambit of the Act. As discussed above, what is required for an exemption pursuant to J-1 is participation in both the formulation of particular objectives for fulfilling a departmental or agency mission and the selection of the methods, means and extent of meeting such objectives. The Chief Accountant's supervisory functions include "'[m]anaging/directing the accounting, budgeting, financial analysis, and financial planning functions' of the department." Brief of behalf of the State at 11. An integral part of performance of these duties is the establishment of the accounting systems the department uses to track and account for revenues and expenditures. All of these supervisory duties involve only the implementation and not the formulation of policy. The Chief Accountant's suggestions concerning amending the dress code and altering the department's tacit "policy" prohibiting the employment of convicted felons are other examples of the exercise of supervisory authority. Neither idea was conceived in the abstract; both were direct responses to particular situations which arose involving employees directly supervised by the Chief Accountant. In each case, the Chief Accountant's action can be characterized as participation in the establishment of performance standards for subordinate employees--a typical supervisory employee function. The State argues that an example of "policymaking" was the Chief Accountant's decision to require that two people count the large sums of cash often received by the department, particularly by the Maine Drug Enforcement Agency. This decision did not in any way change the objectives of the department or even of the -29- accounting division in the fulfillment of their respective missions. As enunciated in the J-1 standard, the selection of the technical means of operation does not constitute the formulation of policy. Other examples of alleged involvement in policymaking cited are the Chief Accountant's attendance at weekly meetings with the Commissioner, the Director of Administrative Services and the Personnel Manager. During the course of these meetings, the Chief Accountant discusses the financial impact of contemplated action on the various bureaus in the department and updates the other attendees on the status of the various accounts in the department's budget, including accounts where expenditures are outstripping revenues. The Chief Accountant then works with the Director of Administrative Services to match expenditures with the various revenue sources available. The Chief Accountant's role in this context is to provide detailed financial information to the policymakers in the department. This activity does not constitute adequate grounds for a J-1 exclusion. The Chief Accountant did develop one policy for the accounting division within the meaning of the J-1 test--the requirement that expense vouchers be submitted monthly, unless the total sum claimed due was less than ten dollars or the voucher was the last one submitted at the end of the fiscal year. This policy has had a significant impact on the objectives of the division. Its implementation resulted in a considerable reduction in workload and enhanced the division's ability to carry out its mission with existing resources. The Chief Accountant not only initiated the idea but also implemented it within the department. The policy was later adopted by the State Controller and it has been incorporated into the Financial Procedures Manual used throughout the executive branch of State government. This single instance of involvement in both the formulation and the effectuation of policy by the Chief -30- Accountant does not warrant excluding the classification pursuant to clause J-1. D.O.T. decision, at 41. The State's final argument in support of an exclusionary designation for the Chief Accountant is that the position should be exempted from collective bargaining pursuant to clause J-2. The test used in weighing potential J-2 exclusions is set forth at pages 18-19 above. In support of the sought-after exemption, the State points to the fact that the Chief Accountant reviews and approves approximately 95 percenet of the department's expenditures, including employee expense reimbursement vouchers. In approving and rejecting expenses, the Chief Accountant applies the detailed standards contained in the State Financial Procedures Manual and, in the case of bargaining unit employees, similar standards contained in the relevant provisions of collective bargaining agreements. While the total amount of the expenditures approved by the Chief Accountant each year is probably very substantial, the standards applied in the expense review process are explicit and detailed, leaving little room for the exercise of independent judgment. Second, while the Chief Accountant "approves" most departmental expenditures, the transaction documents are then forwarded to the Pre-Audit Division of the Bureau of Accounts and Control of the Department of Administrative and Financial Services for final review and approval, using the same detailed standards, prior to payment actually being authorized. The Chief Accountant's role in reviewing departmental expenditures does not involve sufficient exercise of independent judgment to rise to the level required for a J-2 exclusion. The Chief Accountant performs very responsible professional work as an accountant and accounting supervisor. The Chief Accountant's duties and responsibilities do not include involvement in both policy formulation and effectuation, the exercise of independent judgment in enforcing the terms of a -31- collective bargaining agreement on behalf of the employer, or access to the employer's confidential collective bargaining information. The Chief Accountant at the Department of Public Safety is, therefore, a State employee, within the meaning of Section 979-A(6). Since the Chief Accountant's duties and responsibilities are primarily supervisory in nature, the classification is assigned to the State employee Supervisory Services bargaining unit. ORDER On the basis of the foregoing stipulations, findings of fact and discussion and by virtue of and pursuant to the provisions of 26 M.R.S.A. 979-E(3) (1988), it is hereby ORDERED: 1. That the Motion to Dismiss filed by the State of Maine in Case No. 91-UC-45 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: Assistant State Fire Marshall Assistant Director, Bureau of Liquor Enforcement State Police Criminal Investigation Division Captain 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: State Police Internal Affairs Lieutenant 4. That the following classifications, followed within parentheses by the name of the individual occupying the position, fall within the exclusion contained in 26 M.R.S.A. 979-A(6)(C) (1988) and are, therefore, excluded from the coverage of the Act: Clerk Typist III (Priscilla Martin) Administrative Secretary (Sophie Welsh) -32- 5. That the balance of the Petition for Unit Clarification filed by the State of Maine in Case No. 83-UC-45 is dismissed. 6. That the classification Chief Accountant at the Department of Public Safety 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. Dated at Augusta, Maine, this 4th day of February, 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. -33-