State of Maine and MSEA, No. 78-A-09, affirming No. 78-UC-06

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   [MLRB No. 78-A-09]
                                                   [Issued:  March 2, 1979]
STATE OF MAINE          )
      and               )                    REPORT OF APPELLATE REVIEW
                        )                   OF UNIT CLARIFICATION REPORT
ASSOCIATION             )
     This case came originally to the Maine Labor Relations Board ("Board") by way
of a Petition for Unit Clarification filed on April 3, 1978, by Lanning S. Mosher,
Director, Office of State Employee Relations ("OSER"), on behalf of the State of
Maine ("State").[fn]1  By its Petition the State seeks to exclude the positions of
State Police Captain and State Police Lieutenant from coverage under the State
Employees Labor Relations Act ("the Act").  The two positions are now included in
the Supervisory Services bargaining unit of state employees where they were placed
by the Executive Director of this Board in his original determination establishing
the scope and composition of state employee units.[fn]2  Subsequently the Maine State
Employees Association ("MSEA") was duly elected as the bargaining representative
for the employees in that unit.
    On May 25 and June 1, 1978, a hearing examiner, designated by the Executive
Director, conducted hearings on the State Petition pursuant to 26 M.R.S.A.  979-E.
As a result of the Unit Clarification proceedings, a report was issued by the
hearing examiner on August 10, 1978.  In the report the hearing examiner found that
the duties performed by the personnel in the contested positions did not necessarily
imply a confidential relationship with respect to matters subject to collective
bargaining within the meaning of  979-A(6)(C), and that the Act did not permit
the creation of a "managerial/administrative" exemption to the coverage of the Act
on policy grounds, as the State had urged.  He therefore denied the Petition.
    By letter dated August 11, 1978, pursuant to  979-G(2), counsel for OSER
appealed the determination of the hearing examiner.[fn]3  The appeal was heard by the
Board on September 19 and November 21, 1978 in Augusta, Maine, Chairman Edward H.
Keith presiding, with Paul D. Emery, Employer Representative and Michael Schoonjans,
Employee Representative.
     1 The Office of State Employee Relations is the designee of the Governor for
the purpose of engaging in collective bargaining on behalf of the executive branch
of state government.
     2 The Unit Determination Report of the Executive Director was issued on
September 22, 1976.  He found seven state-wide units to be appropriate:  Admini-
strative Services; Professional and Technical Services; Institutional Services;
Law Enforcement, Public Safety and Regulatory Services (Non Police); State Police
Services; Operations Maintenance and Support Services; and Supervisory Services.
     3 MSEA also appealed.  It appealed the hearing examiner's failure to grant its
Motion to Dismiss.  Its appeal also claimed 1) that OSER's presentation went
beyond the claim in its Petition, and 2) that the conclusion in the Report that sig-
nificant changes had occurred in the Bureau which affected the duties of the two
positions was erroneous.  It otherwise appealed the Report as a pro forma matter


     Present at the hearing for the State were:

          John J. Sears, Esquire              Counsel, Office of State Employee

          David Longmuir                      Office of State Employee Relations

          Paul Falconer                       Captain, Maine State Police

          Edward Wilson                       Lieutenant, Maine State Police

          Albert Jamison                      Major, Maine State Police
     Present for the Maine State Employees Association was:

          John J. Finn, Esquire               Counsel, Maine State Employees
     At the close of the hearing a briefing schedule was established.  All memo-
randa, including reply briefs, were timely filed by the parties and the Board
proceeded to deliberate on the case on January 26, 1979.
     Before the hearing examiner MSEA sought dismissal of the Petition claiming
it was untimely and failed to state a claim upon which relief could be granted.
It also contained substantive objections.  We affirm the denial of MSEA's Motion
to Dismiss, and insofar as that Motion raised a question of jurisdiction, we find
that this Board has jurisdiction to hear the matter.  The non-jurisdictional aspects
of MSEA's contentions will be disposed of in the course of our decision.
     The basis for the State's claim for exclusion is set out in its appeal brief.
The claim is summarized by OSER as follows:  Changes, both organizational and
operational, have occurred in the Bureau of State Police since the original unit
determination by the Executive Director which are sufficient now to mandate
exclusion of the Captain and Lieutenant positions from the coverage of the Act,[fn]4
entirely, either under the "confidential" employee exemption contained in the Act,
or as "managerial/administrative" employees.  OSER recognized that the latter claim
would require the Board to make "policy" in the area.  OSER's claim is factually
based upon new responsibilities in the collective bargaining area resulting from
the newly negotiated contract covering the Troopers' unit;[fn]5 assumption of new mana-
gerial responsibilities which have evolved out of the on-going reorganization of the
Bureau; and the desire of all the personnel in the two positions to allign and
identify with the administration of the Bureau.  MSEA, on the other hand, contends
that the duties performed by the Captains and Lieutenants do not measure up to the
standard contained in  979-A(6)(C) with respect to confidentiality and, further,
that the Act leaves no room for the discretionary creation of additional exemptions
to those specifically provided for in the legislation.
     4 Section 979-A,  6(C) of the Act exempts employees, "whose duties as deputy,
administrative assistant or secretary necessarily imply a confidential relationship
with respect to matters subject to collective bargaining as between such person and
the Governor, a department or body having appointive power within the executive
     5 State Police Services unit.

     After carefully considering all of the evidence and submissions offered by
the parties and the arguments articulated at the hearings and contained in the
memoranda, we are of the opinion, for the reasons discussed below, that the duties
performed by the Captains and Lieutenants do not necessarily imply a confidential
relationship with respect to collective bargaining as claimed in the Petition; nor
do we believe that this Board should, or has the right to, create a "managerial"
or "administrative" exemption as a matter of policy.  We consequently affirm the
determination of the hearing examiner and deny the appeal.[fn]6
     A brief review of the background of this matter is in order.  Over the period
of many months during 1975 and 1976 extensive hearings were held by the Executive
Director on the establishment of appropriate units of State employees.  Many requests
were filed by a number of labor and employee organizations.  During the course of
the hearings, OSER sought to exclude the positions of State Police Captain and
Lieutenant from inclusion in any collective bargaining unit on the same grounds
asserted in these proceedings.  The Executive Director placed the Captain and
Lieutenant positions in the Supervisory Services unit.  The determination of the
Executive Director as to Captains only was appealed.  This Board confirmed the unit
placement of the Captain's position.  After the appeal was entered OSER entered
into a stipulation which confirmed the placement of the Lieutenant position in the
Supervisory Services unit and withdrew its appeal as to that position.  In the
appellate decision this Board stated with respect to the Captain position, "It is
our determination that the placement by the Executive Director is appropriate unless
the employee in the State Police Captain position is permanently assigned to
collective bargaining functions, employee relations matters or renders advice on
a regularly assigned basis to management personnel regarding either collective
bargaining or employee relations matters.  If a person is engaged in such collective
bargaining activities, he should be and hereby is excluded under. . . the Act. . . ."[fn]7
That decision, which affected a number of positions in state service, was appealed
to Superior Court by OSER and MSEA, where it has since been pending.  Since the
Captains and Lieutenants steadfastly insist that the entire group of them should
be treated as a whole, or not at all, apparently no serious attempts have been made
to exclude individual positions which may conform to the language employee in the
appellate decision of the Board, even though each side agrees that certain individual
positions might well be excludable thereunder.
     The State unit hearings were concluded by the Executive Director on July 1,
1976.  Consequently, the evidence before him in those proceedings was necessarily
limited to the organizational and operational matrix of the Bureau as it existed
at that point in time.  It is interesting to note that coincidentally with the
     6 We do not intend to suggest that consideration of a  979-A(6)(C) exemption
is forever barred by this decision.  It is not inconceivable that given the unique
staff structure in the Bureau the role of the Captains and Lieutenants might some-
day evolve into one which accords with the level of involvement in labor relations
contemplated by the language of the Act.  The opportunity to have the matter
reviewed anew through proper proceedings should not be foreclosed.
     7 Decision of Appellate Proceedings before the Maine Labor Relations Board
dated March 17, 1977.

ending of those initial unit hearings, Colonel Weeks assumed command of the Bureau.[fn]8
It is with the advent of his regime that significant changes have allegedly taken
place within the Bureau which are the basis for the claim that Captains and Lieu-
tenants are now clearly identified with management and ought to be excluded.  As
indicated, the record shows that each and every officer in those positions now
supports that stance, whatever may have been their individual or collective view
during the earlier hearings.
     It was testified that Colonel Weeks instituted a "new philosophy of partici-
patory management" which had the objective of placing greater managerial and
administrative responsibilities in the hands of the officer corps of the Bureau.
Colonel Weeks revised the previous division arrangement and created three Field
Divisions, each under the command of a Captain.  Each Division has two or three
Troops (sometimes styled "barracks") under its jurisdiction.  There are eight
field Troops in all, each commanded by a Lieutenant.  Prior to this the Troops
reported to a single Field Forces Commander.  Additionally the central investi-
gation office was disbanded and in its place a Criminal Investigation Division
("CID") was attached to each Field Division and was physically located in the
barracks of a centrally located Troop.  Each CID is commanded by a Lieutenant.
The resources of investigations personnel are in this way made more accessible
to the line level personnel than had been the case previously.
     Other changes have occurred under Colonel Weeks.  The role of the Planning
and Research Office has been expanded.  It is now formally attached to the
Department of Public Safety which is the parent body of the Bureau.  Although
that office is commanded by a Lieutenant, it was testified that it has responsi-
bility for overall planning for the entire Department of Public Safety.  There
was testimony concerning the impressive range of its activities.  In 1977 the
Legislature authorized a Division of Special Investigation ("DSI") within the
Bureau, but with a special appropriation independent of the Bureau budgeting
process.  Over this same period of time various changes have occurred in many
sections of the Bureau other than those referred to above, including the Crime
Laboratory (commanded by a Lieutenant), Communications Operations (in charge of
a Lieutenant), Personnel Office (directed by a Captain), and Director of Special
Support Services (headed by a Captain).  These changes have meant broadened mana-
gerial and administrative responsibilities for the officers in charge of individual
     The effort to place more responsibility for the operation of the Bureau in
the hands of the officer corps as a whole and those in charge of the various sub-
sections of the Bureau is consistent with Colonel Weeks' view that the officers
"are the Bureau;" it reflects his belief in "participatory management;" and has
undoubtedly meant that their place in the Bureau is becoming more and more admini-
stratively oriented.  Illustrative of this role evolution are some of the typical
responsibilities of a Troop Commander.  He hires support personnel, authorizes
transfers, draws up Troop schedules.  He has the authority to commit funds for
     8 On July 1, 1976, Colonel Allan Weeks, who had been Deputy Chief, assumed
command of the Bureau, having been appointed Chief of the Bureau and Commissioner
of the Department of Public Safety.

equipment.  He deploys his men and materials.  He is consulted on policy and
attends management seminars.  He may, as may a Field Division Commander, have
overall responsibility for organizing, coordinating and directing a major oper-
ation or crime strike, which may involve large numbers of personnel drawn from a
variety of law enforcement sources.
     The Troop Commander has overall charge of the facilities attached to his
Troop.  He has increased responsibility in the area of budget.  He evaluates and
makes performance appraisals.  Increasingly decision making by Troop Commanders
is less subject to close scrutiny or the need for clearance by Division Commanders
or others.  Clearly the managerial independence of Troop Commanders has increased,
as has that of Field Captains who can now spend more of their time coordinating
Bureau policy, which in turn means that the Bureau as a whole has more coherence
and consistency in the application of policy.
     Based upon the foregoing, one could readily conclude that the roles of Troop
and Division commander in the restructured Bureau are clearly more managerial and
administrative than they were prior to the ascension of Colonel Weeks to command.
However, OSER relies not only upon a proposed policy-based "managerial/administrative"
exclusion, but upon a statutorily-based "confidential" exemption as well.  It claims
that the duties now imposed upon Troop Commanders, particularly as a result of the
acquired collective bargaining rights by the Troopers, Corporals and Sergeants, are
such that they should now be exempt under the confidentiality provision of the Act
and the language of the Board's appellate decision of March 17, 1977.
     The presentation by OSER, principally the testimony of persons holding the
rank of Captain or Lieutenant, showed that the Captains and Lieutenants have been
involved in the collective bargaining process as it relates to the non-commissioned
unit.  Both the Chief Negotiator for the State, David Longmuir, who is attached to
OSER, and Colonel Weeks shared the view that the Captains and Lieutenants as line
officers were most familiar with the "real world" operations of the State Police,
and it was further testified that Colonel Weeks also held the view that Captains
and Lieutenants were the critical level of management in terms of advising on
policy and carrying it out.  Meetings between Mr. Longmuir and the Captains and
Lieutenants were held which were both informational and advisory, i.e. "advisory"
in terms of Mr. Longmuir's seeking the views of the officers and sharing with them
developments during negotiations.  Certain contract clauses were cleared with the
officers for final language because Mr. Longmuir wanted to make sure it was "some-
thing they could live with."[fn]9  At the time trooper negotiations were taking place
the management negotiating committee included a Major and two Captains, who were
appointed without consultation with the officers as a group, nor does it appear
they felt an obligation to report back to the commissioned officers regarding the
negotiation efforts.  After negotiations were well under way the State initiated
a rotation system with the intention of providing each Captain with an opportunity
to participate in the actual negotiations and be part of the team.  However, a
collective bargaining agreement was finalized shortly thereafter.
     9 Mr. Longmuir had lengthy experience as a labor relations and personnel expert
before becoming associated with OSER.

     The role of Captains and Lieutenants in the collective bargaining process
also continued after the execution of the Troopers' contract.  Meetings have been
held with them to prepare them for their role in the administratIon of the agreement
and to review problems in anticipation of negotiations for a successor agreement.
Clearly Troop Commanders are front line collective bargaining administrators since
they are involved in grievances, disciplinary hearings, contract interpretation
questions, and so on.  But it is also true that they had similar responsibilities
before the advent of collective bargaining.  The testimony indicated that the sub-
stance of many of the contract provisions existed previous to collective bargaining,
but the provisions of the agreement changed the process for dealing with these
matters.  Furthermore, the Captains and Lieutenants as a body had no formal structure
for their meetings with the State negotiator during negotiations; there are no
directives or other documentation which has issued through the command structure
spelling out a role for them in formulating or carrying out the strategy and
tactics to be employed in negotiations.  The job descriptions entered into evidence
as exhibits refer only to a contract administration role for the Captain and
Lieutenant positions, not a policy making or strategy conceiving role.
     In carefully reviewing the language of the Act it is apparent that the "managerial/
administrative" exclusion sought by OSER is not within the power of this Board to
grant.  The language of the statute is specific and definite.  It exempts from the
coverage of the Act seven clearly defined categories of state employees.  Two
of these obviously define managerial or administrative positions.[fn]10  Paragraphs C
and D of Section 979-A(6) provides as follows:
    "C.  Whose duties as deputy, administrative assistant or secretary
         necessarily imply a confidential relationship with respect to
         matters subject to collective bargaining as between such person
         and the Governor, a department heed or body having appointive
         power within the executive department; or
     D.  Who is a department or division head appointed to office pur-
         suant to statute, ordinance or resolution for an unspecified
         term by the Governor or by a body having appointive power within
         the executive department;"
    10 979-A(6) defines "State employee" as follows:
       "6.  State employee.  "State employee" means any employee of the State of
Maine performing services within the executive department except any person:
        A.  Elected by popular vote; or
        B.  Appointed to office pursuant to statute, ordinance or resolution for
            a specified term by the Governor or by a department head or body having
            appointive power within the executive department; or
        C.  Whose duties as deputy, administrative assistant or secretary neces-
            sarily imply a confidential relationship with respect to matters subject
            to collective bargaining as between such person and the Governor, a
            department head or body having appointive power within the executive
            department; or
        D.  Who is a department or division head appointed to office pursuant
            to statute, ordinance or resolution for an unspecified term by the
            Governor or by a body having appointive power within the executive
            department; or
        E.  Who has been employed less than 6 months; or
        F.  Who is a temporary, seasonal or on-call employee; or
        G.  Who is serving as a member of the State Militia or National Guard."

     The exemption provided by paragraph C embodies the purported "confidential"
exemption sought by OSER, and by its language it requires not only that the employee
be an administrator or secretary but that he or she have a confidential status as
well.  Paragraph D refers to the purely "managerial" or "administrative" employee,
who must be appointed as provided therein.  The State makes no claim that para-
graph D applies.
     Since the Legislature has narrowly defined the exemptions to coverage under
the Act and has not included any language which may reasonably be interpreted as
a grant of discretion to expand the statutory exemptions, we have no alternative
but to reject the request that we exercise a "policy" function in this area.  No
matter how attractive the argument that a managerial cadre is necessary for the
efficient operation of governmental business, the Legislature has already acted
in the matter.  In addition to the exceptions to the definition of "state employee"
referred to above, the Legislature has clearly contemplated that certain managerial
or administrative functions alone are not enough to exclude positions from coverage
under the Act.  The Act defines "supervisory" in the following terms:[fn]11
          "[T]he 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."
     Most of the testimony submitted at these hearings accords with the criteria
contained in that definition.  The Legislature has fashioned a "managerial" class
of employee, which it has designated, "supervisory."  The Legislature has not
excluded this particular class of "managerial" employee from the coverage under
the Act.  What OSER requests is that we create another "management" level position
and add it to the exclusions contained in the Act.  We have no authority to do
Any such effort should be addressed to the Legislature.
     With respect to the claim that the Captains and Lieutenants enjoy a confidential
relationship pursuant to  979-A(6)(C), we find that based upon this record the
contention must fail.  Although the testimony showed that the Captains and Lieutenants
have been involved to some extent in the collective bargaining process as it relates
to the Trooper unit, there was nothing revealed from which one may infer that the
majority of them are now deputies, administrative assistants or secretary to the
head of the Bureau, as the statute would require.  Nor can it be said that they
have been "permanently assigned to collective bargaining, employee relations matters
    11 See  979-E(1).  Supervisory employees are not excluded from coverage under
the Act.
    12 The Hawaii statute excludes various high level administrative officers "and
any other top-level managerial and administrative personnel."  Nonetheless the
Hawaii PERB has found that police captains serving as district commanders were not
top-level managerial employees, since their duties were essentially supervisory in
nature.  In re Hawaii Government Employees Ass'n. (PERB 1972) Case No. R-l2-8;
CCH Labor Reports  615, 619.  See also Matter of City of Tacoma, Wash. PERB, 710
GERR 13 (April 8, 1977).

or renders advice on a regularly assigned basis" regarding employee relations matters.[fn]13
These officers simply are not the collective bargaining or employee relations advisors
of the Bureau, nor does it appear that they have been permanently assigned to col-
lective bargaining or to render advice on a regularly assigned basis to management
personnel on labor relations matters.  Although it is true that the officers as a
group were consulted at various times during the Trooper negotiations and a process
of rotation on the negotiating team had been initiated, they did not meet at regular
times to participate in strategy sessions and develop negotiating positions and
tactics.  No directives or orders were introduced which spelled out a central role
for the officer corps in the labor relations area.  One would expect that in a
quasi-military organization such as the State Police, which adheres strictly to
the chain of command mode of operations, important responsibilities or assignments
would be a matter of official decumentation.  No such memoranda were introduced
into the record.
     An undefined role in collective bargaining or responsibilities in contract
administration are not sufficient to justify exemption from the Act.  Nor are
occasional or unstructured meetings which smack as much of informational sessions
as they do of collective bargaining strategy sessions.  Whether the impressive
changes which have taken place and are taking place in the State Police are more
than a matter of style and more profound and permanent, while admirable, is not
necessarily critical to our determination.  However characterized, the involvement
of Captains and Lieutenants in collective bargaining or labor relations matters
has not yet reached the degree (or level of formalization) necessary to qualify
for exclusion pursuant to  979-A(6)(C).
     For the foregoing reasons we confirm the determination of the hearing examiner
to deny the Petition.  We agree as well that although there may be grounds to
exclude a certain few of the positions, it does not seem appropriate at this time
for us to make that selection.  The parties may do so if they so choose by reference
to the language in the Appellate Decision.  Clearly, however, if possible it would
be desirable that this body of highly dedicated and motivated individuals be treated
uniformly, as they so earnestly expressed that desire at the hearings.
     Finally, we do not think it appropriate, even if procedurally possible at
this time, for us to make a determination concerning the validity of a separate
unit for State Police Captains and Lieutenants.  We take note, however, of the
rationale contained in the Executive Director's original unit determination report
justifying a separate unit for the State Police.  The report stated,[fn]14
          Petitioner-Intervenor Maine State Troopers Association has cited
          compelling rationale for a separate state police bargaining unit
          when it refers to state and national precedents elsewhere in the
          United States and makes particular reference to the Taft-Hartley
          amendments to the National Labor Relations Act which are intended
          to insure plant-protection employees in the time of labor unrest.
          The hearing examiner believes it desirable to establish this
          separate bargaining unit in such a way to avoid conflicting
    13 Decision of Appellate Proceedings before the Maine Labor Relations Board,
dated March 17, 1977 [No. 77-A-02].  See test at fn. 7 supra.
    14 Unit Determination Report [No. 75-UD-04, et al.], dated September 22, 1976.

          loyalties during periods of labor unrest or acts violative of
          Section 979-C of the State Employees Labor Relations Act.  In
          its post-hearing brief, petitioner-intervenor has cited recent
          events and the standby (and contemplated intervention) functions
          of the Maine State Police.  The role of the employees in this
          bargaining unit under such circumstances warrants the establish-
          ment of a separate and distinct bargaining unit without violating
          the excessive fragmentation dictates of Section 979-E of the State
          Employees Labor Relations Act.
Whether the same reasoning would be as compelling for the officer corps of the Bureau
as for the non-commissioned officers is a question that has not been seriously con-
sidered.  The designated bargaining agent for the unit which now includes these
positions ought to be given the chance to make a full presentation in opposition
thereto, if it so chooses.  Since the issue was not presented openly in the current
proceedings with full opportunity to the interested parties to marshall and present
evidence and arguments in the best interests of a full record, it would be unfair
for us to act presumptively thereon.  Should a Petition be presented, the parties
should be given the opportunity to present their positions and the Executive Director
or his designee can then make a judgment whether to proceed with a full hearing-
style inquiry, or to proceed on the basis of the record in this case supplemented
by such additional evidence and argument necessary to present the fullest exami-
nation on the issue presented.  The parties may well find that replicating the
full evidenciary record for so limited a purpose may be too tedious, as well as
an unnecessary undertaking, and opt for merely supplementing the record to "flush"
out the fullness of their positions in the matter.  However, we leave that matter
to the parties and the future and express no opinion thereon.

Dated at Augusta, Maine this 2nd day of March, 1979.
                                          MAINE LABOR RELATIONS BOARD
                                          Edward H. Keith
                                          Paul D. Emery
                                          Employer Representative
                                          Michael Schoonjans
                                          Employee Representative