Reversing, in part, No. 03-UC-02, Jan. 21, 2003.

                                      Case No. 03-UCA-01
                                      Issued:  May 15, 2003 

                    Appellant,      )     
                                    )    DECISION AND ORDER ON
          and                       )      UNIT CLARIFICATION
                                    )            APPEAL      
                    Appellee.       )

     Maine Maritime Academy filed this unit clarification appeal
on February 3, 2003, pursuant to 26 M.R.S.A. 1028(2) of the
University of Maine System Labor Relations Act (the "Act") and
Chapter 11, 30 of the Rules and Procedures of the Maine Labor
Relations Board ("Board").  The unit clarification report which
is the subject of this appeal was issued on January 21, 2003,
following an evidentiary hearing on the Academy's petition.  In
the unit clarification proceeding, the Academy sought a deter-
mination that the positions of Commandant/Port Captain, Assistant
Commandant, and Marine Operations Manager should be excluded from
the existing Administrative Staff bargaining unit.  The Maine
State Employees Association ("MSEA"), the recognized bargaining
agent for the Administrative Staff bargaining unit, objected to
the employer's petition.  The hearing examiner concluded that
there was no basis for removing any of the three positions from
the existing unit.  The employer appeals that decision.  
     After providing the parties the opportunity to submit
written briefs, the Board met March 27, 2003, to hear oral
argument.  Thomas Johnston, Esq., represented the Maine Maritime
Academy and Timothy Belcher, Esq., represented the Maine State
Employees Association.  At oral argument, the Academy withdrew
its appeal with respect to the Assistant Commandant and the


Marine Operations Manager.  After reviewing the decision below
and the record of evidence before the hearing examiner, we
reverse in part and hold that the Commandant/Port Captain must be
excluded from bargaining under section 1022(11)(B) of the Act.

     The Maine Maritime Academy is an aggrieved party within the
meaning of 26 M.R.S.A. 1028(2) and the Maine State Employees
Association is the bargaining agent within the meaning of 26
M.R.S.A. 1022(1-B) for the Administrative Staff bargaining unit
at the Academy.  The jurisdiction of the Maine Labor Relations
Board to hear this appeal and to render a decision lies in 26
M.R.S.A. 1028(2).  

                       STANDARD OF REVIEW
     The standard of review used to evaluate a hearing examiner's
findings of facts and conclusions of law is that they will be
overturned if they are "unlawful, unreasonable, or lacking in any
rational factual basis." City of Bath and Council 74, AFSCME, 
No. 81-A-01 (Dec. 15, 1980), at 6; Penobscot Valley Hospital and
Maine Federation of Nurses and Health Care Professionals, AFT,
No. 85-A-01 (Feb. 6, 1985), at 2; Topsham and Local S/89 District
Lodge #4, IAMAW, No. 02-UCA-01 (Aug. 29, 2002). 
     The Act governing collective bargaining at the Maine
Maritime Academy, the University of Maine System, and the Maine
Technical College System, covers all regular employees except
those who are:
          A.  Appointed to office pursuant to law;

          B.  Appointed by the Board of Trustees as a
          vice-president, dean, director or member of the
          chancellor's, superintendent's or Maine Technical 


          College System president's immediate staff; 

          C.  Whose duties necessarily imply a confidential
          relationship with respect to matters subject to
          collective bargaining as between such person and
          the university, the academy or the Maine Technical
          College System; or

          D.  Employed in the initial 6 months of employment. 

26 M.R.S.A. 1022(11).
     The primary issue raised in this appeal is whether the
Commandant/Port Captain, Jeffrey Loustaunau, is excluded from the
definition of Maine Maritime Academy employees covered by the
Act.  If the Commandant/Port Captain is excluded from coverage,
he must be removed from the Administrative Staff bargaining unit. 
The Academy argues that the Commandant/Port Captain is equivalent
to a vice-president excluded under paragraph B and that he is
also a confidential employee within the meaning of paragraph C. 
The employer argues in the alternative that the Commandant/Port
Captain should be removed from the unit because he does not share
a community of interest with the other unit employees.
       There is very little Board case law on unit issues under
the University Act, as the Board has only been called upon to
decide a substantive unit issue under it on one prior occasion. 
AFSCME and MSEA and Univ. of Maine, No. 77-A-04 (Feb. 24, 1977)
(affirming hearing examiner's community of interest analysis for
Police Unit and the inclusion of police sergeant).  Although not
holding the same precedential value as Board decisions, two
hearing examiner reports have addressed the scope of the
confidential employee exclusion contained in section 1022(11)(C). 
Maine Teachers Assoc. and Teamsters and Univ. of Maine, Nos. 80-
UD-10 & 80-UD-12, May 16, 1980) (excluding certain secretaries to
Academic Deans) and MSEA and Maine Maritime Academy, No. 82-UD-04 
(Jan. 22, 1982) (excluding the Executive Secretary to the 


Superintendent).[fn]1  This is the first case heard by either the 
Board or a hearing examiner on the meaning of the exclusion
contained in section 1022(11)(B).  
     The plain meaning of section 1022(11)(B) is to exclude the
employer's top management positions from coverage of the Act.[fn]2  
This conclusion is readily apparent from the language of the
exclusion and a comparison with Maine's other collective bargain-
ing laws.  At the time the University Act was enacted in 1976,
the Municipal Public Employees Labor Relations Law had been
in operation for seven years.  P.L. 1969, c. 424.  That Act excludes 
department heads, division heads, school superintendents and 
assistant superintendents, as well as elected officials and
certain political appointees.  26 M.R.S.A. 962(6).  Those
positions constitute the top management group in Maine's cities,
towns and school systems.  Similarly, the State Employees Labor
Relations Act, effective in 1974, also excludes political
appointees, department heads and division heads.[fn]3  P.L. 1973, c. 
774.  When the Legislature extended collective bargaining rights 
to Maine's higher education institutions, it excluded the top
management group at those entities in a similar
fashion, using the terminology customary in academia of vice-
president, dean and 

     1 In addition, Board hearing examiners have issued unit determin-
ation reports in three other University cases, two of which concerned
faculty units (AFUM and Univ. of Maine, No. 77-UD-02, and Law Faculty
Assoc. and Univ. of Maine, No. 77-UD-03, both issued Aug. 4, 1978),
and one creating the service and maintenance bargaining unit
(Teamsters and MSEA and Univ. of Maine, Nos. 78-UD-18 & 78-UD-19, 
Feb. 1, 1978).  

     2 It also excludes members of the president's or chancellor's 
immediate staff.

     3 The State Act has been amended a number of times since 1976 to
exclude, for example, "major policy-influencing positions" designated
in statute, departmental personnel officers, and attorneys working in
the Department of the Attorney General.  See, 26 M.R.S.A. 979-A(6).


director to describe the top management group.[fn]4 
     The hearing examiner correctly stated that to be excluded
under section 1022(11)(B), one must be "appointed by the Board of
Trustees" as a "vice-president, dean, director or member of the 
. . . [Academy President's][fn]5 immediate staff."  (Decision at p. 
20).  The hearing examiner found that the Board of Trustees was 
not involved in hiring Mr. Loustaunau other than approving his 
hire after the fact, and that this was not sufficient to meet the 
appointment requirement of subsection 11(B).  In the absence of 
any Board decision providing guidance, she correctly concluded
that she must apply the statute as written and give meaning to
all of its words.  We conclude, however, that the hearing
examiner made a legal error in that conclusion because she
focused on the facts surrounding the initial appointment of the
Commandant/Port Captain in April of 2000, rather than on the
subsequent change that was the basis of the employer's unit
clarification petition.
     Section 1024, subsection 7 of the Act enables either party
to file a unit clarification petition,

     . . . 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 . . . . 

The employer's petition to have the Commandant/Port Captain 
excluded was based on the change in the position that occurred in
2002 after the former Director of Waterfront Services retired.  

     4 P.L. 1975, c. 603, eff. 7/1/76, enacted 26 M.R.S.A. c. 12
granting collective bargaining rights to University of Maine
employees.  P.L. 1975, c. 671, eff. 10/1/76, amended the Act to cover
employees of the Maine Maritime Academy.  The terms used to describe
the top management group did not change.

     5 Section 1022(11)(B) still refers to the Academy President as the 
"superintendent," the position title when the Act was amended to cover 
Maine Maritime Academy.


It is this expansion of the job that the employer contends
warrants modification of the unit because, when combined with
other changes made over the years, it establishes that the
position is a top management position equivalent to a vice-
president.  If that is the basis for the exclusion, it makes no
sense to focus on whether the Trustees appointed Mr. Loustaunau
when he was initially hired.
     The hearing examiner found that there was a significant
realignment of responsibilities following the retirement of the
Director of Waterfront in 2002.  Rather than filling that
position and having it continue to report to the Vice President
for Administration and Finance, the position of Marine Operations
Manager was created which reported to the Commandant/Port Captain
instead.  Prior to this change, the Commandant/Port Captain was
responsible for the Regiment of Midshipmen and the Academy's
primary training vessel, the 500-foot State of Maine.  After the
change, the Commandant/Port Captain also assumed overall
responsibility for all aspects of the waterfront operations,
including the boat acquisition program and the maintenance and
operation of the 75 boats on the waterfront. 
     The hearing examiner's findings on this matter merely state
that "the Academy" made these changes, without specific reference
to the involvement of the Trustees.  Because we consider the 2002
change to be the operative event in this case, we have reviewed
the record for evidence regarding those changes.  The Vice
President for Administration and Finance testified that the
decision to expand the responsibilities of the Commandant/Port
Captain was made by the President and the Board of Trustees
together.  We consider this level of involvement by the Trustees
to be sufficient to meet the appointment requirement given the
particular circumstances of this case.  We do not think it is
necessary for the Board of Trustees to have formally appointed
Mr. Loustaunau to a position he already held, simply because the 


responsibilities of that position were expanded. 
     For these reasons, we disagree with the hearing examiner's
conclusion that the Commandant/Port Captain cannot be excluded
because he was not "appointed by the Board of Trustees" as
required by subsection (11)(B).  We do agree with the hearing
examiner's observation that for the appointment requirement to
have any meaning, there must be some greater significance to the
appointment than is the case with the general hiring process.  We
note with approval other hearing examiners' rejection of employer
attempts to use the literal language of statutory exclusions to
deny collective bargaining rights on a broad basis.  See, e.g.,
AFSCME and MSEA and Univ. of Maine, Nos. 77-UD-10 & 11, at p. 7
(P&SL 1865, ch. 532, authorizing University to hire various
personnel not sufficient to exclude campus police officers as
persons "appointed pursuant to statute" under section 1022(11)(A)
as it would be inconsistent with obvious purpose of statute);
Teamsters and City of Presque Isle, No. 92-UD-10 (Aug. 18, 1992),
p. 21 (Cannot nullify law granting municipal employees collective
bargaining rights by allowing towns to exclude all employees
under section 962(6)(B) simply by passing ordinances making all
appointments for fixed terms.)  In the present case, there is no
suggestion that the employer is attempting to stretch the meaning
of "appointment" to exclude someone who should not be excluded. 
The Union argues, with merit, that the Academy decided for itself
what hiring process to use for this top management group and
should not be allowed to avoid the consequences of its own
failure to have the Trustees make the appointments.  We agree in
principle but conclude that given the particular circumstances of
this case, the Trustees were sufficiently involved in the
reorganization of responsibilities to satisfy the "appointed by
the Board of Trustees" element of the section 1022(11)(B)
     The hearing examiner did not discuss whether the 


Commandant/Port Captain was "on par with" the Academy's vice
presidents because she concluded the appointment requirement of
the subsection (11)(B) exclusion was not met.  We have reviewed
the hearing examiner's findings and the record and conclude that
the Commandant/Port Captain held a top management position
equivalent to the "vice president, dean or director" roles
specified in the statute.
     Although the exclusion of the top administrators from the
collective bargaining act covering the Academy is significantly
different than the department head exclusion under the Municipal
Act,[fn]6 there are certain principles in common.  The most important 
is that, regardless of the job title, the inquiry must focus on
the actual function of the position at issue.  AFSCME v. Town of 
Paris, No. 97-UD-14 (Oct. 1, 1997), at 10, (department head or 
division head exclusion under the Municipal Act depends on the 
primary function of the position, not the job title); Teamsters 
and Town of Wells, No. 84-A-03 (Apr. 11, 1984), aff'd sub nom. 
Inhabitants of the Town of Wells v. Teamsters Local Union No. 48, 
CV-84-235, York Sup. Ct. (Feb. 28, 1985) (department head status 
based on primary responsibility of position).  In the present 
case, the evidence shows that the Commandant/Port Captain is 
responsible for a very significant part of the Academy's overall 
mission and is the functional equivalent of a vice president.[fn]7
     There are two primary components to the Academy's
educational mission:  the academic component and the practical
training component.  As is the case at higher education
institutions generally, the Academic Dean/Provost is the top
management position with overall responsibility for the academic 

     6 26 M.R.S.A. 962(6)(D) excludes any person "Who 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."

     7 The fact that his job title does not include the words "vice
president," "dean" or "director" is immaterial.


component of the Academy's mission.  Similarly, the Commandant/
Port Captain is the top management position at the Academy with
overall responsibility for the practical training component.  
The practical training component includes the Regiment of
Midshipmen itself, the required cruise on the training vessel
State of Maine, as well as the hands-on training regarding
various boat operations, seamanship and waterfront operations.  
     With respect to budgetary and asset management issues, the
Commandant/Port Captain's responsibilities are substantial.  He
has overall responsibility for maintenance and operation of about
75 vessels including the 500-foot training ship, the 88-foot
schooner Bowdoin, the research vessel, the tug, and many other
types of smaller craft used in training the students.  The
Commandant/Port Captain's total budget is $1.6 million.  The
number of employees in his areas of responsibility ranges from 40
up to 60 during the summer months.  He is the Commandant of the
Regiment of Midshipmen, a disciplined, military-style program
required for majors leading to a U.S. Coast Guard unlimited
license.[fn]8  There are 415 students enrolled in the regiment
division out of a total enrollment at the school of 719. 
     The Commandant/Port Captain's function as one of the
Academy's top managers is also demonstrated by the fact that he 
reports directly to the President and is a member of the
President's Executive Committee.  The hearing examiner noted that
the decision to have the Commandant report directly to the
President was apparently motivated by a desire to "raise the
profile" of the regimental program.  That does not mean, however, 
that the change was merely window dressing.  Reporting directly
to the President enables the Commandant/Port Captain to provide

     8 The U.S. Coast Guard license to operate ships in the merchant
marine, either as an engineering officer or a deck officer, requires
the licensee to go through a minimum of three years in a regimented
program.  The license also requires participation in 60-day training

input on management matters and represent the interests of the
regiment, the training ship, and the waterfront to the other
members of the Executive Committee.  
     As a final observation, we note that the current position of
Commandant/Port Captain is strikingly similar to the Vice-
President of Training position excluded from the bargaining unit
by agreement when the parties created the unit in 1988.  We agree
with the hearing examiner that the fact the parties agreed to ex-
clude a position does not control whether the Board must consider
it excluded under the statute.  Tracing the evolution of the
Commandant/Port Captain position simply supports our conclusion
that it is functionally equivalent to a vice president.
     When the parties created the Administrative Staff bargaining
unit by agreement, the Vice President of Training was one of five
vice-president positions excluded.  At that time, the Vice
President of Training also served as the Master of the Training
Vessel.  The Director of Waterfront Services and the Commandant
both reported to the Vice President of Training.[fn]  Thus, when the 
unit was created, the Vice President of Training had overall
responsibility for the regiment, the training vessel, and
waterfront services.  When he retired, the position was not
filled and his responsibilities were divided and redistributed. 
The Commandant position began to report to the Academic Dean and
became the Commandant/Port Captain with full responsibility for
the training vessel while it was in port.  The new Master of the
Training Vessel reported to the Commandant/Port Captain.  The
Director of Waterfront Services began to report to the Vice
President of Administration and Finance.  With the change made in
early 2002 moving the waterfront operations back under the
Commandant/Port Captain, the reporting relationships and 

     9 Finding #10 is incorrect in saying that the Master of the
Training Vessel has been supervised by the Commandant/Port Captain
since the inception of the unit.


distribution of responsibilities came nearly full circle. 
     In summary, we conclude that the Commandant/Port Captain
must be removed from the Administrative Staff bargaining unit
because he is excluded from the definition of employees covered
by the Act.  We need not consider the Academy's argument that he
is a "confidential" employee within the meaning of paragraph C
nor that he lacks a community of interest with the other unit


     On the basis of the foregoing findings of fact and
discussion, and by pursuant to the powers granted to the Maine
Labor Relations Board by 26 M.R.S.A.  1028(2) it is ORDERED:

     1.  The hearing examiner's conclusion in the 
     January 21, 2003, Unit Clarification Report that the
     Commandant/Port Captain is not excluded from the
     definition of employee is reversed.  The Commandant/
     Port Captain is excluded from the definition of Academy
     employee under section 1022(11)(B).
Dated at Augusta, Maine, this 15th day of May, 2003.

                                   MAINE LABOR RELATIONS BOARD

The parties are advised of         /s/___________________________
their right to seek review         Jared S. des Rosiers
of this decision and order         Chair
by the Superior Court by       
filing a complaint pursuant    
to 26 M.R.S.A. 1028(2) and in     /s/___________________________
accordance with Rule 80C of        Richard L. Hornbeck
the Rules of Civil Procedure       Employer Representative
within 15 days of the date     
of this decision.              
                                   Wayne W. Whitney
                                   Employee Representative