STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 97-UD-13
Issued: September 5, 1997
________________________________
)
WINTHROP SCHOOL DEPARTMENT )
EDUCATIONAL SUPPORT PERSONNEL/ )
MAINE EDUCATION ASSOCIATION, )
)
Petitioner, )
) UNIT DETERMINATION REPORT
and )
)
WINTHROP SCHOOL DEPARTMENT, )
)
Employer. )
________________________________)
This unit determination proceeding was initiated on
April 11, 1997 (amended April 22, 1997) when Ms. Joan M. Morin, a
UniServ Director with the Maine Education Association ("M.E.A."
or "union"), filed a petition with the Maine Labor Relations
Board (Board) for determination of an appropriate bargaining unit
pursuant to section 966(1) of the Municipal Public Employees
Labor Relations Law ("MPELRL").
The union's petition seeks the formation of a bargaining
unit composed of the following positions in the Winthrop School
Department: educational technicians, custodian/maintenance
personnel and school secretaries[fn]1. The Winthrop School
Department ("employer") objects to inclusion of the three
principals' secretaries in the proposed unit, on the basis that
they are "confidential" employees excluded from coverage of the
MPELRL pursuant to 26 M.R.S.A. 962(6) (C).
Prior to commencement of the formal hearing, the parties met
with the hearing examiner to explore the possibility of
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1 It appears from the record that the classification of "school secretaries"
includes the positions of high school principal's secretary, middle school
principal's secretary, grade school principal's secretary, guidance secretary,
and student information management secretary, but does not include the
position of secretary to the superintendent of schools (who is not physically
situated in any of the schools, and whose duties were distinguished from those
of principal's secretary during the hearing).
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settlement and, in the alternative, to formulate stipulations of
fact and offer exhibits into evidence.
EXHIBITS
The parties agreed to the admission of the following
exhibits[fn]2:
Respondent's Ex. No. 1 Job Description: High Schobl
Principal's Secretary
Respondent's Ex. No. 2 Job Description: High School
Guidance Secretary
Respondent's Ex. No. 3 Job Description: Middle School
Principal's Secretary
Respondent's Ex, No. 4 Job Description: Grade School
Principal's Secretary
Respondent's Ex. No. 5 Job Description: Grade School
Student Information Management
Secretary
STIPULATIONS
The parties agreed to the following pertinent facts:
1. The petitioner, Maine Education Association/NEA, is a
bargaining agent within the meaning of the MPELRL. 26 M.R.S.A.
962(2).
2. The respondent, Winthrop School Department, is a public
employer within the meaning of the MPELRL. 26 M.R.S.A. 962(7).
3. To the knowledge of the parties, none of the positions
addressed in this petition have been the subject of a prior unit
determination by the Board.
4. There is no certification bar (see Rule 1.14) or contract
bar (see Rule 1.15) to the filing of this unit determination
petition.
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2 The only other exhibit admitted into evidence is Respondent's Exhibit No.
6, "List of 'confidential' duties compiled by witness Jan Perry," which was
admitted into evidence at hearing over the objection of the union.
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5. In the event the proposed unit is not found to be
appropriate, the union wishes to participate in an election in
any units determined to be appropriate.
6. There are three different schools within the Winthrop
School Department, each employing employees in the classifi-
cations proposed for inclusion in the unit.
7. The employees in the job classifications of educational
technician, custodian/maintenance personnel and school secretary
are all essentially support staff, even though their job duties
differ.
8. All employees in the subject classifications are
supervised by their school principal and subject to labor
relations policies established by the Winthrop Board of
Education.
9. The three school principals report to the superintendent
of schools and the superintendent reports to the Winthrop Board
of Education.
10. All employees in the subject classifications are paid on
an hourly basis except for educational technicians II and III.
The superintendent of schools is responsible for recommending to
the Board of Education the wages of each of the employees
employed in the subject classifications.
11. There is a similarity in the scale of earnings of all of
the subject classifications; the range of wages is $7.16 an hour
up to $11.18 an hour.
12. With the exception of a few differences in benefits
based on job classification, all benefits and terms and
conditions of employment are based on the number of hours worked
rather than on job classification.
13. Each classification requires a high school diploma or a
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GED. The educational technicians II and III require post-
secondary education as required by the State Department of
Education.
14. There are two other existing bargaining units in the
Winthrop School Department, both represented by MEA. One unit is
comprised of teachers and the other unit is comprised of bus
drivers. There is also a current organizational drive on behalf
of food service employees by the United Paperworkers Inter-
national Union.
15. The job description for the student information
management secretary at the grade school is the same as the job
description for the student information management secretary at
the high school.
16. The educational technicians, the custodian/maintenance
personnel and all of the school secretaries share a community of
interest as that term is defined in Board Rule 1.11.
17. The only issue presented to the Board is whether the
three principal secretaries should be excluded from the coverage
of the MPELRL because they are "confidential employees" as that
term is defined in 26 M.R.S.A. 962(6) (C).
HEARING
After due notice an evidentiary hearing was held by the
undersigned hearing examiner on June 4, 1997 at the Board's
conference room in Augusta, Maine. Ms. Joan Morin and Mr. Joseph
A. Stupak, Jr., appeared on behalf of the Maine Education
Association, and Mr. L. Roger Lajeunesse, superintendent of
schools, appeared on behalf of the Winthrop School Department.
No one requested to intervene.
The employer presented as its witnesses: Ms. Paula Gaudet,
principal of Winthrop Grade School; Mr. Phil Richardson,
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principal of Winthrop High School; and Ms. Jan Perry, secretary
to the superintendent of schools.
The union presented as its witness Ms. Melody Jenkins,
school secretary at the grade school.
The parties were given the opportunity to examine and cross-
examine witnesses, offer evidence and present oral argument at
the close of the hearing.
JURISDICTION
The jurisdiction of the hearing examiner to hear this
matter and make a unit determination lies in 26 M.R.S.A. 966
(1) and (2) (1988).
FINDINGS OF FACT
Upon review of the entire record, the hearing examiner
finds:
1. Each of the three school principals has one secretary.
The principals' secretaries have access to or are responsible for
handling a variety of matters for the principals such as: (i)
compiling and computing school budgets for presentation to the
superintendent; (ii) typing and filing employee performance
evaluations and corrective "action plans"; (iii) typing and
filing employee disciplinary matters; (iv) screening telephone
calls which, at times, are complaints from parents about school
employees or calls from the Department of Human Services
concerning students and their families; (v) opening mail which,
at times, consists of "privileged communications" from attorneys;
(vi) typing or opening correspondence of a personal and private
nature to/from the superintendent, or teachers or parents; (vii)
"keeping track" of staff absences and the reasons therefor; and,
(viii) student medical information.
2. Each principal's proposed budget is prepared with
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information elicited from teachers as to their "needs" such as:
what materials (e.g., books) they would like, dues and fees. All
salary information originates in the superintendent's office so
it is not a part of a principal's proposed budget. The
superintendent's budget which comes back to the principals may
contain information suggesting the possibility of a reduction-in-
force (RIF) in a particular school, although this has not
happened recently. Both of the principals who testified
indicated that they would not want school personnel to hear about
the possibility of RIF's, by way of the superintendent's proposed
budget. Their fear is that staff morale may be needlessly
negatively affected by rumors of lay-offs.
3. School principals do not play any "official" role or
have any "direct say" in collective bargaining negotiations for
any of the existing bargaining units, nor are they "privy to"
labor relations strategy. Principals are a part of the so-called
"A-Team" (administration team) which meets with the superin-
tendent occasionally about matters unrelated to collective
bargaining (e.g., student population rates and the resultant
possibility of reductions-in-force) . There are no typed minutes
of these A-Team meetings.
4. Ms. Paula Gaudet, principal of the Winthrop Grade School
for five years, testified that in her eight years with the
Department she has probably been asked informally three or four
times for an opinion about some part of a collective bargaining
contract, and she is not sure what happened with her input.
Ms. Gaudet stated that her only "role" in the collective
bargaining process is "to live with whatever comes my way."
5. Ms. Jan Perry, presently the secretary to the
superintendent, has been employed as a school secretary for 8 1/2
years. Ms. Perry testified that it was her understanding as a
school secretary that she would be fired if she divulged the
confidential information she had access to in the principal's
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office. Ms. Perry never typed correspondence related to labor
negotiations or strategy while employed as a school secretary.
6. Ms. Melody Jenkins, presently a school secretary, has
been the secretary to the superintendent of the Winthrop School
Department. Ms. Jenkins testified that in the 1 1/2 years she
worked as the superintendent's secretary she did type the
superintendent's notes from labor negotiating sessions for a
teachers contract. Ms. Jenkins testified that in the five or so
years she has worked as a school secretary she has never typed
contract proposals.
DISCUSSION
As stipulated by the parties, the only issue presented by
this petition is whether the three principal secretaries are
excluded from collective bargaining coverage pursuant to section
962(6) (C) of the Municipal Public Employees Labor Relations Law.
This section of the MPELRL defines "public employee" to mean any
employee of a public employer, except any person:
. . . [w]hose duties as deputy, administrative
assistant or secretary necessarily imply a confidential
relationship to the executive head, body, department
head or division head[.]
26 M.R.S.A. 962(6) (C). As this section of the law constitutes
an exception to the general rule of public employee coverage
under Maine's collective bargaining statutes, it is strictly
construed. State of Maine and Maine State Employees Association,
No. 82-A-02, slip op. at 6 (Me.L.R.B. June 2, 1983).
The exception for "confidential employees" is not intended
to include all employees with access to information considered
"confidential" in other contexts. The Board has repeatedly held
that to be a "confidential employee," one must be "permanently
assigned to collective bargaining or to render advice on a
regularly assigned basis to management personnel on labor
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relations matters." State of Maine, No. 82-A-02, slip op. at 18
(June 2, 1983) (quoting Waterville Police Department and
Teamsters Local Union No. 48, Report of Appellate Review of Unit
Determination Hearing, slip op. at 3 (October 4, 1978)).
The term "labor relations matters" does not include contract
administration duties, such as grievance handling, but refers to
"the strategic and tactical considerations involved in nego-
tiating collective bargaining agreements." Id., slip op. at 7.
In addition, the Board has held that "[i]n many if not most
cases, 'confidential' supervisory employees need access to at
least one 'confidential' clerical employee, to carry out their
'confidential' duties," State of Maine, slip op. at 28, but
the employer should make an effort to centralize confidential
functions to the maximum extent possible. Id.,slip op. at
19-20.
The purpose of this exclusion is to avoid situations where
employees would be faced with conflicts in loyalty in the
collective bargaining context between that owed to the employer
and that owed to the bargaining agent. The potential of such a
conflict may arise with employees who, as an inherent part of
their job duties, have access to the employer's collective
bargaining positions and strategies before they are presented at
the bargaining table. These collective bargaining ideas,
policies or positions, "if disclosed to the bargaining agent,
could provide the bargaining agent with unfair leverage or
advantage over the public employer." Town of Fairfield and
Teamsters Local Union No. 48, No. 78-A-08, slip op. at 3
(Me.L.R.B. Nov. 30, 1978); AFSCME, Council 93 and Town of
Sanford, No. 92-UD-03, slip op. at 36-37 (Feb. 21, 1992).
In the present case, it is clear that the principals'
secretaries do not have access to the type of confidential
matters contemplated by the exclusion under section 962(6) (C)
In fact, the principals for whom they work are not privy to those
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such collective bargaining matters. Their participation at
A-Team meetings may be considered, at most, "information-
providing"; these meetings do not amount to labor negotiation
strategy sessions. State of Maine and Maine State Emnlovees
Association, No. 78-A-09, slip op. at 8 (March 2, 1979) (An
employee whose only role related to collective bargaining matters
is that of an information provider is not a confidential
employee.) Even if they did touch on such matters, the
information shared in these meetings is not recorded by any of
the principals' secretaries. The only evidence presented that
approaches the standard applicable to the confidential employee
exclusion was the testimony of Ms. Jenkins that as secretary to
the superintendent, a position that is not in contention in this
proceeding, she typed notes taken by the superintendent in
negotiation sessions.
The fact that principals' secretaries have regular access to
confidential matters regarding staff evaluations, budget planning
(including potential reductions-in-force), grievance adminis-
tration, private and personal correspondence to/from the
superintendent and principal has not been missed by the hearing
examiner. There is nothing about this determination that
prevents the school department from continuing to assign such
matters to the principals' secretaries and requiring that they be
held in the strictest confidence as a condition of continued
employment. This job requirement does not, however, create a
conflict in loyalties for these secretaries in the collective
bargaining context as elaborated earlier in this report.
Having found that the principals' secretaries are not
confidential employees within the meaning of section 962(6) (C)
and based on the stipulation of the parties that all of the
positions in the proposed unit share a community of interest, it
is established that the petitioned-for unit is an appropriate
unit for purposes of collective bargaining.
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APPROPRIATE UNIT DETERMINATION
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. 966, the following unit of employees of the Winthrop
School Department is held to conform to statutory requirements:
Included: educational technicians, custodians and school
secretaries (including principals' secretaries)
Excluded: secretary to the superintendent of schools and
all other employees of the Winthrop School
Department.
Dated at Augusta, Maine this 5th day of September, 1997.
MAINE LABOR RELATIONS BOARD
/s/________________________
Joyce A. Oreskovich
Hearing Examiner
The parties are hereby advised of their right, pursuant to 26
M.R.S.A. 968(4) (Supp. 1996), to appeal this report 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 issuance of
this report. See Board Rules 1.12 and 7.03 for requirements.
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