STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 03-UC-04 Issued: October 29, 2003 ___________________________________ ) TEAMSTERS UNION LOCAL 340, ) ) Petitioner, ) ) UNIT CLARIFICATION and ) REPORT ) TOWN OF FAIRFIELD, ) ) Public Employer. ) ___________________________________) PROCEDURAL HISTORY This unit clarification proceeding was initiated on May 27, 2003, when Kenneth Eaton, Recording Secretary and Business Agent for the Teamsters Local Union No. 340 ("Teamsters" or "union"), filed a Petition for Unit Clarification with the Maine Labor Relations Board ("Board") for a determination whether the position of Assistant Treasurer[fn]1 should be added to the Town of Fairfield clerical bargaining unit pursuant to 26 M.R.S.A. 966(3) of the Municipal Public Employees Labor Relations Law ("MPELRL"). On June 11, 2003, the Town of Fairfield ("town") filed a timely response to this petition, arguing that the position should be excluded from the bargaining unit as a ____________________ 1 The position in question is identified in the petition as an "Assistant Treasurer." In response, the town has maintained that the position is an "Assistant Treasurer/Human Resources Director." This confusion stems from the fact that the position was titled the "Assistant Treasurer" when the position was advertised, but was later titled the "Assistant Treasurer/Human Resources Director" in the final job description, created after the hiring of the incumbent (Exh. No. U-5). The title itself is essentially irrelevant; the hearing examiner must instead examine the duties of the position as of the date of the hearing. Therefore, while acknowledging that the full title of the position is "Assistant Treasurer/Human Resources Director," the hearing examiner will refer to the position as "Assistant Treasurer" for the remainder of this report, for ease of reference only. [-1-] _________________________________________________________________ "confidential" employee within the meaning of 26 M.R.S.A. 962(6)(C). A hearing notice was issued on June 24, 2003, and was posted for the benefit of affected employees. The hearing examiner conducted a prehearing conference by telephone in this matter on August 8, 2003. The Prehearing Conference Memorandum and Order is incorporated herein by reference. The hearing was conducted on August 28, 2003. The union was represented by Kenneth Eaton. The town was represented by Matthew Tarasevich, Esq. The parties were afforded full opportunity to examine and cross-examine witnesses, and to present evidence. The following witnesses were presented at the hearing: for the union, Pamela Perro, former Tax Clerk, and Gloria Blanchet, Tax Clerk; for the town, Paul Blanchette, Town Manager. Written closing arguments for both parties were submitted by September 22, 2003. JURISDICTION The jurisdiction of the executive director or his designated hearing examiner to hear this matter and make a determination lies in 26 M.R.S.A. 966(1) and (3). The subsequent references in this Report are all to Title 26, Maine Revised Statutes Annotated. STIPULATIONS The parties stipulated to the following facts: 1. Deputy Treasurer and Deputy Tax Collector was a recognized bargaining unit position in the collective bargaining agreements (pre-2001) until the current agreement (2001-2004). It was mutually agreed upon in successor agreement negotiations to change/strike reference to Deputy Treasurer and Deputy Tax Collector and replace it with Tax Clerk. -2- _________________________________________________________________ 2. Copies of all documents will serve in lieu of originals. 3. Paul Blanchette was Executive Head of the Town of Fairfield on January 3, 2003, and at all relevant times hereto, pursuant to 26 M.R.S.A. 962(6)(C) and 30-A M.R.S.A. 2636. EXHIBITS The following union exhibits were introduced without objection of the town: Exhibit No. Title/Description U-3 Assistant Treasurer job advertisement U-5 Letter dated April 29, 2003, from Paul Blanchette to Kenneth Eaton with attached job description for Assistant Treasurer/ Human Resources Director U-6 Report of Appellate Review of Unit Determination Hearing, dated November 27, 1978 The following town exhibits were introduced without objection of the union: Exhibit No. Title/Description R-1 Copy of 2001-2004 Collective Bargaining Agreement R-2 Job Description of Town of Fairfield Assistant Treasurer/Human Resources Director R-3 Copy of 1998-2001 Collective Bargaining Agreement The following union exhibits were introduced despite the objection as to relevance of the town: Exhibit No. Title/Description U-1 Assistant Treasurer job description dated August 5, 2002 U-2 Assistant Treasurer job description dated December 10, 2002 -3- _________________________________________________________________ U-4 Letter dated December 13, 2002, from Susan Carey to Pamela Perro with attached job description for Tax Clerk FINDINGS OF FACT 1. The union was certified as the bargaining agent for the Town of Fairfield clerical bargaining unit in 1979. At that time, the unit consisted of three positions: Social Worker, Deputy Treasurer/Deputy Tax Collector and Deputy Tax Collector. 2. In 1998, the parties filed an Agreement on Appropriate Bargaining Unit with the Board agreeing that the following positions were in the unit: Deputy Tax Collector, Deputy Treasurer, and Tax Clerk. 3. The three positions in the bargaining unit have performed some distinct duties, which have changed over time. For instance, the Tax Clerk performed accounts payable duties for the town from about 1992 to 2002. The Deputy Treasurer did the town payroll for many years until about 2001, when the function was given to a payroll company. 4. The three positions in the bargaining unit have also performed some similar, interchangeable duties such as serving citizens who come to the town office, issuing licenses and registrations, and accepting tax payments. 5. In the most recent collective bargaining agreement, effective July 1, 2001, to June 30, 2004, the recognition clause was altered to describe the bargaining unit as consisting of all "clerical" positions in the town. After this, all three positions became known as "Tax Clerks" and were placed on the same (highest) pay scale. 6. In addition to the three Tax Clerks, the following non- bargaining unit positions were employed at the town office prior to the hire of the Assistant Treasurer: Town Manager, Town Clerk, Treasurer, Assessor, and Assistant Assessor/Assistant Town -4- _________________________________________________________________ Clerk. 7. In 2002, the town auditor recommended that additional office staff was needed, specifically an assistant for the Treasurer. Funding for the position was approved by vote at the town meeting in May, 2002. 8. In creating a list of job duties for the prospective Assistant Treasurer, the Town Manager and the Treasurer decided that the accounts payable function (performed at that time by a Tax Clerk) would be given to the new position. Although the Tax Clerk who performed this function was assured that her position would be preserved even if the accounts payable function were removed, she resigned from her position. 9. Another Tax Clerk was hired to replace the Tax Clerk who resigned. Despite the hiring of a new Assistant Treasurer and the shifting to this position of some Tax Clerk job functions, the Town continues to employ three Tax Clerks. 10. The Assistant Treasurer position was first advertised in August, 2002. At that time, the proposed job description included some of the following duties: supervising office support staff (the Tax Clerks), monitoring expenditures and issuing checks, forecasting town revenues, assisting the Treasurer in managing cash investments, and performing other related fiscal functions (Exh. U-2). 11. The Town Manager did not receive r,sum,s from applicants he deemed acceptable after the position was first advertised. The position was advertised again later in the fall of 2002. The town manager found the resumes received at this point more acceptable and an incumbent was hired, with a start date of January 6, 2003. 12. The job description for the Assistant Treasurer position was re-drafted several times between August, 2002, and April, 2003, when a final version was created (Exh. No. U-5). The final job description added the title of "Human Resources Director" to -5- _________________________________________________________________ the position title of "Assistant Treasurer." The final job description also added a variety of human resources duties including recruiting and assisting in the selection of employees, maintaining employee records (insurance coverage, pension plans), maintaining collective bargaining notes, positions, and negotiation materials, analyzing existing benefit policies, and notifying employees of changes in benefit plans. 13. Since her hire in January, 2003, the new Assistant Treasurer has performed the following fiscal duties: performed accounts payable functions, assisted the Treasurer in her fiscal duties, and (since April, 2003) done the town payroll. The Town Manager decided to return the payroll function to a town employee as a money-saving measure. 14. In addition, the Assistant Treasurer has acted as a supervisor to the Tax Clerks. She participated in the hiring and subsequent firing of one Tax Clerk. 15. The Assistant Treasurer has performed the following human resources duties since her hire: completed paperwork for new hires, answered benefit questions from employees, and maintained the vacation/sick time books. These are all functions previously performed by the Treasurer, although the Treasurer did not hold the title "Human Resources Director." 16. Since the Town Manager's hire in March, 2000, he has participated in the negotiation of collective bargaining agree- ments for all four organized bargaining units in the Town: police (two agreements), fire (two agreements), public works (one agreement), and clerical (one agreement). When he was hired, he could not find copies of any of the collective bargaining agreements on computer hard drive or disk. The Town Manager typed all of the collective bargaining agreements on the word processing program of his computer and stored them there for future negotiations. -6- _________________________________________________________________ 17. The negotiating team for the town has consisted of the Town Manager and two of the Town Councillors. 18. Until the hire of the Assistant Treasurer, the Town Manager did most of his own typing. He typed documents related to collective bargaining, including the agreements, proposals and strategy memos. The Town Manager did not use the Town Clerk to perform this function because he did not find her secretarial skills sufficient. Since the hiring of the Assistant Treasurer, the Town Manager has decided to use her to perform some secretarial duties for him, including secretarial duties relating to collective bargaining. The Town Manager decided to use the Assistant Treasurer in this fashion because of his increased work load and because of her skills. 19. The Assistant Treasurer is the only town employee whom the Town Manager uses to perform these collective bargaining duties. 20. Since the hiring of the Assistant Treasurer, the town has negotiated two collective bargaining agreements, one with the police bargaining unit and one with the firefighters bargaining unit. The negotiations for each began in February and ended in May-June, 2003. In each case, the Assistant Treasurer typed some of the town proposals and strategy memos. The Town Manager also typed some of the documents himself. The Town Manager consulted with the Assistant Treasurer about the town's positions on such items as health insurance and wages. The Assistant Treasurer helped formulate the town proposals, strategies and counter- proposals. The Assistant Treasurer attended a caucus with the town negotiating team after one negotiating session. 21. The Assistant Treasurer alone has access to the Town Manager's computer, office, and files, including all confidential material contained therein. They have adjoining offices. 22. The Town Manager and the Assistant Treasurer have had preliminary discussions about the Town's positions in the -7- _________________________________________________________________ negotiations for the clerical bargaining unit which will take place in 2004. DISCUSSION The parties stipulated that the various threshold require- ments for a unit clarification petition, defined in 966(3), are present in this matter. Specifically, the parties stipulated that the creation of the Assistant Treasurer position is a sufficient change in the circumstances surrounding the formation of the clerical bargaining unit to warrant consideration of the modification to the unit proposed. As the Assistant Treasurer position was created in 2002, the unit clarification proposed could not have been raised prior to the close of bargaining agendas for the 2001-2004 collective bargaining agreement. Further, the parties stipulated that they are unable to agree on appropriate modifications to the bargaining unit and there is no question concerning representation. Therefore, the Board has jurisdiction to consider this unit clarification petition. The sole argument raised by the employer is that the Assistant Treasurer position is a "confidential" position, and therefore not a "public employee" within the meaning of the MPELRL. Section 962(6)(C) provides that "public employee" means any employee of a public employer, except any person: C. Whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head, body, department head or division head. The exception for a confidential employee is not intended to exclude all employees with access to information considered "confidential" in other contexts. The Board has held: Our standard for the exclusion of 'confidential' employee is that those persons affected are employees who are 'permanently assigned to collective bargaining -8- _________________________________________________________________ or to render advice on a regularly assigned basis to management personnel on labor relations matters.' State of Maine and Maine State Employees Association, [Report of Appellate Review of Unit Clarification Report (Mar. 2, 1979)][No. 78-A-09], at 8. As we have noted above, the 'labor relations' matters, in the foregoing context, do not include contract administration actions or duties. Applying Hendricks County, [454 U.S. 170, 102 S.Ct. 216, 70 L.Ed.2d 323 (1980)], to this context, those employees who have, as part of their work responsibilities, access to the employer's negotiations positions, in advance of said positions being disclosed at the bargaining table, and who, as an integral part of their job duties, assist and act in a confidential capacity with respect to persons who formulate or determine the employer's bargaining positions or bargaining strategy are 'confidential' employees, under Section 979-A(6)(C) of the Act. State of Maine and Maine State Employees Association, No. 82-A-02, Interim Order, slip op. at 10 (MLRB June 2, 1983). 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 (MLRB Nov. 30, 1978). 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, in order to carry out their 'confidential' duties." State of Maine and Maine State Employees Association, No. 82-A-02, slip op. at 28. This -9- _________________________________________________________________ decision was rendered over 20 years ago, however, prior to the present state of technology which enables many confidential supervisory employees to efficiently handle most of their own correspondence and reports. As a hearing examiner has more recently suggested regarding the Board's position on the need for confidential clerical assistance: The Board's position . . . is a statement of fact rather than a statement of policy. It is simply a recognition that confidential supervisory employees may need a confidential clerical support person. It does not suggest that the confidential supervisory employee has any particular entitlement to a confidential clerical support person. Lewiston Food Service Manager Ass'n/MEA/NEA and Lewiston School Committee, No. 99-UD-10, slip op. at 24-25 (MLRB May 27, 1999). As a final consideration, the statutory language requires that the duties of the position "necessarily imply" a confidential relationship. Using this language, other hearing examiners have denied the exclusion of employees where the employer has placed excessive numbers of bureau chiefs from the same department on the bargaining team, or where the employer has given minimal confidential secretarial duties to an employee who did not previously have a confidential relationship with the employee's superior. AFSCME, Council 93 and Town of Sanford, No. 92-UD-03, slip op. at 38-39 (Feb. 21, 1992); Lincoln Sanitary District and Teamsters Union Local No. 340, No. 92-UC-02, slip op. at 13-15 (Nov. 17, 1992). The Board has found that employers should make an affirmative effort to centralize confidential functions, to the maximum extent practicable. State of Maine and Maine State Employees Association, No. 82-A-02, slip op. at 19- 20. In the present matter, there is no question that the Town Manager is a confidential employee. The Town Manager is, along with two Councilmen, a member of the negotiating team for the -10- _________________________________________________________________ Town and thus is involved in all aspects of collective bargaining for the town. The Town Manager is the ultimate supervisor of all town employees. He is therefore permanently assigned to collective bargaining matters, having complete access to the town's collective bargaining positions and labor relations policy decisions. The parties have also stipulated that he is the "executive head" of the town, as defined in 626(6)(C). The question remains whether the Assistant Treasurer serves as a "confidential" clerical employee to the Town Manager. The uncontradicted testimony of the Town Manager was that the Assistant Treasurer serves in this role. The Town has negotiated two collective bargaining agreements since the hiring of the Assistant Treasurer. In bargaining both these agreements, the Town Manager used the Assistant Treasurer to type confidential documents, such as contract proposals and strategy memos. The Assistant Treasurer, alone, has access to files and to the Town Manager's computer, both of which contain confidential information related to the town's collective bargaining positions. Further, the Assistant Treasurer performed some tasks relating to collective bargaining that went beyond the role of simply a clerical to the Town Manager. The Town Manager and the Councilmen who made up the town bargaining team consulted with the Assistant Treasurer in formulating town strategies, proposals and counter-proposals. She also attended one caucus during the negotiations.[fn]2 The union here does not so much dispute that the Assistant Treasurer, in fact, performs these confidential functions as questions the motive of the Town Manager in giving her these functions. Before the hiring of the Assistant Treasurer, the ____________________ 2 An employee who simply serves as an "information provider" is not necessarily a confidential employee. State of Maine and Maine State Employees Association, No. 78-A-09, slip op. at 8 (Mar. 2, 1979). The Assistant Treasurer served as more than an information provider; she helped to formulate strategies and proposals. -11- _________________________________________________________________ Town Manager performed most of his own typing; he typed the town's confidential collective bargaining proposals and related documents, including the typing of all four town collective bargaining agreements into his computer when he could not locate them in this format. In addition, the job description for the Assistant Treasurer position expanded a great deal from when it was originally conceived and advertised in August, 2002 (Exh. No. U-1) to when the final job description was created in April, 2003, several months after the Assistant Treasurer was hired (Exh. No. U-5). The position went from being "Assistant Treasurer," performing solely fiscal functions, to being "Assistant Treasurer and Human Resources Director," performing additional human resources functions, including those related to collective bargaining as already described. These facts certainly caused the hearing examiner to carefully consider the union's argument regarding motive and whether the confidential duties performed by the Assistant Treasurer are an inherent part of her job duties and responsibilities. Ultimately, however, the union never undermined the town's explanation of these facts. The Town Manager testified, without contradiction, that his job duties have increased over time and that he decided that he needed assistance with clerical functions. He further testified that he did not previously use the Town Clerk in this role because he did not think that her skills were adequate to the task (Tr. at 84). The Assistant Treasurer had clerical skills and some background in human resources, and the Town Manager therefore decided to rely on her in this manner. The facts in this case are in sharp contrast to the facts in Lincoln Sanitary District and Teamsters Union Local No. 340, No. 92-UC-02 (MLRB Nov. 17, 1992). In Lincoln Sanitary, the district superintendent often performed his own clerical work, maintained exclusive access to his confidential files and computer, and did not generally maintain a confidential work -12- _________________________________________________________________ relationship with the clerical employee in question, a secretary- bookkeeper. The employer in Lincoln Sanitary established that the secretary-bookkeeper had typed only one truly confidential document, a summary of the employer's collective bargaining strategy. Here, the Assistant Treasurer and the Town Manager have a confidential work relationship, the Assistant Treasurer has full access to confidential information, and has typed and handled a significant number of documents relating to the employer's collective bargaining strategy. She has even helped to develop some of these documents. The union further argues that the town should be made to "consolidate" the confidential function, such as by having the Town Clerk or some other position already excluded from the bargaining unit perform the confidential work now being performed by the Assistant Treasurer.[fn]3 While the Board has suggested that an employer should make an affirmative effort to "centralize" the confidential function to the maximum extent practicable, this related to the "passive diffusion" of labor relations and collective bargaining functions throughout various departments of state government. State of Maine and MSEA, No. 82-A-02, slip op. at 19-20. The hearing examiner does not believe that this language empowers her to direct which employee an employer must select to perform confidential duties in a case such as this, when only one employee is being so used. The union also argues that the Assistant Treasurer performs many of the same tasks that were previously performed by the ____________________ 3 In its brief, the union argues that the confidential duties now performed by the Assistant Treasurer (typing of bargaining proposals and agreements) were performed by the Town Clerk--a position excluded from the bargaining unit--and that these functions should be returned to the Town Clerk. Union's Brief at p. 1. The present Town Manager has not used the Town Clerk to perform these confidential duties since his hire in 2000 (Tr. at 67). The record was unclear whether the Town Clerk ever performed such duties, perhaps for a former Town Manager (Tr. at 30, 58). The hearing examiner can only consider the duties as presently performed by the positions in question. -13- _________________________________________________________________ bargaining unit Tax Clerks and that, therefore, this either establishes that the Assistant Treasurer position shares a community of interest with the bargaining unit or that the "bargaining unit work" should be returned to the unit. Union's Brief at 1, 3. The Assistant Treasurer does, in fact, perform duties formerly performed by the Tax Clerks, such as accounts payable and payroll, in addition to her other duties. This fact may support a finding of community of interest, in some cases. The hearing examiner need not examine community of interest here, however, because the position must be excluded as confidential. The law is clear that if a position falls within a statutory exclusion of 962(6), the position is excluded from the coverage of the collective bargaining law and may not be included in any bargaining unit. 966(1). The hearing examiner has no authority to "return" work to a bargaining unit, per se. In this, the union protests too much, as the number of bargaining unit positions has remained constant for years. The work of the town has apparently increased sufficiently to continue to require the employment of three Tax Clerks and to hire a new Assistant Treasurer as well. For these reasons, the hearing examiner finds that the newly-created position of Assistant Treasurer is a "confidential" employee within the meaning of 962(6)(C) and, excluded from the definition of "public employee" in the MPELRL, may not be included in a bargaining unit. -14- _________________________________________________________________ CONCLUSION The union's petition for unit clarification is denied. The position of Assistant Treasurer shall be excluded from the Fairfield clerical bargaining unit because the position is a confidential employee within the meaning of 26 M.R.S.A. 962(6)(C). Dated at Augusta, Maine, this 29th day of October, 2003. MAINE LABOR RELATIONS BOARD /s/_________________________ Dyan M. Dyttmer Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4), 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 Chapter 10 and Chap. 11 30 of the Board Rules. -15- _________________________________________________________________