Maine State Employees Association, Local 1989, SEIU, and State of Maine, Department of Inland Fisheries and Wildlife, No. 93-UC-05, June 9, 1994 and Interim Order, Sept. 29, 1993. UC report aff'd 95-UCA-01. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 93-UC-05 Issued: June 9, 1994 ___________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Petitioner, ) ) and ) UNIT CLARIFICATION REPORT ) STATE OF MAINE, DEPARTMENT OF ) INLAND FISHERIES AND WILDLIFE, ) ) Respondent. ) ___________________________________) This unit clarification proceeding was initiated on June 2, 1993, when the Maine State Employees Association, Local 1989, SEIU (hereinafter referred to as "MSEA") 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. MSEA's petition seeks to have the classification of Chief Accountant at the Department of Inland Fisheries and Wildlife included in the State employee Supervisory Services bargaining unit. On June 7, 1993, the Bureau of Employee Relations filed a response to MSEA's petition on behalf of the Department of Inland Fisheries and Wildlife ("State"). The State's response alleges that the Chief Accountant was properly excluded from bargaining pursuant to 26 M.R.S.A. 979-A(6)(C) and/or (J) and moves for dismissal of M.S.E.A.'s petition pursuant to Board Rule 1.16(A)(2). By agreement of the parties, the State's motion was considered and decided first, before the merits of the petition were weighed. The State's motion to dismiss was denied in an Interim Order issued on September 29, 1993, the contents of which are incorporated in and made part of this report by reference. Due to the significant time interval between the evidentiary proceeding in Case No. 91-UC-11 and the instant matter's becoming ripe for decision, the State requested the opportunity to present -1- additional testimony and evidence concerning the bargaining unit status of the Chief Accountant to supplement that produced in connection with the earlier case. An evidentiary hearing on the merits of the petition was held in the Labor Relations Board Conference Room, Room 714 of the State Office Building, Augusta, Maine, on December 21, 1993. MSEA was represented by Timothy L. Belcher, Esq., and the State was represented by Sandra S. Carraher, 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 both filed post-hearing briefs on the merits of the petition on January 19, 1994. JURISDICTION The jurisdiction of the executive director to hear and decide these matters and to make a unit clarification decision herein lies in 26 M.R.S.A. 979-E(3). FINDINGS OF FACT AND DISCUSSION PRELIMINARY MATTERS Section 979-E(3) of the Act sets forth five procedural prerequisites which must be met before the executive director can rule on the merits of any unit clarification petition. These threshold issues are: (1) the employees in the bargaining unit involved must be represented by a bargaining agent, (2) the attendant conditions at the time that the unit was created must have changed sufficiently to justify altering the makeup of the unit, (3) the petitioner must be either the public employer or the bargaining agent for the unit involved, (4) the parties must be unable to agree on the modification being sought through the petition, and (5) there must not be any pending question concerning representation for the unit involved. In the instant case, the pleadings established that MSEA is the certified -2- bargaining agent for the State employee Supervisory Services bargaining unit, MSEA is the petitioner herein, the parties are unable to agree on an appropriate unit modification with respect to the Chief Accountant, and there is no pending question concerning representation in connection with any of the State employee bargaining units. MSEA's petition alleges that the final procedural prerequisite--the substantial change requirement in connection with the Chief Accountant position--has been met because the position was established subsequent to the creation of the Supervisory Services bargaining unit. The pertinent substantial change issue has previously been litigated by the parties and the holding in the prior case is dispositive herein. The relevant discussion was as follows: The substantial change alleged in MSEA's petition is the "[c]reation of new position excluded unilaterally by employer." The bargaining unit involved in the petition is the same as that in Case No. 83-UC-43. The Chief Accountant classification in the Department of Inland Fisheries and Wildlife, which is the subject of Case No. 91-UC-11, was created on or about May 12, 1986, the date the position was first filled by an employee. Since the position of Chief Accountant did not exist in 1976 when the Supervisory Services bargaining unit was created, its unit status could not have been established at that time. For this reason, the creation of a new classification subsequent to formation of the bargaining unit at issue satisfies the substantial change requirement of [Section] 979-E(3). Portland Public Library Staff Assoc. and Portland Public Library, No. 88-UC-03, slip op. at 9 (Me.L.R.B. June 2, 1988), and the executive director so holds herein. State of Maine, Department of Inland Fisheries and Wildlife and Maine State Employees Association, Nos. 83-UC-43 and 91-UC-11, slip op. at 8 (Me.L.R.B. May 4, 1993). Since all five threshold requirements have been met, it is proper to consider the merits of MSEA's petition. -3- MERITS OF THE PETITION Section 979-A(6)(C) Discussion The State alleged in response to MSEA's petition that the Chief Accountant had been properly excluded from the coverage of the Act pursuant to clauses 1 and 2 of Section 979-A(6)(J) ("J-1" and "J-2" respectively) and/or Section 979-A(6)(C). During the course of the evidentiary hearing, the State announced that it is not claiming an exclusionary designation on the basis of J-2 in this case. In light of the State's declaration and its post- hearing argument, only the Section 979-A(6)(C) and J-1 grounds for excluding the Chief Accountant will be considered herein. The parties agreed during the course of the evidentiary proceeding on the merits of the petition that, but for the alleged applicability of the statutory exclusions, the Chief Accountant is a state employee within the definition of Section 979-A(6). The parties further agreed that, if the Chief Accountant is held to be a State employee within the meaning of the Act, the position may properly be assigned to the State employee Supervisory Services bargaining unit. The first substantive question presented in this case is whether the Chief Accountant is excluded from the coverage of the Act pursuant to Section 979-A(6)(C). The rationale for this exclusion and its parameters were recently outlined as follows: 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 exception 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 -4- 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, 1983). State of Maine, Department of Public Safety, et al., Nos. 83-UC-45 and 91-UC-45, slip op. at 22-23 (Me.L.R.B. February 4, 1994). At the outset, it is important to note that the Chief Accountant has not participated directly or indirectly in collective bargaining on behalf of the employer. No evidence was presented that, as an integral part of the position's job duties or otherwise, the Chief Accountant had any sort of access to the State's collective bargaining strategies, priorities or positions, prior to their being revealed at the bargaining table. Despite this lack of involvement in collective bargaining, the State maintains that the Chief Accountant has the sort of confidential relationship contemplated in the Section 979-A(6)(C) exemption. The State argues that, like secretaries to personnel officers or Commissioners, the Chief Accountant must be excluded from the coverage of the Act pursuant to Section 979-A(6)(C). Contrary to the State's basic assumption, those who provide clerical support to Commissioners or personnel officers are not excluded as "confidential" employees because of their access to -5- "personnel files, employee discipline files, or information relating to prospective reorganizations, the elimination of programs or layoffs. Such secretarial employees are excluded because an inherent part of their job duties is access to the employer's collective bargaining positions and strategies, in advance of their being revealed in the bargaining process. State of Maine, Department of Public Safety, supra, slip op. at 24-25. While issues concerning the nature of items which may be placed in employees' personnel files, the sort of notice, if any, which must be given to an employee before items are placed in his or her personnel file, the length of time negative items may be retained in a personnel file, the establishment of a mechanism through which employees can comment upon or attempt to rebut items placed in their personnel files may be mandatory subjects of bargaining, personnel files themselves do not contain any information which could jeopardize the employer's bargaining position. Likewise, while the product of negotiations--the parties' collective bargaining agreement--will control the outcome of individual grievances, such disputes themselves are not normally mandatory subjects of bargaining. Information contained in individual grievance files cannot imperil the employer's bargaining posture; therefore, access to such files does not warrant a Section 979-A(6)(C) exemption. In any event, the only relevant evidence in the record was that the Chief Accountant has access to employee personnel files and the human resource side of MFASIS; there is no evidence concerning the Chief Accountant having any access to grievance files. The State goes on to argue that the Chief Accountant should be excluded on confidential grounds because inherent in the position's job duties is evaluating the fiscal impact of prospective reorganizations, elimination of programs, and layoffs--all mandatorily negotiable subjects. The rationale for excluding those who cost out bargaining proposals from the -6- 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). While decisions concerning the topics cited and/or the impact of such decisions upon wages, hours, or working conditions of unit employees may be mandatory subjects of bargaining in the abstract, no evidence was presented that any of these matters was ever at issue in collective negotiations in which the Chief Accountant participated directly or indirectly. In the absence of such bargaining, the Chief Accountant's access to this information could not possibly jeopardize the public employer's bargaining positions or strategies. Although the topics cited might be in contention in future negotiations, unit decisions are based on the actual duties and responsibilities of the positions at issue and not on future intended responsibil- ities. State of Maine, Department of Public Safety, supra, slip op. at 17. Perhaps of greater importance in determining the position's bargaining unit status is the nature of the information to which the Chief Accountant has access. In the course of developing the State's FY '94-'95 budget, the Bureau of the Budget gave each executive department or agency a target figure for each year of the biennium. This target was the amount of reduction from the department's total "Part I" appropriation which the department was expected to incur in order for the overall State budget to be balanced. Each department determined how its target could be met and its recommended actions were submitted to the Legislature as the "Part II" budget. Preparatory to the fashioning of the Department's "Part II" budget, the Chief Accountant determined the fiscal impact of several program and position elimination -7- options for each of the Department's bureaus. Once the decisions concerning which reductions would be recommended, the Chief Accountant prepared the detailed budget which was submitted to the Legislature. The biennial budget proposal for FY '94-'95, including both Parts I and II, was introduced in the Legislature as L.D. 283 on February 2, 1993. Once it was before the Legislature, the budget proposal and volumes of explanatory fiscal information and detailed narrative justifications for the specific deappropriations being proposed were all public information. After public hearings before both the Appropriations Committee and each executive department's legislative oversight committee, the final budget was enacted by the Legislature and signed by the Governor on or about June 30, 1993. See, Ch. 410, P.L. 1993. The information accessible to the Chief Accountant was neither confidential, in a collective bargaining sense, nor was it confidential, in a generic sense, long before the final budget decisions were made by the Legislature. Other grounds cited in support of a confidential exclusionary designation for the Chief Accountant were that the incumbent in the classification has prepared budget work programs for the department, monitored expenditures during the course of the fiscal year to prevent overspending, and costed-out the fiscal impacts of the decisions of employees to participate in the voluntary cost savings program. Work programs are defined in 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 four quarters of the fiscal year. During the course of this proceeding no one alleged that agency work programs, ledgers or other books of accounts are exempt from the provisions of 1 M.R.S.A. 408. -8- 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). Turning to the voluntary cost savings program, the record indicates that, at some point, the State discussed the program with MSEA and various proposals were exchanged. It was unclear whether such negotiations predated the establishment of the program by the Legislature, P.L. 1989, c. 702, Pt. F (effective March 22, 1990), or were connected with its extension through subsequent legislation, P.L. 1991, c. 591, Pt. BB and P.L. 1993, c. 410, Pt. Y. Whenever such negotiations occurred, the Chief -9- Accountant testified that the Director of Administration had "spearheaded" the Department's efforts therein and that the Chief Accountant had not had access to proposals being developed by the Bureau of Employee Relations prior to such proposals being presented to MSEA. The Chief Accountant had been kept informed as to what had been agreed to or proposed at the table, after the fact. The Chief Accountant then assisted the Director of Administration in determining whether the proposals or agreements would be financially beneficial to the Department. Once the program had been adopted, the Chief Accountant had costed out the salary savings that would be realized as a result of individual employees having opted to participate in the program. Since the Chief Accountant had access to the employer's proposals and positions only after they had been presented to the bargaining agent, this activity does not warrant a confidential exclusionary designation. The final basis suggested as justifying the Section 979-A(6)(C) exemption at issue was that the Chief Accountant " . . . acts as the Director of the Bureau of Administration in [the Director's] absence and at such times is responsible for supervising the personnel officer." Brief on behalf of the State, at 5. In the Department of Public Safety case, the State sought an exclusionary designation pursuant to Section 979-A(6) (J-1) based in part on the fact that the Chief Accountant in the Department of Public Safety replaced that department's Director of Bureau of Administrative Services when the latter was out of the office on annual or other short term leave. One of the reasons that the argument was rejected in Public Safety was the principle 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." Department of Public Safety, supra, slip op. at 28. Although concerning an exemption sought pursuant to a different provision of the Act, the rationale underlying rejection of this -10- averment applies equally here. The public policy of the State of Maine embodied in Section 979 of the Act is that collective bargaining by and on behalf of State employees is the general rule. Consistent with this policy, the Board has ruled that the exemptions contained in Section 979-A 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). Section 979- A(6)(C) requires that one's own duties--and not those of a different individual for whom one occasionally fills in--must necessarily imply a confidential relationship with respect to mandatorily negotiable subjects. As was pointed out at pages 27- 28 of the Department of Public Safety decision, the introduction of MFASIS reduces the State's reliance on people in each executive department to cost out bargaining proposals by permitting such work to be done centrally at the Department of Administrative and Financial Services. Finally, while replacing the Director of Administration or at any other time, the Chief Accountant has never performed any confidential collective bargaining duties on behalf of the employer. The Chief Accountant is not excluded from the coverage of the Act pursuant to 26 M.R.S.A. 979-A(6)(C). Section 979-A(6)(J) Discussion The second major issue presented in this case is whether the Chief Accountant was properly excluded from the coverage of the Act pursuant to the exemption embodied in the first clause of 26 M.R.S.A. 979-A(6)(J). J-1 exempts from the definition of "State employee" those executive branch employees "[w]ho substantially participate in the formulation and effectuation of policy in a department or agency." The scope of this exclusion has been discussed 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 -11- 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, supra, slip op. at 18 (citations omitted). The Chief Accountant performs highly responsible work constantly monitoring the fiscal status of the department and its constituent bureaus and reporting actual or potential budget overruns to the bureau directors for corrective action. In addition, the Chief Accountant serves as the department's principal liaison with the Bureau of Accounts and Control, the Bureau of the Budget, and the Legislative Office of Fiscal and Program Review. During the department's transition from reliance on dedicated revenues to financing through the State general fund appropriations, the Chief Accountant's primary role was participation in reconciling the parallel accounts maintained by each of these entities in determining the amount owed to the department. These job duties involve only the implementation and not the formulation of policies. Participation in both policy determination and effectuation is required to qualify for a J-1 -12- exclusion. Department of Public Safety, supra, slip op. at 19. Other examples cited in support of an exclusionary designation pursuant to J-1 included the decision not to pull moose lottery applications in cases where applicants' checks had been returned prior to the lottery's being conducted. Prior to the change, applications were pulled and an applicant was not permitted to participate in the lottery if the applicant's check was returned prior to the lottery being conducted. Checks of applicants who had participated in the lottery were sometimes returned after the lottery had been held. Whether returned before or after the lottery had been conducted, the State charged $20 for all returned checks. Second, the Chief Accountant decided to allot all hunter safety program telephone costs along a straight 75% federal/25% state basis, rather than allocate such costs differently at different times of the year based on an estimate of which type of calls were more likely to be received during which months of the year. Certain programs administered by the department's safety division are 75% federally funded while others are entirely State funded. The Chief Accountant also changed the way that checks submitted by insurance companies together with requests for copies of reports of accidents investigated by the Warden Service are handled. In the past, the checks received with the requests for reports were sent to the accounting section for posting and deposit and, if no report could be provided, a refund check was issued. The Chief Accountant asked the Warden Service to retain each check until the requested report had been provided; if that was not possible, the check would be returned to the requesting party. None of the changes discussed in the preceding paragraph went to the particular objectives of either the accounting section or of the department. In each case, the Chief Accountant was involved in selecting the technical means through which the accounting function would be performed. These changes are akin -13- to a decision as to whether records of accounts should be maintained manually or by computer. Whether lottery applications are pulled or not, whether a different cost allocation formula should be applied to a particular type of expenditure, or whether a check should be held and returned if necessary or be deposited and have a separate rebate check issued, each case results in an accurate accounting of the transaction without altering the basic accounting process. The Chief Accountant did engage in policy formulation and implementation, within the meaning of J-1, in one instance cited in the record. Prior to April of 1992, the Department refunded all overpayments received from members of the public. As a consequence of cuts in the Department's budget, one accounting position was eliminated in FY '91. After determining the cost of issuing refund checks and of related record keeping, the Chief Accountant recommended that rebate checks for amounts less than $10 only be issued upon the written request of those due such sums. The Commissioner approved the suggestion and it became departmental policy. This was a substantial change in both the objectives of the accounting section and in the means, methods and extent of the section in accomplishing its mission. Any doubt as to whether this change was a matter of policy was resolved when the Legislature enacted part UU of Chapter 410 of the Public Laws of 1993 which allowed the State Controller and Treasurer "to issue rules, policies or procedures to limit the number of disbursements made for less than $5." This single instance of participation in the development and effectuation of policy is not sufficient to mandate exempting the Chief Accountant from the coverage of the Act. State of Maine, Department of Transportation, No. 83-UC-36, slip op. at 41-42 (Me.L.R.B. Apr. 11, 1986). The Chief Accountant is engaged in highly responsible professional employment as an accountant and accounting -14- supervisor. Despite having significant job duties, the Chief Accountant neither has access to the employer's confidential collective bargaining positions or strategies nor substantially participates in the formulation and implementation of policy. The Chief Accountant at the Department of Inland Fisheries and Wildlife is,s therefore, a State employee within the meaning of 26 M.R.S.A. 979-A(6). Given this legal conclusion and consistent with the parties' stipulation, the Chief Accountant 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: That the classification Chief Accountant at the Department of Inland Fisheries and Wildlife 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 9th day of June, 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. -15- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 93-UC-05 Issued: September 29, 1993 ___________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Petitioner, ) ) and ) INTERIM ORDER ) STATE OF MAINE, DEPARTMENT OF ) INLAND FISHERIES AND WILDLIFE, ) ) Respondent. ) ___________________________________) On June 7, 1993, the State of Maine filed its response to the unit clarification petition in the above-captioned case. Among the grounds set forth as warranting dismissal of the petition, paragraph 5 of the response stated: The State further asserts that MSEA knew that the position of Chief Accountant in the Department of Inland Fisheries and Wildlife was excluded from bargaining prior to current negotiations for a successor to the parties' 1989-1992 collective bargaining agreement. Pursuant to these negotiations, the State and MSEA have an agreement that any proposals must have been submitted by November 5, 1992. Because MSEA failed to submit a proposal on the Chief Accountant position prior to that time, it was barred from doing so. Accordingly, this unit placement question could have been but was not raised in these negotiations which will result in an agreement containing a bargaining unit description. Acceding to the hearing examiner's suggestion, the parties agreed that an efficient approach to the case would be to bifurcate consideration of the State's motion to dismiss based on Rule 1.16(A)(2) from the evaluation of the merits of the petition. After receiving evidence and argument relating to the State's motion, the hearing examiner would rule thereon. Should the motion be denied, the parties would then consider whether -1- determination of the Chief Accountant's bargaining unit status could be based on the relevant portion of the record in Case No. 91-UC-11. At the request of either party, additional evidence and/or argument concerning the Chief Accountant would be received prior to issuance of a ruling on the merits of MSEA's petition. The parties filed a stipulation of facts relating to the Rule 1.16(A)(2) issue on August 31, 1993, and the various documents referred to in the stipulation were filed on September 1, 1993. The parties' stipulation has been incorporated as the findings of fact section herein. 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. The parties presented oral argument on the motion on September 7, 1993. JURISDICTION The pleadings in this proceeding established that the moving party, the State of Maine, is the public employer, within the meaning of 26 M.R.S.A. 979-A(5) (1988), of the employees whose classifications are included in the State Employee Supervisory Services bargaining unit. The petitioner in the underlying unit clarification case, the Maine State Employees Association, Local 1989, SEIU, is the certified bargaining agent, within the meaning of 26 M.R.S.A. 979-A(1) (1988), for the State Employee Supervisory Services bargaining unit. The jurisdiction of the hearing examiner to hear this matter and to issue this interim order lies in 26 M.R.S.A. 979-E (1988). FINDINGS OF FACT On the basis of the record which consists of the parties' stipulations of fact and accompanying exhibits, the hearing -2- examiner finds: 1. On November 9, 1990, MSEA filed a petition for unit clarification, seeking inclusion of the position of Chief Accountant in the Department of Inland Fisheries and Wildlife in the Supervisory Services Bargaining Unit, Case No. 91-UC-11. 2. On November 26, 1990, the State filed a response in which it moved to dismiss MSEA's petition regarding the Chief Accountant on the grounds that it was barred pursuant to MLRB Rule 1.16(A)(2). 3. On April 9, 1991, Marc P. Ayotte, Executive Director of the MLRB, issued an Interim Order in Case Nos. 83-UC-43 and 91-UC-11 in which he ruled that the 1989-92 collective bargaining agreements between MSEA and the State of Maine each contain a bargaining unit description, within the meaning of Board Rule 1.16(A)(2). 4. The 1989-92 collective bargaining agreements for the Administrative Services, Professional and Technical Services, and Supervisory Services bargaining units expired on June 30, 1992. 5. The State and MSEA began bargaining for successor agreements to the Administrative Services, Professional and Technical, and Supervisory Services bargaining agreements on May 28, 1992. 6. The State and MSEA agreed to a cutoff date for bargaining proposals of 5:00 p.m. November 5, 1992. 7. On June 29, 1992, MSEA presented a contract proposal that would amend Article 1 of the parties' collective bargaining agreements by adding the following sentence to the second paragraph of said article: "While the dispute remains unresolved, the classification in dispute shall be included in the bargaining unit which is more closely suited to the classification." 8. On November 5, 1992, the State presented a contract proposal that would amend Article 1 of the parties' collective bargaining agreements by adding, as new paragraphs 2 and 3 to said article, the following: Positions proposed for exclusion from collective bargaining on lists provided to MSEA on October 7, 1991 and October 21, 1991 by the Bureau of Employee Relations shall be excluded from collective bargaining. The parties agree that other positions excluded from bargaining units on the date of this agreement are appropriately excluded from collective bargaining. -3- 9. No further proposals were made by either side after 5:00 p.m. November 5, 1992. 10. On or about December 7, 1992, and at various times thereafter, the Bureau of Employee Relations took the position, during litigation in another forum, that disputes over unit placement are prohibited subjects of bargaining. 11. On May 4, 1993, Marc Ayotte issued his Unit Clarification Report in Case Nos. 83-UC-43 and 91-UC-11, dismissing Case No. 91-UC-11. 12. On May 14, 1993, Julie Armstrong, Chief Counsel, Bureau of Employee Relations, Timothy Belcher, Staff Attorney, MSEA and Marc Ayotte met to discuss how to proceed with the remaining petitions. 13. At that meeting, without having waived any procedural defenses, the State agreed 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. 14. On May 25, 1993, MSEA Associate Executive Director Roger Parlin wrote to Director of the Bureau of Employee Relations Kenneth Walo as follows: Please be advised that the Maine State Employees Association reserves the right to pursue any and all available remedies relating to any unit clarification dispute relating to any position that has been excluded from our bargaining units by unilateral action of management, whether or not the Maine State Employees Association has actual notice of such exclusion, and whether or not a petition for unit clarification has been filed concerning that position prior to the expiration of the agreement. 15. On June 7, 1993, Mr. Walo wrote a letter to Mr. Parlin, responding to that quoted in the preceding paragraph, which stated: This is in response to your letter of May 25 "reserving your rights" to any and all available remedies relating to any unit clarification dispute relating to positions excluded from collective bargaining by the State. Roger, it is the State's position that this "reservation" of rights is too little and too late. It is the State's position that you have already waived your rights to challenge the exclusion of any positions that could have been raised prior to -4- November 5, 1992, the agreed upon cutoff date for bargaining proposals for current negotiations. Accordingly, successor collective bargaining agreements will contain bargaining unit descriptions, and you will not have reserved your rights in a timely or appropriate fashion. 16. On June 14, 1993, Mr. Parlin wrote a letter to Mr. Walo, responding to that quoted in the preceding paragraph, which stated: Thank you for your June 7, 1993 letter stating the State's position in this matter. We disagree, and expect the MLRB to resolve the question shortly. I also disagree with your characterization of the negotiations concerning this issue, and would remind you that your office has taken the position that this is an illegal subject of bargaining. 17. The State and MSEA reached tentative agreement on successor collective bargaining agreements for the Administrative Services, Professional and Technical Services, Supervisory Services, and Operations, Maintenance and Support Services bargaining units on June 11, 1993. 18. At the end of the negotiations for the 1993-95 agreement Alicia Kellogg and Steven Butterfield updated the list of classifications in the back of each contract booklet. 19. On July 21 the collective bargaining agreements for the Administrative Services, Professional and Technical Services and Supervisory Services bargaining units were ratified. 20. Neither of the proposals mentioned in paragraphs 7 and 8 hereof were incorporated into the parties' agreements mentioned in the preceding paragraph. 21. The Stipulations of Fact signed by the parties on December 19, 1990, in Case No. 91-UC-11 are expressly incorporated herein. DISCUSSION The relevant portion of Rule 1.16 upon which the State bases its motion to dismiss provides that "[u]nit clarification petitions may be denied if . . . (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 -5- resulted in an agreement containing a bargaining unit description." This rule is designed to reflect the statutory preference that questions concerning unit status be resolved by agreement of the parties and to promote stability in the relationship between public employees and their employer during the term of a collective bargaining agreement. State of Maine, Department of Inland Fisheries and Wildlife, et al., Nos. 83-UC-43 and 91-UC-11, slip op. at 9-10 (Me.L.R.B. May 4, 1993). The operative facts which the State argues warrant dismissal of the petition are not in dispute. Prior to the onset of the negotiations which resulted in the current collective bargaining agreement between the State and MSEA for the bargaining unit at issue, MSEA knew of the existence of the classification named Chief Accountant in the Department of Inland Fisheries and Wildlife and also knew that the position had been excluded from the coverage of the State Employees Labor Relations Act ("Act") at the time that it was created. Despite having such knowledge, MSEA failed to raise any question concerning the Chief Accountant's bargaining unit status at any time during the negotiations prior to the date set by the parties' negotiating ground rules for the closing of bargaining agendas. MSEA did not attempt to reserve its right to pursue the classification's unit status until May 25, 1993, shortly before the parties reached final tentative agreement on the successor collective bargaining agreements. As was the case with the bargaining agreements discussed in State of Maine, Department of Inland Fisheries and Wildlife, Nos. 83-UC-43 and 91-UC-11, Interim Order (Me.L.R.B. Apr. 9, 1991), at the end of the negotiations for their current collective bargaining agreements, representatives of the State and MSEA met and updated the list of classifications included in each unit and such updated lists are included in the back of the contract booklet for their respective unit. As decided in Inland Fisheries and Wildlife, the parties' 1993-95 agreements each -6- contain a bargaining unit description within the meaning of Rule 1.16(A)(2). Id. at 8. The State argues that the above facts place the MSEA's petition in the same position as that of the employer in Town of Thomaston and Teamsters Local Union No. 340, No. 90-UC-03 (Me.L.R.B. Feb. 22, 1990); therefore, the instant petition should be dismissed. The facts in Thomaston differ from those in the instant case. In Thomaston, the petitioner first raised the unit status issue after the negotiations had been completed and a final tentative agreement had been reached. The petitioner here first raised the unit status issue on November 9, 1990, over a year and one-half prior to the beginning of the negotiations for the current agreements and continued to press its position throughout the litigation in Inland Fisheries and Wildlife, until its petition in that case was dismissed on procedural grounds on May 4, 1993. Shortly thereafter, and prior to the parties' reaching final tentative agreement on the successor collective bargaining agreements, the instant petition was filed. The facts in Thomaston are sufficiently dissimilar from those in the instant matter that the holding in that case does not warrant dismissal of the petition at issue. The facts in the instant case are analogous to those surrounding the State's petition in Inland Fisheries and Wildlife. Ruling on MSEA's motion to dismiss the State's petition in that case, the hearing examiner stated: The State filed its petition in the instant case on December 3, 1982, well before the beginning of the negotiations that resulted in the parties' 1989-92 collective bargaining agreements. Filing a representation petition with the Board puts the respondent on notice of the pendency of a controversy concerning the parameters of the unit involved. Subsequent to the filing of this and the State's other unit clarification petitions, the parties litigated the Department of Transportation petition and engaged in settlement discussions concerning the instant petition, -7- among others, until shortly before the convening of the evidentiary hearing herein. State of Maine and Maine State Employees Assoc., Nos. 83-UC-15 - 83-UC-35 and 83-UC-37 - 83-UC-48 (Me.L.R.B. May 16, 1990) (Interim Order). As indicated in the footnote from Thomaston cited above, the National Labor Relations Board will not modify bargaining units mid-term, in response to representation petitions filed [other than during] a contractual window period or after expiration of a collective bargaining agreement, unless the petitioner raised the change being sought during negotiations; the petitioner did not bargain away its position; and the petitioner preserved its rights by notifying the other party of its intent to pursue the issue through the board's representation procedures. In the case at bar, the State put MSEA on notice in 1983 of its intent to seek unit modifications and, since then, the parties have been actively engaged in attempting to resolve their differences through discussions away from the collective bargaining process. The State has consistently sought the exclusionary designations at issue and there is no evidence that the State ever abandoned its position in exchange for other concessions. In the circumstances, the executive director holds that the State's petition is not barred by Rule 1.16(A)(2). State of Maine, Department of Inland Fisheries and Wildlife, et al., Nos. 83-UC-43 and 91-UC-11, slip op. at 13-14 (Me.L.R.B. May 4, 1993). The parties' negotiating ground rule, closing bargaining agendas on a particular date, might have precluded the subsequent refiling of the petition herein, if the unit status of the classification at issue was something that had to be raised at the bargaining table before the petition could be filed. Clearly, the unit status issue was not raised at the bargaining table prior to the closing of the bargaining agendas; however, it did not need to be so raised in this case. Through filing the petition in Case No. 91-UC-11 in 1990, MSEA placed the State on notice of its intention to seek the unit inclusion at issue. Just as it was reasonable for the State to rely on its pending petitions in not raising unit status issues during the negotiations that resulted in the parties' 1989-92 agreements, it was equally reasonable for MSEA to do so in the latest round of bargaining. During such negotiations and for the foreseeable -8- future, both parties were and continue to be on notice, by virtue of their pending petitions, that the collective bargaining status of a large number of classifications in State service remains in dispute. By reviewing the pending petitions in light of "best" and "worst-case" scenarios, the parties were able to establish the range of fiscal and other impacts upon their proposals and counterproposals of the pending unit clarification litigation. The parties' negotiating ground rule simply is not relevant in the instant case. Finally, the State avers that there is a clear distinction between the status of its petition in Inland Fisheries and Wildlife and that of the MSEA's petition here: the State's petition in the former case was validly filed while the MSEA's petition in Case No. 91-UC-11 was ultimately determined to have been untimely filed. As was pointed out at pages 12-13 of the Thomaston decision and in the cases cited therein, the critical factor in determining whether to dismiss a petition pursuant to Rule 1.16 (A)(2) is whether the petitioner took sufficient action during the negotiations that resulted in the collective bargaining agreement currently in effect to apprise the other party of its intent to pursue the unit status issue through legal channels. By serving the petition upon the respondent, filing it with the Board, and continuing to press its position in litigation until the case was decided on procedural grounds in May of 1993, MSEA placed the State on notice of its intent to seek unit inclusion of the Chief Accountant through Board process. Shortly after the petition in Case No. 91-UC-11 was dismissed and before final tentative agreement was reached on the successor agreements, MSEA served and filed the current petition. Throughout the period of the negotiations for their current agreements, the State was on notice that MSEA was seeking unit inclusion for the Chief Accountant and there is no evidence that MSEA ever abandoned its position for other concessions; therefore, the hearing examiner concludes that MSEA's petition in -9- the instant case is not barred by Rule 1.16(A)(2). INTERIM ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the provisions of 26 M.R.S.A. 979-E(3), it is ORDERED: That the motion to dismiss filed by the State of Maine on June 7, 1993, in Case No. 93-UC-05, is denied. Within twenty (20) days of the date of this order, the parties' representatives will notify the hearing examiner as to whether the decision on the substantive issue concerning the unit status of the Chief Accountant in the Department of Inland Fisheries and Wildlife can be made on the basis of the relevant evidence and argument in Case No. 91-UC-11 or whether they wish to submit supplemental evidence and argument prior to such decision being made. Dated at Augusta, Maine, this 29th day of September, 1993. MAINE LABOR RELATIONS BOARD /s/_____________________________ Marc P. Ayotte Executive Director -10-