Teamsters Local 48 and Town of Fairfield, No. 78-UD-42, affirmed by Case No. 78-A-08. [STATE OF MAINE] [MAINE LABOR RELATIONS BOARD] [Case No. 78-UD-42] [Issued: July 31, 1978] ____________________________ ) TEAMSTERS LOCAL UNION NO. 48) STATE, COUNTY AND MUNICIPAL ) WORKERS ) ) UNIT DETERMINATION REPORT and ) ) TOWN OF FAIRFIELD ) ____________________________) As the result of the filing of a Petition for Appropriate Unit Determination on May 31, 1978 by Richard R. Peluso, International Trustee, Teamsters Local Union No. 48, a Unit Determination Hearing was conducted commencing at 11:10 a.m. on Thursday, July 20, 1978, in the Council Room of the Town Office in Fairfield, Maine, as provided in 26 M.R.S.A. 966. Present at the hearing for the petitioner were: Robert L. Maier Assistant to the International Trustee, Teamsters Local Union No. 48 Virginia H. Joseph Witness and Deputy Treasurer/ Deputy Tax Collector, Town of Fairfield Present for the Town of Fairfield were: Richard L. Hornbeck, Esq. Attorney for the the Town of Fairfield Dale Green Witness and Town Manager, Town of Fairfield Dorothy Poulin Chairperson of the Town Council, Town of Fairfield Also present was the undersigned, Attorney/Examiner for the Maine Labor Rela- tions Board in his capacity as hearing examiner. By its Petition, Teamsters Local Union No. 48 ("Local No. 48") sought forma- tion of a bargaining unit composed of the Treasurer, Social Worker, Deputy Treasurer/ Deputy Tax Collector, and Deputy Tax Collector positions in the Town Office of the Town of Fairfield ("Town"). In his opening remarks, Mr. Maier on behalf of Local No. 48 stated that because the Town Treasurer is appointed to office and is there- fore not a "public employee" under 26 M.R.S.A. 962(6)(B), he wished to withdraw the position of Town Treasurer from consideration for possible inclusion in the pro- posed bargaining unit. No objections to such withdrawal were voiced by representa- tives of the Town, and the position of Town Treasurer accordingly was deleted from Local No. 48's Petition as a classification of employee alleged to be appropriate for inclusion in the bargaining unit. Mr. Hornbeck in his opening statement on behalf of the Town agreed that the Social Worker and Deputy Tax Collector positions were appropriate for inclusion in the proposed bargaining unit. However, Mr. Hornbeck contended that the position of Deputy Treasurer/Deputy Tax Collector should not be included in the bargaining unit because the employee holding the position performs secretarial duties for the Town Manager which imply a confidential relationship within the meaning of 26 M.R.S.A. [-1-] ____________________________________________________________________________________ 962(6)(C). Title 26 M.R.S.A. 962(6)(C) provides in pertinent part that an employee whose duties as a secretary necessarily imply a confidential relationship to an executive head is not a "public employee" covered by the provisions of the Municipal Public Employees Labor Relations Act. Title 26 M.R.S.A. 966(1) states in pertinent part that anyone excepted from the definition of public employee under Section 962 may not be included in a bargaining unit. To ascertain the confidential nature of the duties performed by the Deputy Treasurer/Deputy Tax Collector, testimony by the Deputy Treasurer/Deputy Tax Collector and the Town Manager was taken during the hearing. After carefully con- sidering the testimony and the applicable statutory provisions, the hearing examiner is of the opinion, for the reasons discussed below, that the duties performed by the Deputy Treasurer/Deputy Tax Collector do not necessarily imply a confidential rela- tionship with the Town Manager, and that there exists sufficient community of interest to warrant inclusion of the position of Deputy Treasurer/Deputy Tax Collector in the proposed bargaining unit. Review of the testimony by the two witnesses, both of whom appeared credible to the hearing examiner, leads one to the immediate conclusion that the witnesses' con- ception of the confidential nature of the duties performed for the Town Manager by the Deputy Treasurer/Deputy Tax Collector are diametrically opposed. On the one hand, the Town Manager testified that the Deputy Treasurer/Deputy Tax Collector does 90-95% of his typing, and that 40-50% of the typing involves confidential matters. On the other hand, the Deputy Treasurer/Deputy Tax Collector testified that several other persons besides herself type for the Town Manager, and that she does not type confidential materials for the Town Manager. In view of the conflicting testimony, it is necessary for the hearing examiner to analyze the major points established by the testimony of each witness. The Deputy Treasurer/Deputy Tax Collector testified that her duties as Deputy Treasurer involve such matters as preparing Town bills, writing checks for the Town, and taking payments. As the Deputy Tax Collector, the employee performs such duties as collecting real estate and excise taxes, waiting on the public at the office win- dow, and typing documents for the Town Manager. Since being employed by the Town, the Deputy Treasurer/Deputy Tax Collector has served under three Town Managers. The employee testified that her duties have never primarily involved acting as a secre- tary to the Town Manager; that she has not in the past been requested to type confi- dential materials for a Town Manager; that she does not have access to the Town Manager's locked files, and that the Town Clerk types the Town Manager's confidential documents. There is no written job description for the position of Deputy Treasurer/ Deputy Tax Collector. The Town Manager has served as Town Manager for Fairfield since December, 1977, having been named Acting Town Manager on November 1, 1977. There currently are three clerical positions in the Town Office, consisting of the Social Worker, Deputy Tax Collector and Deputy Treasurer/Deputy Tax Collector positions. The Town Manager tes- tified that the Deputy Treasurer/Deputy Tax Collector serves as the secretary to the Town Manager, and that the Town Clerk has typed for him on one occasion, but that he has no control over the activities of the Town Clerk, who is an elected Town offi- cial. The Town Manager also testified that he has confided in the Deputy Treasurer/ Deputy Tax Collector concerning Town personnel matters. -2- ____________________________________________________________________________________ The hearing examiner believes that the duties performed by the Deputy Treasurer/ Deputy Tax Collector do not necessarily imply a confidential relationship with the Town Manager for several reasons. First, the hearing examiner believes that an em- ployee who shares a confidential relationship with a public employer should be aware that he or she is serving in a confidential position which entails access to privileged information to which other employees are not privy. If the employee is not aware of his or her confidential relationship, then it is unreasonable to expect the employee to honor the privileged nature of any confidential information obtained. In the present case it is obvious to the hearing examiner that the Deputy Treasurer/ Deputy Tax Collector was not aware, prior to the hearing, that the Town considered her position to be one which entails a confidential relationship with the Town Mana- ger. Indeed, the Deputy Treasurer/Deputy Tax Collector was adamant in her insistence that her duties do not involve confidential matters. It would not be reasonable for the hearing examiner to rule that an employee enjoys a confidential relationship with an executive head when the employee has been unaware of the existence of the confi- dential relationship. Second, the testimony taken at hearing does not necessarily imply that a confi- dential relationship has existed between the Deputy Treasurer/Deputy Tax Collector and either the present or former Town Managers. The Deputy Treasurer/Deputy Tax Collector testified that she did not perform duties involving confidential matters for the two former Town Managers under whom she worked. When questioned about the specifics of the confidential matters in which the Deputy Treasurer/Deputy Tax Col- lector has been involved, the present Town Manager mentioned several tasks performed by the Deputy Treasurer/Deputy Tax Collector. Among these tasks was the typing of correspondence to various governmental agencies regarding Town financial matters, as well as the typing of the Town Manager's proposed Town budget. However, in as- certaining confidential employee status, the Maine Labor Relations Board considers whether the duties performed by the alleged confidential employee involve the formula- tion, determination and effectuation of the public employer's labor relations poli- cies, see, Unit Determination Report, Employees of the Kittery Police Department and Town of Kittery (1977) [78-UD-04]. The intent underlying the "confidential secretary" exclusion found in 26 M.R.S.A. 962(6)(C) is "to exclude as a confidential secretary someone . . . who may handle documents for the 'public employer' which could jeopardize his bargaining position," Unit Determination Report, Gray-New Gloucester Ass'n of Para- professionals and Non-Teaching Personnel and S.A.D. #15 Board of Directors (1975) [75-UD-21]. Duties such as typing correspondence to government agencies and typing the proposed Town budget do not normally involve the formulation, determination and effectuation of labor relations policies, and consequently do not qualify as duties which tend to establish the confidential employee status. Another task mentioned by the Town Manager as indicating the confidential nature of the duties performed by the Deputy Treasurer/Deputy Tax Collector was the typing of a graph showing salary differentials, which was used by the Town in wage re-opener negotiations with the bargaining agent for the Town's Public Works Department employ- ees. However, the Deputy Treasurer/Deputy Tax Collector's testimony that the infor- mation contained in the graph was public information went unchallenged. As for cur- rent contract negotiations between the Town and the bargaining agent of the Town's Police Department employees, the Town Manager testified that the Town's proposals -3- ____________________________________________________________________________________ are being typed by the employees of the professional negotiator who is represent- ing the Town in the negotiations. Finally, the Town Manager testified that the Deputy Treasurer/Deputy Tax Col- lector had performed the "confidential" task of typing a letter which terminated the Town's employment of a CETA employee. However, the Deputy Treasurer/Deputy Tax Collector testified that she did not remember typing such a letter, but stated that if she did type the letter, her initials would appear at the bottom of the letter. Since a copy of the letter could not be located, the hearing examiner was unable to ascertain whether the Deputy Treasurer/Deputy Tax Collector did the typing. Third, the hearing examiner cannot agree with the closing argument by Counsel for the Town that the Town is legally "entitled" under 26 M.R.S.A. 962(6)(C) to one confidential clerical position to assist in carrying out the management functions of collective bargaining. Counsel argued that, in light of such legal entitlement, the Deputy Treasurer/Deputy Tax Collector should be found to be a confidential secre- tary because no other clerical employee in the Town Office is considered by the Town to be a confidential employee. The hearing examiner is cognizant of the importance of confidential employees to public employers during the collective bargaining process, and believes that one of the purposes of Section 962(6)(C) is to provide public employers with personnel who are exempted from the definition of "public employee" to assist executive, de- partment and division heads in negotiations. However, 26 M.R.S.A. 962(6)(C) provides in pertinent part that the term "public employee" means any employee of a public employer except any person whose duties as a secretary "necessarily imply" a confidential relationship to the executive head. Neither Section 962(6)(C) nor any other provision of the Municipal Public Employees Labor Relations Act ("Act") provides that a public employer is "entitled to" one confidential clerical position. Had the legislature intended to grant such an entitlement, it could easily have so provided in the statute. Instead, the legislature provided in Section 962(6)(C) that the duties of the alleged confidential employee must "necessarily imply" a confi- dential relationship. The legislature's use of the "necessarily imply" language in Section 962(6)(C) causes the hearing examiner to conclude that the fact that a public employer does not have a confidential employee in a department or office does not by itself, without a showing that the designated employee is aware of his confidential status and that the employee performs labor relations duties which justify the "confidential employee" designation, establish that the employee selected by the employer is a confidential employee within the meaning of Section 962(6)(C). The Act does not provide for such ipso facto designation by the public employer; if it did, there would be no need for a hearing examiner to determine whether the designated employee's duties necessarily imply a confidential relationship when there was no other "confidential employee" in the office. In addition, such a reading of the Act could result in serious abuses which Section 963(1) of the Act is designed to prevent. Once an organizational campaign was commenced, the public employer which had no confidential employee in the group of employees being organized could designate as a confidential employee an activist in the campaign or any other employee out of favor with the employer, if the employee -4- ____________________________________________________________________________________ was legally entitled to one confidential position. Such a designation would of course mean that the employee was not a "public employee" entitled to the rights and protections provided in the Act. The employer could then fire the employee with impunity, thereby stifling the organizational efforts. The hearing examiner believes that in order to prevent such abuses, the legislature provided in Section 962(6) (C) that the public employer must show that the duties of an alleged confi- dential employee necessarily imply a confidential relationship. In the absence of such a showing, the public employer is not entitled to a finding that the employee selected by the employer is a confidential employee. In sum, for the foregoing reasons, the hearing examiner is of the opinion that the testimony does not show that the duties performed by the Deputy Treasurer/ Deputy Tax Collector involve the preparing, typing or handling of confidential documents which are used in collective bargaining negotiations, or the formulation, determination and effectuation of the public employer's labor relations policies. Consequently, the hearing examiner cannot agree that the duties performed by the Deputy Treasurer/Deputy Tax Collector imply a confidential relationship with the Town Manager as contemplated by 26 M.R.S.A. 962(6)(C). Having found that it has not been shown that the duties performed by the Deputy Treasurer/Deputy Tax Col- lector necessarily imply a confidential relationship, the hearing examiner cannot rule that the employee is a confidential secretary solely on the rationale, with which the hearing examiner does not agree, that the public employer is legally entitled to a confidential employee to assist in negotiations. Having determined that the Deputy Treasurer/Deputy Tax Collector is a "public employee" within the meaning of the Act, the hearing examiner must also determine whether there is sufficient community of interest to warrant inclusion of the Deputy Treasurer/Deputy Tax Collector position in the proposed bargaining unit. At the hearing the Deputy Treasurer/Deputy Tax Collector testified that the salary differential between her position and the position of Deputy Tax Collector, which is included in the unit, currently approximates $3.25 per week. Both employees work a 35-hour week, from 8:30 a.m. to 4:30 p.m. on weekdays, and both may work overtime as necessary. The employees work in the same office, and both receive the same employment benefits, including insurance, vacation and sick leave time. Both employees receive directions from, are evaluated by, and corrected or disciplined by the Town Manager. On the basis of the foregoing testimony, the hearing examiner finds that there exists sufficient community of interest to warrant inclusion of the position of Deputy Treasurer/Deputy Tax Collector in the proposed bargaining unit with the posi- tions of Social Worker and Deputy Tax Collector. SO ORDERED. Nothing in this report is intended to prejudice the right of the Town to petition this Board for clarification of the unit of Town office clerical positions, should the duties performed by an employee holding a clerical position change substantially so as to imply a confidential relationship with the Town Manager. Dated at Augusta, Maine, this 31st day of July, 1978. MAINE LABOR RELATIONS BOARD /s/_____________________________ Wayne W. Whitney, Jr. Hearing Examiner -5- ____________________________________________________________________________________