STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 80-UC-02
Issued: November 16, 1979

BANGOR EDUCATION ASSOCITIONA
Petitioner,

and

BANGOR SCHOOL COMMITTEE
Public Employer.

 

UNIT CLARIFICATION REPORT

 

The Bangor Education Association ("Association") filed this petition for
unit clarification on October 1, 1979.  A hearing on the petition was held on
October 31, 1979, as provided in the Municipal Public Employees Labor Relations
Act ("Act"), 26 M.R.S.A.   966.

     Present at the hearing for the Association were:

          Milton R. Wright                    Representative and Director,
                                              Penquis UniServ District,
                                              Maine Teachers Association

          Lynn M. Coffin                      Maine Teachers Association

     Present at the hearing for the Bangor School Committee ("Committee") was:

          Alvah I. ("Bill") McIntosh          Representative

     The Association argues that the new position "Director of Title I" should
be in the administrators bargaining unit, just as the position "Principal of
Dow Lane School and Director of Title I" was in the past.  The Committee argues,
however, that the new position carries with it duties and responsibilities which
make the person a labor relations confidential and that the person is appointed	to
office such that he or she is an exception within the definition of public employee
per 26 M.R.S.A.   962(6)(C) and (D) and therefore cannot be in any bargaining unit.



                              FINDINGS OF FACT

     1.  The Association is the recognized bargaining agent for a unit of
         employees, most recently described in the 1978-1980 collective
         bargaining agreement ("The Agreement") as:

              "the administrators in the employ of the Committee, ex-
               cluding the Superintendent and Associate Superintendent.
               Those included are High School Principal, Assistant High
               School Principal, Junior High School Principals, Elementary
               School Principals, Principal of Dow Lane School and Director
               of Title I, Principal of Fourteenth Street School and Di-
               Director of Special Education, Director of Instructional Re-
               sources and Director of Adult Education."

     2.  The Association represents all the nonexcluded employees of the Committee;
         they are divided into this and six other units, including a teachers
         unit and an assistant teachers unit.  There are approximately 35
         employees in the assistant teachers unit of whom 32 are paid with Title
         I funds.


[end of page 1]


     3.  When the Title I program began to become a major funding source
         for the Committee, the duties required to organize and coordinate
         the program were assigned to Hal Blood who was also a principal.
         Initially the federal government, acting through the State Title I
         Consultant, agreed to fund one half of Blood's salary.  The
         Dow Lane School was closed, however, and Blood retired in the spring
         of 1979.

     4.  On January 16, 1979, Donald P. Zambry, the State Title I Consultant,
         wrote to the Superintendent and provided a job description for a
         Title I position which would be fully funded by Title I.  It is
         excerpted below in pertinent part:

           "Duties and Responsibilities

            The City Title I Instructional Supervisor would be responsible
            for organizing the Title I staff, the Title I resource centers,
            and the program operation as well as serving as liaison between
            administration, regular teaching staff and Title I teaching
            staff.  This would also include services and liaison between
            the Title I office and private schools that participate in the
            Bangor Title I programs.

            Other Major Areas of Responsibility Would Include

            1.  Purchasing of materials and equipment
            2.  Organizing and implementing inservice training sessions
                for Title I staff as well as regular local staff for
                the purpose of working with Title I students
            3.  Setting up and organizing Title I Parent Advisory Councils
                to include:
                  A.  By-laws for council member elections and other
                      council policies
                  B.  Provide councils with pertinent Federal and State
                      laws and regulations
                  C.  Provide inservice training to assure effective
                      participation of parents in the planning, imple-
                      mentation and evaluation of all city Title I pro-
                      grams
                  D.  Parent training sessions on how to help children with
                      their reading and math
            4.  Development of a Needs Assessment procedure and referral
                system for the targeting of all Title I students
            5.  Development of an effective on going evaluation system to
                document growth in the areas of reading, math, and language
                arts
            6.  Development of a Title I parent volunteer program
            7.  Dissemination activities such as:
                  A.  Conferences and information meetings
                  B.  News and other media releases
                  C.  Preparation of a regulary scheduled Title I news
                      bulletin
            8.  Preparation of all Title I applications (which would include
                PL 89-313 and PL 81-874) and the year end Title I Evaluation
                Reports.

            There may be some areas that I've overlooked, however, I'm sure
            you will agree that there would be more than enough work for a 
            full time supervisor.

            If you should decide favorably on such a position I believe the
            person selected should have a masters degree and be certified with
            the state as a Teacher of Special Reading and should have at least
            3 years experience in that capacity."


[end of page 2]


         These duties all involve completely public information, which
         is available to the Association.

     5.  Ann Lynch was hired in September 1979 to fill this position although
         she did not meet the suggested requirements.  It was decided, nonethe-
         less, that Lynch's salary would be paid out of Title I funds.

     6.  Lynch was hired by recommendation of the Superintendent to the Com-
         mittee, who elected her.  A similar hiring approach applies to
         principals, assistant principals, and teachers.  Lynch's office is
         located in the area of the Superintendent's office; she has been
         utilizing the Superintendent's secretary, who is a labor relations
         confidential and excluded from all units.  More such secretaries have
         recently been added to the Superintendent's staff, however.

     7.  Bill McIntosh, the chief negotiator for the Committee for all seven 
         units often sends confidential negotiations memoranda to the Committee
         by mailing or delivering them to the Superintendent's secretary who
         photocopies them and delivers them to the Committee.  On one occasion
         when McIntosh called the Superintendent's office, Lynch answered the
         phone.

     8.  The Superitendent also named Lynch to his "cabinet."  (The role
         and function of this cabinet regarding matters of labor relations is
         important to the ultimate issue in the case."  The cabinet was set up
         by the present Superintendent shortly after he took over the position
         in September 1978.  It was solely his idea and the Committee had no
         involvement in its establishment.  It has not been formally established
         in any sense.  That is, it was created without a written description of
         its duties, functions, membership, or procedure.  Rather, it is a very
         informal group, with no established procedures and no definite member-
         ship.  Some individuals have been changed.  In general, it is more or
         less a sounding board and advisory group for the Superintendent in all
         areas of his job.

     9.  There are presently five full-time members of the cabinet:  the Director
         of Curriculum and Personnel, the Director of Buildings and Grounds,
         the Director of Business Affairs, the Director of Food Services, and
         the Director of Title I.  The first four members are excluded from all
         bargaining units and the latter is at issue here.  There is now one 
         other occasional member:  the Acting Superintendent, who is a full-time
         principal who stands in the stead of the Superintendent when he is
         unavailable on occasion.

    10.  The Cabinet discusses tentative agendas for meetings of the School
         Committee and of the Administrative Council (made up of principals,
         assistant principals, and the Director of Title I), internal and
         external problems of the School Committee, aspects of collective
         bargaining negotiations with all seven bargaining units, contract
         administration, the annual budget, and curriculum and personnel.
         Chief Negotiator McIntosh is present on occasion at these cabinet
         meetings and gives negotiations progress reports.  The discussion
         apparently touches all phases of negotiations, including the Committee's
         priorities and limits in bargaining.  These items would clearly injure
         the Committee's bargaining position if disclosed to the Association and
         definitely qualify as labor relations confidential information.

    11.  There is an administrative bargaining unit member who is now an
         occasional member of the cabinet and at least one unit member who
         was in the past a member of the cabinet.  They would be excused from
         the cabinet meeting before matters of negotiations with any of the
         bargaining units would be discussed.  In particular, the "Acting
         Superintendent," who is a principal, on occasions when he has partici-
         pated in these meetings in the Superintendent's stead, has not been
         made privy to negotiations information.  The Director of Adult Educa-
         tion, who was until recently a member of the cabinet, was treated
         similarly.  In addition, another principal, William Martin, sits on the
         Committee negotiation team for the custodian unit.


[end of page 3]
             

    12.  When the office of the Director of Adult Education was changed
         from the general proximity of the Superitendent's office
         to a building several miles distant, he was no longer considered
         a member of the Superintendent's cabinet.

    13.  Negotiator McIntosh also has regular meetings with the Committee
         regarding negotiations; the Superintendent attends.  Although the
         Committee is the ultimate public employer, McIntosh reports jointly
         to both the Superintendent and the Committee.

    14.  Lynch has had no experience of any kind in labor relations.  There
         is no evidence that she can contribute any expertise to negotiations at
         cabinet meetings.  The Superintendent apparently considers her to be
         a smart person and values her input as an advisor.  She can obviously
         contribute information and knowledge of Title I matters to any dis-
         cussion although there is nothing of itself confidential about this.

    15.  Title I knowledge is important in regard to the assistant teachers
         unit since most of them are paid out of Title I allocations.  Thus,
         McIntosh consulted with Lynch regarding the Title I budget in nego-
         tiations with the Association for this unit.  She helped McIntosh draw
         up a Committee counterproposal of some sort.  McIntosh also values
         her opinion as to whether assistant teachers are professionals or parap-
         professionals, an issue which relates to the wages they will ultimately
         receive.  Lynch, however, is not part of the Committee negotiation team.

    16.  On August 23, 1979, the Committee executed a "side" agreement with the
         Association setting the annual salary for the Director of Title I for
         the period of September 1, 1979, to August 31, 1979.  The side agree-
         ment also stated:  "It is understood that this side agreement shall
         expire on August 31, 1980 and its provisions shall not be considered
         to be a continuing benefit for the Director of Title I unless expressly
         and specifically provided for in a successor agreement."  The side
         agreement is signed by the Chairman and Secretary of the Committee and
         by the President and Chief Negotiator of the Association.  The side
         agreement does not indicate which bargaining unit the position is in.

    17.  Lynch, since being hired as Director of Title I, has joined the Asso-
         ciation and expressed the desire to be represented by the Association
         in the administrators unit.


                                   DISCUSSION 

     The Association petitions that a newly-created position, "Director of Title
I," should be included in the existing administrators bargaining unit as was the
position, "Principal of Dow Lane School and Director of Title I."  The Committee
argues that the new Director position should not be in any bargaining unit because
it is a labor relations confidential position under the provisions of 26 M.R.S.A. 
  962(6)(C) and an appointed position under the provisions of 26 M.R.S.A.   962(6)
(D), and therefore that the position is an exception to the definition of public
employee.  The Association counters these claims.

     The petition is granted because the facts show that the position in question
does not fall within either statutory exception.

                                        I.

      Regarding the labor relations confidential employee, Section 962(6) of the
Municipal Public Employees Labor Relations Act ("Act") states:


[end of page 4]


        " '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 . . . ."

     This provision of the Act has been explained by the Maine Labor Relations
Board ("Board") in a number of cases.  The test for determining whether an em-
ployee is "confidential" is whether the employee "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."  Council No. 74, AFSCME, Decision of
Appellate Proceedings, M.L.R.B. (March 17, 1977), supplemental complaint for
review filed, Kennebec Super, Ct., CV-77-135 (April 19, 1977).

     In a recent case, the Board applied the standard to State Police Captains
and Lieutenants who had been involved in the collective bargaining process to
some extent.  State of Maine and Maine State Employees Association, Report of
Appelate Review of Unit Clarification, M.L.R.B. (March 2, 1979).  In rejecting
the "confidential" argument, the Board cited two key factors:  (1) that there
was nothing which indicated that the positions were deputies, administrative 
assistants or secretaries to the executive head of the employer; and (2) that 
they had not been "permanently assigned to collective bargaining, employee relations
matters or render[ed] advice on a regularly assigned basis" regarding employee
relations matters.

     It seems clear that the statutory phrase "necessarily imply a confidential
relationship" is a mandate that only certain positions which inherently create
this relationship should be excluded.  In theory, any position could
be brought within the labor relations confidential context.  Indeed, a public
employer could expand the number of "confidential" employees in a manner un-
checked were it not for this language.  The statute, however, quite clearly
limits any potential expansion by listing certain types of positions which by
their nature would normally be confidential.

     There is no question but that the Superintendent intends to share confiden-
tial information with the Director of Title I by virtue of his assignment of her
to his "Cabinet."  The defect in the Committee's argument, however, is in the
inability of the statutory language to stretch to accommodate the idea that this
position is by nature a labor relations confidential employee.  In other words, 
access to confidential information alone, at the discretion of the public employer,
does not establish an exception to the definition of public employee.  Rather, 
in addition, that access must be a necessary offshoot of the nature of the job
duties of the employee.  A merely casual, unnecessary, or non-central role in
the collective bargaining process is inadequate to cause exclusion of the employee
from labor rights.  This analysis is explained more fully below.

     First, the Director of Title I is not a deputy, administrative assistant or
secretary to the executive head, i.e., the Superintendent.  Director Lynch does


[end of page 5]


not substitute for or act for the Superintendent.  She is not even a link in
the chain of authority.  In State of Maine and Maine State Employees Associa-
tion, supra, the Board reached a similar conclusion regarding the State Police
Captains and Lieutenants.

	Second, the duties of this position do not necessarily imply a confidential
relationship to the Superintendent.  There is nothing at all in the job descrip-
tion, see Finding #4, which would indicate such.  There was no evidence that
Lynch's duties are any different than the job description except for the addi-
tional membership placement on the cabinet.  However, there is nothing in the
nature of her duties as Director of Title I which woould necessitate her member-
ship on the cabinet.  There are other Directors of programs who are not on the
cabinet or who have not in the past been on the cabinet.  For example, the
Principal of Dow Lane and Director of Title I was not on the cabinet, even on a
partial basis.

     Even if membership on the cabinet were necessary, there is nothing inherent
in Lynch's duties which would seem to call for membership in the cabinet in a
full "collective bargaining" context.  Other cabinet members (who have been in
the administrators bargaining unit" have been excused for discussions of collec-
tive bargaining issues.  In short, the additional assignment to the collective
bargaining discussions of the cabinet, in itself, is not a duty inherent in the
job of Director of Title I and thus cannot be relied upon as a basis for an end
run of the "necessarily imply" language.

     In addition, not only is expertise in collective bargaining not a job re-
quirement, but also it is admitted by all that Lynch, not surprisingly, has
absolutely no experience in any area of labor relations.  In fact prior to
Lynch's appointment to the cabinet in September 1979, the Committee bargained
with the Association concerning her salary.  Thus, there is no question but that the
Director of Title I, by nature of the position, or Lynch in fact, is not capable
of playing any meaningful role in labor relations matters.  Indeed, the Committee
did not argue that Lynch's role on the cabinet was either necessary or even
obviously appropriate, much less that her presence for collective bargaining
discussions was appropriate.

     At most, the Director of Title I plays only an informational and a minimally
advisory role.  As an information provider, there is nothing confidential about
her function.  As an advisor, she is simply another smart person, but with no
basis upon which to advise in relation to collective bargaining.  A similar role
performed by the State Police Captains and Lieutenants in State of Maine and Maine
State Employees Association, supra, was held to be inadequate.

     Thirdly, and finally, there is insufficient permanence to the assignment of
Lynch to the collective bargaining functions of this cabinet, the Superintendent's
sounding board.  The Cabinet itself is amorphous.  There is no formality or firm
structure to it.  The School Committee had no part in its creation.  It was initia-
ted by the Superintendent as a new idea in 1978.  There is no written document
which describes the function or procedures of the group; nothing which establishes


[end of page 6]


its membership.

     The totally oral establishment and operation of this group gives it an imper-
manent appearance and runs afoul of the "permanent" requirement of all the Board's
previous cases.  See, e.g., Waterville Police Department and Teamsters Local 48,
Appellate Review of Unit Determination, M.L.R.B. (Oct. 4, 1978).  The lack of for-
mal documentation was particularly noted as a problem in State of Maine and Maine
State Employees Association, supra.

     The membership of the group has also changed a number of times, for unclear
reasons.  In the case of the Director of Adult Education, the change from member
to nonmember was based upon the relocation of the person's office from nearby to
a number of miles distant from the Superintendent's office.  This also suggests
impermanence, not of the group itself, however, but of the membership thereon of
the Director of Title I.

     It must be noted, also, that the cabinet group is also not operating at the
heart of the collective bargaining function of the School Committee.  It is clear
that the key decisions are made at meetings attended only by the Committee mem-
bers, the Superintendent, and the chief negotiator, McIntosh.  Moreover, McIntosh
communicates in writing with the Committee and the Superintendent only.  Thus the
cabinet plays a clearly subsidiary role in the process, advising and providing
information to the Superintendent and chief negotiator, who then advise and give
information to the Committee.

     Additional points made by the Committee in support of its confidential claim
are:  (1) that Lynch's office is nearby the Superintendent's, that she utilizes
the Superintendent's secretary, and that she has answered the Superintendent's
phone; (2) that she is not an administrator; and (3) that she has assisted
McIntosh in his negotiations with assistant teachers.  Most of these points also
have the previously discussed defect that they relate to a choice to provide or
allow confidential access which choice is not at all necessary or implied in the
nature of the job itself.  In addition, there are the following additional problems
with these points.

     (1)  The geographical proximity to the Superintendent's office is insignificant
and would always be unless it was a situation such that the Superintendent would
be prohibited from performing his labor relations functions as might be the case,
for example, with a personal secretary stationed outside his door.  Such is not the
case.  Also, there are a number of secretaries in the Superintendent's general
staff, including a recent addition, which obviates this concern of inadvertant
compromise.  Merely answering the Superintendent's phone once is an insignificant
threat.

     (2)  The Committee argued that the Director of Title I is not an administrator
in order to support its position that she is a labor relations confidential, not
to support exclusion from the "administrators bargaining unit" in the event that
its main argument were to be rejected.  This is an unpersuasive argument.

     (3)  Lynch's role with respect to assistant teachers is two-fold.  In a strong
sense she is a supervisor of the assistant teachers who are mostly all paid with


[end of page 7]


Title I funds.  See Finding #4.  Lynch has a great deal of organizing, coordinat-
ing and liaison work to do with respect to the ongoing Title I program.  This in-
cludes preparing the Title I budget.  It is thus entirely understandable that she
would be used as an information source by McIntosh when it comes to negotiating
the assistant teachers' contract.  Similarly, however, the Association utilizes
her knowledge and information in the same fashion.  Public information cannot be
confidential.

     Her opinion as to whether the assistant teachers are professionals or para-
professionals, a factor which relates to where in the pay structure the salary of
the asistant teachers should be placed, is simply not a matter of strategy, tactics,
or confidence.  It also can and may be used by both sides in negotiations.

     Also, the fact that she has prepared an undefined counter-proposal for McIntosh
in this area is not an adequate piece of information to draw a conclusion from.
She was not a member of the bargaining team, and was not consulted in any strategy -
conceiving or labor relations sense.[fn]1

     In summary, the Director of Title I is thus not a labor relations confidential
exception to the definition of public employee.  26 M.R.S.A.   962(6)(C).


                                        II


     The Committee also argues that the Director of Title I is an "appointed to
office" exception to the definition of public employee.  Section 962(6)(D) of the
Act states:

          " 'Public employee' means any employee of a public employer
             except any person:

             . . . 

             D.  who is a department head or division head appointed to
             office pursuant to statute, ordinance or resolution for an
             unspecified term by the executive head or body of the
             employer."

     Apparently the Director of Title I is "elected" by the School Committee, as
are principals, assistant principals, and teachers.  This is the only evidence to
support this claim.  The claim must fail.  First, she is not a department or
division head; rather she simply coordinates, oversees, and supervises a program.[fn]2

     Second, there is no evidence of a "statute, ordinance or resolution" pur-
suant to which the Director of Title I was "appointed to office."  Something more
formal and official is required than the circumstances apparent here.[fn]3

[fn]1.  The State Police Captains and Lieutenants served, on rotating basis, on the
employer's bargaining team, but were nonetheless not considered confidential.  See
State of Maine and Maine State Employees Association, supra.

[fn]2.  I have reservations about whether the Director of Title I is "appointed to
office."  A sense of greater governmental significance is conveyed by this statu-
tory phrase than is evident in this somewhat less significant "election" to this
position.  There is not much weight to this concern, however.

[fn]3.  There is also no evidence of her appointment to an "unspecified term."  If
there had been hard evidence of her appointment in the first instance, then this
would have been a simple area of inquiry.


[end of page 8]


     Finally, as the Association aptly pointed out, a teacher is hired in the
same manner as the Director of Title I and thus would also be an exception under
26 M.R.S.A.   962(6)(D) following the same reasoning.  This is of course an un-
tenable result.  See   965(1)(C),   966(1),   966(2). 


                                       III


     Thus, since the Director of Title I is a public employee under the Act, the
only question is whether it is appropriate for this position to be in the adminis-
trators unit or, if not, in some other unit.

     The Committee did not express a preference, but the Association and individual
both desire placement in the administrators unit.  If this were a case of inter-
preting the existing unit description language, it would perhaps be a problem de-
ciding whether the employee is an "administrator" or not.  But another important
factor is involved.  All the public employees of the Committee are organized into
seven units, yet none of these is a residual or fringe unit.  Thus, placement
in the closest unit is necessary.  The closest units are the teacher unit and the
administrators unit.  Since there is a community of interest with the principals 
and various other directors in the administrators unit, which is stronger than
with the teachers, placement in the administrators unit is most appropriate.

     This community of interest is based on the following fractors:  job integration
with the principals through cooperation and consultation in assistant teacher
hiring decisions and supervisory functions such as training and evaluation, a salary
similar to other directors in the unit, the employee's desires, and common partici-
pation on the administrative council.

     Perhaps the strongest factor is that the Director of Title I is simply not
functioning as a teacher and thus would most likely be an "ugly duckling" in
the teachers unit.  She also works a longer year than the teachers.

     In conclusion, the unit description should be amended by replacing "Principal
of Dow Lane and Director of Title I" with "Director of Title I."

     SO ORDERED.


Dated at Augusta, Maine this 16th day of November, 1979.



                                         MAINE LABOR RELATIONS BOARD



                                         /s/_________________________
                                         Michael C. Ryan
                                         Hearing Examiner


[end of page 9]