STATE OF MAINE                        MAINE LABOR RELATIONS BOARD
                                      Case No. 98-UC-01
                                      Issued: January 21, 1998 


____________________________________
                                    )
MAINE STATE EMPLOYEES ASSOCIATION,  )
LOCAL 1989, SEIU,                   )
                                    )
  Bargaining Agent and Petitioner,  )
                                    )
     and                            )     UNIT CLARIFICATION
                                    )           REPORT
STATE OF MAINE, JUDICIAL            )
DEPARTMENT,                         )
                                    )
                  Public Employer.  )
____________________________________)


                          INTRODUCTION

     This is a unit clarification proceeding that was initiated
on July 16, 1997, when Jack Hunt, Esq., a representative of the
Maine State Employees Association, Local 1989, SEIU, (hereinafter
referred to as the "Union"), filed a petition for unit clarifica-
tion with the Maine Labor Relations Board ("Board" or "MLRB"). 
This petition was filed pursuant to paragraph 4 of the Supreme
Judicial Court, Administrative Order in Regard to Judicial
Employees Labor Relations, SJC-128, (effective July 25, 1984),
Me. Rep. 467-478 A.2d LXXXIX-XCIV ("Administrative Order") and
pursuant to section 1286(4) of the Judicial Employees Labor
Relations Act ("Act" or "JELRA"), 26 M.R.S.A. ch. 14.  The
Union's petition sought to have the positions of Director, Court
Appointed Special Advocate Program (CASA), and Director, Court
Alternative Dispute Resolution Service (CADRES), added to the
Professional Services Bargaining Unit.  The Judicial Department
("Employer") contends that both of these positions are department
heads and therefore excluded from the definition of employee
pursuant to paragraph 11(4) of the Administrative Order and
 1282(5)(D) of the Act.

     Prior to commencement of the formal hearing, the parties met
with the hearing examiner to explore the possibility of settle-

                               -1-

ment and, in the alternative, to offer exhibits into evidence and
formulate stipulations of fact. 

                             HEARING

     After due notice an evidentiary hearing on the petition was
held by the undersigned hearing examiner on October 3, 1997, at
the Board's conference room in Augusta, Maine.  Jack Hunt, Esq.,
Maine State Employee's Association, appeared on behalf of the
Union.  Linda McGill, Esq., appeared on behalf of the
Administrative Office of the Courts.  No one requested to
intervene.

     The Union presented no witnesses.  The Employer presented as
its witnesses Mr. J. David Kennedy, Regional Court Administrator
for Region III, and Mr. James Theodore Glessner, the State Court
Administrator.

     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
                                    
     This is the first decision issued by the Maine Labor
Relations Board or by its executive director or designee
regarding the collective bargaining process for employees of the
Judicial Department.  Although my jurisdiction has not been
questioned by either party, enforcement of the collective
bargaining rights granted to Judicial Department employees raises
unique jurisdictional issues that must be addressed before
proceeding.  A brief review of legislative history is necessary
to explain these issues.

     In 1983, legislation was enacted that ultimately led to the
creation of the current collective bargaining system for Judicial
Department employees.  Public Law 1983, chapter 412, An Act to
Authorize the Supreme Judicial Court to Provide for Collective 

                               -2-

Bargaining for Judicial Department Employees, did three things: 
it declared it the public policy of the State to recognize the
collective bargaining rights of Judicial Department employees, it
authorized the Supreme Judicial Court to propose procedures for
defining and implementing those rights, and it authorized the
Supreme Judicial Court to appoint an advisory committee to make
recommendations on those proposed procedures.  The Supreme
Judicial Court then established the Advisory Committee and
eventually endorsed the Advisory Committee's recommendations
prior to transmitting the proposals to the Legislature.  See,
Report of the Advisory Committee on Collective Bargaining for
Judicial Department Employees, March, 1984 ("Report").

     A key feature of the Advisory Committee's recommendation was
to develop a system that could make use of the body of expertise
and experience that had been developed over the years at the MLRB
through the administration of the then existing collective
bargaining laws for state and municipal employees.  Report, p.
11.  In taking this approach, the Advisory Committee recognized
that creating a collective bargaining system utilizing an
executive agency raised separation of powers issues both in terms
of the authority to establish the system and the authority to use
an executive branch agency to review administrative actions of
the judicial branch.  Report, pp. 11, 21.

     In its report to the Supreme Judicial Court and the
Legislature, the Advisory Committee noted that legal authorities
disagree over whether the separation of powers doctrine permits
the legislative branch to establish a collective bargaining
system for the Judicial branch.  Report, p. 11.  In Maine,
Article VI of the Constitution of Maine and Title 4, section 1 of
Maine's statutes provide that the Supreme Judicial Court has
general administrative and supervisory authority over the
Judicial Department.  Article III, section 2 of the Constitution
of Maine prohibits any one branch of government from exercising
any power rightfully belonging to either of the other branches.  

                               -3-

Strict application of the separation of powers doctrine would
hold that legislation is an improper means of granting collective
bargaining rights to Judicial Department employees.  Legislation
would be necessary, however, to require an executive branch
agency to become the enforcement agency for another branch.[fn]1 
Similarly, a separation of powers question arises in having an
executive branch agency such as the MLRB review the actions of
the judiciary.  As the Advisory Committee noted, these issues
were mentioned in District Court v. Williams, a case holding that
the State Employees Appeal Board does not have jurisdiction to
hear cases involving the discharge of a judicial department
employee.  See Report, p. 21, citing 268 A.2d 812 (1970).

     The Advisory Committee concluded that it was not necessary
that they attempt to resolve these separation of powers questions
definitively.  Instead, they recommended the concurrent adoption
of an Administrative Order by the Supreme Judicial Court and
enactment of legislation which together would grant rights and
create a collective bargaining system for Judicial Department
employees.  This two-pronged approach provided for the proper
source of authority to establish a collective bargaining system
that included an enforcement process without having the Supreme
Judicial Court abandon its constitutional and statutory respon-
sibilities over the Judicial Department.  See, Report, p. 9,
(reproducing Letter from Chief Justice Vincent L. McKusick to the
Honorable Gerard P. Conley and the Honorable John L. Martin,
transmitting the recommendations of the Advisory Committee).

     The Administrative Order proposed by the Advisory Committee
set forth the rights and responsibilities associated with
collective bargaining, defined who is covered and who must
participate in collective bargaining, and designated agencies
having authority to take action with respect to collective
bargaining, including the Maine Labor Relations Board.  

____________________

     1 Presumably this could also be achieved by an executive
order as long as the order was not inconsistent with statute.
                                     
                               -4-

The legislation proposed by the Advisory Committee set forth the
same rights and responsibilities as the Administrative Order and
also provided the details of the collective bargaining proce-
dures.  The legislation was patterned after the Municipal Public
Employees Labor Relations Law ("MPELRL") and the State Employees
Labor Relations Act ("SELRA") See, L.D. 2175, An Act to Create
the Judicial Employees Labor Relations Act, Statement of Fact
(111th Legislature, Second Regular Session, 1984), pp. 24-25. 
The Advisory Committee and the Supreme Judicial Court saw
"considerable practical utility" in having the details of the
collective bargaining procedure established by statute so that if
changes in details were necessary they could be made for
employees of the executive and judicial branches at the same
time.  See, L.D. 2175, Statement of Fact, p. 24, quoting Report,
p. 12.  The Administrative Order proposed by the Advisory
Committee was adopted by the Supreme Judicial Court effective on
July 25, 1984.  The Judicial Employees Labor Relations Act was
effective on that same date.

     To determine whether I have jurisdiction to decide this unit
clarification matter requires looking at both the Administrative
Order and the statute.  Paragraph 4 of the Administrative Order
states:
     
      4. Determination of bargaining unit
          Disputes between the Judicial Department and
     judicial employee or employees over the appropriateness
     of a unit for purposes of collective bargaining or over
     whether a supervisory or other position is included in
     a bargaining unit or over unit clarification shall be
     resolved by the executive director of the Maine Labor
     Relations Board.

Section 1286 of the Judicial Employees Labor Relations Act is the
statutory provision regarding the determination of a bargaining
unit.  This section closely parallels section 966 of the
Municipal Public Employees Labor Relations Law (MPELRL) and
section 979-E of the State Employees Labor Relations Act (SELRA). 
Section 1286 of JELRA states:

                               -5-

     26  1286. Bargaining unit; how determined

     1. Unit determination. In the event of a dispute
     between the public employer and an employee or
     employees over the appropriateness of a unit for
     purposes of collective bargaining or between the public
     employer and an employee or employees over whether a
     supervisory or other position is included in the
     bargaining unit, the executive director or his designee
     shall make the determination, except that anyone
     excepted from the definition of judicial employee under
     section 1282 may not be included in a bargaining unit.
     The executive director or his designee conducting unit
     determination proceedings may administer oaths and
     require by subpoena the attendance and testimony of
     witnesses, the production of books, records and other
     evidence relative or pertinent to the issues
     represented to them. 

     2. Criteria. In determining whether a supervisory
     position should be excluded from the proposed
     bargaining unit, the executive director or his designee
     shall consider, among other criteria, if the principal
     functions of the position are characterized by
     performing such management control duties as
     scheduling, assigning, overseeing and reviewing the
     work of subordinate employees, or performing such
     duties as are distinct and dissimilar from those
     performed by the employees supervised, 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 of
     performance standards for subordinate employees and
     taking corrective measures to implement those
     standards. 

     3. Determination of unit appropriateness. In
     determining the unit appropriate for purposes of
     collective bargaining, the executive director or his
     designee shall seek to insure to employees the fullest
     freedom in exercising the rights guaranteed by this
     chapter, to insure a clear and identifiable community
     of interest among employees concerned and to avoid
     excessive fragmentation among bargaining units. 

     4. Unit clarification. When there is a certified or
     currently recognized bargaining representative and when
     the circumstances surrounding the formation of an
     existing bargaining unit are alleged to have changed
     sufficiently to warrant modification in the composition
     of that bargaining unit, the public employer or any
     recognized or certified bargaining agent may file with 

                               -6-

     the executive director a petition for a unit
     clarification, provided that the parties are unable to
     agree on appropriate modifications and there is no
     question concerning representation. 

     The statutory provision on bargaining unit determination
clearly authorizes the executive director's designee to make unit
determinations.  This is consistent with the recommendation of
the Advisory Committee that "the Maine Labor Relations Board
exercise the same functions and authority with respect to
judicial employees' collective bargaining as it now possesses
with respect to other state employees."  Report, p. 11.  The unit
determination and unit clarification provisions under the
Judicial Employees Labor Relations Act, the Municipal Public
Employees Labor Relations Law and under the State Employees Labor
Relations Act are essentially identical.[fn]2  All three authorize
____________________

     2 The relevant provision under SELRA is 26 M.R.S.A.  979-E
which states:
 979-E. Bargaining unit; how determined
1.  In the event of a dispute between the public employer and an
employee or employees as to the appropriateness of a unit for
purposes of collective bargaining or between the public employer
and an employee or employees as to whether a supervisory or other
position is included in the bargaining unit, the executive
director or his designee shall make the determination, except
that anyone excepted from the definition of state employee under
section 979-A may not be included in a bargaining unit.  The
executive director or his designee conducting unit determination
proceedings shall have the power to administer oaths and to
require by subpoena the attendance and testimony of witnesses,
the production of books, records and other evidence relative or
pertinent to the issues represented to them.   In determining
whether a supervisory position should be excluded from the
proposed bargaining unit, the executive director or his designee
shall consider, among other criteria, if the principal functions
of the position are characterized by performing such management
control duties as scheduling, assigning, overseeing and reviewing
the work of subordinate employees, or performing such duties as
are distinct and dissimilar from those performed by the employees
supervised, 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 of performance standards for
subordinate employees and taking corrective measures to implement
those standards.

2.  In order to insure to employees the fullest freedom in
exercising the rights guaranteed by this chapter, to insure a
clear and identifiable community of interest among employees
concerned, and to

                               -7-

the executive director or his designee to make the unit
determination, all three prohibit the inclusion of anyone
excepted from the definition of employee and all three provide a
substantial amount of detail on the process and criteria to be
used.
  
     The Administrative Order, on the other hand, gives in one
sentence a general grant of authority to the executive director
to make unit determinations and unit clarification decisions.  It
does not specifically authorize the executive director's designee
to make such decisions.  This does not deter me.  The fact that
the Administrative Order delegates authority for unit determina-
tion issues to the executive director in general terms is
consistent with the overall plan to establish a collective
bargaining system generally, while leaving the details of the
process to statute.  The Administrative Order simply distin-
guishes those types of issues that may be decided initially by
the executive director and those that must be decided by the
Board.[fn]3  The statute makes the same distinction but also further
____________________

avoid excessive fragmentation among bargaining units in State
Government, the executive director of the board or his designee
shall decide in each case the unit appropriate for purposes of
collective bargaining. 

3.  Unit clarification.  Where there is a certified or currently
recognized bargaining representative and where the circumstances
surrounding the formation of an existing bargaining unit are
alleged to have changed sufficiently to warrant modification in
the composition of that bargaining unit, any public employer or
any recognized or certified bargaining agent may file a petition
for a unit clarification, provided that the parties are unable to
agree on appropriate modifications and there is no question
concerning representation. 

MPELRL contains the same language and an additional subsection
dealing with unit mergers.

     3 Under all of the collective bargaining laws enforced by
the Board, the executive director or designee makes the initial
decision on bargaining units and representation issues and those
decisions may be appealed to the Board.  26 M.R.S.A.  1288(2),
26 M.R.S.A.  968 (4), 26 M.R.S.A.  979-G(2), and 26 M.R.S.A.
 1028(2).  Prohibited practice complaints, on the other hand,
are decided by the Board without any preliminary decisions by the
Executive Director or designee other than determining the
sufficiency of the complaint.

                               -8- 

authorizes the executive director to designate another to make
such a determination.  In this case, I am the executive
director's designee authorized to hear and decide this unit
clarification matter.
  
     In summary, my jurisdiction to hear this matter and make a
unit clarification decision lies in paragraph 4 of the Supreme 
Judicial Court's Administrative Order in Regard to Judicial
Employees Labor Relations and section 1286 of the Judicial
Employees Labor Relations Act.  The Administrative Order and
JELRA are companion pieces that together create a system of
collective bargaining for the employees of the Judicial
Department and together serve as the source of my jurisdiction.

                            EXHIBITS

     The parties agreed to the admission of the following joint
exhibits:

Joint Exhibit #1     Professional Services Bargaining Unit
                     Agreement, July 1, 1997 through June 30,
                     1999.

Joint Exhibit #2     Organizational Chart, Judicial Department
                     (8/26/97)

Joint Exhibit #3     Job Description, Director, Court Alternative
                     Dispute Resolution Service (3/25/97, 3 pp.)

Joint Exhibit #4     Recruiting Notice, Director, Court
                     Alternative Dispute Resolution Service
                     (May 21, 1997)

Joint Exhibit #5     Job Description, Director, Court Appointed
                     Special Advocate (CASA) Program (4/15/97,
                     4 pp.)

Joint Exhibit #6     Recruiting Notice, Director, Court Appointed
                     Special Advocate Program (May 21, 1997)

____________________

26 M.R.S.A.  1289, 26 M.R.S.A.  968(5), 26 M.R.S.A.  979-H,
and 26 M.R.S.A.  1029.

                               -9-

                          STIPULATIONS

     1.  Maine State Employees Association, SEIU Local 1989, is
the certified bargaining agent for the Professional Services
bargaining unit of the Maine Judicial Department as defined in 
26 M.R.S.A.  1282(1).

     2.  The Judicial Department, State of Maine, is the public
employer within the meaning of 26 M.R.S.A.  1282(6).

     3.  The parties have entered into a collective bargaining
agreement dated July 1, 1997, through June 30, 1999.

     4.  There is neither a contract bar nor an election bar to
the petition.

     5.  The parties cannot agree on the inclusion or exclusion
of the two positions which are the subject of the petition at
issue.

     6.  Neither the Director of CADRES nor the Director of CASA
has ever participated as a management representative in the
collective bargaining negotiations for any bargaining unit of the
Judicial Department.

     7.  Neither the Director of CADRES nor the Director of CASA
has ever participated in the contractual grievance procedure on
behalf of management.

     8.  The two positions were created on July 1, 1997.

     9.  There is no question concerning representation.

    10.  If the positions are determined to be public employees,
then placement in the Professional Services Unit is appropriate.

                        FINDINGS OF FACT

     1.  The Court Appointed Special Advocate Program (CASA)
provides volunteer lay persons to serve as court appointed 

                              -10-

guardians ad litem in child abuse and neglect cases.  The program
is established by Title 4, section 1501, et seq.  The respon-
sibilities of guardians ad litem are specified in Title 22,
section 4005, subsection 1.

     2.  CASA volunteers receive training from the Judicial
Department.  An individual CASA volunteer is appointed to serve
as a guardian ad litem by a court order in a particular child
abuse or neglect case.  A guardian ad litem reviews relevant
medical and school records and interviews children, parents,
teachers and others in preparation for hearings.  The guardian ad
litem reports to the court concerning the guardian's investiga-
tion and recommendations as to what is in the best interests of
the child.  The guardian ad litem is assigned to the case until
its completion and provides on-going reports to the court about
reunification plans or services that are being provided to the
child.
 
     3.  The CASA program has one office in West Bath and is
staffed by the CASA Director and a secretary-receptionist who is
shared with the CADRES program.  The West Bath central office
accepts requests for CASA volunteers from District Courts
statewide.  The central office determines whether a volunteer is
available in that geographic area in the time frame needed and
then responds to the court's request.  The CASA office also
receives periodic reports from the CASA volunteer that are
forwarded to the individual court with a copy retained for the
CASA office.

     4.  Prior to July, 1997, the CASA Director was an
independent contractor appointed by the Chief Judge of the
District Court.  In July 1997, the statute was amended to make
the position a full-time state employee and to make the State
Court Administrator responsible for appointing the CASA Director
with the advice and consent of the Court Appointed Special
Advocate Advisory Panel.  4 M.R.S.A.  1502.  The Director
"serves at the pleasure" of the State Court Administrator.  Id.  

                              -11-

The State Court Administrator delegated supervisory responsibil-
ity for this position to the Regional Court Administrator for
Region III.
  
     5.  The CASA Program has between 120 and 150 volunteers
located throughout the state.  Within this group are a number of
volunteers who also serve as regional coordinators.

     6.  The following job description for the CASA Director is a
generally accurate reflection of the actual duties of the
position:

          The Director of the Court Appointed Special Advo-
     cate Program, in concert with the Court Appointed
     Special Advocate Advisory Committee and the staff,
     regional coordinators and volunteer advocates utilized
     by the program, assures the fulfillment of the statuto-
     ry role of the Court Appointed Special Advocate Pro-
     gram, the quality of its services and its efficient
     administration.

     A. Leadership

     The Director promotes the needs, concerns and interests
     of the Court Appointed Special Advocate Program, and in
     particular:

        1.   Promotes and maintains informed and cordial
             relations with CASA volunteers, the public, the
             Department of Human Services, other social ser-
             vices agencies, the legislature, the judiciary
             and the bar,
        2.   Serves on relevant committees or teams within
             the Judicial Branch, within other governmental
             or inter-governmental structures, and with pri-
             vate sector, non-profit sector or mixed enti-
             ties,
        3.   Acts as a liaison with National CASA, and dis-
             seminates information from that organization as
             appropriate,
        4.   Attends conferences and seminars to the extent
             resources permit and stays current with develop-
             ments in the child protective field,
        5.   Acts as a spokesperson for the CASA Program, and
        6.   Promotes the policies adopted by the Supreme
             Judicial Court, the CASA Advisory Committee, the
             Administrative Office of the Courts, and other
             Judicial Branch policy making entities.
                                
                              -12-

      B. Program Administration

      The Director oversees the daily administration of the
      Court Appointed Special Advocate Program and:

        1.   In consultation with the clerks of court and the
             CASA program's regional coordinators, is respon-
             sible for CASA provider availability,
        2.   Appoints and supervises regional volunteer coor-
             dinators,
        3.   Keeps monthly statistics on number status and
             disposition of cases and funds expended for
             administration, volunteer court attendance and
             travel, and prepares periodic reports on case-
             load and year to date status of expenditures,
        4.   Approves payment of CASA volunteer monthly ex-
             pense vouchers,
        5.   Oversees and evaluates work of other CASA staff
             and contractors, if any,
        6.   Responds to all complaints, and keeps appropri-
             ate documentation,
        7.   Prepares the appropriate portion of the Judicial
             Branch's Annual Report, and
        8.   Assures all other appropriate record-keeping.

      C. Legal and Other Consultative Support to CASA Volunteers

      As counsel for the CASA Program and its volunteers, the
      director:

        1.   Stays current on statutory, rule and procedural
             changes, proposed changes and other new informa-
             tion relative to child protective cases, and
             provides needed information about these topics
             to Regional Coordinators and CASA volunteers,
        2.   Acts as a consultant for CASA volunteers on a
             statewide basis, and provides individualized
             advice and counselling to them on all aspects of
             case management and presentation,
        3.   In appropriate circumstances, appears in court
             on behalf of the CASA program, to assist a par-
             ticular CASA volunteer or to act as the
             volunteer's attorney relative to the volunteer's
             duties as a guardian ad litem, and
        4.   Provides telephone consultation services outside
             of regular office hours.

      D. Court Appointed Special Advocate Advisory Committee

      As primary staff to the Court Appointed Special
      Advocate Committee, the Director, in consultation with
      the Chair:
      
                              -13-

        1.   Schedules regular and special meetings,
        2.   Proposes agenda items and develops and presents
             policy options,
        3.   Submits an annual status report,
        4.   Reports on the administrative and fiscal needs
             of the CASA Program,
        5.   Staffs policy development subsequent to initial
             committee review, and prepares final draft poli-
             cies for adoption by the Committee or other
             entities, and
        6.   Attends all meetings and keeps minutes for these
             meetings.


      E. CASA volunteer Selection, Training and Supervision

      To assure the overall quality of the Court Appointed
      Special Advocate Program, the Director oversees the
      selection, training, continuing education, supervision
      and evaluation of CASA volunteers.  In particular, the
      Director:

        1.   Keeps a file of applicants,
        2.   Publicizes the need for CASA volunteers,
        3.   Screens applications and assesses qualifications
             of candidates,
        4.   Conducts final interviews and selects new pro-
             viders,
        5.   Assesses the training needs of new providers,
             and develops their training program and appren-
             ticeship,
        6.   Assures and develops the continuing education of
             CASA volunteers by:
             a.  Planning professional development seminars
                 for CASA volunteers,
             b.  Promoting and attending statewide or regional
                 meetings and discussions for CASA volunteers,
             c.  Communicating with CASA volunteers through
                 memoranda and a newsletter about CASA poli-
                 cies and interests, new or revised statutes,
                 administrative orders, developments in the
                 child protective field, and information about
                 skills development, and
             d.  Developing and maintaining a library of re-
                 sources for CASA volunteers,
        7.   Oversees the supervision and evaluation process
             for CASA volunteers,
        8.   Assures compliance with established standards of
             practice and the policies and procedures of the
             Court Appointed Special Advocate Program,
        9.   Removes CASA volunteers from the program roster when
             it is in the best interest of the program, and
        10.  Meets requirements of the evaluation process for
             
                              -14-

             the CASA Director.

      F. Program Planning, Evaluation and Budgeting

      The Director is responsible for the implementation of
      an annual assessment of the Court Appointed Special
      Advocate Program.  The Director:

        1.   Develops and implements a program assessment
             system that includes consumer surveys and feed-
             back from regional coordinators judges, attor-
             neys, and CASA volunteers, and
        2.   Reports the results of the Director's assessment
             to the Committee, and as part of that report,
             suggests solutions for identified problems,
             revisions of the program's short-term and long-
             term objectives and makes recommendations about
             the program's budgetary needs.

      G. Position Requirements and Employment Relationship

      A law degree, legal experience, current admission to
      the Maine Bar and excellent oral and written communica-
      tion skills are required.  Substantial experience in: 
      management, child protective cases, public policy
      development and implementation, together with a demon-
      strated record of providing leadership in complex
      environments, are strongly preferred.  A graduate or
      undergraduate degree in family dynamics, counselling or
      other related field is also preferred.

      7.  The Chief Justice of the Supreme Judicial Court appoints
individuals to serve on the Court Appointed Special Advocate
Advisory Panel.  4 M.R.S.A.  1505.  The size and makeup of this
panel is entirely within the discretion of the Chief Justice.  
The current chair is Judge John Beliveau of the Maine District
Court, the Supreme Judicial Court liaison is Justice Robert
Clifford and the State Court Administrator or his designee serves
as a member of the Panel.  In addition, a judicial secretary who
used to be the clerk in the Lewiston District Court handling
protective custody cases serves on the Advisory Panel as do two
CASA volunteers.  In a recent meeting the CASA Advisory Panel
decided to request the Chief Justice to expand the Advisory Panel
to include another CASA volunteer, a representative of the
private bar and a representative of either the Attorney General's
Office or the Department of Human Services.

                              -15-

     8.  According to the statute, the role of CASA Advisory
Panel is to "set the policy for and monitor the Court Appointed
Special Advocate Program."  4 M.R.S.A.  1505.  The Advisory
Panel is, by its current design, representative of various
players and perspectives on the operation of the CASA program. 
In practice, the Advisory Panel functions as both a sounding
board for the Director and a conduit for ideas and information on
the operation of the program.  The presence of the Advisory Panel
ensures that the Director does not operate in a vacuum and that
the program is administered consistent with the overall policy
established by the Advisory Panel.  The Regional Court
Administrator likened the relationship between the Panel and the
CASA Director as that of a Board of Directors and an Executive
Director.  However, unlike such a relationship, the CASA Director
serves at the pleasure of the State Court Administrator, not at
the pleasure of the Advisory Panel.  The State Court
Administrator testified that the Advisory Panel was truly
advisory and had no real authority over the Director.
        
     9.  The job description states that the CASA Director is
primary staff to the Advisory Panel and, in consultation with the
Chair, proposes agenda items and develops and presents policy
options, staffs policy development subsequent to the initial
Panel review, and prepares final draft policies for adoption by
the Panel or other entities.  Generally, at an Advisory Panel
meeting, the Director will update the Panel on the status of the
program, particular areas of concern, proposed policy changes or
changes in the operation of the program.  In practice, the CASA
Director may have to decide whether an issue presents a policy
question that should be brought to the Advisory Panel for their
consideration or whether it is a matter that the Director can
decide and implement independently.  For example, the Director
recently determined that the number of regional coordinators was
insufficient for the CASA program to carry out its mission.  The
Director added two regional coordinator positions without seeking
prior approval from the Advisory Panel.  The Director will also 

                              -16-

increase recruitment and training efforts in a particular
geographic area as the need arises without seeking prior approval
from the Advisory Panel.  On the other hand, the Director intends
to bring the revisions to the volunteers' handbook to the
Advisory Panel prior to its publication and the Director's
proposed budget is approved by the Panel before going into the
Judicial Department budget.

    10.  The CASA Director is fully responsible for the selection
of CASA volunteers.  The standard applied by the Director is
whether using the CASA volunteer will be in the best interests of
the CASA Program.  This standard is applied to evaluate a
potential volunteer when the application is received, to decide
whether an applicant will be accepted as a full CASA volunteer
following training, and to decide whether a particular volunteer
should be retained in the program.  The Director is solely
responsible for determining whether an individual will be
accepted as a CASA volunteer and determining whether a particular
CASA volunteer should be removed from the program roster.  The
Director's decision on these matters is not reviewed by anyone
else.  The Director has removed a volunteer from the roster on at
least one and as many as three occasions in the past six months. 
The CASA Director exercises a considerable amount of discretion
in evaluating whether a particular CASA volunteer is performing
effectively and should be retained in the program.

    11.  Although the CASA Director maintains the roster of CASA
volunteers, the court appoints each guardian ad litem.  If the
CASA Director determines that the CASA volunteer is no longer
qualified and removes that person from the roster, the Director
notifies the court and it is up to the court to remove the
guardian from a particular case and appoint a new one.

    12.  The CASA Director is responsible for the training and
professional development of CASA volunteers.  The CASA Director
assesses the need for training and enlists the assistance of
others, such as an Assistant Attorney General, a Department of 

                              -17-

Human Services supervisor, a judge and others involved in the
process.  The Director serves as the lead trainer.

    13.  The CASA Director evaluates the performance of CASA
volunteers on the basis of evaluations completed by judges and
other forms of feedback received by the Director through the
private attorneys, the regional coordinators or from the Depart-
ment of Human Services.
  
    14.  The CASA Director is currently in the process of com-
pleting a major revision of the handbook for CASA volunteers. 
The changes to the handbook will, among other things, reflect
recent statutory changes to the responsibilities of a guardian ad
litem specified in Title 22, section 4005.

    15.  The CASA Director is the primary contact for the CASA
program with the Department of Human Services (DHS), the Depart-
ment of the Attorney General and private attorneys representing
parents involved in child abuse and neglect proceedings.  The
Director deals directly with DHS supervisors or managers when a
CASA volunteer has a complaint about a DHS caseworker or vice
versa.  In making decisions regarding these contacts and
resolving problems with DHS or private attorneys, the Director
works independently and exercises substantial discretion in
deciding how to resolve problems.  The Director is not required
to obtain prior approval of the Panel or the Regional Court
Administrator on these issues.

    16.  The CASA Director is the primary representative of the
Judicial Department on the operation of the CASA program with
outside organizations such as the national association of CASA
programs.  The Director serves on a federally funded study
looking at all aspects of Maine's child protective services.  The
former Director testified before Legislative Committees regarding
the operation of the program on a couple of occasions.  The
Legislature has not been in session since the current Director
was hired.

                              -18-

    17.  The CASA Director is primarily responsible for
developing the program's budget proposal and administering the
budget.  The budget proposed by the Director and approved by the
Advisory Panel is incorporated into the initial draft of the
Judicial Department budget by the Regional Court Administrator
for Region III.  The CASA program is broken out as a separate
budget item.  The Judicial Department budget is approved by the
Chief Justice and submitted to the Legislature by the State Court
Administrator.  The Director is responsible for administering the
budget through activities such as approving expense and mileage
reimbursements to CASA volunteers.

    18.  The Court Alternative Dispute Resolution Service
(CADRES) provides mediators or other alternative dispute
resolution professionals for court-connected alternative dispute
resolution (ADR) throughout the state.  CADRES maintains three
rosters of mediators for small claims cases, domestic relations
cases and general civil cases.  A fourth roster is being
established for early neutral evaluation.  CADRES is established
by Title 4, section 18-B.

    19.  The CADRES program has as employees the CADRES Director
and the secretary-receptionist who is shared with the CASA
program.  There are three or four mediators who also serve as
regional coordinators.

    20.  The State Court Administrator is responsible for
appointing the Director of CADRES, "with the advice and approval
of the Court Alternative Dispute Resolution Service Committee."
4 M.R.S.A.  18-B, subsection 4.

    21.  The following job description for the CADRES Director is
a generally accurate reflection of the actual duties of the
position:
                                     
           The Director of the Court Alternative Dispute
      Resolution Service, in concert with the Court Alterna-
      tive Dispute Resolution Service Committee and the 

                              -19-

      providers utilized by the Service, assures the fulfill-
      ment of the statutory role of the Court Alternative
      Dispute Resolution Service, the quality of its program
      and its efficient administration.

      A. Leadership

      The Director promotes the needs, concerns and interests
      of the Court Alternative Dispute Resolution Service,
      and in particular:

        1.   Promotes and maintains informed and cordial
             relations with the public, the ADR community,
             the legislature, the judiciary and the bar.
        2.   Serves on relevant committees within and outside
             of the Judicial Branch,
        3.   Attends conferences and seminars to the extent
             resources permit and stays current with develop-
             ments in the Alternative Dispute Resolution
             field, and
        4.   Acts as a spokesperson for the Judicial Branch
             on ADR matters, and promotes the policies adopt-
             ed by the Supreme Judicial Court, the Court
             Alternative Dispute Resolution Service Commit-
             tee, the Administrative Office of the Courts and
             other Judicial Branch policy making entities.

      B. Program Administration

      The Director oversees the daily administration of the
      Court Alternative Dispute Resolution Service and:

        1.   In consultation with the clerks of the court and
             the Service's regional coordinators, assures
             appropriate staffing levels and is responsible
             for ADR provider availability,
        2.   Appoints and supervises regional coordinators,
        3.   Keeps monthly statistics on number of Alterna-
             tive Dispute Resolution sessions held, disposi-
             tion of cases and funds expended for administra-
             tion, provider services and travel, and prepares
             periodic reports on caseload and YTD status of
             expenditures,
        4.   Approves for payment mediator's monthly pay and
             travel vouchers,
        5.   Oversees and evaluates work of other Court Al-
             ternative Dispute Resolution, Service personnel
             or contractors, if any,
        6.   Responds to all complaints, and keeps appropri-
             ate documentation,
        7.   Prepares the appropriate portion of the Judicial
             Branch's Annual Report, and 
        8.   Assures all other appropriate record-keeping.

                              -20-

      C. Court Alternative Dispute Resolution Committee:

      As primary staff to the Court Alternative Dispute
      Resolution Committee, the Director, in consultation
      with the Chair:

        1.   Schedules regular and special meetings,
        2.   Proposes agenda items and develops and presents
             policy options,
        3.   Submits an annual status report,
        4.   Reports on the administrative and fiscal needs
             of the Service,
        5.   Staffs policy development subsequent to initial
             committee review, and prepares final draft poli-
             cies for adoption by the Committee or other
             entities, and
        6.   Attends all meetings and keeps minutes for these
             meetings.
        7.   The Director is an appointee of, and reports to,
             the State Court Administrator, or the SCA's
             designee, but also has a reporting relationship
             to the Court Alternative Dispute Resolution
             Service Committee and the Committee Chair.

      D. ADR Provider Selection, Training and Supervision

      To assure the overall quality of the Court Alternative
      Dispute Resolution Service program, the Director over-
      sees the selection, training, continuing education,
      supervision and evaluation of court ADR providers.  In
      particular, the Director:

        1.   Keeps a file of applicants,
        2.   Publicizes the need for ADR providers when ros-
             ters require additions, 
        3.   Screens applications and assesses qualifications
             of candidates,
        4.   Conducts final interviews and selects new pro-
             viders in consultation with the Court Alterna-
             tive Dispute Resolution Selection Committee,
        5.   Assesses the training needs of new providers,
             develops their individualized training program
             and apprenticeship,
        6.   Assures and develops the continuing education of
             ADR providers by:
             a.  Planning professional development seminars for ADR
                 providers,
             b.  Promoting and attending regional meetings and
                 discussions for ADR providers,
             c.  Communicating with ADR providers through
                 memoranda and a quarterly newsletter about
                 CADRES policies and interests, new or revised
                 statutes, administrative orders, developments
                 
                              -21-

                 in the Alternative Dispute Resolution field,
                 and information about skills development, and
             d.  Developing and maintaining a library of re-
                 sources for ADR providers,
        7.   Oversees the supervision and evaluation process
             of ADR providers,
        8.   Assures compliance with established standards of
             practice and the policies and procedures of the
             Court Alternative Dispute Resolution Service,
        9.   Assists ADR providers in developing personal
             performance improvement plans, and
       10.   Meets requirements of evaluation process for the
             CADRES Director.

      E. Program Planning, Evaluation and Budgeting

      The Director is responsible for the implementation of
      an annual assessment of the Court Alternative Dispute
      Resolution Service program.  The Director:

        1.   Develops and implements a program assessment
             system that includes consumer surveys and
             feedback from regional coordinators judges,
             attorneys, and ADR providers,
        2.   Reports the results of the Director's assessment
             to the Committee, and as part of that report,
             suggests solutions for identified problems,
             revisions of the program's short-term and long-
             term objectives and
        3.   Makes recommendations about the program's bud-
             getary needs.

      F. Position Requirements

        1.   A bachelor's degree, as well as one or more ad-
             vanced degrees in dispute resolution, law,
             counselling or other related field are required.
        2.   Extensive formal training as well as extensive
             actual experience in dispute resolution are re-
             quired, as are excellent oral and written
             communication and interpersonal skills.  The
             dispute resolution and training experience must
             be at least as great as that necessary for
             rostering as a CADRES ADR provider.  Experience
             in supervision and training of ADR providers is
             strongly preferred.
        3.   Experience in administration together with a
             demonstrated record of providing leadership in
             complex environments, are required.  Experience
             in public policy development and implementation
             are strongly preferred.
        4.   Working facility with computerized word process-
             ing, spreadsheets and data base programs is 

                              -22-

             strongly preferred, and will be required after a
             period of time after initial employment.
        5.   The Director may not engage in the provision of
             mediation or arbitration services, except for
             court connected ADR services within the scope of
             the director's job description, or as otherwise
             approved in writing by the CADRES Committee. 
             The Director may not engage in the private
             practice of law for compensation in Maine, and
             may not appear as an attorney, except on a pro
             se basis in Maine's courts.  
  
    22.  The Court Alternative Dispute Resolution Service
Committee is established by Title 4 M.R.S.A. section 18-B,
subsection 6, to "set policy for and monitor" the service.  The
Committee consists of the Chief Justice of the Supreme Judicial
Court or a designee, the Chief Justice of the Superior Court or a
designee, the Chief Judge of the District Court or a designee,
the State Court Administrator or a designee, a Justice of the
Superior Court and a Judge of the District Court both appointed
by and serving at the pleasure of the Chief Justice of the
Supreme Judicial Court, and any additional members that the Chief
Justice of the Supreme Judicial Court considers necessary. 
4 M.R.S.A.  18-B(6).  Two CADRES mediators are members of the
Committee.  Other than the Chief Justice of the Superior Court
and the Chief Judge of the District Court, all of the members of
this committee are appointed by the Chief Justice of the Supreme
Judicial Court and serve at his pleasure.

    23.  The CADRES Committee serves as a forum for discussing
issues and a place to which significant policy issues are brought
and reviewed.  The CADRES Director sets the agenda for the
meetings and will usually start each meeting with a status report
on the program.  The Director formulates policies and, depending
on the subject and the importance of the policy, will either
implement it herself or bring it to the CADRES committee.  For
example, the CADRES Director drafted the initial rules for the
program and reviewed them with the committee.  The Director then
incorporated the committee's comments before the rules were
finally adopted.  Generally, the CADRES Director will make
 
                              -23-

specific recommendations on policy options presented to the
Committee.  An example of a policy issue that the CADRES
Committee has dealt with is whether the CADRES Director could
"de-roster" a mediator on the basis of a complaint about
mediation occurring outside the scope of CADRES activity.
  
    24.  The authority of the CADRES Committee is essentially
that of an advisory committee.  The Committee does not have the
power to remove the CADRES Director but its membership does
represent key perspectives on the operation of the CADRES
program.  Like the CASA Advisory Panel, the presence of the
CADRES Committee ensures that the Director does not operate in a
vacuum and that the program functions in a manner consistent with
the policies endorsed by the Committee.

    25.  The CADRES Director selects individual mediators to be
placed on a roster.  The Director also decides whether an indivi-
dual should be removed from a roster or "de-rostered."  According
to the CADRES Program rules, if the CADRES Director decides not
to place an individual mediator on a roster or decides to "de-
roster" a mediator, that decision can be appealed to the CASA
Committee.  The Director is the person who decides whether the
number of mediators on the rosters should be increased or
decreased.

    26.  The CADRES Director evaluates the performance of the
mediators using the evaluation forms completed by the parties and
litigants.  The Director has developed standards by which each 
mediator's performance is measured.  In addition, complaints from
within the Judicial Branch, from attorneys or from the Board of
Bar Overseers are received by the Director.

    27.  The CADRES Director acts as a spokesperson for the
judicial branch on all mediation-related issues.  The Director
has made presentations to the Maine Association of Dispute
Resolution Professionals on policies that would have an effect on
their members.  The Director has served on a panel at the 

                              -24-

national conference of the Society of Professionals in Dispute
Resolution on the experience in Maine in court-connected
mediation.  These activities were performed independently and
were not subject to supervision by the Administrative Office of
the Courts.

    28.  The CADRES Director has testified before Legislative
committees on two occasions in the past year and has attended
committee work sessions.  Her participation in the legislative
committee process has not been under the direction of the
Administrative Office of the Courts.  The CADRES Director has
drafted legislation regarding that program that will submitted to
the Legislature after review by the Administrative Office of the
Courts.

    29.  The CADRES Director's responsibilities for developing
and administering the CADRES budget are the same as the CASA
Director's responsibility for the CASA budget.  In developing the
CADRES budget, the Director has brought to the CADRES Committee
for their consideration various budget scenarios based on differ-
ent assumptions regarding mediation fees and utilization rates.

    30.  Both the CADRES Director and the CASA Director report to
J. David Kennedy, the Regional Court Administrator for Region
III.  As the supervisor of these positions, Mr. Kennedy's primary
focus is administrative concerns such as payroll issues, leave
requests and completing performance evaluations on the Directors. 
Mr. Kennedy speaks to the CASA Director on an average of once a
week.  He has even less frequent contact with the Director of
CADRES because the incumbent has been in that position longer.    

                           DISCUSSION

     The petition in this case was filed pursuant to section
1286(4) of the Act.  That provision of the Act states:

        4. Unit clarification.  Where there is a certified or
      currently recognized bargaining representative and when
      

                              -25-

      the circumstances surrounding the formation of an
      existing bargaining unit are alleged to have changed
      sufficiently to warrant modification in the composition
      of that bargaining unit, the public employer or any
      recognized or certified bargaining agent may file with
      the executive director a petition for a unit
      clarification, provided that the parties are unable to
      agree on appropriate modifications and there is no
      question concerning representation.

The parties have stipulated facts indicating that the
requirements for filing a unit clarification petition have been
met--the petition was filed by the certified bargaining agent,
the parties are unable to agree on the modifications, and there
is no question concerning representation.  The fourth requirement
for filing a unit clarification petition is that there have been
alleged changed circumstances surrounding the formation of the
bargaining unit.  The parties have stipulated that the positions
in question were created on July 1, 1997.  The creation of a new
job classification normally meets the requirement for changed
circumstances as it is impossible to determine the bargaining
unit status of a position before it exists.  Maine State
Employees Association and State of Maine, Department of Inland
Fisheries and Wildlife, Nos. 83-UC-43 and 91-UC-11, slip op. at 8
(Me.L.R.B. May 4, 1993), 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).  Thus, all of the prerequisites for
filing the unit clarification petition have been met.
  
     In response to the Union's petition, the Employer alleges
that both the Director of CASA and the Director of CADRES are
excluded from the definition of judicial employee and therefore
may not be included in any bargaining unit.  Section 1282(5)(D)
of JELRA and paragraph 11(4) of the Administrative Order both
exclude from the definition of judicial employee any person
"[w]ho is a department head or division head."  Section 1286(1)
of JELRA prohibits including in a bargaining unit any person
excepted from the definition of judicial employee.

                              -26-
  
     The legislative history of the Act and the background of the
Administrative Order shows that the intent was to parallel the
provisions of the collective bargaining laws covering municipal
employees and state employees (MPELRL and SELRA).  See, Report
p. 11 and L.D. 2175, Statement of Fact, pp. 24-25.  The partic-
ular exclusion from coverage in question is similar to the
department head exclusions under both MPELRL and SELRA except
there is no specific appointment criteria applied to Judicial
Department employees.[fn]4  As between the two, the provisions
governing municipal employees serve as a better source of
guidance for interpreting JELRA.  The scope of coverage under
MPELRL is structurally more similar to JELRA than to SELRA as
SELRA excludes over a hundred positions by specific reference to
position titles rather than job function.[fn]5  JELRA excludes
by reference to position title only the State Court Administrator
and judicial law clerks.  26 M.R.S.A.  1282(5)(B) and (E).  The
only exclusion under MPELRL by reference to a position title is
for school superintendents and assistant superintendents. 
26 M.R.S.A.  962(6)(E).  This difference in structure and
approach can be attributed to the intimate role the Legislature
plays in directing the affairs of the Executive Branch relative
to the role it plays in the affairs of the Judicial Branch and in
____________________

     4 MPELRL excludes any person "[w]ho is a department head or
division head appointed to office pursuant to statute, ordinance
or resolution for an unspecified term by the executive head or
body of the public employer."  26 M.R.S.A.  962(6)(D).  SELRA
excludes any person "[w]ho is a department or division head
appointed to office pursuant to statute, ordinance or resolution
for an unspecified term by the Governor or by a body having
appointive power within the executive department."  26 M.R.S.A.
 979-A(6)(D).

     5 Section 979-A(6)(H) excludes any person "Who is a staff
attorney, assistant attorney general or deputy attorney general
in the Department of Attorney General" and section 979-A(6)(I)
excludes any person "Who is appointed to a major policy-
influencing position as designated by Title 5, chapter 71" (the
chapter creating the State Unclassified Service).  That chapter
lists over a hundred executive branch positions by job title.

                              -27-

controlling municipalities.[fn]6  Furthermore, SELRA may be less
useful as guidance than MPELRL because of the more pronounced
role of politics in appointments to high-level positions in state
government.  In municipalities and the judicial branch, appoint-
ments to high-level positions are typically apolitical.
  
     In the context of the other collective bargaining statutes,
it is well established that exceptions to the definition of
public employee should be narrowly construed in keeping with the
legislative purpose of providing public employees the right to
join unions and bargain collectively.  See, e.g., State of Maine
and Maine State Employees Association, No. 82-A-02, slip op. at 6
(Me.L.R.B. June 2, 1983), AFSCME Council 93 and Town of Paris,
97-UD-14, slip op. at 10 (Me.L.R.B. Oct. 1, 1997).  Similarly, in
this case there is no language in the statute or the Administra-
tive Order which grants any discretion to expand the statutory
exemptions.  The Advisory Committee's Comments to the section of
the statute defining "judicial employee" states that  "[t]he
section is designed to be as inclusive as possible unless there
is some good reason for exclusion."  Report, p. 26.
  
     The legislative history of the Act suggests that the meaning
of "department or division head" must be determined by examining
the function of the office, as is the case under SELRA and
MPELRL.  The only comment accompanying the legislation about the
department or division head exclusion is that "Regional State
Court Administrators would be excluded if the functions of their
offices bring them within paragraph C or D."[fn]7  L.D. 2175,
Statement of Fact, p. 26-27, quoting Report (emphasis added). 
This focus on the function of the position is entirely consistent
____________________

     6 The separation of powers doctrine is implicated in the
relationship between the Legislative and Judicial Branches (see
discussion above).  The general policy favoring municipal
autonomy, known as municipal home rule authority, can be seen in
the Maine Constitution, Art. VIII, Part Second and 30-A M.R.S.A.
 3001. 

     7 Paragraph C excludes persons whose duties imply a
confidential relationship with the Judicial Department's
bargaining representative.

                              -28-

with how the Board has analyzed the department head exclusion
under the other collective bargaining laws.

     In a recent unit determination report addressing the
department head exemption under MPELRL, the executive director
summarized the analysis that is equally applicable in this case:

          The inquiry of whether the employee is the
     administrator of the department must focus on the
     actual job duties or functions, not the job title alone
     or its placement on the organizational chart.  The
     Board has recognized that there are typically three
     types of job functions performed in a department:  day-
     to-day rank and file work; supervision of other
     employees; and formulation and administration of
     department policies and practices, i.e., management of
     the department.  The Board described how the section
     962(6)(D) exclusion fits in that framework with the
     following: 

          Our cases establish that for an employee to
          be a "department head" within the meaning of
          Section 962(6)(D), the employee's primary
          responsibility must be that of managing or
          directing the affairs of the department, as
          opposed either to acting as a supervisor or
          to performing the day-to-day work of the
          department.  For example, in Teamsters Local
          48 and City of Portland,  Unit Determination    
          Report at 2 (Sept. 13, 1978), the hearing
          examiner declared 12 employees to be Section
          962(6)(D) division heads because they were
          "responsible for the day-to-day administra-
          tion" of their divisions, and because their
          principal duties were those of "formulating
          and administering division policies and prac-
          tices."  On the other hand, in Teamsters
          Local 48 and Town of Bar Harbor, Unit
          Determination Report at 3 (Nov. 15, 1979), a
          Treatment Plant Operator who was responsible
          for the day-to-day operation of the treatment
          plant and who performed such administrative
          duties as setting the work schedules of other
          employees, arranging for the purchase of
          equipment and supplies, and submitting a
          budget to the town manager, was found not to
          be a department head because, among other
          things, the employee "spent the major portion
          of his time performing the same work as other
          operating employees."  See also Teamsters
          Local 48 and Boothbay Harbor Water System, 

                              -29-

          Unit Determination Report at 6-8 (May 11,
          1982) (Foreman who performed various
          administrative duties was not an administra-
          tor because "on balance the primary function
          of the Foreman's position is to act as a
          supervisor").  Our cases thus require hearing
          examiners, when presented with evidence
          showing that an employee performs both
          administrative duties and supervisory or
          rank-and-file duties, to decide whether the
          primary duties of the position are those of
          an administrator or those of a supervisor or
          a rank-and-file employee.

     Teamsters Local Union No. 48 and Town of Wells,
     No. 84-A-03, slip op. at 6-7, 6 NPER 20-15012
     (Me.L.R.B. Apr. 11, 1984), aff'd sub nom. Inhabitants
     of the Town of Wells v. Teamsters Local Union No. 48,
     CV-84-235 (Me. Super. Ct., York Cty., Feb. 28, 1985).

Paris, slip op. at 11-12.     

     In determining whether a position is a department or
division head, one must also keep in mind that supervisors,
unlike department heads, are granted collective bargaining rights
under the Act.   See 26 M.R.S.A.  1286(2) and Administrative
Order  4.  Thus, possession of supervisory responsibilities
cannot be the basis for holding that an individual is a
department or division head.  To be a department or division
head, one must do more than simply coordinate, oversee and
supervise a program.  AFSCME Council 93 and Town of Sanford, No.
92-UD-03 (Me.L.R.B. Feb. 21, 1992), slip op. at 29 (citing Bangor
Education Association and Bangor School Committee, No. 80-UC-02,
slip op. at 8 (Me.L.R.B. Nov. 16, 1979)), aff'd, No. 92-UDA-03,
(Me.L.R.B. May 7, 1992).

     CASA Director.  In the present case, the evidence shows that
the primary function of the CASA Director is to manage and direct
the affairs of the CASA Program rather than to act as a
supervisor or perform the day-to-day work of the department. 
Clearly, the CASA Director does more than simply coordinate,
oversee and supervise the program:  she formulates and
administers policy for the Program with the approval of an 

                              -30-

oversight committee, she evaluates the effectiveness of the
program, she determines who is qualified to serve or continue to
serve as a Court Appointed Special Advocate, she represents the
program before the Legislature and national associations, and is
generally responsible for the administration and direction of the
program.  All of these responsibilities are carried out using
considerable independent judgment with a minimal degree of
involvement by either the State Court Administrator or the
Regional Court Administrator.  The CASA Director's management
duties are similar to those held by the individuals found to be
division heads in the City of Portland based on duties of 
"planning, developing and executing the activities of their
respective divisions; scheduling, supervising and evaluating the
employees employed in the divisions; and formulating and
administering division policies and practices."  Teamsters Local
Union No. 48 and City of Portland, Case No. 78-UD-39 (Me.L.R.B.
Sept. 13, 1978), slip op. at 2.
  
     The CASA Director plays a substantial role in formulating
the CASA Program policies and objectives and in evaluating the
effectiveness of the program notwithstanding the existence of the
Advisory Panel.  Contrary to the contention of the Union, the
involvement of the CASA Program Advisory Panel does not detract
from the degree of policy-making authority held by the CASA
Director or her status as a department head.  It is not necessary
that an individual be the ultimate decision-maker on all issues
in order to be considered a department head.  If that were the
case, no one would be considered a department head because, in
the final analysis, either the Governor, the Chief Justice of the
Supreme Judicial Court or the municipality's elected government
is the ultimate decision maker.  The question is how much real
management authority has been delegated to the position in
question.  See, e.g., Boothbay Harbor Water System, slip op. 
at 7.  (Town Manager and not the Water System Foreman was the
administrator of the water system where the Water Commission set
the policy and the Town Manager hired and fired employees, 

                              -31-

managed the budget and attended all of the Water Commission
meetings), and Paris, slip op. at 15 (amount of authority
retained by Town Manager precluded finding that Road Foreman was
a department head).  Here, the CASA Director is fully responsible
for the day-to-day administration of the program and plays a very
significant role in policy formulation and determining the
overall direction of the program--decisions that directly affect
the work of all CASA volunteers.[fn]8
  
     The CASA Director's responsibilities regarding the staffing
of the CASA Program also support my conclusion that she is a
department head.  The Director is fully responsible for
determining who is qualified to serve as a CASA volunteer and
whether a particular volunteer should be removed from the roster. 
Her decision on these matters is final and not subject to
approval by any other person or panel.  "Hiring/firing authority
is a management function that, along with others, might support a
finding that a job classification is a department head."  
Sanford, slip op. at 33-34.  It is immaterial that these
personnel responsibilities relate to volunteers rather than
employees of the Judicial Department--the Director has final
authority over the status of an individual volunteering with the
program, a decision that does not lose its significance to that
person or to the program simply because it is not paid employ-
ment.  People volunteer for the CASA program for a variety of
reasons beyond the public service aspect of assisting the court
system and children in need.  The status and experience gained as
a CASA volunteer can be a significant element for those who want
to pursue careers in social services, counseling or advocacy. 
The Director can directly affect this status.  Also, the fact
that the Court actually appoints and removes the CASA volunteer 
____________________

     8 The statement in the job description that the Director
"promotes the policies adopted by the Supreme Judicial Court, the
CASA Advisory Committee, the Administrative Office of the Courts,
and other Judicial Branch policy making entities" does not
nullify the Director's contribution to policy formulation.

                              -32-

in a particular case is not significant because the Director's
decision determines the overall availability of the volunteer for
the program.

     The CASA Director is also the primary contact for the
program with a variety of outside entities and individuals
including private attorneys, the Department of the Attorney
General and the Department of Human Services.  The CASA Director
works independently on these activities and exercises a
substantial amount of discretion in determining how to resolve
any problems identified.  This degree of autonomy is consistent
with what one would expect from a department head responsible for
managing the affairs of the department and would be inconsistent
with the more limited responsibilities of a supervisor or a rank-
and-file worker consumed with the day-to-day operation of the
department.  Similarly, the fact that she acts as a spokesperson
for the program with other states and national associations is
consistent with department head status.

     Finally, the CASA Director's budgetary responsibilities are
consistent with what one would expect of a head of a department. 
The Director proposes a budget to the Advisory Panel for their
approval.  Once approved by them, it gets incorporated into the
initial draft of the Judicial Department budget as a separate
line item.  The Director is also responsible for approval of
expense payments to the CASA volunteers.  Frequently, the
presence of budgeting responsibility is not of much significance
in determining department head status because budgeting is often
such an unimaginative, mechanical process.  See Wells, slip op. at 9 
(Budget forms prepared by employee required an insignificant
amount of time and effort).  See also, Sanford, slip op. at 31,
n.3.  In this case, the Director's role in the budget process is
not, in itself, particularly significant but combined with the
other management responsibilities it adds further support to my
conclusion that she is a department head.

     There have been a number of cases on department head status 

                              -33-

that have a superficial resemblance to the current case that must
be distinguished.  These are cases involving a one-person
department where the employer has contended that the department
head exclusion applies to that one person.  Sanford is an
excellent example of such a case.  In Sanford, the hearing
examiner considered the department head status of a number of
positions where there were no other employees in the department
or just one or two clerical support positions, as in the current
case.  In each case, the hearing examiner looked at the primary
function of the position and determined who was doing the
substantive work of the department.  For example, the hearing
examiner reasoned that since the Planning Director and the
Assessor were the only people in their respective departments
with planning or assessing skills, their primary function must be
that of performing the substantive work of the department rather
than management duties.  Sanford, slip op. at 31-32.  Similarly,
the job description of the Codes Enforcement Officer had as its
major focus substantive code enforcement duties.  Id. slip op. at
33.  See also, Wells and Teamsters Local Union No. 48 and Town of
Kennebunk, Case No. 83-UD-23 (Me.L.R.B. April 27, 1983) for
similar analysis of one-person departments.  In this case, the
CASA Director does not serve as a court appointed special
advocate herself nor is her primary function just coordinating
the assignment of CASA volunteers.  Her job description and other
evidence presented support my conclusion that, unlike the
positions in Sanford, the primary function of this position is to
manage and direct the affairs of the department rather than
performing the day-to-day substantive work of the department or
supervise others doing such work.

     The Union emphasizes the location of this position on the
Judicial Department's organizational chart relative to other
positions that are included in bargaining units as support for
inclusion of the CASA Director in the Professional Services Unit. 
Their argument seems to be if other positions that report to a
Regional Court Administrator are in bargaining units, the CASA 

                              -34-

Director should be as well.  This argument carries little weight
because my determination must be made on the basis of the CASA
Director's job function, not its placement on an organizational
chart.  Paris, slip op. at 15.  Similarly, an agreement between
the parties to place other positions in a particular unit has no
bearing on whether the CASA Director fits into one of the
statutory exclusions.  Consequently, evidence presented on
various management functions performed by specific unit employees
is irrelevant to this determination.
  
     CADRES DIRECTOR.  In a similar vein, I conclude that the
primary function of the CADRES Director is to manage and direct
the affairs of the CADRES Program.  The facts supporting my
conclusion that the CADRES Director is a department head are
similar to the CASA Director's case; that is, she has a
substantial role in policy formulation for the program, she is
fully responsible for administering the program, she has full
responsibility for creating and maintaining the rosters of ADR
providers, and she serves as the spokesperson for the program
with the Legislature and other entities.  Like the CASA Director,
the CADRES Director carries out these responsibilities using
independent judgment with very little involvement of either the
State Court Administrator or the Regional Court Administrator.
  
     The role played by the CADRES Director in policy development
and implementation is similar to the role of the CASA Director. 
Here, the Court Alternative Dispute Resolution Committee is an
oversight committee to which the Director will bring issues,
policy options and proposed rules for adoption.  As with the CASA
Advisory Panel, the existence of the CADRES Committee does not
detract from the significant amount of responsibility the
Director has for policy development and the overall direction of
the program.
  
     The CADRES Director's responsibility regarding maintenance
of the various rosters of ADR providers is the type of management
responsibility typically held by department heads rather than 

                              -35-

supervisors or rank-and-file workers.  The CADRES Director is
responsible for determining how many individuals should be placed
on each roster and which individuals should be selected for or
removed from a particular roster.  The Director's decisions on
the rosters have a substantial impact on the individual ADR
providers and on the success of the ADR service.

     The fact that the Director's decisions on adding or removing
an individual from a roster can be appealed to the CADRES
Committee does not mean that the Director has no real authority
in this area.  It simply means that her decision can be appealed. 
This appeal process is no different than existing mechanisms
public employees have for appealing adverse employment decisions. 
For example, personnel decisions of a State commissioner can be
appealed to the State Employees Appeal Board or to an arbitrator. 
Similarly, personnel decisions of a municipal employer can be
appealed to the Board of Arbitration and Conciliation or to a
private arbitrator under the terms of most collective bargaining
agreements.
  
     The CADRES Director is the primary spokesperson for the
Judicial Branch on mediation issues and is the contact person for
complaints regarding individual ADR providers.  The Director has
testified before legislative committees regarding mediation and
has served on national panels regarding court-connected
mediation.  These activities were undertaken without direct
supervision by the Administrative Office of the Courts.
  
     Finally, the CADRES Director's budgeting responsibility is
additional evidence to support my conclusion     that the position is
a department head that may not be included in a bargaining unit.

                              ORDER
                       
     On the basis of the foregoing findings of fact and
discussion, and by pursuant to the authority granted by

                              -36-

paragraph 4 of the Administrative Order and 26 M.R.S.A.  1286,
it is ORDERED:

     The Union's petition for unit clarification is denied. 
     The positions of Director, Court Appointed Special
     Advocate, and Director, Court Alternative Dispute
     Resolution Service, are department heads within the
     meaning of 26 M.R.S.A.  1282(5)(D) and paragraph 11(4)
     of the Supreme Judicial Court, Administrative Order in
     Regard to Judicial Employees Labor Relations, SJC-128.


Dated at Augusta, Maine, this 21st day of January, 1998.

MAINE LABOR RELATIONS BOARD


                                 /s/________________________
                                 Lisa Copenhaver
                                 Attorney Examiner


The parties are hereby advised of their right to appeal this
report to the Maine Labor Relations Board pursuant to 26 M.R.S.A.
 1288(2) (Supp. 1997) and paragraph 6(2) of the Supreme Judicial
Court, Administrative Order in Regard to Judicial Employees Labor
Relations, SJC-128.  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.

                              -37-