Case No. 07-UD-16
Issued: May 22, 2007



SCHOOL UNION #44, Respondent.




                       PROCEDURAL HISTORY

     This unit determination proceeding was initiated on 
December 26, 2006, when Joan Morin, UniServ Director for the
Maine Education Association, filed a Petition for Unit
Determination and Bargaining Agent Election with the Maine Labor
Relations Board ("Board" or "MLRB").  This petition requested a 
determination that the following employees of the School Union
#44 ("Employer" or "Union #44") central office constituted an
appropriate bargaining unit within the meaning of 26 M.R.S.A.
 966 and Chapter 11,  22 of the Board Rules:  secretary/
receptionist, business office assistant, special education
secretary, and administrative assistant.  The petition further
requested that an election be conducted for this unit, with   
the prospective bargaining agent being the School Union #44
Professional Assistants Association/MEA/NEA ("Association").  The
Employer filed a timely response to this petition on January 10,
2007.  In the response, the Employer agreed that three of the
central office employees could be included in a bargaining unit,
but argued that the position of administrative assistant must be
excluded as a confidential employee within the meaning of 26
M.R.S.A.  962(6)(C).  A unit determination hearing notice was

[end of page 1]

issued on February 27, 2007.
     An evidentiary hearing on the unit determination petition
was held by the undersigned hearing examiner on March 12, 2007, 
at the Board's hearing room in Augusta, Maine.  Ms. Morin 
appeared on behalf of the Association.  S. Campbell Badger, Esq.,
appeared on behalf of the Employer.  The Association presented
Lorna Driscoll, administrative assistant, as its sole witness. 
The Employer presented Superintendent Susan Hodgdon as its sole
witness.  The parties were given full opportunity to examine and
cross-examine witnesses and to offer evidence.  The parties
submitted written closing arguments following the close of the
hearing.  The arguments for the Association and for the Employer
were both received on May 1, 2007.
     The jurisdiction of the hearing examiner to hear this matter
and to make a unit determination lies in 26 M.R.S.A.  966(1) and
 966(2).  The subsequent references in this report are all to
Title 26, Maine Revised Statutes Annotated.
     The following joint exhibits were offered and admitted into
the record:

     J-1  Job description - executive secretary

     J-2  Job description - administrative assistant

     J-3  Job description - bookkeeper/payroll clerk

     J-4  Guidelines for special education secretaries

     The following exhibits were offered by the Employer without
objection by the Association, and were admitted into the record:

     E-1  Job description (proposed) - administrative assistant

[end of page 2]

     E-2  School Union #44 school board agenda and
          superintendent's report, February 14, 2007

     E-3  School Union #44, central office support personnel
          benefits FY 2008-2010 (confidential, board working

     The parties agreed to the following factual stipulations on
the record:
     1.  The Petitioner in this matter, the School Union #44
Professional Assistants Association/MEA/NEA, is a public employee
organization, which has petitioned the MLRB to be certified as
the bargaining agent of a unit of employees who are employed by
School Union #44.
     2.  School Union #44 is the employer of the employees in the
unit involved in the petition.  School Union #44 is a public
employer as defined in 26 M.R.S.A.  962(7).
     3.  The Petitioner asserts that there are four employees
in the appropriate unit, who hold the titles of secretary/
receptionist, payroll/accounts payable, special education
secretary and administrative assistant.
     4.  The Employer asserts that an appropriate unit would
consist of three of the four employees that the Petitioner seeks
to include in the unit, excluding the employee holding the title
of administrative assistant.
     5.  The Employer asserts that the employee holding the title
of administrative assistant is not a public employee within the
meaning of 26 M.R.S.A.  962(6) on the ground that the employee
is confidential, as described in 26 M.R.S.A.  962(6)(C).
     6.  The Petitioner asserts that the administrative assistant
is a public employee.
     7.  The parties do not know of any prior unit determinations
by the MLRB involving any of the employees who are the subject of
this petition.

[end of page 3]

     8.  There is no certification bar or contract bar to the
filing of this petition.
     9.  Except as to the dispute about the public employee
status of the administrative assistant, the parties agree that
the unit of professional assistants described in the petition is
an appropriate unit, as intended by the Municipal Public
Employees Labor Relations Law, 26 M.R.S.A.  966 and  967.
     10.  The employees in the professional assistants unit are
the only non-supervisory employees employed by the Employer.
     12.  No employees of School Union #44 are currently
represented by a bargaining agent.
     13.  A community of interest exists among the employees in
the professional assistants unit because they:
          Perform similar work;
          Are subject to common supervision and determination of
          labor relations policy;
          Are paid similar wages, which are determined on an
          hourly basis;
          Receive similar employment benefits;
          Work similar hours;
          Have similar terms and conditions of employment;
          Have similar qualifications, skills and training;
          Work in the same building;
          Have no history of collective bargaining; and
          Desire to form a unit together.
     14.  The position of administrative assistant currently is
held by Lorna Driscoll.
     15.  Ms. Driscoll has been employed continuously in this
position since April 17, 1989.
     16.  School Union #44 includes the school administrative
units of Sabattus, Wales, Litchfield and Oak Hill CSD.
     17.  There are a total of eight bargaining units of teachers
and educational support employees who are represented by 

[end of page 4]

bargaining agents in the school administrative units of Sabattus,
Wales, Litchfield and Oak Hill CSD.
     18.  The Superintendent of School Union #44 participates in
collective bargaining on behalf of the public employers in all
bargaining units in the school administrative units of Sabattus,
Wales, Litchfield and Oak Hill CSD.
     19.  Ms. Driscoll has not attended any collective bargaining
meetings with any bargaining agents in Sabattus, Wales,
Litchfield or Oak Hill CSD.
     20.  Ms. Driscoll has not attended any meetings of any
employer bargaining teams in preparation for bargaining in
Sabattus, Wales, Litchfield or Oak Hill CSD.
                        FINDINGS OF FACT
1.   School Union #44 is a school system operated by three towns,
     Sabattus, Wales, and Litchfield.  Sabattus maintains two
     schools (grades K-2, 3-8); Wales maintains one school
     (grades K-8); Litchfield maintains two schools (grades K-2,
     3-8).  The Oak Hill High School CSD is also part of this
2.   There are a total of five school boards that operate in the
     Union, one for each town, one for the Oak Hill CSD, and one
     for the school union, which oversees the central office
     staff and operations.
3.   There are currently eight organized bargaining units in
     Union #44.
4.   The central office for Union #44 is located in Wales.  The
     staff of the central office consists of the following
     positions:  superintendent, assistant superintendent, 
     business manager, special education director, payroll clerk,
     secretary/receptionist, secretary to the special education
     director, and administrative assistant to the

[end of page 5]

5.   The present superintendent (Susan Hodgdon) has been employed
     in that capacity since July, 2006.  Before that she was
     employed by Union #44 as assistant superintendent for three
     years.  Before that, she was employed as a principal in a
     different school district.
6.   The present administrative assistant (Lorna Driscoll) has
     been employed by Union #44 for almost 18 years.  She has
     held her present position for 14 years.  She has worked for
     a total of six superintendents during her tenure of
7.   Ms. Driscoll's job duties include a variety of secretarial
     tasks, primarily for or at the direction of the
     superintendent.  She types the superintendent's
     correspondence, types the school board agendas and minutes,
     compiles and mails packets to school board members for their
     meetings, and handles and files a variety of documents.  In
     the past year, Ms. Driscoll has taken on certain additional
     personnel tasks, such as sending out information to
     employees about the Family Medical Leave Act and maintaining
     files for employees who have requested FMLA leave.  These
     FMLA files sometimes contain confidential health information
     about employees.  Ms. Driscoll also gives new employees
     salary and benefit information packets.
8.   Ms. Driscoll types the majority of the superintendent's
     correspondence (around 70 percent), using either a document
     hand-written or partially word-processed by the
     superintendent herself.  Ms. Driscoll occasionally takes
     shorthand from the superintendent, and then types the
     correspondence.  The superintendent types the remainder of
     her correspondence herself on the computer, in which case
     Ms. Driscoll finalizes and mails the correspondence.
9.   Ms. Driscoll and Ms. Hodgdon share a computer "server" so 

[end of page 6]

     that Ms. Driscoll can easily access all of Ms. Hodgdon's
     documents and correspondence.  Ms. Driscoll does not need a
     password to access this server.  Ms. Hodgdon believes that
     no other employee has such access to her documents and
     correspondence, based on information given to her by the
     employer's technology personnel.  Ms. Hodgdon does not
     maintain documents or correspondence on her work computer in
     a separate file or folder apart from this shared server.
10.  A variety of confidential documents and files are maintained
     in the central office, such as personnel records.  Some of
     these are maintained in file cabinets in various parts of
     the office (conference room, etc.) and are therefore
     generally accessible to all central office employees.
11.  The superintendent keeps some confidential documents and
     files in her office.  These include "contract books" (three-
     ring binders which contain the collective bargaining
     agreements for the various units, and which also contain
     some notations relating to collective bargaining positions
     or strategies), binders for the records for each of the
     school boards in the Union (which contain some confidential
     working papers meant only for the school board members), and
     the superintendent's report folder which contains, in part,
     the superintendent's hand-written records relating to any
     executive sessions held by the school boards.
12.  When Ms. Hodgdon first took over the position of
     superintendent, she met with Ms. Driscoll.  In part, she
     advised Ms. Driscoll that Ms. Driscoll could have full
     access to her office, files, planner, e-mail, or anything
     Ms. Driscoll needed in order to perform her duties as
     administrative assistant.  As of the date of this hearing,
     Ms. Hodgdon has not had occasion to give Ms. Driscoll the
     password to her computer, which would be necessary if    
     Ms. Driscoll needed to see Ms. Hodgdon's e-mail.

[end of page 7]

13.  The superintendent does not lock her office door or lock up
     these confidential records during office hours.  Any central
     office employee can, theoretically, go into her office and
     access these records.  Of the support staff, however, only
     Ms. Driscoll would have unquestioned access to the
     superintendent's office and records, based on the nature of
     her position as her administrative assistant.
14.  Five of the collective bargaining agreements for the eight
     bargaining units in Union #44 are expiring on June 30, 2007. 
     One of the superintendent's duties is to participate in
     negotiating the agreements, along with the negotiating teams
     made up of members of the relevant school board.  As the
     superintendent is new in her position, the first time she
     began participating in the collective bargaining process was
     at the end of 2006.
15.  The superintendent has been involved in various meetings
     relating to the upcoming contract negotiations: meetings
     with Union #44's attorney and business manager, and meetings
     with the various school board negotiating team members,
     sometimes held during executive sessions of the relevant
     school board.  
16.  It is not part of Ms. Driscoll's usual job duties to attend
     school board meetings, executive sessions of school board
     meetings, or other meetings held to discuss the employer's
     collective bargaining strategies and positions.
17.  Ms. Hodgdon attends all school board meetings and executive
     sessions.  It is her habit to keep agendas, minutes and
     information about each school board in a separate binder. 
     She takes notes at the meetings, including at any executive
     session.  She leaves the notes in the binder and brings it
     back to work.  Ms. Driscoll takes the binder and types the
     notes of the regular board meeting, but not the notes of an
     executive session (unless instructed to do so).  Ms. Hodgdon
[end of page 8]

     then reviews the typed notes, which become the draft minutes
     of the meeting.  Ms. Hodgdon then usually removes her hand-
     written notes regarding any executive session and any other
     confidential documents after Ms. Driscoll has finished the
     typing, and places these notes and documents in the
     superintendent's report folder in her office.     
18.  Because Ms. Driscoll's job entails the handling of school
     board packets, documents, minutes, and the school board
     binders that the superintendent maintains, she has access to
     a variety of confidential documents.  For instance, in
     December, 2006, the Union #44 School Board requested that
     the superintendent and the business manager prepare a
     spreadsheet showing the salaries and benefits of the central
     office support staff, and some outcomes if the staff's
     salaries were raised in future years, but the cost of
     benefits were shared.  This was prepared and marked
     "confidential - board working copy" (Employer's Exh. 3). 
     Ms. Driscoll saw the document when she prepared the board's
     next packet for their February, 2007, meeting.  She became
     upset because her current salary amount was not stated
     accurately in the document.  She called the MEA UniServ
     Director, who contacted the employer's attorney about the
19.  On December 6, 2006, the superintendent had a meeting with
     the business manager and the school's attorney about the
     employer's strategies and positions for upcoming contract
     negotiations for Sabattus.  They also talked about upcoming
     issues with administrative contracts (contracts for non-
     organized employees).  The superintendent kept notes of this
     meeting.  Later that night, the superintendent attended a
     Sabattus school board meeting.  The board went into
     executive session to select the board members who would be
     part of the employer's negotiating team and to talk about 

[end of page 9]

     strategies and positions for upcoming contract negotiations. 
     The superintendent kept notes of the board meeting, and
     notes of the executive session.  The following day, the
     superintendent gave Ms. Driscoll her notes from both the
     strategy meeting with the attorney and from the executive
     session to type up, and she did so.  Ms. Driscoll also typed
     the notes from the regular school board meeting as the draft
     minutes of the meeting, as she usually did.
20.  At the time the superintendent asked Ms. Driscoll to type
     the notes from the two December 6 meetings related to
     collective bargaining described in Paragraph 19, she was not
     aware that the central office support staff was being
     organized by MEA.
21.  On December 14, 2006, the superintendent met with the Oak
     Hill CSD School Board.  This Board also went into executive
     session to pick members for the negotiating team, and to
     identify collective bargaining strategies and positions. 
     The superintendent took notes of this executive session. 
     One school board member gave her a copy of the collective
     bargaining agreement upon which he had written notes of some
     issues that he wanted addressed during negotiations.  The
     superintendent put the marked-up agreement and her notes in
     the school board binder as usual.  The following work day,
     Ms. Driscoll took the binder and typed the notes of the
     regular school board meeting, as she usually did.  She did
     not type the notes of the executive session, because at the
     time the superintendent did not ask her to.
22.  On March 7, 2007, the superintendent asked Ms. Driscoll to
     type up her notes from the executive session and the
     notations from the marked-up agreement described in
     paragraph 21.  She wanted the notes typed at that point
     because she was going to meet with the Oak Hill CSD
     negotiating team and the school's attorney that day. After 

[end of page 10]

     being asked to type the notes, Ms. Driscoll called the MEA
     representative because she felt she was being "set up" as
     the request came so close in time to the present hearing. 
     The MEA representative advised Ms. Driscoll to do as she was
     instructed.  Ms. Driscoll typed up the notes and the
     notations as instructed by the superintendent.
23.  As the superintendent must participate in negotiating five
     collective bargaining agreements in the near future (which
     she has never done), and must participate in all the Union
     #44 school budget meetings, and must perform all of the
     other duties of her job, she needs clerical help to help her
     perform her job properly.  Part of the clerical help she
     needs has involved and will continue to involve typing some
     confidential documents, including those related to the
     employer's collective bargaining strategies and positions.
24.  Prior superintendents did not use Ms. Driscoll to type
     collective bargaining strategy notes, or similar documents. 
25.  The superintendent also intends to use Ms. Driscoll in some
     other personnel matters, such as typing grievance responses
     or participating in witness interviews.  As of the date of
     the hearing, however, the superintendent has not needed to
     use Ms. Driscoll in this manner.
26.  Several years ago, performance problems with a principal in
     Litchfield became well-known in town.  At one point, a
     survey to be completed by teachers relating to this
     principal was distributed and returned to the central
     office.  Ms. Driscoll developed and typed a summary of these
     surveys.  This information was confidential.
     The sole argument raised by the Employer is that the
position of administrative assistant to the superintendent is a 

[end of page 11]

"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
     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)], 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 of loyalty 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 

[end of page 12]

collective bargaining or labor relations ideas, positions or
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
decision was rendered over 20 years ago, however, prior to the
present state of technology which enables confidential super-
visory employees to efficiently handle some 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).  
Each case must be determined on the facts, with a review of the
particular relationship between the confidential supervisory
employee and the clerical assistant.  See, e.g., Lincoln Sanitary
District and Teamsters Union Local 340, No. 92-UC-02, slip op. at
16 (MLRB Nov. 17, 1992)(where superintendent prepared almost all
of his own confidential documents, there was no current need for
confidential clerical support).

[end of page 13]

      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, supra.  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 Asso-
ciation, No. 82-A-02, slip op. at 19-20.
     In the present matter, the superintendent of School Union
#44 is heavily involved in collective bargaining on behalf of the
employer.  Within the school union, there are presently eight
organized bargaining units (the unit proposed in this petition
would be the ninth); the collective bargaining agreements for
five of the units are expiring in the summer of 2007 and
negotiations for successor agreements began several months before
the present hearing.  The superintendent is a member of the
employer's negotiating team for each agreement, along with the
business manager and three board members from the affected school
boards.  The superintendent attends all school board meetings,
including executive sessions where collective bargaining matters
are discussed.  She also attends separate meetings about
collective bargaining with the union's attorney and other members
of the negotiating team, sometimes held at times other than
school board meetings.  The superintendent takes notes at most
such meetings; there is no board secretary.

[end of page 14]

     The superintendent has requested that Ms. Driscoll type
notes of certain meetings where the employer's collective
bargaining strategies and positions were discussed.  As of the
date of this hearing, Ms. Driscoll had typed four such documents: 
notes from a December 6, 2006, meeting between the superin-
tendent, the business manager, and the union's attorney; notes
from a December 6, 2006, executive session of the Sabattus school
board; notes from a December 14, 2006, executive session of the
Oak Hill CSD school board; and notes that a school board
negotiating team members had made on a collective bargaining
agreement regarding his issues and concerns, given to the
superintendent at the December 14, 2006, meeting.  All four of
these documents contained "confidential" information as that term
is defined by Board precedent.  In addition, the administrative
assistant has access to similar confidential documents in the
usual course of her duties.  For instance, part of Ms. Driscoll's
job is to prepare the agenda and information packets to be mailed
out to board members before each board meeting.  Sometimes, these
packets contain confidential information, such as the costing
data developed by the business manager regarding salary and
benefit/sharing for central office staff marked "confidential -
board working copy" (Employer's Exh. No. 3).  After the school
board meetings, the superintendent routinely returns the school
board binder to Ms. Driscoll to type the meeting minutes.  The
binder contains the superintendent's notes regarding any
executive session conducted at the meeting which has, in the
past, included notes regarding collective bargaining strategies
and positions.  The superintendent also keeps strategy notes in
the "contract binders" and "superintendent's report folder,"   
to which Ms. Driscoll has access because her job as the
superintendent's administrative assistant gives her access to

[end of page 15]

essentially all of the files in the superintendent's
Therefore, the duties of Ms. Driscoll's position, which include
typing confidential documents, and her access to confidential
documents, makes her a confidential employee within the meaning
of  962(6)(C).
     The Association argues that the number of documents that 
Ms. Driscoll has typed relating to collective bargaining is so
minimal that she should not be deemed a confidential employee. 
The Employer counters that the number of documents that       
Ms. Driscoll typed on behalf of the superintendent has been small
because the incumbent superintendent has been in her job less
than one year, this was the first time the superintendent has
been involved in collective bargaining, and, at the time of the
present hearing, negotiations had not yet started in earnest. 
The hearing examiner agrees that the number of documents is
fairly small; yet the content of the documents, containing the
employer's bargaining positions, concerns and strategies, is
precisely the type of confidential information which the
exception contemplates.  These documents contained the type of
information which, if disclosed to the bargaining agent, could
provide the agent with unfair advantage over the employer.  Town
of Fairfield and Teamsters Local Union No. 48, supra, slip op. at
3.  That typing such documents and having access to such

     [fn]1 The employer also argued that Ms. Driscoll's other duties
regarding sensitive personnel matters--for instance, her part in
tabulating and summarizing staff surveys regarding a school principal
who was the subject of community complaints--contributed to finding
that she is a "confidential" employee.  Such duties are not
confidential, within the meaning of  962(6)(C).  See, e.g., State of
Maine and Maine State Employees Association, supra (maintaining
personnel files, handling workers' compensation claims, maintaining
seniority lists and sick time records are not confidential functions). 
However, the fact that Ms. Driscoll has performed such duties in the
past underscores the fact that her position is one upon which this
superintendent relies, and upon which past superintendents have
relied, to perform extremely sensitive personnel-related work, thus
confirming that such work is an inherent part of her position as
administrative assistant.

[end of page 16]

documents could create a conflict of loyalty for Ms. Driscoll was
demonstrated here when, as part of her job, she assembled school
board packets that contained confidential costing data for
central office staff with a salary error, and then she contacted
the Association about the matter rather than a member of
     Although the relatively small number of confidential
documents that Ms. Driscoll has typed makes this matter similar
to Lincoln Sanitary, supra, a case in which the district's
secretary-bookkeeper was found not to be a confidential employee,
the present matter can be distinguished in a number of ways.  In
Lincoln Sanitary, the employer established that the secretary-
bookkeeper had typed only one truly confidential document (a
summary of the employer's collective bargaining strategy). 
However, the fact that a single confidential document was typed
did not cause the hearing examiner in that case to conclude that
the secretary-bookkeeper was not confidential; in fact, the
hearing examiner found that the employee in question performed
confidential work.  Rather, the hearing examiner evaluated the
nature of the work relationship between the district
superintendent and the secretary-bookkeeper in reaching the
conclusion that duties of her position did not "necessarily
imply" a confidential relationship.  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
relationship with the secretary-bookkeeper.  None of these
factors is present here.  The superintendent here relies
considerably upon Ms. Driscoll to perform her clerical work, she
grants almost complete access to Ms. Driscoll regarding her
confidential files and documents (except for e-mail), and she
relies upon Ms. Driscoll--and Ms. Driscoll alone--for all her
traditional and confidential support staff needs.  In sum, the 

[end of page 17]

fact that Ms. Driscoll has a confidential working relationship
with the superintendent, combined with the fact that she has
typed and had access to confidential documents relating to
collective bargaining, makes her a confidential employee within
the meaning of  962(6)(C).
     Finally, the Association argues that the timing of the
superintendent's decision to give Ms. Driscoll confidential
documents to type is suspect, implying that the decision was an
attempt to exclude an employee otherwise eligible to participate
in collective bargaining from the proposed unit.  The Board has
found that while "unreasonable over-designation" of otherwise
eligible unit employees as confidential employees might, in the
right facts, constitute unlawful interference with protected
employee rights, such issues are more appropriately resolved
through the Boards' prohibited practice procedures.  AFSCME and
Town of Sanford, No. 92-UDA-03, at 4 (MLRB May 7, 1992).  In any
event, the facts presented here simply do not bear out the
Association's argument.  This is not a case in which the employer
has failed to "centralize" the confidential function; the
superintendent has used only Ms. Driscoll as a confidential
secretary, a reasonable choice as Ms. Driscoll is her adminis-
trative assistant.  The fact that previous superintendents have
not utilized Ms. Driscoll to type confidential documents does not
cast suspicion on this superintendent's decision to do so,
particularly as this is the first time she has been employed as a
superintendent.  Finally, the Association did not present any
evidence that contradicted the superintendent's assertion that
she first asked Ms. Driscoll to type some confidential documents
on December 7, 2006 (the day after two confidential meetings took
place), and that her request was made before the superintendent
had any knowledge of the organizing efforts amongst the central
office staff.

[end of page 18]

     For these reasons, the hearing examiner finds that the
position of administrative assistant to the superintendent is a
"confidential" employee within the meaning of  962(6)(C) and, 
because the position is excluded from the definition of "public
employee" in the MPELRL, may not be included in a bargaining


     On the basis of the foregoing facts and discussion and
pursuant to the provisions of 26 M.R.S.A.  966, the following
described unit is held to be appropriate for purposes of
collective bargaining:

     INCLUDED:  Secretary/Receptionist, Payroll/Accounts Payable, 
                and Special Education Secretary

     EXCLUDED:  Administrative Assistant to the Superintendent  
               and all other employees of the School Union #44.

A bargaining agent election for this unit will be conducted

Dated at Augusta, Maine, this 22nd day of May, 2007.

                                MAINE LABOR RELATIONS BOARD

                                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.
[end of page 19]