STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 04-UC-02
Issued: June 27, 2005
____________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Petitioner, )
)
and ) UNIT CLARIFICATION
) REPORT
STATE OF MAINE, )
)
Employer. )
____________________________________)
PROCEDURAL HISTORY
This unit clarification proceeding was initiated on July 1,
2003, when Timothy L. Belcher, Esq., attorney for the Maine State
Employees Association ("MSEA" or "Union"), filed a Petition for
Unit Clarification with the Maine Labor Relations Board ("Board")
for a determination whether the positions in the Clerk IV
classification, currently included in the State Employee
Administrative Services Bargaining Unit ("Administrative Unit")
should be included in the Supervisory Services Bargaining Unit
("Supervisory Unit") pursuant to 979-E(3) of the State
Employees Labor Relations Act ("SELRA"). On July 15, 2003, the
State of Maine Bureau of Employee Relations ("State") filed a
Motion to Extend Time to File Responses to Unit Clarification
Petitions, which motion was granted.[fn]1 In the months following
the filing of the petition, the parties and Board staff
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1 The Union simultaneously filed a second petition relating to
the Biologist II positions, Case No. 04-UC-01. A separate hearing was
conducted in that matter and a decision issued on September 24, 2004.
In neither case did the employer file a response to the unit
clarification petition. However, the parties are in agreement that
the jurisdictional elements for a unit clarification petition have
been met in this case. The Union has not filed any motion relating to
the employer's failure to file a response to the petitions.
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participated in several pre-hearing conferences in an attempt to
determine whether the parties could agree to the movement of some
of the Clerk IV positions from the Administrative Unit to the
Supervisory Unit. To this end, the parties crafted a survey to
be sent to all employees holding the Clerk IV position to help
determine their supervisory status. The surveys were sent to all
employees holding the Clerk IV position on October 7, 2003, by
Board staff. Board staff handled and compiled the surveys that
were returned.
During the course of these proceedings, the number of Clerk
IV positions in state government fluctuated, but generally
remained between 120 to 130 (with certain positions vacant at
times). On February 3, 2004, the parties submitted an Agreement
on Appropriate Bargaining Unit that moved the positions of 71
Clerk IVs from the Administrative Unit to the Supervisory Unit.
In some cases, all of the Clerk IVs employed in a department were
moved (such as in the Department of Administrative and Financial
Services, and the Department of the Secretary of State); in other
cases, some of the Clerk IVs employed in a department were moved,
and other remained in the Administrative Unit (such as in the
Department of Health and Human Services). On September 1 and
October 5, 2004, the parties submitted a second and third
agreement that moved the positions of two more Clerk IVs from the
Administrative Unit to the Supervisory Unit. On March 2, 2005,
the parties submitted a fourth agreement that moved the positions
of three more Clerk IVs from the Administrative Unit to the
Supervisory Unit. On May 31, 2005, the parties submitted a fifth
agreement that moved the position of one more Clerk IV from the
Administrative Unit to the Supervisory Unit. The parties
effectively agreed that the Clerk IV position would be "split"
between the Administrative Unit and the Supervisory Unit
(although this would be the only position so split in state
government), depending on the duties of the particular position.
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On December 15, 2004, counsel for MSEA filed a Motion to
Amend Petition which sought to move only certain Clerk IVs
remaining in dispute from the Administrative Unit to the
Supervisory Unit. This motion was orally amended by counsel for
MSEA during the hearing conducted on March 2, 2005. Counsel for
the State had no objection to the Motion to Amend Petition, and
the motion was granted. As a result of this motion, the parties
agreed that the hearing examiner should determine only whether
seven Clerk IVs still in dispute should be moved to the
Supervisory Unit: one Clerk IV in the Department of Education,
and six Clerk IVs in the Department of Health and Human Services.
After due notice, a series of evidentiary hearings was held
by the undersigned hearing examiner on the petition on August 25,
2004, September 1, 2004, and March 2, 2005. Mr. Belcher appeared
on behalf of the MSEA. Joyce A. Oreskovich, Esq., appeared on
behalf of the State. The union presented as its witnesses: John
Graham, MSEA Director of Field Services; and Brenda Beaulieu,
Geraldine Connolly, Sandra Goldman, Diane McDonald, Ann Marie
Stevens, and Wanda Gay, all Clerk IVs. The State presented as
its sole witness Stephen Smith, Personnel Officer for the
Department of Health and Human Services. The parties also agreed
that regarding three of the positions (currently held by Lisa
Robbins, Elaine White, and Tina White), the hearing examiner
should base her decision on the written survey submitted (Union-
15, Union-16, and Union-17). At the hearings, the parties were
given the opportunity to examine and cross-examine witnesses,
offer evidence and present argument. The parties agreed to waive
closing arguments.
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. 979-E.
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STIPULATIONS
The parties stipulated to the following:
The factors required for a unit clarification petition are
present in this matter in that 1) there is currently a certified
or recognized bargaining representative, 2) there is no question
concerning representation, 3) the circumstances surrounding the
formation of the existing bargaining unit have changed
sufficiently to warrant modification in the composition of the
bargaining unit, and 4) the parties are unable to agree on
appropriate modifications as this relates to the seven positions
still at issue in this matter.
EXHIBITS
The following exhibits were offered into evidence without
objection:
Exhibit No. Title/Description
Union-1 Job Description form (Beaulieu)
Union-2 Clerk IV interview questions (Beaulieu)
Union-3 Outline of job assignments (Beaulieu)
Union-4 Line list by region
Union-5 Interview Questions (McDonald)
Union-6 Performance Evaluation 8/03 (McDonald)
Union-7 Performance Evaluation 8/04 (McDonald)
Union-8 Performance Evaluation 11/03 (Stevens)
Union-9 Correspondence (Belcher-Oreskovich)
re: Clerk IV reclassification
Union-10 Form 1 dated 2/3/04
Union-11 Form 1 dated 9/1/04 (Johnson)
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Union-12 Survey of Wanda Gay
Union-13 Clerk IV job description (Gay)
Union-14 Performance Evaluation 5/04 (Gay)
Union-15 Survey of Tina White
Union-16 Survey of Elaine White
Union-17 Survey of Lisa Robbins
Union-18 Survey of Brenda Beaulieu
Union-19 Survey of Geraldine Connolly
Union-20 Survey of Ann Marie Stevens
Joint-1 Administrative Services collective bargaining
agreement, 2003-2005
Joint-2 Supervisory Services collective bargaining
agreement, 2003-2005
Joint-3 Form 1 dated 2/3/04
FINDINGS OF FACT
Findings regarding Brenda Beaulieu
1. Brenda Beaulieu has been employed by the Department of
Education ("DOE") for over 17 years. For the last three years,
she has held the position of Office Manager/Clerk IV in the
Division of Compensatory Education in the DOE. Her job
classification is Clerk IV, but her position is commonly called
an Office Manager position within the Division.
2. The Division of Compensatory Education administers
federal Title IA and IC funds for various recipient school
districts in the state. The Division is headed by a Title IA
Director. Other employees in the Division include a Title IC
Director (a contract employee), two school consultants, a
distinguished educator, a Data Entry Supervisor, a Data Control
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Specialist, and two Clerk-Typist IIs.
3. Ms. Beaulieu's direct supervisor is the Division
Director.
4. Ms. Beaulieu is the direct supervisor of the two Clerk-
Typist IIs in the Division. She writes and signs the yearly
evaluations for these two employees. She assigns them work and
oversees their work. She is held accountable, as their
supervisor, for the work that they perform. She approves their
time off and their time sheets. She applies the office policies.
She handles complaints or grievances they might have about the
workplace. For instance, one of the employees complained to her
about being treated rudely by a consultant working for the
Division. Ms. Beaulieu handled this situation by asking the
consultant to give work assignments to Ms. Beaulieu, who then
distributed the work assignments.
5. To some extent, Ms. Beaulieu also acts as a supervisor
to the Data Entry Supervisor and the Data Control Specialist.
In 2004, the Data Entry Supervisor received a reclassification
of her position to that supervisory position. The Data Entry
Supervisor was then in a pay grade above Ms. Beaulieu, and
Ms. Beaulieu did not believe that it was any longer appropriate
to perform work evaluations on the Data Entry Supervisor or the
Data Control Specialist. After the reclassification, the
Division Director performs the evaluations for these two
positions. The Division Director still consults with
Ms. Beaulieu about these evaluations.
6. Ms. Beaulieu still assigns some work and directs the
work flow of the Data Entry Supervisor and the Data Control
Specialist. She also approves their time off.
7. The job description for Ms. Beaulieu's job (Union-1)
provides, in part, as follows:
This is a clerical office management and supervisory
position within the Office of Compensatory Education.
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The employee is responsible for overseeing the work of
support staff and data entry staff to ensure timely
processing of information, professional looking
documents, and that work practices comply with state
policies and procedures.
One of the functions of the job is described as "Interviews,
selects/recommends, trains, supervises and evaluates
clerical/data processing staff."
8. Ms. Beaulieu's job requires her to perform a variety of
non-supervisory functions as well, such as overseeing projects,
developing contracts, dealing with consultants, and processing
bills. She does not perform work similar to those employees whom
she supervises.
9. Ms. Beaulieu estimates that she spends ten to fifteen
percent of her time directly supervising employees (evaluating
employees, assigning work, etc.)(Union-18).
Findings regarding Geraldine Connolly
10. Geraldine Connolly has been employed by the State of
Maine for 18 years. For the past seven years, she has been
employed as an Office Manager/Clerk IV. She was employed by the
Department of Mental Health and Retardation but, following the
merger of this Department with the Department of Human Services,
she is now employed by the newly-named Department of Health and
Human Services (DHHS). She is employed in the Region I office in
Portland, an office which provides services in York and
Cumberland counties.
11. Ms. Connolly's director supervisor is the program
supervisor.
12. Three team leaders are employed in Region 1, covering
mental health services, mental retardation services, and
children's services. These team leaders supervise case work
supervisors who, in turn, supervise caseworkers. Ms. Connolly's
job entails overseeing the day-to-day functioning of the Region 1
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office, supervising some support staff employees, and
distributing work to the support staff employees from the three
team leaders and from the assistant regional director.
13. Ms. Connolly is the direct supervisor of two state
employees--a Clerk-Typist II and a Clerk-Typist III. These two
employees provide reception coverage for the office, as well as
typing, filing and other support services. Ms. Connolly was part
of the interview team (along with the assistant regional director
and the administrative secretary) that selected these two
employees for hire. She trained these employees. Ms. Connolly
writes and signs the yearly evaluations for these two employees.
She assigns them work and oversees their work. She is held
accountable, as their supervisor, for the work that they perform.
She approves their time off and signs their time sheets. She
calls and conducts staff meetings which involve these, and other
office staff. She performs ergonomic evaluations for some staff.
14. Ms. Connolly is also the direct supervisor of other
support staff employees hired on a temporary basis. These
employees might be obtained from temporary agencies, non-profit
agencies, or the ASPIRE program. These employees also function
as clerk-typists. As of August, 2004, Ms. Connolly supervised
one full-time and one part-time temporary employee. Regarding
these employees, she assigns them work and oversees their work.
She signs their time sheets. She completes evaluations regarding
their work, although she is not required to because they are not
state employees. The office has employed such temporary staff on
a fairly consistent basis for the last four years.
15. Ms. Connolly is responsible to administer first-level
discipline, such as counseling and oral reprimand. She made the
decision to extend a probation of, then ultimately to discharge,
one state employee whom she supervised. She also made the
decision to discharge one temporary employee whom she supervised.
16. Ms. Connolly has participated in meetings with other
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supervisors and administrators to develop office policies and
protocol. It is part of her job to enforce office policies.
She suggested and implemented installing a bulletproof window in
the reception area of the office.
17. Ms. Connolly's job requires her to perform a variety of
non-supervisory functions as well, such as handling the archiving
of files, overseeing the physical maintenance of the office, and
monitoring the office budget. She usually does not perform work
similar to those employees whom she supervises, unless the office
is short-staffed due to vacations or other leave.
18. Ms. Connolly estimates that she spends twenty-five
percent or more of her time directly supervising employees.
She performs as a supervisor every day, although the amount of
time she spends each day may vary (Union-19).
19. Ms. Connolly has attended two training opportunities
which focused on supervisory skills.
20. Due to her job responsibilities, Ms. Connolly views
herself as a supervisor and believes she has a community of
interest with employees in the Supervisory Unit.
Findings regarding Ann Marie Stevens
21. Ann Marie Stevens has been employed by DHHS, in the
Bureau of Elder and Adult Services, for over eight years as a
Clerk IV. Ms. Stevens is supervised by the Director of the
Community Resource Development Unit who is, in turn, supervised
by the Bureau Director.
22. Ms. Stevens is the direct supervisor of four Clerk-
Typist IIIs in the Unit who perform a variety of work. One of
the Clerk-Typist IIIs maintains a data base and performs all
support work for the Adult Protective Service Program. One of
the Clerk-Typist IIIs performs support work for program managers
in the office (scheduling, paying bills, answering telephones,
etc.). These two Clerk-Typist IIIs have been under Ms. Steven's
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supervision throughout Ms. Steven's employment as a Clerk IV.
The other two Clerk-Typist IIIs came under Ms. Stevens'
supervision four years ago when their function came under the
direction of her Bureau. These two Clerk-Typist IIIs handle all
the paperwork and other support work related to licensing adult
assisted care facilities.
23. In addition to her duties as supervisor, Ms. Stevens
also performs support work (scheduling, typing, etc.) for her
immediate supervisor and for the Bureau Director.
24. Ms. Stevens writes and signs the yearly performance
evaluations for the four Clerk-Typist IIIs. She assigns them
work and oversees their work. She handles complaints or
grievances they might have about the workplace. She applies
office policies. She handles any initial discipline required,
such as verbal counseling. Ms. Stevens is held accountable, as
a supervisor, for the work performed by the employees whom she
supervises.
25. Ms. Stevens interviewed and hired one of the four
employees whom she supervises. She also trained this employee.
The other three employees were in their respective positions when
Ms. Stevens became their supervisor.
26. The concise description of Ms. Stevens' job, as
contained in her performance evaluation (Union-8), is as follows:
Position supervises four Clerk Typist III's, and is
responsible for day-to-day activities involved with
managing the Bureau's cental office and the Assisted
Living office. Responsibilities include hiring, making
work assignments, anticipating needs of professional
staff and making accommodations in work flow, ensuring
the unit present a good public image, responding to
public inquiries, maintaining Bureau records and
supplies, and in general being familiar with the
Bureau's programs and services.
Much of this performance evaluation describes expectations,
competencies, and skills required for this position which relate
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to supervising other employees.
27. Ms. Stevens does not normally perform work similar to
the employees whom she supervises, but does do so on occasion
when help is needed or employees are on vacation.
28. Ms. Stevens estimates that she spends 40 percent or
more of her time directly supervising employees (Union-20).
29. Ms. Stevens has attended several training opportunities
which focused on supervisory skills and knowledge needed by
supervisors, since she began in her current position.
30. Due to her job responsibilities, Ms. Stevens views
herself as a supervisor and believes she has a community of
interest with employees in the Supervisory Unit.
Findings regarding Wanda Gay
31. Wanda Gay has been employed by the State for over 24
years. For the last four years she has been employed as a Clerk
IV by DHHS, Bureau of Income Maintenance. The primary job of
Ms. Gay's office is to set up and process electronic accounts for
recipients of food stamps and cash benefits (TANF) based upon
applications and information gathered at 16 area offices in
Maine. The office will also be setting up and processing cards
for the Dirigo Health Program.
32. Besides Ms. Gay, the office is currently staffed by a
Project Manager, one Clerk-Typist II, one Clerk-Typist I, and one
Store Clerk. The office has had higher staffing levels in the
past but, due to frozen positions, is currently at the present
level.
33. The work of the office changed considerably two years
ago when the food stamp/cash benefit system went from a "paper"
system (with food stamp coupons and checks) to an electronic
transfer system. Now recipients are issued a plastic card, like
a credit card, to access their food stamps and cash benefits.
Prior to this change to an electronic system, the office
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supervisor was re-classified to a Project Manager. His job as
Project Manager takes him outside the office a great deal,
meeting with vendors, banks, retailers, and other groups.
After he became a Project Manager, Ms. Gay's position was
required to handle even more of the day-to-day supervision of the
office.
34. Due to the change to the electronic system, the duties
performed by the support staff also changed considerably.
Ms. Gay had to formulate new job assignments. Under this new
system, the Clerk-Typist II enters data from the regional
offices, the Clerk-Typist I handles phone, mail, and certain form
letters, and the Store Clerk runs the machine that produces the
electronic cards and does mail. Because the office is
understaffed, Ms. Gay prioritizes the work done by the three
staff employees and, as needed, does some of the overflow work
herself.
35. As the immediate supervisor of the three staff
employees, Ms. Gay assigns and oversees their work and answers
their questions. She is held accountable for the work that they
perform. She approves their time off. She handles at an initial
level complaints or grievances that they might have about the
workplace. She applies office policies.
36. Ms. Gay is responsible to administer first-level
discipline, such as counseling and oral reprimand. She has, for
instance, counseled an employee about unprofessional conduct and
worked to "keep the peace" between two employees who sometimes do
not get along in the workplace.
37. The job description for Ms. Gay's job (Union-13)
contains the following supervisory duties:
Plans and organizes this units work. Delegates and
distributes the assignments to the office staff.
Follows up with staff to insure the work has been done
timely and correctly . . . Establish work methods and
procedures in order to meet Federal Food Stamp
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guidelines. Establish work methods and procedures to
insure that we are in balance with the contractor, our
accounting system as well as the Federal Reserve Bank
. . . Interviews and makes recommendations on staff
that are to be hired. Trains staff and responds to
employee complaints as well as to complaints about
employees. When necessary meets with employees to
counsel and alter the offending behavior.
38. Ms. Gay's job requires her to perform a variety of non-
supervisory tasks as well, such as completing federal reports,
responding to auditors, and purchasing office equipment and
supplies. Except for performing overflow work as described
above, Ms. Gay does not perform work similar to that performed by
the employees whom she supervises.
39. The Project Manager, not Ms. Gay, writes and signs the
yearly evaluations for the three support staff employees. As Ms.
Gay is more responsible for their day-to-day supervision, the
Project Manager consults with Ms. Gay prior to writing the
evaluations.
40. Ms. Gay estimates that she spends twenty percent or
more of her time directly supervising employees. She performs as
a supervisor every day, although the amount of time she spends
each day may vary, and may also depend on whether or not the
Project Manager is working in the office.
41. In 2003, Ms. Gay attended a two-day training called
Managing in State Government.
42. Due to her job responsibilities, Ms. Gay views herself
as a supervisor and believes she has a community of interest with
employees in the Supervisory Unit.
Findings regarding Tina White (based on survey)
43. Tina White has been employed by the State for over 15
years. For about the last year, she has held the position of
Clerk IV in the DHHS, Bureau of Medical Services, Provider File
and Inquiry Unit.
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44. Ms. White's job entails supervising approximately 10
permanent employees and four project employees in the two
different units: (permanent) five Clerk IIIs, one Clerk II, one
Clerk-Typist III, one Medical Claims Evaluator, and two Senior
Medical Claims Evaluators, (project) three Clerk IIs and one
Clerk III.
45. Ms. White is the direct supervisor of these ten
permanent and four project positions. She writes and signs the
yearly evaluations for these employees. She assigns them work
and oversees their work. She is held accountable, as their
supervisor, for the work that they perform. She establishes and
applies office policies.
46. Ms. White handles initial level complaints or
grievances that any of these employees might have about the
workplace. She is also responsible to enforce the collective
bargaining agreement and to take initial corrective action, as
needed.
47. Ms. White's job requires her to perform other non-
supervisory functions as well, such as being the "subject matter
expert" for all employees in her building with questions about
the provider sub-system. She spends up to one to two hours per
day performing work that is similar to that performed by the
employees whom she supervises.
48. Ms. White spends the majority of her time each day
acting as a supervisor and dealing with issues related to her
role as a supervisor.
49. Ms. White has attended several training opportunities
related to supervisory skills, including Managing in State
Government.
50. Due to her job responsibilities, Ms. White views
herself as a supervisor and believes she has a community of
interest with employees in the Supervisory Unit.
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Findings regarding Elaine White (based on survey)
51. Elaine White has been employed by the State for over 29
years. For about 18 years, she has held the position of Clerk IV
in the DHHS, Bureau of Child and Family Services. Her job
classification is Clerk IV, but her position is commonly called
the Secretary to the Bureau Director.
52. Elaine White's job entails supervising three employees,
two Clerk-Typist IIs and one Secretary.
53. Elaine White is the direct supervisor of these three
employees. She writes and signs the yearly evaluations for these
employees. She assigns them work and oversees their work. She
is held accountable, as their supervisor, for the work that they
perform. She establishes and applies office policies.
54. Elaine White handles initial level complaints or
grievances that any of these employees might have about the
workplace. She is also responsible to enforce the collective
bargaining agreement and to take initial corrective action, as
needed. For instance, she has counseled an employee about a
sexual harassment complaint and about the misuse of state
equipment.
55. Elaine White's job requires her to perform other non-
supervisory functions as well, such as being the liaison to the
Commissioner's and the Director's office for constituent
complaints, and coordinating travel plans for Bureau caseworkers.
She spends some time on the support staff team performing work
that is similar to that performed by the employees whom she
supervises.
56. Elaine White estimates that she spends twenty-five
percent or more of her time directly supervising employees.
57. Elaine White has attended several training
opportunities related to supervisory skills, including Managing
in State Government, Performance Management, and Employee
Interview and Selection.
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58. Due to her job responsibilities, Elaine White views
herself as a supervisor and believes she has a community of
interest with employees in the Supervisory Unit.
Findings regarding Lisa Robbins (based on survey)
59. Lisa Robbins has been employed by the State for over 18
years. For about one year, she has held the position of Clerk IV
in the DHHS, Bureau of Health, Health and Environmental Testing
Laboratory. Her job classification is Clerk IV, but her position
is commonly called the Office Manager.
60. Lisa Robbins' job entails, in part, supervising two
employees: one Account Technician and one Clerk-Typist III.
Three other positions are also generally under the supervision of
Ms. Robbins: two Clerk-Typist IIs and one Data Entry Specialist.
Ms. Robbins has delegated the day-to-day review oversight of
these positions to the Account Technician and to the Clerk-Typist
III. However, in the absence of these employees, she directly
oversees the work of these three employees as well.
61. Ms. Robbins is the direct supervisor of the two
employees, and also retains supervisory authority over the other
three employees, as described above. Regarding the Account
Technician and the Clerk-Typist III, Ms. Robbins writes and signs
the yearly evaluations for these employees. She assigns them
work and reviews projects as requests. She is held accountable,
as their supervisor, for the work that they perform. She over-
sees the work of all five employees.
62. Ms. Robbins establishes performance standards for the
office, applies personnel policies or procedures, and enforces
the collective bargaining agreement, as necessary. She is
empowered to take corrective action to enforce performance
standards. She has spoken generally to employees about
performance issues such as overtime and reporting, though she has
not been required to counsel or to take any corrective actions
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regarding the employees whom she supervises.
63. Ms. Robbins' job requires her to perform other non-
supervisory functions as well, such as purchasing chemicals and
equipment, creating and reviewing contracts, preparing budgets,
and overseeing collection of revenue. She spends a limited amount
of time performing clerical work similar to that performed by the
employees whom she supervises.
64. Ms. Robbins estimates that she spends fifteen percent
or more of her time dealing with supervisory and personnel
issues, and payroll.
65. Ms. White has attended several training opportunities
related to supervisory skills, including Managing in State
Government and Implementing Supervisory Practices.
66. Due to her job responsibilities, Ms. White views
herself as a supervisor.
DISCUSSION
The parties stipulated that the various threshold
requirements for a unit clarification petition, as defined in
979-E(3), are present in this matter. Therefore, the executive
director has jurisdiction to consider this petition. The sole
issue presented is whether the seven Clerk IV positions still in
dispute between the parties should be moved from the
Administrative Unit to the Supervisory Unit, joining the
approximately 75 Clerk IV positions that have been moved to the
Supervisory Unit by the agreement of the parties. As the parties
have been unable to agree whether these seven positions should
remain in the Administrative Unit or be moved to the Supervisory
Unit, the hearing examiner, as designee of the executive
director, may make this decision pursuant to 979-E(1).
In making the determination whether these seven positions
should be moved to the Supervisory Unit, the primary question is
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whether these positions share a "community of interest" with the
positions currently in the Supervisory Unit. SELRA contains the
same "community of interest" language as the other state
collective bargaining laws. Section 979-E(2) provides:
In order to insure to employees the fullest freedom in
exercising the rights guaranteed by the chapter, to
insure a clear and identifiable community of interest
among employees concerned, and to 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.
The Board has explained the purpose of the requirement that
positions in a bargaining unit share a community of interest,
examining identical language in the Municipal Public Employees
Labor Relations Law (MPELRL):
Title 26 M.R.S.A. 966(2) requires that the hearing
examiner consider whether a clear and identifiable
community of interest exists between the positions in
question so that potential conflicts of interest among
bargaining unit members during negotiations will be
minimized. Employees with widely different duties,
training, supervision, job locations, etc., will in
many cases have widely different collective bargaining
objectives and expectations. These different
objectives and expectations during negotiations can
result in conflicts of interest among bargaining unit
members. Such conflicts often complicate, delay and
frustrate the bargaining process.
AFSCME and City of Brewer, No. 79-A-01, at 4, 1 NPER 20-10031
(MLRB Oct. 17, 1979). The Board Rules further elaborate the
factors to be considered in determining whether employees share
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the requisite community of interest.[fn]2
The community of interest factors are often examined in the
context of creating a new bargaining unit. See, e.g., Portland
Administrative Employees Ass'n and Portland Superintending School
Committee, No. 86-UD-14 (MLRB Oct. 27, 1986), aff'd, No. 87-A-03
(MLRB May 29, 1987). In the present matter, however, the state
employee bargaining units at issue have existed for almost 30
years. It is instructive to briefly review the creation of the
state bargaining units in order to make a proper determination in
this case.
In 1976, after months of hearings, the executive director
issued a unit determination report creating seven state
government bargaining units: Administrative Services;
Professional and Technical Services; Institutional Services; Law
Enforcement, Public Safety and Regulatory Services (Non-Police);
0State Police Services; Operations, Maintenance and Support
Services; and Supervisory Services. Council No. 74, AFSCME and
Office of State Employee Relations, No. 75-UD-04, et al. (MLRB
Sept. 22, 1976). The executive director opted not to establish
bargaining units based on departmental lines, but rather grouped
job classifications that shared a community of interest.
With the exception of the State Police Services Bargaining Unit,
the bargaining units each contained job classifications which cut
across departmental lines. In all cases but one, entire job
classifications were placed in one bargaining unit or another;
____________________
2 The following factors, at a minimum, must be considered: (1)
similarity in the kind of work performed; (2) common supervision and
determination of labor relations policy; (3) similarity in the scale
and manner of determining earnings; (4) similarity in employment
benefits, hours of work and other terms and conditions of employment;
(5) similarity in the qualifications, skills and training among the
employees; (6) frequency of contact or interchange among the
employees; (7) geographic proximity; (8) history of collective
bargaining; (9) desires of the affected employees; (10) extent of
union organization; and (11) the employer's organizational structure.
Chap. 11, 22(3) of the Board Rules.
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job classifications were not "split" based on specific job
duties.[fn]3
For each bargaining unit created, the executive director
gave a summary regarding the similarities between the
classifications placed in the bargaining unit and described how
these classifications shared a community of interest for purposes
of collective bargaining. In creating the Administrative Unit
(which included the Clerk IV position from the outset), the
executive director stated that:
Employees in this unit generally perform their
duties in an office environment and their work product
may generally be described as a service, as opposed to
the production of product(s). Employees in this unit
are commonly referred to as "white collar" workers who
work with and near light office equipment during a
standardized work week. Their career ladders,
promotions and transfers are almost exclusively within
this unit and they have unique interests regarding
their working conditions, i.e., parking facilities,
dress codes, inclement weather policy, policies
concerning advancement, training and promotion,
equipment replacement, cafeteria service or its
proximity, and vacation schedule. There is also
concern for the basic considerations of pay,
retirement, and personnel rules.
These employees generally work inside and with
other employees or members of the public who share
interrelated work areas, functions, and/or concerns.
Employees in this unit are seldom, if ever, subject to
emergency call back or standby requirements or shift
work. These employees are seldom, if ever, required to
supply any of the tools of their profession as these
items are generally part of the office environment
provided by the employer. Most of these employees have
private training and/or experience which qualify them
for their jobs and give them relatively high potential
____________________
3 The only exception noted in the 1976 report was the Custodian
classification, which was included in both the Institutional Services
Unit and the Operations, Maintenance and Support Unit. The Executive
Director recommended that the problem of splitting a job classifica-
tion between two units be resolved by renaming the Custodian classifi-
cation in the Institutional Services unit. Council No. 74, AFSCME and
Office of State Employee Relations, supra, No. 75-UD-04, at 12.
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for transfers and promotions to other generic groupings
or job titles within the bargaining unit.
In creating the Supervisory Unit, the executive director stated
that:
Employees in this unit fill "middle management"
positions of a supervisory nature as contemplated in
Section 979-E of the State Employees Labor Relations
Act but are not excluded per se from coverage
thereunder pursuant to the provisions of Section 979-A,
Paragraph 6. These employees are responsible for the
direction and efficient and effective utilization of
other employees and, under collective bargaining, will
assume varying degrees of responsibility for contract
administration (i.e., criteria set forth in Section
979-E of the Act). These employees have special
interest in job content, extent and nature of
supervision, promotional opportunities and managerial/
supervisory training and development.
Over the years, the parties have filed numerous agreements
with the Board placing new classifications in the appropriate
bargaining unit, excluding some classifications under SELRA from
a bargaining unit, or moving classifications from one bargaining
unit to another. A review of the Board files regarding the
Administrative and Supervisory Units shows very few matters on
bargaining unit placement have ever been litigated to decision by
a hearing examiner. The parties have presumably created, through
agreement and negotiation, their own internal guidelines
regarding community of interest and the proper unit placement of
classifications.
The hearing examiner has reviewed this history to underscore
the conundrum that this case presents. While the community-of-
interest standard is clearly the proper standard to apply, the
hearing examiner has very little information regarding the
interests that the classifications in the bargaining units at
issue actually share. A review of the Supervisory Unit
collective bargaining agreement, for instance, shows an extremely
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diverse group of classifications in that unit.[fn]4 The classifi-
cations in the Supervisory Unit supervise employees in all of the
other bargaining units. Since these supervisory classifications
are so dissimilar in terms of training, experience, pay,
supervision, and other "community of interest" factors, the
hearing examiner can conclude only the obvious: that the primary
factor uniting the interests of these classifications is simply
that they are supervisors. While all are "supervisors," the
nature and extent of supervisory duties performed by each
classification presently in the Supervisory Unit undoubtedly
varies.
Section 979-E(1) of SELRA provides guidance on when
supervisory employees should be excluded from a bargaining unit:
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.
The Board has often interpreted the parallel provision in the
MPELRL, 26 M.R.S.A. 966(1), usually in determining whether
supervisory employees may be placed in the same bargaining unit
____________________
4 Including, by example: Aircraft Mechanic Supervisor, Assistant
Director of Audits, Assistant Executive Director of Board of Nursing,
Chemist III, Business Manager I, Chief Motor Vehicle Examiner,
Correctional Officer III, Ground Equipment Supervisor, Library Section
Supervisor, Principal, Plumber Supervisor, Senior Tax Examiner, State
Police Lieutenant, and Systems Group Manager.
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as the employees whom they supervise. In Penobscot Valley
Hospital and Maine Federation of Nurses and Health Care
Professionals, No. 85-A-01, at 8 (MLRB Feb. 6, 1985), the Board
stated:
Except in instances where the resulting one- or two-
member supervisory unit would contravene our policy of
discouraging the proliferation, through fragmentation,
of small bargaining units, we have approved the
creation of separate supervisory units. . . .
The purpose of creating separate supervisory employee
bargaining units is to minimize potential conflicts of
interest within bargaining units, between supervisors
and their subordinate employees, as well as to lessen
conflicts of loyalty for supervisors between duty to
their employer and allegiance to fellow unit employees.
The focus of this three-part test is to determine whether the
supervisor exercises a level of control over employment-related
issues that would likely result in a conflict of interest.
See Richmond Employees Ass'n and Town of Richmond, No. 94-UD-09,
at 30 (MLRB Apr. 26, 1994).
All seven of the Clerk IVs at issue here perform supervisory
duties as outlined in 979-E(1). Without repeating the findings
of fact here, all seven perform the usual functions of a
supervisor--they schedule, assign work, and oversee and review
work of subordinate employees. All seven perform a significant
amount of work that is distinct and dissimilar from the employees
whom they supervise, except to occasionally "fill in" for absent
employees. Regarding this criterion, none of the seven employees
is merely a "working foreman," or an employee who essentially
performs the same work as their subordinates, with only limited
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and undemanding oversight duties additionally required.[fn]5
Rather, each of these employees is required to perform signi-
ficant and separate supervisory duties as part of their position.
All seven employees are empowered to adjust grievances and to
take corrective measures to implement performance standards, and
to exercise judgment in these matters. All seven apply
established personnel policies and enforce the collective
bargaining agreement, where appropriate.
The issue remains whether these supervisory duties are the
"principal functions" of the seven positions, per 979-E(1).
In MSEA and State of Maine, No. 04-UC-01 (Sept. 24, 2004), a
recent decision rendered in a companion petition relating to the
Biologist II positions being moved from the Professional and
Technical Bargaining Unit to the Supervisory Unit, this hearing
examiner addressed the same issue. In that case, however, the
parties had agreed to move all the Biologist II positions to the
Supervisory Unit except for two positions. This hearing examiner
found that the issue whether supervisory duties were the
"principal functions" of these remaining two positions was a
"close call," but that the decision to move the two positions was
further supported by having the entire Biologist II classifi-
cation in one bargaining unit. MSEA and State of Maine, at 20-
22. That is not the case here because, as a result of the
parties' agreement, the Clerk IV classification will be split
between bargaining units. The only issue here is whether the
seven employees belong with the "supervisory" Clerk IVs rather
____________________
5 Such "working foremen" may be included in a bargaining unit
with the employees whom they supervise, without risk of significant
conflict of interest. See e.g., Richmond Employees Ass'n and Town of
Richmond, No. 94-UD-09, at 31 (MLRB Apr. 26, 1994)(highway foreman
performs duties similar to subordinates during majority of his
workday); Teamsters Local No. 48 and Van Buren Light and Power
District, No. 85-UD-14, at 8-9 (MLRB Jan. 25, 1985)(line foreman's job
content not distinct and dissimilar for the substantial portion of his
working hours).
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than the "non-supervisory" Clerk IVs.
Other than the Biologist II decision, the hearing examiner
can find no precedent (hearing examiner or Board) interpreting
979-E(1) since the initial creation of the state bargaining
units. This is significant because the Board precedent
interpreting 966(1)--the parallel provision of the MPELRL--
usually involved facts very different from the present matter.
Specifically, many of the cases interpreting 966(1) involved
whether one or two supervisors should be placed in the same
bargaining unit as the employees they supervise. Sometimes,
employees with even significant supervisory duties were placed in
the same bargaining units as their subordinate employees pursuant
to the Board's policy against the proliferation of small
bargaining units. See, e.g., MSAD No. 14 and East Grand Teachers
Ass'n, No. 83-A-09 (MLRB Aug. 24, 1983) (including principal in
unit of certified teachers); Lubec Education Ass'n and MSAD No.
19 Board of Directors, No. 83-UD-17 (MLRB Apr. 13, 1983)
(including head bus driver with significant supervisory duties in
unit with educational support staff). On the other hand, the
Board has upheld the creation of a separate supervisory police
unit, even though the employees exercised relatively minimal
supervisory authority, when the union petitioned for a separate
unit. Town of Kennebunk and Teamsters Local Union No. 48, No.
83-A-01 (MLRB Oct. 4, 1982). In sum, much of the Board precedent
interpreting the "supervisory" language of the statute, including
whether the "principal functions" of the position include
supervisory duties, is inapposite to the issue presented here:
whether a position should be moved from a large, well-established
non-supervisory bargaining unit into a large, well-established
supervisory bargaining unit.
This hearing examiner believes that particularly here, when
a well-established supervisory unit exists, the "principal
functions" analysis should include a wide variety of factors,
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including but not limited to: the number of employees
supervised, the status of those employees (permanent, temporary,
year-round, etc.), the amount of time spent supervising, and the
types of supervisory functions performed. As stated in a recent
decision, Rockport Police Officers Association and Town of
Rockport, No. 02-UD-05 (MLRB June 12, 2002), involving whether to
include a patrol sergeant in a unit with patrol officers:
This hearing examiner does not believe that the time
spent on supervisory tasks can be the sole gauge of
whether supervisory tasks are the principal function of
a position; for example, if the fact that the patrol
sergeant writes the patrolmen's yearly evaluations can
generate the sort of conflict that should require his
exclusion from the bargaining unit, it makes little
difference that he only spends four hours per year
writing those evaluations. On the other hand, the more
time a supervisor spends actively assigning and
overseeing work of subordinates, the more likely it is
that conflict may arise.
Rockport Police Officers Association, at 12. These factors must
all be weighed with the Board's instruction in mind that the
purpose of creating separate supervisory bargaining units is to
minimize potential conflicts of interest between supervisors and
subordinates and to lessen conflicts of loyalty for supervisors
between duty to their employer and allegiance to other bargaining
unit employees. Penobscot Valley Hospital and Maine Federation
of Nurses and Health Care Professionals, supra.
Considering all of these factors, the hearing examiner
concludes that the "principal functions" of all seven Clerk IV
positions at issue here are characterized by performing the type
of supervisory functions as described in 979-E(1). The number
of employees that each of these Clerk IVs supervise varies, but
even the Clerk IVs who supervise the fewest number of permanent,
full-time employees (two) also effectively supervise other
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employees.[fn]6 The amount of time each spends supervising also
varies, but all the Clerk IVs who testified agreed that
calculating such a figure is extremely difficult. At times,
all seven of the Clerk IVs spend significant amounts of time
performing day-to-day supervisory duties, such as scheduling and
assigning work, overseeing and evaluating work, enforcing office
policies and procedures, interviewing and hiring as necessary,
handling concerns and grievances, and taking disciplinary action.
All seven of the Clerk IVs interview and hire for positions as
needed. The performance of these supervisory duties has the
potential to place the seven Clerk IVs in conflict with the
employees whom they supervise, supporting the conclusion that
they should be placed in the existing Supervisory Unit. Finally,
most of the Clerk IVs in question testified (or responded in
their survey) that they are identified as a supervisor and that
their collective bargaining interests are more similar to the
interests of employees in the Supervisory Unit. Placing them in
the Supervisory Unit can act to lessen any conflict of interest
these employees experience between allegiance to the employer/
management and allegiance to other bargaining unit members.
For these reasons, the hearing examiner finds that the seven
Clerk IVs remaining at issue in this matter perform the type of
supervisory duties as defined in 979-E(1) and share a community
of interest with other supervisory employees currently in the
Supervisory Unit. They should be moved from the Administrative
Unit to the Supervisory Unit.
CONCLUSION
The Union's July 1, 2003, Petition for Unit Clarification,
as amended on March 2, 2005, is granted. The seven Clerk IV
____________________
6 For instance, Ms. Beaulieu supervises two positions, but also
exerts extensive supervisory authority over two additional positions.
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positions still at issue (positions currently held by Brenda
Beaulieu, Geraldine Connolly, Wanda Gay, Ann Marie Stevens, Lisa
Robbins, Elaine White, and Tina White), shall be moved from the
Administrative Services Bargaining Unit to the Supervisory
Services Bargaining Unit. This change shall be effective as of
July 1, 2003, or as of the date the employee was hired in the
Clerk IV position, whichever is later. The parties may agree to
a different effective date in light of facts related to the
particular positions at issue.
Dated at Augusta, Maine, this 27th day of June, 2005.
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. 979-G(2), 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.