PROCEDURAL HISTORY

     This unit determination proceeding was initiated on March 20, 
2015, when Mr. Ed Marzano, Business Agent for Teamsters Union 
Local No. 340 ("Union"), filed a petition for unit determination 
with the Maine Labor Relations Board ("Board"), seeking the 
creation of a bargaining unit consisting of the I.T. Lead 
Technicians employed by Maine School Administrative District No. 
27.  The petition was filed pursuant to § 966(1) of the Municipal 
Public Employees Labor Relations Law ("Act"), 26 M.R.S.A. § 961 et 
seq.  M.S.A.D. No. 27 ("Employer") filed a timely response to the 
petition on April 7, 2015.  The Employer objected to the granting 
of the relief sought on the grounds that the three employees in 
the position at issue are confidential employees, within the 
exclusion set forth in § 962(6)(C) of the Act, and cannot be 
included in any bargaining unit.

     Due notice having been given, an evidentiary hearing on the 
petition was held at the Board hearing room in Augusta, Maine, on 
June 17, 2015.  Ms. Traci Place, Business Agent, appeared on 
behalf of the Union, and Tom Trenholm, Esq., appeared on behalf of 
the Employer. 

[end of page 1]
 

     During the course of the hearing, the following exhibit was 
admitted into evidence without objection:
     Union Exhibit 1, current job description for the M.S.A.D. 
                      #27 District-Wide Technology Aide

      The Union presented as its witnesses the three persons who 
were employed as I.T. Aides at the time the petition was filed: 
Don Cyr, Lee Reynolds,[fn]1 and Deborah Gagnon.  The Employer also 
presented three witnesses:  Tim Doak, Superintendent of Schools; 
Ann Marie Guerrette, District Technology Coordinator; and Lucie 
Tabor, the district's Director of Finance and Projects.  The 
parties were given the opportunity to examine and cross-examine 
witnesses, offer evidence, and present argument.  Written post-
hearing briefing was completed on August 7, 2015.

                           JURISDICTION

The jurisdiction of the executive director to hear this matter and 
to make a determination lies in 26 M.R.S.A. § 966(1) and (2).

                           STIPULATIONS

     The parties stipulated to the following facts:
     1.  The formal title for the classification in contention is 
District-Wide Technology Aide ("I.T. Aide") and that is the title 
we will use in this proceeding.
     2.  In the event that they are held to be public employees, 
ithin the definition of § 962(6) of the Act, the I.T. Aides share 
a clear and identifiable community of interest with each other 
and, together, constitute an appropriate bargaining unit within 
the meaning of § 966(1) and (2) of the Act.

[fn]1  Due to insufficient funds, Mr. Reynolds and approximately 6 other employees
were laid off by the Employer the evening before the date of the evidentiary
hearing in ths matter.

[end of page 2]


     3.  The I.T. Aides are not deputies, administrative 
assistants or secretaries.

		
                  FINDINGS OF FACT AND DISCUSSION

     District Technology Coordinator Ann Marie Guerrette described 
the ascendency of computer technology at M.S.A.D. 27, which 
mirrors that in public and private sector workplaces throughout 
the economy over the past several years.  When Ms. Guerrette 
started working for the district 17 years ago, setting up and 
maintaining the district's information technology apparatus 
comprised only part of her job duties.  Since then, the district
has gone from having about 100 computers to over 1,200 devices, 
including computers, laptops, ipads, smartphones, printers, 
copiers, and servers.  The district's information technology work 
group developed from a part-time technician to a full-time 
Technology Coordinator, assisted by three full-time I.T. Aides.
  
     Section 962(6)(C) of the Act excludes from the definition of 
"public employee," and hence, from the grant of rights provided by 
the Act, those persons "[w]hose duties as deputy, administrative 
assistant or secretary necessarily imply a confidential 
relationship to the executive head, body, department head, or 
division head" (emphasis added).

     Persons exempted from the coverage of the Act through this 
exclusion are those employees who are permanently involved in 
collective bargaining on behalf of the employer or whose duties 
involve the formulation, determination and effectuation of the 
employer's employee relations policies.  In addition, this 
exclusion applies to employees who have, as part of their job 
duties, access to the employer's negotiations positions, before 
such positions are disclosed at the bargaining table, and who, as 
an integral part of their job duties, assist and act in a 

[end of page 3]


confidential capacity with respect to those who formulate or 
determine the employer's bargaining positions or bargaining 
strategy.  At the time the Act was enacted, this latter group of 
support staff employees included deputies, administrative 
assistants, and secretaries who processed confidential collective 
bargaining information.[fn]2

     The Board has held that, since the public policy reflected in 
the Act is to grant public employees the right to bargain 
collectively, the exceptions from the coverage of the Act must be 
narrowly construed.  Town of Topsham and Local S/89 District Lodge 
#4, International Association of Machinists and Aerospace Workers, 
No. 02-UCA-01, at 12 (MLRB  Aug. 29, 2002).

     Interpreting and applying the section of the State Employees 
Labor Relations Act, § 979-A(6)(C), which is identical with       
§ 962(6)(C), the Board has held that the critical language of the 
exclusion provides that employees "whose duties necessarily imply 
a confidential relationship" with the public employer are excluded 
from collective bargaining.  The Board went on to hold:

     The language cited clearly justifies and mandates that       
     a hearing examiner, weighing whether an employee is 
     "confidential," inquire as to whether the allegedly 
     confidential aspects of the employee?s work are an    
     inherent portion thereof.  Such an inquiry is contem-   
     plated by the Act and is required to effect the    
     legislative intent embodied in Section 979-A(6)(C).

State of Maine and Maine State Employees Association, No. 82-A-02, 
at 19 (MLRB June 2, 1983).
  
     The technological revolution has transformed the nature of 
work generally and the nature of clerical support work in 
particular.  Whereas in the past, the persons who formulated the 

[fn]2  Portland Administrative Employee Ass'n and Portland Superintending School
Committee, No. 86-UD-14, at 10-12, for more comprehensive discussion of
relevant law, aff'd, No. 87-A-03 (MLRB May 29, 1987)

[end of page 4]


employer's collective bargaining positions and strategies relied 
on clerical employees to produce draft and final documents for use 
in bargaining, the employer's decision-makers now prepare, 
circulate and finalize their own documents and spreadsheets and 
the clerical support is largely provided by information 
technology.  In the instant case, the Superintendent and the 
Director of Finance and Projects use information technology to 
create, modify and finalize bargaining proposals; to record 
current salaries and to cost-out proposals using spreadsheets; to 
communicate with School Committee members and the District's labor 
counsel via e-mail; and to store all of the District's collective 
bargaining information.  A properly functioning information 
technology system is essential for the management personnel to 
perform their collective bargaining duties.

     The job duties and responsibilities of the I.T. Aides are to 
provide support, maintenance and repair of the School District's 
information technology hardware and software.  This work primarily 
consists of fixing things that are not functioning and answering 
questions regarding how an application or operating system was 
meant to work.  Much of the I.T. Aides' work involves trouble-
shooting problems students, teachers and administrators 
(collectively referred to as "users") have with computers, ipads, 
laptops, and desktops.  Using an administrative profile (a 
separate password recognized by the machine), the I.T. Aides can l
ogon to a user's device to perform maintenance, troubleshooting, 
and install software without having access to the user's profile.  
This simply means that the I.T. Aides can perform their work 
without having access to the user's information stored on the 
device.

     The I.T. Aides are not assigned to perform any confidential 
labor relations functions.  In addition, access to the Employer's 

[end of page 5]


confidential labor relations information is not an inherent part 
of the I.T. Aides' employment duties.  In fact, access to any 
user's personal information is not required for the I.T. Aides to 
perform their job duties, whether that user is a student or the 
Superintendent.
  
     As the domain administrator for the School District, the 
Technology Coordinator necessarily has access to all devices and 
all information stored in the District's computer system.  The 
Technology Coordinator provides logon credentials to the users of 
the system, setting the "permissions" that determine what devices, 
software, and hardware each user can access, including the degree 
of access accorded to the I.T. Aides.  Google for Education 
includes a shared drive, which students and teachers use for 
creating and sharing documents, and is the e-mail provider for the 
District.  The Technology Coordinator maintains a list of user-
names and passwords for Google for Education, including e-mail, 
and the I.T. Aides have access to that list.

     The essence of the claimed "confidential" status in this case 
is that the I.T. Aides have access to the Google for Education 
"master list" of usernames and passwords and they could surrep-
titiously use that information to gain unauthorized access to the 
Employer's confidential labor relations information.  In the 
alternative, the I.T. Aides could access the Employer's confiden-
tial collective bargaining information while working on the 
devices of the Superintendent or the Finance Director, if the 
users left confidential documents on their desktops or if they 
failed to logoff from their e-mail on that particular device 
before providing it for service.  This speculative and 
unauthorized access to the Employer's confidential labor relations 
information does not justify an exclusionary designation.

[end of page 6]


     The public policy of the State of Maine is to extend 
collective bargaining rights to public employees.  The exclusions 
from the grant of the statutory right are narrowly drawn and are 
strictly construed.  As demonstrated in the case of Portland 
Administrative Employees Ass'n and Portland Superintending School 
Committee, No. 86-UD-14, at 14-16, an information technology 
employee who, as an inherent part of their job duties, has access 
to the employer's confidential labor relations positions and 
spreadsheet analyses, is a confidential employee.  In Portland, 
the Coordinator for Computer Services who, like the Technology 
Coordinator here, was the system administrator and necessarily had 
access to the all information stored of the school department's 
computer system, required an exclusionary designation.  A 
different employee in Portland, the Coordinator of Evaluation and 
Data Management, had performed the spreadsheet work in the 
previous round of bargaining; however, this latter coordinator was 
not exempt because the spreadsheet work did not necessarily reveal 
the scope of the employer's bargaining authority and the 
Coordinator of Computer Services was available as a confidential 
employee, if the work required the expertise of an information 
technology professional.

     Employees who represent the employer in collective bargaining 
or who formulate the employer's collective bargaining positions 
and strategies have an obligation for safeguarding the confiden-
tiality of collective bargaining information, whether such 
material was developed with pen and paper and stored in a file 
cabinet or was prepared and stored electronically.  In either 
case, intentional unauthorized access can result in discipline. 
The confidentiality of the work product could easily be assured in 
the case of M.S.A.D. 27 by:  1) deleting the usernames and 
passwords of the Superintendent, the Finance Director and any 
other employee who is involved in collective bargaining on behalf 

[end of page 7]


of management from the Google list; 2) the managerial employees 
could logoff a device before presenting it for service; and 3) if 
the I.T. Aides cannot access a device using their administrative 
profile, relying on the Technology Coordinator to perform the 
repair.[fn]3 

 
                               ORDER
      
     On the basis of the foregoing findings of fact and discussion 
and by virtue of and pursuant to the provisions of 26 M.R.S.A.    
§ 966, the hearing examiner ORDERS:

     1.  The petition for appropriate unit determination, filed by 
Teamsters Union Local No. 340 on March 20, 2015, is granted.

     2.  The District-Wide Technology Aides employed by M.S.A.D. 
No. 27 together constitute an appropriate bargaining unit.

     3.  A representation election for the M.S.A.D. No. 27 
District-Wide Technology Aides bargaining unit should be 
scheduled in the normal course of the Board's business.

Dated at Augusta, Maine, this 17th day of August, 2015.

                                   MAINE LABOR RELATIONS BOARD



                                   /s/___________________________
                                   Marc P. Ayotte
                                   Executive Director


The parties are hereby advised of their right, pursuant to
26 M.R.S.A. § 968(4), to appeal this decision 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 Chapters 10 and 11(30) of the Board Rules.



[fn]3  As the Board discussed in State of Maine, supra, at 19-20, a public employer 
has an affirmative obligation to concentrate its confidential labor relations 
functions to the extent reasonably practicable.  The preferences of the users in 
this case must give way to the statutory rights of the I.T. Aides.


[end of page 8]