State and MSEA, Nos. 80-UC-15, 16, 17, affirmed in part and modified in part, 82-A-02. Appeal of Board decision dismissed by Superior Court in CV-83-287, dismissal affirmed, 482 A.2d 461. ______________________ ) [Nos. 80-UC-15, 16, 17] THE STATE OF MAINE ) [Issued: December 31, 1981] ) and ) UNIT CLARIFICATION REPORT ) MAINE STATE EMPLOYEES ) ASSOCIATION ) ______________________) The State of Maine filed three petitions for Unit Clarification on April 3, 1980. By its petitions the State seeks to have a number of employees and positions excluded from coverage under the State Employees Labor Relations Act ("Act") as confidential employees.[fn]1 The petitions encompass employees and positions now assigned to three of the bargaining units of state employees represented by the Maine State Employees Association ("MSEA"): the Supervisory Services bargaining unit, the Professional & Technical Services ("P&T") bargaining unit, and the Adminis- trative Services bargaining unit. As originally filed the petitions involved more than 240 positions but in the course of the proceedings many positions were with- drawn, leaving approximately 155 positions for determination by the hearing examin- er.[fn]2 The proceedings required more than 25 hearing dates over a period of many months. Prior to the hearings, notices of the pending hearings were posted in the various departments and offices having personnel in the affected positions and were distributed to each incumbent; both the form and method of notice were approved by counsel for each party. _______________ 1. Prior to September 18, 1981 [See fn. 2 below] Section 979-A(6)(C) of the Act pro- vided that an employee is excluded from coverage of the Act "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 head or body having appointive power within the executive department; . . ." With respect to some of the positions in its petitions the State originally sought exclusion under Paragraphs B and D of Section 979-A(6) which except certain appointed officials from participating in collective bargaining. It appears, however, that this claim has been abandoned since neither was the sub- ject of testimony on the record with respect to any positions; counsel for the State has not addressed those provisions in the post-hearing memoranda, or other wise; and the testimony that was provided concentrated wholly on the require- ments of Paragraph C. The determinations in this report, therefore, are based wholly on Paragraph C. with respect to each position in dispute. 2. Certain changes in Section 979-A(6) were wrought by the 110th Legislature. See Ch. 381, P.L. 1981, effective September 18, 1981. Among the changes was a modification in the language of Paragraph C. of that section which may give rise to future claims by the State for exclusion of various positions and this fact probably accounts for the State's withdrawal of a number of positions from its requests herein. The revisions to Section 979-A(6) became effective before the formal termination of these proceedings, although after presentation of evidence on all but a few of the positions. Counsel for the State has suggested in her reply brief that the "amendments to Section C during these hearings have removed that restriction [e.g., that confidential employees must be deputies, administrative assistants or secretaries], presum- ably as well showing the Legislative intent for a more flexible, realistic application of confidential exclusion." However, none of the evidence or tes- timony received on any of the positions was directed to the possible impact or effect of the revisions on the issue of confidentiality. Furthermore, the legislation was not enacted until June 2, 1981 which was after the vast majority of positions had been heard. Also the revisions do not appear to affect the substance or quality of the confidential relationship itself, but rather the identity of the confidant. [-1-] _____________________________________________________________________________________ The State was represented by Attorneys Linda D. McGill and Susan Farnsworth of the Office of Employee Relations ("OER"), and appearing for MSEA were Attorneys John J. Finn and Ann Gosline. The undersigned, Robert I. Goldman, was designated as hearing examiner for this matter by the Executive Director of the Maine Labor Relations Board ("Board"). The State has claimed that at the time of the original unit determinations[fn]3 there was an understanding that the question of confidential status for individuals in positions or classifications that were included in the various bargaining units would be deferred until a time after the units had been formed, elections held, and bargaining representatives determined. Allegedly the understanding further included an agreement that the Unit Clarification process would be an appropriate vehicle for making these determinations, but that the State need not satisfy the "changed circumstance" proviso otherwise required by the Unit Clarification section of the Act or the Unit Clarification provision in the Rules and Procedures of the Board.[fn]4 MSEA on the other hand contends that, if ever there was such an understanding, it _______________ 3. After extensive hearings the Executive Director issued a report in which he found seven statewide units appropriate. The Board affirmed on appeal, See Unit Determination Report (State employees), Sep. 22, 1976 and Decision of Appellate Proceedings (MLRB) Mar. 17, 1977. In these and intermediate deci- sions of the Board job categories or clarifications were assigned to the several units, or excluded from bargaining in some cases. The bargaining units for State employees are: Administrative 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. Supervisory employees are not excluded from the protections of the Act, even though they may exercise judgment in adjusting grievances, applying established personnel policies and procedure and enforcing a collective bargaining agree- ment. Section 979-E, Paragraph 1. The Maine State Employees Association (MSEA) is the certified bargaining rep- resentative for all units except Institutional Services and State Police Services. The certified representative for the Institutional Services Unit is the American Federation of State, County and Municipal Employees (AFSCME). The State Police unit is represented by Teamsters Local Union No. 48. 4. Section 979-E(3) of the Act provides, "3. Unit clarification. Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the forma- tion of an existing bargaining unit are alleged to have changed sufficiently to warrant modification in the composition of that bargaining unit, any pub- lic employer or any recognized or certified bargaining agent may file a peti- tion for a unit clarification, provided that the parties are unable to agree on appropriate modifications and there is no question concerning representa- tion." Chapter 1.13(A) of the Rules and Procedures provides, "1.13 Unit Clarification. (A) Where there is a certified or currently recog- nized bargaining representative and where the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed suffic- iently to warrant modification in the composition of said bargaining unit, any public employer, any party with status as petitioner or intervenor under an initial unit determination proceeding or any recognized or certified bar- gaining agent may file a petition far a unit clarification provided that the parties are unable to agree on appropriate modifications and there is no ques- tion concerning representation. Unit clarification petitions may be denied if (a) the description of the job categories contained in the bargaining unit is clear and unequivocal, (b) the question raised should properly be settled -2- _____________________________________________________________________________________ was not a party to it. MSEA argues therefore that the State is required to meet the threshold re- quirements of Unit Clarification with respect to each position in its requests. And since the petitions were filed at a time when a collective bargaining agreement was in force and the "alleged changes . . . [were] . . . made prior to negotiations . . ." leading to the agreement, MSEA claims that the petitions are untimely and should be dismissed. Each side has urged the hearing examiner to make detailed findings on the "understanding" issue, and presumably on the applicability of the Unit Clarification standards. During the proceedings the hearing examiner requested each side to provide an outline of their respective positions on the "understanding" including all of the supporting factual and documentary evidence each thought pertinent and relevant in support thereof. Each side filed responses which are part of the record.[fn]5 The hearing examiner indicated that after reviewing the presentations he would determ- ine whether an opportunity for the submission of oral testimony should be provided in the interest of developing a complete factual record on the issue. Later in the proceedings the parties agreed that the Board could consider materials in the re- cords of other proceedings before the Board which might be useful in resolving issues in the instant proceeding. The hearing examiner concludes that a hearing is not required for the introduc- tion of oral testimony regarding the alleged "understanding" with respect to the "changed circumstance" standard. The record is adequate.[fn]6 The record shows that many positions for which exclusion is now sought were not among those for which the State claimed exclusion at the time of the original determ- inations; that some positions in the current petitions either did not exist, or have gone through significant alteration in the intervening time; and that many of the positions were the subject of specific agreement by the parties - some as late as March 1979 - to place them in particular units. Despite these variances the State insists that all positions are subject to the "understanding" regarding waiver of the "changed circumstances" requirement of the Act and the Rules and Procedures. The State's basic premise seems to be that it should be entitled to the opportunity to establish its essential bargaining network, and form should not stand in the way. The State cites cases from other jurisdictions in support of this contention. On the other hand, MSEA argues that since there never was an understanding to waive the standards, and since in any event the number of positions far exceed the number for which the State asserted a claim of exclusion during the original determinations, _______________ 4. Cont'd. through the election process, or (c) the petition attempts to modify the compo- sition of the bargaining unit as negotiated by the parties and the alleged changes therein have been made prior to negotiations on the collective bargaining agreement presently in force." 5. Reference is had to the responses with attachments submitted by counsel for each party under date of November 12, 1980, and to Mr. Finn's letter of Nov. 24, 1980. 6. Other documents and materials of record in this matter include the attachments to Mr. Finn's letter of July 14, 1980. Also considered have been the attachments to Mr. Finn's post-hearing memorandum dated August 4, 1981, all of which are in the records of this Board from earlier proceedings concerning the State units. For a summary review of the State units proceeding through the appellate process of the Board see Decision of Appellate Proceedings (MLRB), March 17, 1977. -3- ____________________________________________________________________________________ the State is required to meet the statutory and administrative standards. The parties refer to an interim decision of the Board in January, 1977 in which the Board suggested the Unit Clarification process as a likely method for resolving the issue of confidential positions. However in that interim decision the Board also referred to the election challenge procedure as a possible alterna- tive method.[fn]7 There is some difficulty in comprehending the rationale that the voter challenge procedure may be an acceptable method for raising the issue, while the waiver of Unit Clarification standards would not, as MSEA contends; it would appear that the Board was proffering these alternatives for determining the issue despite the seeming irregularity of each. However, the controversy appears to the hearing examiner to be largely academic in light of the character of evidence presented at the hearings with respect to the positions. In each instance the thrust of the testimony was the extent to which the position or the incumbent had been burdened by the process of collective bar- gaining subsequent to the completion of the unit and representation processes. The collective bargaining process is distinctive; it occurs only after the representa- tion process has been completed. Participation in collective bargaining - the process by which the employer and designated employee representative engage in nego- tiations over the terms and conditions of employment - is the very essence of the statutory exclusion provision. When viewed prospectively from the time when the unit questions were being determined, the collective bargaining process was in futuro, and perhaps there was a recognition of this by the Board at the time; the Board mem- bers perhaps had in mind the evolutionary nature of the process. With respect to each of the positions in this determination the evidence of engagement, and the ex- tent of the engagement, in collective bargaining related activity is crucial to a determination of the State's request for exclusion, and the hearing examiner concludes that appropriate involvement in collective bargaining related activity marks a suffi- cient change to warrant modification with respect to unit standing. _______________ 7. Decision and Order on Motions to Dismiss (MLRB, Jan. 17, 1977) Of course in commenting on the Unit Clarification process the Board was ad- dressing the issue of individual confidentials as distinguished from whether particular classifications should be in, or out, of the unit. (Emphasis intended). The State unit proceedings before the Executive Director and the Board were primarily concerned with the composition and scope of the bargaining units in terms of job categories or classifications that might be appropriately joined in each bargaining unit, and not the issue of in- dividual exclusion under Section 979-A(6)(C). In some instances a position or classification may have been a "target" classification limited to one or very few individuals, as for example the positions or Division Director of Manpower Affairs (0726), Deputy Prison Warden (5224) or Assistant Director of Motor Vehicles (0610). It is apparent then that thus far no proceed- ing has addressed the issue of individual confidentials within positions otherwise appropriately included in the State units. By far the preponder- ance of requests in the instant petitions are for the exclusion of individuals within classifications formerly and properly included in one of the State units, although there are a number which are "target" positions limited to one or very few position holders, and many of these were the subject of Board determination or agreement of the parties to include the position in a particular bargaining unit. -4- ____________________________________________________________________________________ MSEA also asserts that the alleged changes in the various positions took place prior to negotiations on the contract which was in force at the time the petitions were filed and for that reason the petitions should be denied.[fn]8 Collective bargaining is a continuing process and the changes did not occur at a specific time or span of time. Furthermore the State has raised the "confidential- ity" issue periodically since the initiation of the collective bargaining process.[fn]9 There have been periodic discussions and exchange of correspondence among OER, MSEA and staff of the Board regarding the issue, which on occasion involved con- cern over the timing of clarification proceedings. There were attempts by the parties to review the list of proposed exclusions with a view toward coming to agreement where possible. Unfortunately these attempts were unproductive. Surely the issue of confidential exclusions was not settled prior to the negotiations for the contract in force when the petitions were filed.[fn]10 The State did not waive or abandon its claim when it consummated the labor agreement; it has been steadfast in its pursuit of the issue. Nor has it been suggested that MSEA somehow has been prejudiced by the timing of these petitions. Postponing these proceedings would not serve any valid purpose.[fn]11 Neither the statute nor the rules suggest that the petitions are inappropriate for the purpose, or as a matter of timing. The following determinations are presented substantially in the same order as the individual positions were heard during the evidenciary proceedings and conse- quently positions in the same department or agency often appear at different points the report. _______________ 8. Rule 1.13 (Unit Clarification) provides that a petition may be denied where "(c) the petition attempts to modify the composition of the bargaining unit as negotiated by the parties and the alleged changes therein have been made prior to the negotiations on the collective bargaining agreement presently in force." It is noted that MSEA did not move to dismiss on this ground when the petitions were filed. 9. The State claimed that it entered challenges based on confidentiality with respect to many of the positions at the time of the bargaining unit elections and suggested that supporting documentation was in the files of OER. 10. Bargaining agreements for the MSEA units were signed on May 23, 1979 for the contract term April 1, 1979 to June 30, 1980. 11. See discussion in Washington Post Co. and Newspaper Guild (MLRB), 106 LRRM 1404 (1981). -5- ____________________________________________________________________________________ DEPARTMENT OF PERSONNEL At the time of the hearing there were 34 employees in this department, twelve of whom were excluded as confidential employees pursuant to the original unit determinations for State employees. There are two major divisions in the department - Administration and Merit Systems; a Deputy Director is in charge of each division. The Comissioner of the department at the time of the hearings introduced a cabinet-style group of senior staff personnel who convened for weekly meetings. Of eleven participants in these cabinet meetings, six were confidential employees or otherwise excluded under the Act. Excluded positions were the Merit Systems Administrator, the Director-Personnel Administration, the Affirmative Action Coordinator, Merit Systems Coordinator (Job Analysis), Merit System Coordina- tor (Research), and Records and Employee Services Supervisor. The five for whom exclusion is sought in these proceedings are the Supervisor of Examinations (Clerk IV), Supervisor of Certification (Clerk IV), Accountant I, Administrative Secretary, and Publicity Representative II (a position created in October, 1979).[fn]* Administrative Secretary (OER) - Judith A. Gribbin The position is the primary secretary to the Director of OER. She types draft proposals and frequently sits in on negotiation strategy sessions. She is re- sponsible for maintaining all collective bargaining files. She is privy on a routine and regular basis to the many confidential activities of this office. The request of the State to exclude this position is granted. Secretary (OER) - Arden McKenzie This position works principally with the labor relations specialists in the office. She handles their correspondence and assists in preparing materials for negotiations. She often times does work for the Director. On occasion she attends negotiating sessions involving two of the state bargaining units. The posi- tion is also involved in preparing answers or responses for arbitration cases. _______________ * The Act provides that, "The Governor's office or its designee is responsible for the employer functions of the executive branch under this chapter, and shall coordinate its collective bargaining activities with operating agencies on matters of agency concern." Section 979-A(5). The first entity estab- lished by gubernatorial edict pursuant to this provision was the independent Office of State Employee Relations (OSER). Later under a succeeding adminis- tration, it was changed to the Governor's Office of Employee Relations (GOER). Later still under the current administration the office was merged into the Department of Personnel as a division of that department and is commonly known as the Office of Employee Relations (OER), where it remains through this writing. In the interest of simplicity OER is used in the text as a reference to the office designated by the Governor to carry out the collective bargaining func- tions of the executive branch under the Act, however it may have been titled or situated at a particular time in its history. The merger of OER into the Department of Personnel occurred after these hear- ings began and after testimony was received for the positions in OER as well as those in the Department of Personnel. The OER exclusion requests are in addi- tion to those listed for the Department of Personnel. Except for acknowledging the most recent mutation of OER for identity purposes, disposition of the requests for exclusion has been made upon the evidence placed on the record when the particular positions were heard and as the positions exist- ed at the time. -6- ____________________________________________________________________________________ The request of the State to exclude this position is granted. Administrative Secretary I - Maxine Gorten This is the chief secretary and office administrator in the Commissioner's office. Gorten does all typing for the Comissioner including correspondence on labor relations matters with the Governor's office, OER and others. There is con- stant discussion between the Personnel Department and OER concerning matters af- fecting negotiations and employee relations. She is privy to discussions how employees excluded from the collective bargaining process should be treated with respect to benefits. The request of the State to exclude this position is granted. Receptionist (Clerk Typist I) - Kenneth Cunningham This person is the receptionist for all traffic and telephone calls com- ing into the Department of Personnel. He opens and routes all mail. He would not open mail marked "Confidential." He must be knowledgeable concerning the affairs of the department. About one-third of his time is spent answering telephone calls and greeting persons coming into this office, one-third on mail, and one-third in various typing activities. It was estimated that about 10-15 percent of the typ- ing he engaged in dealt with collective bargaining matters. His involvement in assisting with typing overload usually has to do with personnel application matters. As indicated, under the former Commissioner the Receptionist was among those who attended weekly meetings of senior staff. It does not appear to the hearing examiner that this position is one necessarily involved with collective bargaining or employee relations confiden- tial matters with such regularity, frequency or permanancy as to warrant exclusion. The position holder's inclusion in senior staff meetings, and consequent contact with occasional matters involving collective bargaining, is more a matter of style of the Commissioner and the personal qualities of the position holder than reflec- tive of the duties necessarily implied by the position. The request for exclusion of this position is denied. Clerk IV - Madeline Colby This position is described as the Director of the Examination Division. Its principal functions are to process and handle all examination functions, includ- ing processing, scheduling and scoring examinations, and responsibility for adver- tising state openings and informing exam takers and applicants. Occasionally the position holder is called upon to provide extensive research such as putting to- gether statistical materials regarding employment practices, or the like; once compiled this material is in the public domain. Only on occasion is the position directly involved with a matter that has collective bargaining implications. Al- though a member of the Commissioner's "cabinet" neither the job description nor the performance standards submitted as evidence, nor the testimony at the hearing demonstrate a significant and necessary role in collective bargaining or employee relations matters of a confidential nature. The request to exclude this position is denied. -7- ____________________________________________________________________________________ Clerk IV - Barbara Lord This position is described as Supervisor of the Registry Division and Certification Supervisor. It is a position very similar to the one above. Essen- tially Lord maintains the registry of applicants for state classified positions. The incumbent has daily contact with departmental personnel officers and gives ad- vice on the "ins and outs" of certification. Among other things she selects names from the register for certification regarding vacant positions and responds to cor- respondence from inside and outside government on certification questions. Only she and the two persons she supervises have access to the register. Although this is also a position of considerable importance, like the foregoing position there is nothing in the documentation or testimony which suggests a significant and neces- sary role in employee relations matters of a confidential nature. The request to exclude this position is denied. Accountant I - Esther Knotts This person prepares the departmental budget and on occasion costs various proposals for this department some of which may be connected with collective bargain- ing or preparation for negotiations. It has been the custom to explain fully to her the reason for the requested information or cost analysis and to seek her input. As an example, it was testified that the incumbent provided wage related research during negotiations for the State Police bargaining unit. Despite the foregoing, however, there was no evidence that the position holder had a necessary connection with collective bargaining or employee relations confidential matters and spent a significant portion of her day on such matters. It was admitted that the costing of proposals does not necessarily require that the coster know or have reason to know the purpose behind the request, or how the re- search will be used, even though common insight often times might suggest the rea- son or use intended. Although the position is one of considerable importance the conclusion must be made that it is not necessarily involved in confidential labor relations matters to a significant degree. The request for exclusion is denied. Clerk III - Helen Shelton This is the principal clerical support position associated with the Job Analysis office under the Merit System Administrator. All of the professional po- sitions in this office, including seven Personnel Analyst positions, are excluded by class from collective bargaining. The office is intimately involved in classi- fication studies and pay range assignments. Contact with individuals in OER and the Governor's office is common; interchange with OER is daily. All classification and reclassification decisions in state government are made in this office. At the time of the hearing there was a backlog of approximately 60 pending classifi- cation appeals. There are constant requests from OER concerning the impact of various actions on the compensation and classification systems. There are 13 employees in a confined physical space. The position holder maintains the appeals files and often times aids the Analysts in putting packages or responses together. It appears to the hearing examiner that it is inevitable in an office which gener- ates so much activity of a sensitive nature directly related to employee relations matters that much confidential information would necessarily flow to and through -8- ____________________________________________________________________________________ the work product of the principal clerical in that office. Although the incumbent may not get involved in the actual workup of surveys, and the like, she would be directly involved in processing the materials, preparing memoranda and correspond- ence, and would therefore become privy to information and materials that an impartial observer would consider confidential and collective bargaining related. The request for exclusion of this position is granted. Clerk Typist II - Carolyn McLaughlin This position is principally a typing position engaged much of the time in typing up salary surveys. She has constant contact with labor relations materials either through her typing activities or in the maintenance of files. Much of that which passes over her desk is confidential in nature and it was estimated that 40- 50 percent of that is collective bargaining related. The two secretarial positions occupied by Skelton and McLaughlin - provide the clerical and administrative sup- port for the office. Given the heavy concentration of the office on employee rela- tions and collective bargaining related matters and the intimacy of the working climate in the office, the position should be excluded. The request of the State to exclude this position is granted. MAINE STATE RETIREMENT SYSTEM Secretary - Laura Carlow This position is Secretary to the Executive Director. The incumbent types all correspondence for the Executive Director and handles all mail with the help of an assistant, whom she supervises and directs. During collective bar- gaining contract negotiations the Executive Director receives and responds to proposals on either side forwarded from OER. During the initial contract negotia- tions memoranda between OER and Retirement flowed on a weekly basis. It was tes- tified that not infrequently there is interoffice correspondence between the two offices. There are frequent inquiries directed to this department concerning the life insurance and retirement benefit status of individual employees, as well as inquiries from other authorized sources. These inquiries are, in the main, con- fidential. Given the special subject areas administered by this agency and the im- portance of the retirement factor among the various conditions of employment, it is reasonable that the principal secretary in the office be cleared to freely handle confidential materials and correspondence. The request of the State to exclude this position is granted. Actuarial Coordinator - Robert Mellor This position reports to the Assistant Executive Director (Deputy Direc- tor). The position is responsible for the supervision and operation of the Actu- arial Division of the Retirement System. The Actuarial Division provides the System's Actuary - a private contractor - with data assembled in various ways for regular and special valuations for state employees, teachers throughout the State, and employees of participating localities. Occasionally the Actuarial Coordinator does calculations regarding the impact of bargaining proposals or proposed changes -9- ____________________________________________________________________________________ in the System. On occasions when the Coordinator does this it is because it is con- sidered too costly to request the private Actuary to do the study. It was estimated that approximately 10 percent of the Coordinator's time is taken up with confiden- tial collective bargaining matters, which percentage increases somewhat during ne- gotiations. The hearing examiner finds that the position of Actuarial Coordinator is not so regularly involved with confidential labor relations or collective bargain- ing matters as to warrant exclusion. The position does not necessitate involve- ment in confidential labor relations matters to a significant extent. The request for exclusion of this position is denied. STATE DEPARTMENT OF AUDIT Secretary - Alberta K. Irvine The position is that of Secretary to the State Auditor, Deputy State Auditor and Director of Audits, which are excluded positions. The critical staff of the Auditor's office consists of 28 Auditors, which are not excluded positions. The Secretary opens all mail for the department including correspondence from OER. The Auditor has received drafts of proposals and the Secretary has typed responses. Some activity of the department involves investigations of individual State em- ployees. The Secretary would handle all paperwork related to such matters; more routine matters are handled by others in the clerical staff. It was estimated that approximately 25 percent of the Secretary's time is devoted to matters re- lated to collective bargaining and other employee related matters and this was ex- pected to increase in the future. Although it is a marginal question, the hearing examiner believes that this position is sufficiently involved with confidential employee relations and collective bargaining matters to warrant exclusion at this time. The need for confidentiality in the handling of investigations involving individual employees tips the scale. The request to exclude this position is granted. COMMUNITY SERVICES Deputy Director - Janet W. Peters This Department is directly under the Governor, and is not a typical in- dependent executive department, agency or office. All positions are unclassified; there are 44 employees in this office. It depends heavily on Federal funding sources, which at the time of the hearing consisted of 5 different sources. It is apparent that a great deal of time is devoted to the requirements imposed by grant agencies, including continuing problems of funding, filing requirements and monitoring programs. When the Director is out of the office, the Deputy acts as Director. In the year prior to the hearing this occurred on the average of one-half of each week. When so acting the Deputy handles all the matters the Director would handle if present, including all employee relations matters, grievances and others. All correspondence and materials received from OER, including collective bargaining -10- ____________________________________________________________________________________ proposals are the subject of discussion between the Director and Deputy Director. When the Director is away the Deputy also attends meetings of the Governor's Cabinet in place of the Director. Because the funding is almost entirely of Federal origin, it is apparent that the financial impact of collective bargain- ing proposals is of greater concern in this agency than in many others, since Federal monies do not factor in State imposed budget increases, it was testified. It would also appear that the uncertainties created by the sweeping changes cur- rently occurring in many Federally sponsored and assisted programs would inevit- ably lead to discussions concerning important questions related to the future of various activities and the consequent effect on manpower and staffing requirements. Inevitably such discussions involve candid appraisal of programs and personnel, discussion of options and alternatives, and policy and decision making. In this agency the Director and Deputy Director have a close working relationship and routinely share views on most matters of importance. The request to exclude this position is granted. Director, Special Programs - Peter L. Wintle Legal Advisor - Susan Farnsworth The Director, Special Programs has the principal function of coordinat- ing and reviewing the performance of community action programs operated by the department, such as Head Start. However, the Director of the agency has assigned the functions and responsibilities of a department personnel officer to this position. In this latter capacity the position holder has the responsibility for performance appraisals and for preparing grievance reviews so the Director can make an informed decision. He is also a member of the Director's cabinet of close advisors who meet and discuss agency plans and policies on a regular basis. He has access to confidential files including those related to collective bargain- ing which are kept in the Director's office. The Legal Advisor, although primarily an advisor on Federal funding regulations, grants and contracts, is also relied upon as well for advice on collective bargaining matters, the handling of grievances and other employee and personnel related matters. She, too, serves on the Director's cabinet and is privy to discussions of confidential labor relations matters reviewed and deliber- ated upon at cabinet meetings. She is also consulted directly by the Director for the legal implications of proposed policy affecting personnel or employee relations, as well as for interpretation of Federal regulations, and the like, which may im- pact on personnel questions. Although it is clear that these two positions sometimes engage in activi- ties of a confidential, labor relations character, it was not clear from the testi- mony the extent of this engagement. It was not made clear that either of these employees spent a significant amount of their time on such matters. But beyond this it appears to the hearing examiner that the cabinet structure and the sharing of responsibility for decision-making - or at least making associates aware of policy developments - is largely a matter of the personal style of the Director. Of course, the style of an administrator is often times the element that makes the difference between an effective agency or staff and a less effective agency or staff. However, style aside, it cannot be said that, upon the record, employee relations matters of -11- ____________________________________________________________________________________ a confidential character are a significant and necessary part of the duties of either of these positions. In the circumstances the hearing examiner believes these positions should not be excluded at this time. Among other things it was testified that personnel functions had been assigned the Director of Special Programs only a short while prior to the beginning of the hearings. Perhaps the experience of the past many months since the hearings began will provide a clearer perspective of the roles these positions play in the agency. The opportunity is available for the State to renew its request for exclusion should the intervening time suggest reinforce- ment of the claim. In the meantime, the State's request for exclusion of the po- sitions of Director, Special Programs and Legal Advisor is denied. OFFICE OF ATTORNEY GENERAL Executive Secretary - Karen Spear This person is the personal secretary to the Attorney General. The Ex- ecutive Secretary schedules his appointments, keeps his calendar, screens all telephone calls, maintains all his files, handles and sorts his mail and handles all his correspondence. She types all correspondence or documents dealing with sensitive matters. There are three primary areas where the Attorney General has collective bargaining responsibility: 1) as the department head of a sizeable support staff with members in various bargaining units, 2) as the legal advisor to the Governor and the Executive Department, and 3) as legal advisor to the Legislature. As advisor to the Legislature it is not unusual for the Attorney General's office to respond to inquiries concerning labor relations legislation. In that capacity the contact with Legislative employees and Legislators, and intra-office discussions, may very well be confidential in nature. The same is certainly true of the office's contacts with the Governor, whether the questions touch on the bargaining process or the legality of a particular union security clause in a proposed State employee contract, or in suggestions of violation of law in case of so-called "work actions" by employees. The principal secretary to the Attorney General of the State should be excluded. The State's request to exclude this position is granted. Business Manager II (Office Manager) - Otto W. Siebert This position has the responsibility for the development and oversight of the budget for the Attorney General's office. It also functions as the per- sonnel manager for the office. As personnel manager, he has responsibility for interviewing and hiring employees and supervising payroll functions. It was testified that he also advises and assists supervisors on disciplinary problems, and on contract interpretation and options available. The testimony also showed that it was his responsibility to be the primary contact person for following the course of collective bargaining negotiations for the Attorney General. The testi- mony also showed that the Business Manager has been involved with the Administra- tive Deputy in reviewing bargaining proposals and framing responses for the Attorney General. The Business Manager has not served on any State bargaining team. It was testified that it was expected that the position would eventually -12- ____________________________________________________________________________________ develop into a full fledged Law Office Manager position. Although the evidence was not overly convincing, it does appear that his position has an important role in labor relations and collective bargain- ing matters within the Office of Attorney General. He interviews and hired employees - presumably non-legal staff - and has been involved in reviewing contract proposals and keeping the Attorney General advised in the progress of negotiations. It may be argued that this is no more than the kinds of tasks performed by supervisors in other departments and is not grounds for exclusion. A significant difference is the fact that the Office of Attorney General is the top legal office for the State and its involvement in labor relations or collec- tive bargaining concerns may occur in a variety of ways, not the least of which may be in giving legal advice regarding labor legislation, or at the other end of the spectrum, possibly investigating or prosecuting State personnel. In a legal office of the size and scope of interest of the Office of Attorney General it is understandable that senior managing staff would be privy to much of the confi- dential material that passes through the office. Although the issue is not clear cut, this position is a central one and should be excluded. The request of the State to exclude the position is granted. DEPARTMENT OF CONSERVATION State Supervisor, Fire Operations - Earle Williams This position has charge of an office within the Department of Conser- vation, which has 167 employees, 120 of whom are Forest Rangers. The position and the office are in turn under the Director of the Bureau of Forestry. The Forest Rangers are in the Law Enforcement bargaining unit and make up approxi- mately one-third of that unit. The position was established in 1977. In the first round of negotiations - conducted from 1977 through the Spring of 1978 - he received drafts of bargaining proposals, discussed them with a bargaining team member, and responded with his comments in writing. In the second round of negotiations he served on the Law Enforcement bargaining team, although his participation was not active because negotiations were done primarily by a coalition team and the opportunity did not arise for direct unit negotiations. Others on the Law Enforcement team were all excluded positions. He was chosen for the team because of his long experience in the department and his knowledge of the operational side of the Bureau. The testimony indicated that he would again be requested as a bargaining team member for the third round of negotia- tions. All members of the bargaining team were sent copies of the union proposals during the second round of negotiations and all responded, including Williams. Williams has made various proposal recommendations to the State negotiators for incorporation in the collective bargaining agreements; he has been active in seeking protective clothing and other safety measures through the bargaining process. On the other hand Williams does not attend the weekly meetings of the Commissioner and Bureau heads. Others from the Department of Conservation were -13- ____________________________________________________________________________________ were appointed by the Commissioner to represent the department on the coalition team and represent the Commissioner on matters related to collective bargaining. A large percentage of personnel under Fire Operations are seasonal employees, such as Forest Rangers. This position poses one of the more common dilemmas encountered in these proceedings. The position in question is not one at the top level of management within the department, nor is it a classification or position where one might ex- pect to find reposited significant collective bargaining related responsibilities. In this case, as in others in the State's petition, the individual has been selec- ted for a specific, often limited, role within the collective bargaining machinery of the State - in this case membership on a unit bargaining team. The designation is discretionary and subject to change or renewal depending upon how the State views its needs, not upon whether the position itself necessitates involvement in collective bargaining in significant ways. Nothing in the incumbent's job des- cription or in his managerial status mandates that he serve on a bargaining team, or necessitates involvement in sensitive collective bargaining affairs. The question arises therefore whether the duties of the position "necessarily imply a confidential relationship" with respect to collective bargaining matters. Since the incumbent is the head of an office which provides a major component of the Law Enforcement bargaining unit; has been a member of the State bargaining team for that unit; has received bargaining proposals for review and comments; provides advice to others in the department regarding contract inter- pretation; and has had regular contact with OER personnel on matters related to collective bargaining, the position will be excluded. Should these functions change, the bargaining representative can file a petition seeking to have the position placed back in the unit. The request of the State to exclude this position is granted. Clerk Typist III - Elizabeth Pynchon This is the principal Secretary to the Commissioner. She does all his typing, on occasion drafts correspondence, opens all his correspondence and maintains the Commissioner's files. There are weekly contacts with OER. She handles all correspondence from the Governor's office. Frequently the Commissioner will discuss the substance of confidential materials with her in framing responses for her to type. The department is a large and varied one with wide-ranging responsibilities. The request to exclude this position is granted. -14- ____________________________________________________________________________________ CLERK TYPIST III (Vacant) The position is Secretary to the Department Personnel Officer. At the time of the hearing on this position it was vacant and had been since February, 1980. During the period of vacancy any confidential correspondence which might otherwise have been performed by this position, has been handled by the Secretary to the Director of Administrative Services, a position discussed below. The hearing examiner believes the position should not be excluded at this time. It had been vacant for an appreciable period of time. Once the position is filled a petition can be filed for its exclusion. The request to exclude this position is denied at this time. Clerk Typist III - Jan Leary This position is Secretary to the Director of Administrative Services. She handles all mail and correspondence for the Director. She opens confiden- tial mail and routes it; she has orders to give copies of confidential materials to the Department Personnel Officer II (DPOII) in the office. The office of Administrative Services handles all bookkeeping, accounting and personnel func- tions for this agency. The Director of Administrative Services is a confidential class. At the time of the hearing the incumbent was also performing as secretary to the DPO II as well; the DPO II is an excluded class. It was estimated that 25 - 30 percent of all correspondence handled by the DPO involved collective bar- gaining related matters. All merit evaluations and grievances or transfers are handled by the DPO. The incumbent, Leary, has filled the position since Febru- ary, 1980; it was a new position. Prior to that these functions were performed by an Administrative Secretary who did not like to handle confidential matters; a change was made and O'Leary has filled the new position since its inception. Since a significant amount of the work activity of the position involves confidential employee relations matters, the position should be excluded. The request to exclude this position is granted. BAXTER STATE PARK AUTHORITY Supervisor, Baxter State Park - Irvin C. Caverly Business Manager I - John J. P. Madeira, Jr. The Authority members are statutory and the Authority operations are financed by the interest from trust funds and by user fees. It receives no general funding from the State. The members of the Authority have control over the Park and carry out the trust provisions; they do not report directly to the Governor as is the case with most executive agencies. It was testified that there are collective bargaining complications implicit in this structure because salary and benefit costs must come out of Park funds and consequently the cost impact of various proposals must be scrutinized more closely than might be the case in other agencies. The Authority meets monthly and the Park Supervisor and Busi- ness Manager meet regularly with the Authority. The Supervisor is responsible for all operational functions of the Park, including supervision of approximately 40 employees. The Supervisor reports to -15- ____________________________________________________________________________________ the Director of the Authority. The Director has ultimate authority regarding per- sonnel decisions, such as hiring and firing. During the first round of negotiations the Director was a member of the Law Enforcement bargaining team. He discussed collective bargaining matters with Caverly and had there been the necessity for negotiations at the team level the two would have alternated. It was testified that there was no division of re- sponsibility between the Director and Supervisor on collective bargaining matters and involvement depended upon one's availability and not the division of authority. During the second round of negotiations there was no representative on the nego- tiating team, although there was fairly frequent contact with the OER chief nego- tiator for that unit. The Supervisor does not supervise the office staff of the Authority. The Park headquarters are in Millinocket where the office staff and maintenance staff are located. All other employees are located at the Park. If the Supervisor requires clerical assistance he must use the staff in Millinocket. The Business Manager (BM) is responsible for all budgeting analysis. The Business Manager functions as the Authority personnel officer. During the 1978 negotiations the BM performed cost analysis on proposals only toward the end. It was testified that much of the information the two positions deal with is public in nature. However, it was also testified that information re- quired for personnel decisions and discussions regarding collective bargaining are privileged or confidential. The Director shares bargaining proposals with the Supervisor and Business Manager and asks for their comments; they may recom- mend alternatives rather than just respond to specific requests. It was testi- fied by Mr. Caverly that any new person in his position should be confidential - he pointed out that the traveling distance to the bargaining site (most commonly in Augusta) strongly suggests that the responibility should be shared. The hearing examiner empathizes with the views of the Authority wit- nesses regarding the unique structure and financing system of the Authority and the expressed need for shared authority. However the record is not convincing that the two positions have played a necessary and significant role in confidential collec- tive bargaining matters. Occasional, albeit important, instances of confidential employee relations participation do not satisfy the statutory standards as in- terpreted by the Board. Given the record as it stands the two positions will not be excluded. The requests to exclude the positions of Supervisor and Busi- ness Manager I are denied. DEPARTMENT OF MARINE RESOURCES This department has approximately 170 employees. It was reorganized in January, 1979 into a bureau system; there are now 4 bureaus which in turn are or- ganized into divisions. The department administers a number of laws and has com- plex issues to deal with, including the 200 mile limit. Clerk IV - M. Elizabeth Jessen The position is that of secretary to the Commissioner. She does all the typing for the Comissioner and Deputy Commissioner. She handles all correspond- ence from OER and types all responses. She maintains all the Commissioner's files. -16- ____________________________________________________________________________________ Her duties are described as that of Administrative Secretary and Office Manager. The Deputy Commissioner handles most of the collective bargaining matters for the department; he also fills in for the Commissioner a good part of the time since the Comissioner is frequently away on department business. Since the position is that of immediate secretary to the Commissioner and Deputy Commissioner and since in that capacity she handles all confidential correspondence related to collective bargaining and employee relations matters, the position should be excluded. The request of the State to exclude the position is granted. Business Manager II - Anna M. Stanley This position is de facto head of the Bureau of Administration although a formal request to designate the position as Director of Administrative Serv- ices had been denied by Personnel. On occasion the incumbent has been consulted on collective bargaining matters and is considered as the house personnel offi- cer. She is well versed in the personnel laws. She is involved in processing grievances and she maintains the files containing collective bargaining materials. It was testified however that this could be changed if the request for exclusion was denied. The hearing examiner does not find that this position has a necessary role in collective bargaining matters. Although the incumbent is a valued and highly competent employee and has had some contact with collective bargaining matters, the testimony indicated that it was more a matter of convenience than necessity. Collective bargaining participation should not be lightly denied an employee. The request to exclude the position is denied. DEPARTMENT OF EDUCATIONAL AND CULTURAL SERVICES The department is one of the larger agencies in State government. It is third or fourth largest with approximately 900 employees. It has wide rang- ing responsibilities which it administers through a myriad of State, local and regional administrators and offices. The Commissioner relies upon two adminis- trative councils for policy and program review: one of 4 members which has juris- diction with respect to the Vocational Technical Institutes; and the other a Council of 16 people including heads of bureaus and major departments, Associate Commissioners Financial Director, and Director of Management Information, consults with the Com- missioner on policy and program matters affecting the Department as a whole. The VTI bargaining unit negotiations are the responsibility of the State Board of Edu- cation through the Commissioner; other employees of the department are in the State employee bargaining units and negotiations for these units are conducted by OER with the aid of the department. Administrative Secretary - Pat Guerette The position is secretary to the Commissioner. She does all his cor- respondence, handles and sorts his mail, and maintains his files. Correspondence -17- ____________________________________________________________________________________ addressed to the Commissioner and marked "Confidential" would not be opened, but she would type responses if indicated and also handle the filing. She has detailed knowledge of grievances and maintains the Commissioner's file on grievances. Although she does not sit in on the Administrative Council meetings, she may type up the minutes or any memoranda related to the meetings. It was testified that the incumbent is privy to all discussions involving collective bargaining and grievances between the Commissioner and OER staff and the Governor's office. Contract proposals for the VTI units are initiated in the Central Office of the department after consultation with the two administrative councils. Collective bargaining agreements must go to the State Board of Education for approval; Mrs. Guerette polls the members and briefs them on the contract terms. It was testi- fied that she is directly involved in the process of grievances; she is aware of positions that will be taken by the administration and is privy to preliminary discussions concerning grievances. Her office is just outside the office of the Commissioner. No others share her office space. The request to exclude this position is granted. Education Specialist III(Coordinator, State/Local Relations)- Dale Douglass This position was in the process of a requested reclassification at the time of the hearing. At the time of the hearing the incumbent was the designee of the Commissioner for hearing grievances at the Commissioner's level. In that capacity he reviewed grievances with the Commissioner and made recommendations for disposition. He is also a member of Central Administrative Team (a 4 person council which, the testimony showed, met every Monday and was the "nerve center" for griev- ance review, complaints, and positions on legislative matters affecting the VTI's. All four members of the Central Administrative Team are also members of the larger (16 person) Administrative Council. In the second round of negotiations for the State employee units, Douglass had part in the review of the union proposals, as a member of the Central Adminis- trative Team. He also had a role in reviewing and commenting upon management pro- posals. Some of the discussion took place at meetings of the Administrative Council. At the time of the hearing the Commissioner was seeking an expanded role for Douglass' position to improve the capacity of the department in the area of Federal/State relations; to add line responsibilities; and to place responsi- bility for research and planning under the position. The request of the State to exclude this position is granted. STATE MUSEUM The museum is a Bureau within the Department of Education. It is under the direction of a Director who is appointed by the Museum Commission with the approval of the Commissioner. The Commission consists of 15 persons appointed by the Governor and it has general supervision over the Museum's offices. The Commission meets monthly, although efforts were underway at the time of the hearing to have it meet bi-monthly. Committees of the Commission were meeting in -18- ____________________________________________________________________________________ the interim in an attempt to expedite the work product. It is described as a decision-making Commission. The Museum employs 27 State employees, only 10 of whom were under State employee collective bargaining agreements. A number of Federally funded positions were not affected by collective bargaining. Business Manager I - Esther Shaw This position is described as Administrative Assistant to the Director of Maine State Museum. The incumbent serves as Secretary for all policy-making bodies of the Museum. She serves as Recording Secretary to the Commission "by tradition" and attends all Commission meetings, including any Executive Sessions, other than when her position is the subject of discussion. She also attends the Administrative Council meetings as representative of the Museum and has re- layed inquiries regarding certain proposals back to the Director for his comments. The administrative structure of the Museum Consists of four main divisions - Research and Collections, Exhibit Design and Construction, Education, and Adminis- tration. Shaw is in charge of Administration. Under that supervisory umbrella are found the Bookkeeper, two Secretaries, the operation of the Museum Shop (four persons), administrative responsibility for financial management, and payments for operational needs, and so on. During negotiations the Commission has received updates on proposals and the course of negotiations. During the second round of negotiations, it was testified, that there was less involvement on the part of the Museum - "minimal review of proposals" - because the proposals on the table did not impact Museum operations to any great extent. To the extent that the Commission did get copies of proposals or have a discussion concerning negotiations, Shaw would be privy to the matter since she attends all meetings. It was testified that the Museum has had but a single grievance under collective bargaining. The hearing examiner does not wish to add to the burdens of the Museum administrators. It does appear however that the collective bargaining related work load is not a significant factor among all the factors that comprise the work load of the Director and the Business Manager. Although the Business Mana- ger attends Administrative Council and Commission meetings, and albeit collective bargaining matters affecting the Museum may be discussed occasionally, nonethe- less these duties do not appear to be a necessary implication of the Business Manager's function. Whether this is the case or not, however, it does not appear that these labor relations related duties are a significant aspect of the Museum's concerns to the extent that there should be an additional exclusion to that of the Director. It appears to the hearing examiner that on the few occasions when collective bargaining matters require the time and attention of Museum personnel, and if a breach of confidentiality is of concern, than on those occasions the Director can arrange to handle the matter or other alternatives can be conceived. If the facts presented a situation where the Business Manager was required to handle collective bargaining related matters, that might present a different issue; but that does not appear to be the case here. For these reasons the re- quest of the State to exclude this position is denied. -19- ____________________________________________________________________________________ Clerk Typist III - Jeannine Ayotte This position is secretary to the Department Personnel Officer. The DPO is a member of the VTI bargaining unit and the State Professional and Technical unit team. During the first round of negotiations the superior of the DPO, a Deputy Commissioner, served on the bargaining team for the State unit but they "discussed everything with one another." The DPO however served on the State Institutional bargaining team and also filled in for his superior on a couple of occasions. For the VTI negotiations Ayotte typed the State proposals. She distributed both the union and management proposals in the State unit nego- tiations to the various department heads. The DPO has the role of contract advisor and spends much time on the telephone and at various locations interpreting the contract and providing alternatives to inquiring officials. Much of this discussion arises out of grievances occurring in one of the VTI bargaining units. The DPO - Mr. York - is generally advised early about grievances or potential grievances through discussion with local people. At the next level - the Commissioner's level - he will usually discuss the grievances with the Commissioner's designee and re- view the background and facts of the case with him. Although others are in- volved at the final levels, or if the matter goes to arbitration, the DPO frequently is asked for information. The testimony indicated that York is one of the key figures in the department with respect to collective bargaining matters, and Ayotte is undoubtedly aware of much that takes place and also actively provides advice to people in the field on contract interpretation. It was also testified that occasionally she will have access to highly sensitive information. This being the case it is found that the duties of Ayotte's position necessarily imply a confidential relationship with respect to collective bargaining. The request of the State to exclude the position is granted. Clerk Steno III (SMVTI) - Gladys Collins This position is secretary to the Director of Southern Maine Vocational Technical Institute (SMVTI). The Institute has 1400 students, 85 full-time faculty and 55 classified employees. The Director of the VTI is approved by the Board of Education which also sets the Director's salary. The Director reports to the Associate Commissioner of the Bureau of Vocational Education, one of six Associate Commissioners who head up the six Bureaus in the Department of Education. The Board of Education has final approval authority over the VTI budgets. On occasion when a matter affecting the VTI's, or SMVTI in particular, is on the Board agenda, the Director will attend the Board monthly meetings. SMVTI has bargaining units which are represented by three different unions; the Director, Mr. Ross, reviews management proposals and counterproposals when submitted to him by OER or by VTI bargaining team representatives and makes recommendations when indicated. The Director is the second step in the grievance procedure. Occasionally grievances involve subject matter which requires a high degree of confidentiality. The Director of SMVTI has frequent contact with York, the DPO for the Department, mostly concerning personnel matters. Not infrequently these discussions will involve confidential aspects of such matters as filling vacancies, promotions or -20- ____________________________________________________________________________________ clarification of department chairman's stipend. In the most recent negotiations (at the time of the hearing) he had frequent discussions with the management representative on VTI bargaining team to review the course of negotiations; on one or two occasions Ross responded with written memorandum. It was testified that Collins is familiar with all that Ross is involved with as Director. Ross keeps personnel files in his office and only he and Collins have access. She processes all his mail and types almost all of his cor- respondence. She is physically located just outside the door of his office. This is the largest VTI in the system and the Director's activities generally, and his involvement in collective bargaining or employee relations concerns, reflect this to some degree. It is no doubt important that the chief executive of a large and busy educational enterprise and his or her principal secretary have an atmosphere of open and easy exchange between them, and that the secretary keep informed and current about the activities of the executive. However with respect to collective bargaining matters much of Ross' communicating is done verbally, at meetings, or by telephone. The amount of time devoted to such con- cerns on his part would certainly be much less than the proportion of the work day devoted to such concerns by Mr. York, for example. Collins direct involvement in confidential labor relations matters would be but a fraction of Ross'. Occasional or isolated involvement in collective bargaining matters does not justify exclusion. In the circumstances the request to exclude this position is denied. Business Manager II (SMVTI) - Richard Cooper The incumbent is business manager for the whole campus, e.g., he provides all financial services, payroll information, all budgeting and student billing. He has responsibility for several other employees including a Payroll Clerk, Accountant I, Data Processing Operator, two Account Clerks and two Clerk Typists. He has no personnel functions. With respect to his role in collective bargaining, it was testified that in the first negotiations Cooper was involved in the develop- ment of a salary grid study for the faculty unit, including suggested alternatives. A good deal of time was devoted to this project. It was testified that some infor- mation involved in constructing the grid might include confidential information from personnel files. With respect to any further role in collective bargaining it was testified that the Business Manager might be called upon to assist in costing union proposals and in putting together cost information prior to negotiations. It was also testified that other than the foregoing, the Business Manager's involvement was "very little." It does not appear that this position is necessarily involved in collective bargaining matters to a significant extent or degree. It is clear from the hearings that much of the time "costing" can be achieved without dis- closing the purpose of the study to the personnel who are putting together the statistics. The request of the State to exclude this position is denied. Business Manager II (EMVTI) - Richard Drinkwater Business Manager IT (NMVTI) - Dana McGlauflin The remaining positions associated with the VTI's which the State seeks to exclude are located at the other institutes around the State; all are smaller -21- ____________________________________________________________________________________ than SMVTI in terms of numbers of students, faculty and support staff. With re- spect to each Institute the State seeks exclusion for the top Business Manager position and the chief secretarial position or the Secretary to the Director. Testimony regarding the two positions at EMVTI was typical of the same positions at the other Institutes. The testimony as to the Business Manager position may be summarized as follows: The Business Manager reports to the Institute Director and supervises a small number of employees. The Business Manager evaluates the subordinate em- ployees and may be involved in an intermediate step of the grievance procedure. In this context there may be discussions with the Director or the Central Office in Augusta on how to handle the grievance; it is felt by management that aspects of these discussions may be confidential in nature. With respect to labor negotia- tions the Business Manager may serve on an advisory or management group which meets with the Director to review policy questions, planning budget priorities, and so on; occasionally the advisory group has reviewed bargaining proposals - usually only those of significance to the particular VTI - or has discussed other employee relations subject matter. Only rarely has the BM received copies of proposals for personal comment. More specifically the Business Manager has been asked for assistance in "costing" salary or other fiscal proposals; in most cases the BM has known the purpose for the request. The most significant costing activity occurred during the first round of negotiations when selected manage- ment personnel were engaged in constructing a salary grid for use in the Faculty unit negotiations. This effort was a joint one, however, which also involved the Joint Labor-Management Committee of the VTI's. The amount of time devoted to collective bargaining related affairs is less than the BM at SMVTI. The Business Manager is relied on heavily in the financial affairs of the Institute, and the vast majority of time is devoted to the fiscal affairs of the campus and routine administrative duties. The information needed for "costing" proposals is, in the main, available as well at the Central Office in Augusta; in most instances the information is public in character. The Director of the Institute would feel "more comfortable" if the BM was a confidential employee, and excluded from collec- tive bargaining, but there has been no feeling that security has suffered in the past because the position is in the bargaining unit. Based upon the foregoing the hearing examiner concludes that the duties of the position of Business Manager at EMVTI do not necessarily imply a confiden- tial relationship with respect to matters subject to collective bargaining. The involvement in collective bargaining related matters is spasmodic at best and not a significant aspect of the work routine of the position. The requests to exclude the Business Manager II (EMVTI) and Business Mana- ger II (NMVTI) positions are denied. Accountant I (EMVTI) - Jane Brann The duties of this position involve the handling of personnel functions for the Institute including all accounting and payroll functions. She maintains and has charge of personnel files. For example, for the faculty she prepares their contracts, keeps their vitae, transcripts, and the like. These files are locked and she has access to them. She is not a secretary but occasionally does some -22- ____________________________________________________________________________________ typing for the Director if the matter is related to the business office records. Correspondence related to collective barnaining, such as memoranda from OER is kept in a file, some of which is confidential at the time it is received. She does not attend the meetings of the management team. Currently[fn]* the excluded positions at EMVTI consist of the Director, Assistant Director (vacant), Dean of Students, and Adult Education Director. Although this position has the responsibility for handling the faculty personnel files and maintains the collective bargaining file for the Director, the testimony does not support a finding that the duties of the position necessarily im- ply a confidential relation with respect to collective bargaining matters. The materials in personnel files, although confidential in the sense that there may be a duty not to disclose certain information therein, are not typically of collective bargaining or labor relations import in their raw state. Access thereto is not in and of itself a ground for exclusion under the Act. Custody of the collective bar- gaining file does not, in itself, justify exclusion either. In the first place the testimony concerning the contents of the file, the frequency of use of the file, and the need for Brann to have access to it, was not made clear. On the other hand the VTI's are not burdened - or at least the testimony did not so establish - with a significant involvement of time and effort in matters directly related to collec- tive bargaining negotiations, or other confidential labor relations concerns. Although on occasion there may be frequent contact with the Central Office regarding the handling of grievances or contract administration or interpretation, the evidence indicated such contacts are more commonly by telephone contact with the Director and not a matter of writing or memo. In fact it was testified that grievances at EMVTI thus far have been rare. The most intensive involvement with collective bargaining occurred during the first round of negotiations when there was activity concerning the construction of a salary grid and there was also discussion of certain proposals. But that can hardly be translated into a justification for depriving employees of the right to participate under the Act. Although this view may appear to minimize the role of VTI management in the conduct of labor relations, it is not so intended. If anything, the testimony indicated that the Directors' offices were in most instances clearly under staffed and over burdened, with too little resources and facilities to properly deal with the problems of complex and growing enterprises. But that over- burdening cannot be translated into exclusion under the Act for a class of employees. Furthermore, the testimony also showed that the fact that employees holding these positions were not "confidentials" was not seriously impeding the labor relations activity of the Institute or of the Directors office; it was testified rather that it would be more "convenient" or "more comfortable" if these employees were excluded. Under all the circumstances the hearing examiner finds that the duties of this position do not necessarily imply a confidential relationship with respect to collective bargaining matters. The request to exclude this position is denied. Clerk Steno III (NMVTI) - Lillian Judkins This position is the principal Secretary to the Director. She maintains all the Director's files including those that are considered confidential. She opens _______________ * At the time of the hearing on the VTI positions. -23- ____________________________________________________________________________________ all of the Director's mail; there is no policy on mail marked "confidential," but such marking would be honored. If any response were required she would, of course, type it. Her office is next to the Director's, with three-quarter walls. She has been told that her role is equivalent to an Administrative Assistant position. She has been aware of negotiations and has seen memoranda from OER and has handled some correspondence between OER and the Director's office. She handles grievance files. Despite the foregoing, it is clear that the volume of collective bargaining related work, or time devoted thereto, is not significant; that the greater part of contact with OER is by telephone; and that the position is not significantly involved in confidential labor relations work. For the reasons expressed in disposition of the VTI Business Manager and Accountant positions, the hearing examiner will deny the request for exclusion. The request for exclusion of these positions in effect is a request for class exclu- sion, and a case for exclusion of the class has not been made. Occasional or spas- modic involvement in collective bargaining matters is not a basis for exclusion; it cannot fairly be said that but for the exclusion of these positions, or either of them, the Director's office could not responsibly and reasonably conduct the collective bargaining business required of it. It must be remembered that the Central office has the principal burden of meeting the collective bargaining responsibilities imposed on the VTI's, and a number of Central Office staff engage in that activity assisted by OER. The request to exclude this position is denied. DEPARTMENT OF BUSINESS REGULATIONS Clerk Steno III - Jewell E. Childs The position is Secretary to the Commissioner. The Secretary does all the Commissioner's filing and most of his correspondence. She opens "confidential" marked mail, except where otherwise instructed. She will handle all correspondence and responses from and to OER. Childs handles grievance files. On at least two occasions, the Commissioner testified, he received communications from OER regarding negotiation proposals or the impact of proposals; in these instances Childs typed the responses. Occasionally the Commissioner types some matters himself but would have Childs review them. At the time of the hearing an arbitration hearing was anticipated at which the Commissioner was expected to testify. Memos were exchanged between an OER attorney and the Commissioner. Childs typed the responses. It was estimated that approximately 20 percent of Child's time was devoted to labor relations con- cerns, but the proportion was expanding. The request of the State to exclude this position is granted. Accountant I - Jane W. Stevens The position is located in the Division of Administrative Services. The Director of the Division is a confidential position. Because the office is small, employees assume tasks outside their job descriptions. The Director of Administrative Services functions as the personnel officer for the department. The position has responsibility for maintaining the payroll and budget records for -24- ____________________________________________________________________________________ the department. An Account Clerk II assists Stevens, principally handling incoming monies, fees, and the like. In the most recent negotiations Stevens analyzed costs of collective bargaining proposals in the area of travel and meal allowances and the impact of wage increases at various levels. The only other person having access to this information is the Director of the Division. Occasionally Stevens serves as Assistant Director. All the files of the office are accessible to Stevens, includ- ing the personnel records, which contain merit evaluations, and the like. Other than the foregoing, there was evidence of other involvement of Stevens in labor relations matters. The Commissioner testified that he would only consult with the Director on certain matters because Stevens was not a designated confidential However, he also testified that he experienced no breaches of confidence during the recent negotiations arising from Stevens lack of confidentiality status. Stevens has been involved only occasionally in collective bargaining affairs. With respect to her work in analyzing the cost of proposals in the past negotiations, it has been adequately demonstrated in these proceedings that in most instances it is not necessary that the analyst know the purpose of the inquiry. (Emphasis is intended). However, occasional or spasmodic involvement in collective bargaining concerns does not justify the removal of a position from coverage under the Act. The State's request to exclude this position is denied. DEPARTMENT OF HUMAN SERVICES Director of Bureau of Medical Services (BMS) - James Lewis There are 7 Bureaus in the Department and all are headed by a Director. The BMS was formed in 1977 or early 1978, well after the original State unit determ- inations. The BMS Director is the only non-confidential among the Bureau heads. BMS has responsibility for paying providers of medical and hospital services and expends more than $l0O,OOO,00O annually. Two of its divisions are involved in standards and compliance review of hospitals and nursing homes, and licensing of those facilities. The Bureau has more than 200 employees. The Department has three Deputy Commissioners. The Bureau heads and their designated Deputy Comissioner meet weekly, and with respect to collective bargain- ing may discuss the cost impact of proposals on their operations. Negotiations pro- posals are distributed to Deputy Comissioners and to the Personnel office; Bureau heads are made aware of how particular contract proposals will affect their opera- tions. The packet of information going to the Bureau heads during negotiations sum- marizes the State and union proposals and asks for their response and a statement of the cost impact on their division. One such packet of approximately 11 pages con- tained an indication of confidentiality. All Bureau heads, except the Director of BMS, are appointed by the Com- missioner; the Director of BMS is a classified position appointed through the normal certification process. There was no explanation for this exception. Assistant Di- rector and Regional Director positions also are classified. The testimony indicated bargaining strategy in certain areas was discussed with Bureau heads although strate- gy alternatives were not. There are currently 18 confidentials in the Department. -25- ____________________________________________________________________________________ The position is excluded. While there was no explanation why this position is not a Commissioner appointment as are the others, it is clear the position is one of equivalent responsibility in the hierarchy of the Department and involved in labor relations matters at the same level and to the same degree as the others. In another setting the justification for excluding the position might be less clear; in this setting it is more than adequate. The request of the State to exclude this position is granted. Bureau of Medical Services, Assistant Director-(formerly James Lewis) Assistant Bureau Director, Human Services (Bureau of Rehabilitation)- Thomas Longfellow Assistant Bureau Director, Human Services (Bureau of Resource Develop- ment) - Harman Harvey Assistant Bureau Director, Human Services - vacant These positions are characterized by the role of the positions as having responsibility in assisting the Director with the day-to-day administrative and func- tional aspects of the Bureau operations. The Assistant Director also has direct man- agement responsibility for certain programs operated by the Bureau. Confidential ex- clusion was sought not for specific functions or responsibilities in the area of labor relations, but rather because of the relationship between the Director and Assistant Director and the assumption that the Assistant "would be privy to the in- formation" in the Director's hands. On the other hand it was testified that an Assistant Director had few inquiries related to contract matters or employee rela- tions. The role in collective bargaining was fact gathering upon request, such as providing information on the policy regarding uniforms (how many?) and the like. More typically the Assistant Director would be involved in seeking assistance from the Personnel Office on questions of contract interpretation and in processing or hearing grievances at the Bureau level. This more typical activity appears to be within the definition of a supervisory position, rather than confidential, as de- fined in the statute: " . . . exercising judgment in adjusting grievances, apply- ing other established personnel policies and procedures and in enforcing a collective bargaining agreement . . . ."[fn]* The request to exclude these positions is denied. MAINE CRIMINAL JUSTICE PLANNING AND ASSISTANCE AGENCY Deputy Director - Geraldine Brown At the time of the hearing on this position the agency was going through profound changes occasioned by funding losses and anticipated losses. As of June, 1980, there were 21 employees; this was to be reduced to 10 by August. Since the Planning Coordinator position was being terminated the Deputy Director was to assume those duties as well. The Planning Coordinator had functioned as the depart- mental personnel officer. The duties of Deputy include advising the Director on employee contracts and benefits; acting as contact person with OER and Personnel to clarify policy during layoffs; direct involvement in reviewing and determining layoff plans, including selection of alternatives and options; serving as liaison with the Governor's office. The Deputy was expected to sign the layoff notices _______________ * Section 979-E(1) of the Act. -26- ____________________________________________________________________________________ and to advise the Director concerning resultant grievances. Although the Planning Coordinator was the Department grievance officer, the Deputy Director was his advisor because of her familiarity with the collective bargaining agreement and the procedures. Only the Director of the agency was a designated confidential. The request of the State to exclude this position is granted. STATE PLANNING OFFICE Clerk Typist III - Sally Gagnon The position is principal Secretary to the Director. It is a small agency consisting of approximately 42 employees located in two buildings. The office goes through rather profound changes with each change of administration in State government. At the time of the hearing on this position, the Director, Office Manager, and Special Assistant positions were excluded as confidentials. There are no clerical confidentials. The Office Manager also serves as personnel officer. The office is the planning agency for the State and advises on the distribution of Federal funds, and responds to requests from the Governor for sug- gestions regarding policy, planning, legislation and the like. The position is the primary secretary to the Director and does all his typing, maintains his files, distributes incoming mail and handles all outgoing mail. She is also the secretary to the personnel officer. She handles all payroll functions. The Business Manager is the direct contact between OER and the agency and has respon- sibility for contract administration on a day-to-day basis. Gagnon has charge of all personnel files. Only the Business Manager, Office Manager, and Director and Gagnon have access to personnel files. During the most recent negotiations the Director received a document of several pages from OER with specific questions and information requested. Gagnon typed the response. The Office Manager has had exchanges with OER and Gagnon typed the documents or responses. At the time of the hearings the agency had not had any grievances. Although much of the mail from OER to the Director is marked "confidential" and the package containing the bargaining proposals probably was so marked, Gagnon has become aware of the contents. The request of the State to exclude this position is granted. DEPARTMENT OF INLAND FISHERIES AND WILDLIFE Administrative Secretary - Janet F. Potter The position is primary Secretary to the Commissioner. She opens all the Commissioner's mail, including that marked "confidential"; she maintains the Comissioner's confidential files, to which only she and Commissioner have access. She attends the bi-weekly meetings held by the Commissioner with the Deputy Com- missioner and the division heads; she keeps notes on the meetings for the Commis- sioner. During the most recent negotiations she and the Commissioner attended a meeting with OER where negotiation proposals were reviewed and discussed. At the bi-weekly meetings confidential matters are occasionally discussed. During the first round of negotiations two members of the department were on State nego- tiating teams. They would report regularly at the meetings about the course of negotiations; Potter attended some of these meetings. Potter sits as chairperson -27- ____________________________________________________________________________________ for an alternate committee to hear affirmative action and employment grievances; however, it does not displace the contract grievance procedure. During the most recent negotiations the Commissioner received a packet containing both management and union proposals. It was marked "confidential" and went to the Business Manager for a response, which was typed by the Business Manager's secretary. When the response came back to the Commissioner he reviewed it with Potter before forwarding it to OER. It is one of the many curiosities of these hearings that the manner of handling labor relations matters varies so dramatically from department to department. In most departments it is clear that formalized procedures have not been structured. In that setting the difficulty of discerning whether the duties a particular position "necessarily imply a confidential relationship with respect to matters subject to collective bargaining" is made the more dif- ficult. Indeed, as in this instance, the job descriptions entered into evidence rarely mention any specific role in collective bargaining. The evidence sub- mitted regarding this particular position illustrates the problem. Nonetheless there is sufficient evidence to support a finding of exclusion. The department, through the Commissioner's office, is involved in collective bargaining to a sig- nificant degree and there is sufficient justification for excluding the primary secretary to the Commissioner. The request of the State to exclude the position is granted. Business Manager II - Peter C. Brazier The testimony concerning this position does not support exclusion. The testimony indicated that the only direct involvement in collective bargaining was the instance when the incumbent prepared a cost analysis of some proposals referred to him. These were only union proposals and his secretary typed the response; there were probably some discussions with the Commissioner about the items. The Business Manager has been involved in discussions of personnel considerations due to budget problems - general discussions concerning the possibilities of laying off person- nel; however, there was little follow-up. Some discussions on the subject were between the Commissioner, an OER attorney, and the Business Manager. There were discussions of alternatives to layoffs, but the testimony indicated the Business Manager was involved only to the extent of determining costs and savings. Other testimony indicated that the discussion of collective bargaining at the meetings with division heads was limited to the cost effects on the department. The nego- tiations team member appeared before the group to report on negotiations but there was no discussion of the proposals themselves. It was also testified that budget information provided to a Select Study Commission investigating funding problems of the department was, in the main, public information. Also, as stated with respect to other positions contained in the State's petition, it does not appear that the custodian of fiscal data must of necessity know the purpose of data studies he or she may be requested to perform; the same is true for this position. The request to exclude this position is denied. -28- ____________________________________________________________________________________ Clerk Steno III - Judith Holden Since Holden is principally the secretary to the Business Manager II and since that position is not excluded, it follows that Holden's position is not excludable; she has no independent duties which would warrant exclusion, al- though approximately 20 percent of her time is devoted to clerical services for a Division head whose exclusion is also sought.[fn]* The request for exclusion of this position is denied. Game Warden Major - Russell E. Dyer There are 130 people in the Warden Division. The Wardens make up approxi- mately 25 percent of the Law Enforcement bargaining unit. Forest Rangers are the largest group in the unit. Dyer functions as assistant to the Game Warden, Noble, who has been a member of the unit bargaining team from the beginning of collective bargaining. Dyer has the responsibility for investigating and presenting griev- ances. Several grievance arbitrations were pending at the time of the hearing and Dyer was expected to be a witness for the Service. It was testified that of nine grievances which have reached the OER level, Noble and Dyer shared the presentations on behalf of the Service. The chief negotiator for the State has discussed pro- posals directly with Dyer. He also has the responsibility for internal investiga- tions which may lead to disciplinary action against a Warden. The record shows that the position was a fairly new position which was established with the expectation that it would share collective bargaining duties with the Chief Warden. As with many positions for which exclusion is sought in the petition, the evidence could be more compelling. Nonetheless the position is one whose duties necessarily involve collective bargaining matters in a signifi- cant way. The request of the State to exclude the position is granted. Biologist IV (Fishery Management Division) - Lyndon H. Bond Biologist IV (Wildlife Mgr.-Game Farm) - Robert W. Boettger Biologist IV (Program Planning and Coordination) - Kenneth H. Anderson The evidence regarding these 3 positions may be summarized as follows. As division heads they meet bi-weekly with the Commissioner and Deputy Comissioner and there is broad discussion of departmental operations. There are nine division heads and all attend the meetings with the Commissioner. During the Legislative session the meetings are more frequent. Management decisions come out of these meetings; the Commissioner reviews the recommendations made at the meetings and makes a final decision. During the previous negotiations there was discussion of the effect of the pay increase proposals on the different divisions and on the department; these were general discussions. The division head puts together the budget for his division and has responsibility for expenditures within the constraints of the budget as finally adopted. One of the division heads was on the unit bargain- ing team during the first negotiations, but not the second; no others have been on any bargaining team, whether coalition or unit team. _______________ * See discussion of Engineering Technician V position below. -29- ____________________________________________________________________________________ The incumbents in the three positions testified. Their summarized tes- timony was as follows: They do attend bi-weekly meetings with the Commissioner, but these are primarily to discuss program management and make recommendations thereon. They have responsibility for managing programs under their jurisdiction, and have typical supervisory authority, such as hearing grievances at their level, making recommendations regarding hiring of new employees, and in discipline situations. The department operates under a chain of command system and the division heads re- port directly to a Deputy Commissioner. They are not involved in strategy sessions with respect to collective bargaining, but have been involved in meetings and dis- cussions once the contract has been agreed upon regarding the impact of the provi- sions, particularly the financial impact of the salary and money provisions. There may have been occasional discussions with OER representatives, but these usually dealt with seeking interpretation of contract terms. They feel that they have not been involved in collective bargaining matters of consequences, such as reviewing proposals during negotiations or in strategy planning. They feel strongly that their positions should be filled by qualified professionals and if they become dis- cretionary appointments the quality and professionalism of the service would be jeopardized. Based upon the foregoing the hearing examiner believes that although these positions are clearly managerial in nature, that alone is not justification for a finding of exclusion. The division heads do have a role in policy planning for the departjnent through the bi-weekly meetings, but even here it was not clear that policy is developed at the meetings, rather there is discussion of departmental needs, and views may be exchanged, but the actual policy is formulated later at the Commissioner's level. Specifically with respect to collective bargaining matters, the evidence did not show that pending bargaining proposals were distribu- ted among this group of managers and that their views were solicited. Nor was there any evidence that the division heads were otherwise directly involved in im- portant labor relations concerns that would warrant exclusion. The fact that on occasion the Commissioner's bi-weekly meetings may have received progress reports on negotiations cannot be translated into a rationale for depriving a class of employees of their rights under the Act.[fn]* The request of the State to exclude these positions is denied. Biologist III (Realty Division) - Richard B. Parks This position is head of the Realty Division with responsibility in acquir- ing land for department program needs, identifying lands and reviewing proposals from citizens who want to sell land to the department. The incumbent was responsible for developing a program to implement a multi-million bond authority approved by the voters of the State. There are four employees in the division. The record shows that the prior testimony concerning the Biologist IV position in the Department applies to this position as well. _______________ * See State of Maine and Maine State Employees Association (State Police Captains and Lieutenants), Report of Appellate Review of Unit Clarifi- cation Report [No. 78-A-09] (MLRB), Mar. 2, 1979. -30- ____________________________________________________________________________________ The request of the State to exclude this position is denied. Director, Recreational Safety and Registration - Lorenzo J. Gaudreau This position has responsibility for registering watercraft. snowmobiles and supervising safety programs for hunting, boating, and snowmobiling. There are 12 full-time employees; several part-time and seasonals are hired for specific program needs. The incumbent attends and participates in the Commissioner's meet- ings on much the same basis as the prior positions. The record shows that the prior testimony concerning the Biologist IV positions applies to this position as well. The request of the State to exclude this position is denied. Engineering Technician V - Clayton G. Grant This position is responsible for 1) the maintenance of buildings and facilities, 2) the planning for and construction of modest scale facilities, and 3) supervision over larger items contracted out by the department. There are about 5 employees who perform heavy maintenance work, and the like. The incumbent attends the bi-weekly staff meetings of the Commissioner and the prior testimony regarding the nature of those meetings and the participation of the division heads applied here as well. The request to exclude this position is denied. PUBLIC UTILITIES COMMISSION The Commission is an independent, quasi-judicial regulatory agency. The Commissioners are appointed for 7 year terms. It is a full-time Commission. The Secretary of the Commission (equivalent to the position of Executive Director) has responsibility in the areas of administration, personnel, work flow, public and press relations, and ministerial matters such as filings. He reports to the Com- missioner and attends meetings of the Commissioners. The Commission has 74 employees. The three Commissioners and the Secretary are currently classified as confidential under the Act. Assistant Secretary, P.U.C. - Ruth White The position is not a clerical position, but rather is the equivalent of Assistant Executive Director. By statute the incumbent performs the Secretary's responsibilities in his absence. The incumbent typically receives filings, reviews them for form, assigns a docket number and routes it to the proper division in the agency. She will routinely handle media questions and respond to utility and con- sumer groups. She and the Secretary share the general office routine which may in- volve various personnel activities, processing forms, coordinating and preparing for the Commission meetings, and preparing records for court appeals. The Commission has no personnel officer and White has been assigned to handle the primary personnel functions of the department. In this capacity she is the individual who handles grievances which go beyond the immediate supervisor level and are referred to the Secretary's office. She and the Secretary provide staff assistance to the Commis- sioners on grievances and contract interpretation. The two are equally informed on such matters. It was testified that if the Commission required secretarial assist- ance on matters of extreme sensitivity, White would be requested to do it although -31- ____________________________________________________________________________________ she does not routinely perform typing tasks. Personnel, grievance, and OER files are all considered confidential and access is limited to the Secretary and Assist- ant Secretary. The P.U.C. received a confidential packet from OER during the most recent negotiations requesting response on various items. The Secretary and Assistant Sec- retary reviewed the matter and both drafted the response for presentation to the Chairman. It is fair to describe the response as an analysis of impact rather than as a contribution to strategy at the bargaining table. There was little involvement of the agency after that first contact. A labor-board matter involving charges of unfair labor practice against the Commission was the subject of Commission meetings and meetings with OER which White attended, although others on the staff may have been more heavily involved than she. The matter was settled and White made the cri- tical telephone call in the Secretary's absence. In the Spring of 1979 there were a number of grievances and White was in- volved in internal meetings on how best to deal with this problem. During a State employee "work action" there were a number of discussions with the Governor's office. Approximately 8 or 9 P.U.C. employees were involved in the "work action," and the Com- mission met several times to consider the incident on an employee-by-employee basis. White was involved in the Commission discussion and typed the responses. In a griev- ance that at the time of those hearings was scheduled to go to arbitration, the Com- mission assigned White to handle it for the Commission, since the Secretary was in- volved in the factual aspects of the grievance. It was testified that White spends more than 20 percent of her time on per- sonnel and collective bargaining matters. Primarily because of the shared responsi- bility with the Secretary, the position will be excluded. The duties of the position necessarily imply a confidential relationship to a significant degree with respect to collective bargaining matters. The request of the State to exclude the position is granted. Administrative Secretary - Jane Mower This position reports directly to the Commission and is the personal sec- retary to the Chairman. The Commission is a full-time body. It was testified that OER correspondence would go to the Chairman of the agency and Mower would handle any response required. There was conflict in the testimony as to whether the Assist- ant Secretary or Mower would handle a matter of very great sensitivity; it was also testified that in one instance of "surpassing" sensitivity, Mower was involved. As indicated previously as well, White would not normally perform typing tasks and therefore the vast majority of secretarial work required by the Chairman is done by Mower. Although Mower may not open material marked "confidential" and addressed to the Chairman, she most probably would handle any response required. It was esti- mated that the proportion of personnel and collective bargaining related work handled by Mower was in the area of 10 percent of the total volume of her work; she handles a huge volume of work. No clerical staff other than Mower would be assigned to any- thing of a confidential nature. Considering the fact that neither the Secretary or Assistant Secretary have a regularly assigned secretary and that the Chairman is a full-time Commissioner who is fully engaged in the administrative affairs of the Commission, and despite -32- ____________________________________________________________________________________ the relatively modest proportion of her time devoted to sensitive labor relations matters, the position will be excluded. The volume of confidential labor relations matters requiring the Commission's attention justifies at least one secretarial exclusion. The request of the State to exclude this position is granted. Accountant I - Ray Robichaud The position involves typical budget functions which engage the Accountant in oversight of program expenditure and making recommendations to the Secretary re- garding allocation of funds. The only evidence of the incumbent's involvement in confidential collective bargaining functions concerned his work in costing-out sev- eral proposals during the prior negotiations; he had some discussion with the Sec- retary about available options in approach; he had no involvement at all in the first contract negotiations. It was not clear from the testimony whether Robichaud got a copy of the response which eventually went back to OER. However, that is ir- relevant. The testimony also indicated that the information upon which the cost estimates were based was basically public information. Further, as in other instances where the assistance of fiscal or budget personnel is called upon to "cost" collec- tive bargaining proposals, the evidence tends to show that in most instances there is no urgent need to disclose the purpose of the inquiry. That being the case and the evidence being limited to a single instance of exposure to confidential activity, the request for exclusion will be denied. The request of the State to exclude this position is denied. HUMAN RIGHTS COMMISSION Administrative Aide - Jane A. Lepore The position is the primary assistant to the Executive Director. There are 5 Commissioners; it is not a full-time Commission. The Administrative Aide has primary responsibility for all personnel matters - acting as department personnel officer; is the liaison with OER; and handles all fiscal and financial matters. She maintains all employee files and prepares performance appraisal forms for merit increases and reclassifications. She is the agency person assigned to inter- pret collective bargaining agreements for staff members. She handles layoff pro- cedure and reviews contract requirements, and the process, with OER. The month prior to the hearing the agency had a layoff situation. There was much time de- voted to the attempt to resolve it and Lepore and the Executive Director discussed the situation thoroughly. A modified reorganization or retrenchment plan was adopted and the Executive Director made the ultimate decision. In the course of the problem there were frequent discussions with OER. Lepore does typing only on personnel, and fiscal matters and when correspondence with OER is required. When the employer and union proposals were received from OER for analy- sis of impact on the agency and for comment, Lepore reviewed the proposals. No response was required since there were no meaningful problems; there were no fur- ther inquiries from OER during the course of negotiations. Since Lepore is assigned to handle collective bargaining matters and other labor relations matters and is assigned the responsibility of interpreting -33- ____________________________________________________________________________________ the collective bargaining agreement for personnel in the agency, and since these duties form a significant part of her overall responsibilities, the position will be excluded. The request of the State to exclude this position is granted. DEPARTMENT OF SECRETARY OF STATE Affirmative Action Officer (MVD) - Sylvia Siket There are about 350 employees in the entire department; 260 of those are in the Motor Vehicle Division (MVD). Siket had been in the position approximately one year at the time of the hearing. Prior to that she had been the Employee Re- lations Representative for about one year. During the first State collective bar- gaining negotiations she was on the State negotiating team. In the most recent nego- tiations she was on the Administrative Services bargaining team which did not become actively involved in negotiations. In her current capacity she is involved in employee grievance resolution, employee counselling, and in contract administration. With respect to grievances she researches them and makes recommendations to the Deputy Secretary of State, MVD. She composes responses for the Deputy. She also acts as liaison for this department with OER - principally for the MVD. She has reviewed collective bargaining proposals for the whole department; the Secretary of State instructed her to contact the Deputy Secretaries for their responses. She relayed the responses to the Director of OER to the effect that the department had no com- nents. Siket has received correspondence directed to her from OER and marked "con- fidential." Her labor relations activity averages from 100 percent involvement in some weeks to 20 percent in others. The request of the State to exclude this position is granted. Clerk IV - Margaret Brann This position is primary or private secretary to the Deputy Secretary of State, Motor Vehicle Division. She handles all mail and correspondence, and opens all mail whether marked "confidential" or not coming into the Deputy Secretary's office. She maintains and has access to his confidential files, which are locked. the Deputy Secretary hears grievances at the second level; Brann maintains these files. It was testified that the confidential files include the following matters: initial demands of unions, correspondence regarding proposals, grievance cases including background documents containing relevant evidence, disciplinary matters including suspension or discharge and the like. The duties of the position are necessarily involved in collective bar- gaining matters in a significant degree and should be excluded. The request of the State to exclude this position is granted. Clerk Steno III - Joyce Lunt The position is secretary to the Director of Finance and Administration. The office oversees the department budget and expenditures, and has jurisdiction over Central Stores, Data Processing, Central Files, Accounts Receivable. Lunt main- tains all of the Director's files, does all his correspondence, handles and distri- butes all mail coming into the office, and assists the Director in gathering figures for budget proposals. She keeps the financial ledgers for the department and handles -34- ____________________________________________________________________________________ all dishonored checks. The central personnel files are maintained in the office by a Personnel Technician and Lunt has access only upon request. It was testified that the Director has a primary role in such matters as layoffs, policy and personnel changes, reassignments, reclassifications. For ex- ample, there was much discussion with Deputy Secretary Ross on the issue of clos- ing the Bath motor vehicle office. It was also testified, however, that although there is much interaction between the Director and the Deputy Secretary of the Motor Vehicle Division, that most of the contact was verbal and did not therefore involve Lunt. The testimony did not establish that the Director received confiden- tial mail to which Lunt would necessarily have access. Although it was testified that Lunt was present when Siket and the Director reviewed a couple of proposals and that the costing of various proposals was accomplished through the office, it was not demonstrated that Lunt would necessarily be involved in matters related to collective bargaining except on isolated occasions. With respect to the costing of proposals it was not demonstrated that disclosure of purpose is necessary to as- sure the effective gathering of the required information, nor that Lunt would neces- sarily be privy to the process or product. The request of the State to exclude this position is denied. Clerk II - Ruth Allen This position reports to the Personnel Technician I in the office of Fi- nance and Administrative Services. Allen has responsibility in maintaining the personnel files for the Division, payroll responsibility, processing of merit in- creases, reclassifications, promotions and disciplinary actions and maintaining seniority lists under the collective bargaining agreements. The position requires a minimum of typing. She does however draw up various notices, such as dismissal and disciplinary notices. She maintains files on Workmen Compensation claims. In both the first and second rounds of negotiations Allen did have some involvement in assisting with the costing of certain proposals. There was no testimony that the Personnel Technician received correspondence marked "confidential," but it was testified that the Technician was not particularly involved in collective bargain- ing matters in either round. Although Allen may be one of the few persons having access to the Division personnel files and has been involved in the costing of a few proposals, the record does not support a finding that the position is necessarily involved in a significant way with confidential collective bargaining matters. The request of the State to exclude this position is denied. Clerk Typist II - Edward Martin This position has primary responsibility in many of the same areas as the preceding positions. It is also involved in processing fatal accident reports and drawing up suspension notices. For the reasons stated with respect to the Clerk II (Allen) position, the exclusion of this position is not justified. -35- ____________________________________________________________________________________ The request of the State to exclude this position is denied. Clerk III - Kathleen Beaudoin This position reports to the Director of Administrative Services. The incumbent has responsibility in the areas of reimbursement, requisitions and the like, as distinguished from payroll and related functions. It was testified that during negotiations Beaudoin has developed costs for increased personal service and salaries, uniform maintenance allowance, mileage, telephone expense and in- creased vacation accrual. In the last negotiations she dealt with Siket because Siket was on the bargaining team. It was expected that when a new employee was completely trained for these costing functions, Beaudoin would no longer perform them. For the reasons that the hearing examiner is not persuaded that every costing exercise is necessarily a matter of confidential exchange and that it was expected that shortly these functions were to be transferred to a newly filled position, the request to exclude this position will be denied. The request of the State to exclude this position is denied. DEPARTMENT OF SECRETARY OF STATE Division of Public Administration Clerk IV (Personnel Finance Officer) - Sharley Elwell The position is under the Division of Public Administration. The Divi- sion has 30 employees and is headed by a Deputy Secretary. Under the Division are such responsibilities as the Bureau of Elections, Corporation Bureau, Uniform Commercial Code filings, Bureau of Public Disclosure, Administrative functions under the Administrative Procedure Act, and the Bureau of Administration (which has jurisdiction over department finances). The Personnel Finance Officer is head of the Bureau of Administration. The Bureau was established after the Deputy Secre- tary assumed office in February, 1979. Prior to that Elwell did not have any con- tact with negotiations and her first involvement was in preparation for the second round of negotiations, which began in October, 1979. Elwell's basic activities concern preparation of the budget, review of resources and expenditures, and ordering materials. In personnel matters she reminds the Deputy of when evaluations are due and informs him of evaluations; she has custody of personnel records for the Division and brings line problems to the Deputy's attention. She has a role in grievances as a supervisor; grievances outside her Bureau would be processed through her to the Deputy Secretary. The Deputy has received copies of contract proposals, but there is no evi- dence that they were discussed with Elwell. There was evidence that Elwell did not have any direct connection with collective bargaining before the Bureau of Adminis- tration was created. During the second round of negotiations - from October, 1979 to February or March, 1980 - although he received copies of the union proposals, no responses of significance were required concerning impact on the Division. There was no testimony that he discussed the proposals with Elwell. Elwood does contact OER on occasion seeking assistance on interpretation of the contract or on procedures regarding grievances. Confidential mail goes directly to the Deputy unopened. -36- ___________________________________________________________________________________- There had been one meeting in which Elwell was involved in which there was formal correspondence, but it concerned an employee in her Bureau. Elwell testified that her role in collective bargaining was a more formal one than before and cited ex- amples of her making contact with OER for interpretation of the union agreement, and her role in gathering information in preparation for the second round of bargaining. However there were no cited instances of OER making contact with her office regard- ing collective bargaining matters in which she was critically involved. Although it was testified that more than 25 percent of her time was taken up with employee relations matters, it was unclear to what extent this involved "confidential" concerns. Under the circumstances the hearing examiner believes that the evidence does not warrant exclusion at this time; perhaps in the intervening time since the hearing, the involvement has been clarified. A new request can be filed should it be indicated. The request of the State to exclude this position is denied at this time. Business Manager I (Maine State Archives) - Gloria Kenney Clerk Typist III (Maine State Archives) - Patricia Poirier Clerk Typist III (Maine State Archives) - Linda White The office of Maine State Archives (sometimes referred to as the Bureau of Archives) is headed by the State Archivist. It is a division of the Department of Secretary of State. The Archivist is appointed by the Secretary of State and con- firmed by the Senate. It is a 6 year appointment. The Archivist is the appointing authority for the employees in his office; there are 18 employees. The Archivist is the only excluded position. The Business Manager is the functioning administrative officer of the Bureau and principal assistant to the Archivist. She has responsibility for formula- tion of the Budget, the management of the budget, and personnel functions. She super- vises the other employees in the administrative office. Kenney is also the Affirma- tive Action Officer for the Bureau. Prior to collective bargaining, - in 1975 - when the Bureau was forced through a layoff, Kenney and the Archivist developed the plan which was forwarded to the Department of Personnel for approval. The plan was confidential until it was finalized. Although she does not sit on grievances for the Archivist, or have any role except as supervisor of her immediate employees, she does preparation and investigation on grievances for the Archivist, makes recomen- dations, and contacts OER regarding contract interpretation. She has been called upon frequently to cost out various things, principally involving the budget; but it was unclear whether she had been called upon to cost any actual proposals during contract negotiations. Although the witnesses were unable to cite specific instan- ces where the Archivist and Kenney reviewed and responded to contract proposals, there was testimony that the office had in fact received packages of proposals from OER which were reviewed by them. Kenney developed the seniority list or plan for the office pursuant to the provisions of the bargaining agreement. A review com- mittee was formed by Kenney to review all merit ratings; it is in addition to the contract grievance procedure. Under the contract, as personnel officer Kenney's position is one of the steps in denial of merit increase. She has general supervi- sory jurisdiction over the office personnel files. -37- ____________________________________________________________________________________ The Clerk Typist positions are claimed to be interchangeable and are super- vised by Kenney. The one, Poirier, is considered to be Kenney's secretary and the other, White, secretary to the Archivist; Poirier does not open Kenney's mail. With respect to typing the cost-outs prepared by Kenney, it was testified that Kenney would often type them. Kenney's grievance recommendations however are typed by Poirier, although Kenney could not estimate the number of times this occurred. Poirier maintains the personnel files, budget, and payroll files. She performs cleri- cal duties for any division head or any employee in the agency. She serves solely as Kenney's secretary approximately 30-40 percent of the time. As examples of con- fidential materials handled by Poirier, it was testified she would do preliminary budget work, proof read proposals, type layoff materials and do original draft typing of important documents for the Director. Although the testimony also indi- cated Poirler was privy to all discussions in the office as well as telephone con- versations, it was also testified that she did not participate in discussions between the Director and Kenney which were of a confidential nature. White opens and reviews all the agency mail including the Director's. She does his typing, but does not maintain all his files. If mail is marked "confiden- tial," White would probably show it to Kenney before opening it. However, the Di- rector often comes in early enough to review the mail himself. If the mall contains OER materials, the Director might review it with Kenney and then file it himself. White handles all correspondence to OER, and MSEA, and all related matters. It was testified that the director could not carry out the confidential aspects of his position if White were not classified as a confidential employee. The Director has compiled a programmatic and employee relations manual; it includes policy regarding discipline, hours of work, budget and accounting directives, procedure for administrative assignments, and the like. White works on all the draft typing for these policies. The director discusses the drafts with Kenney. Eventually the pro- cedures are routed through the union before final adoption. It was claimed that the process requires a good deal of confidentiality. It is clear that the Bureau is a well organized and professional office. The claim of confidentiality for three positions in a relatively small office epito- mizes some of the difficulties encountered in these proceedings. In this instance it is asserted that "confidential" duties have been dispersed among three positions. This dispersal, or fragmentation of duties, illustrates the lack of a centrally formu- lated or coherent policy for the handling or processing of confidential labor relations matters within agencies and between OER and the individual agencies. Along with a lack of coherence in procedure, there is a seeming difficulty in defin- ing what is, and what is not, confidential labor relations activity. Occasional or sporadic instances of activity do not justify denial of collective bargaining rights. In the case of the Archives office it does not appear that Kenney's duties reflect a necessity of involvement in confidential labor relations to a significant degree. The testimony was elusive at best and failed to elicit sufficient specific instances of such involvement, despite the belief of the witnesses that the positions warranted exclusion. Kenney does not share the Director's responsibilities and can- not be excluded on any consideration that her position is a de facto Assistant Archi- vist, or a like position. -38- ____________________________________________________________________________________ Neither Poirier's position nor White's position meets the standards for exclusion. Under the circumstances the State's request to exclude the three posi- tions in the Archivist office is denied. Administrative Secretary - Kathy Condon The position is personal secretary to the Secretary of State. The Secre- tary had been in office less than 2 years at the time of the hearing, since his nomination by the Legislature. A Deputy Secretary of State - Elsie Bowen - pro- vides administrative assistance to the Secretary of State. Condon does the majority of the Secretary's typing and maintains all his files, confidential and otherwise. Condon and Bowen share the receptionist area outside the Secretary's office. At the time of the hearing there were no secretarial positions under the Secretary of State which were confidential; Bowen's position is excluded. The Secretary of State's office has about 300-350 personnel, all told. Condon and Bowen set up the Secretary's calendar. Condon handles all com- munications - written or otherwise - between the Secretary and OER, the Legisla- ture and the Governor's office. She also has access to comunications between Siket[fn]* in her role in collective bargaining matters and the Secretary. On occasion Condon attends meetings attended by the Secretary and takes notes; some of these meetings involve confidential matters. The Secretary receives commiunications dur- ing negotiations, including original bargaining proposals. He has referred them to others for response and Condon has handled the circulation. It was testified that prior to the hearings the Secretary and the head of the Motor Vehicle Division had highly confidential discussions regarding certain program cuts and that Condon would have accessibility to those discussions. The request of the State to exclude this position is granted. DEPARTMENT OF ENVIRONMENTAL PROTECTION Administrative Secretary - Elma Sjoberg The position is primary secretary to the Commissioner. She does all the Commissioner's filing. opens all mail - including "confidential" - except that marked "personal." The Commissioner is on the mailing list for Gubernatorial cabi- net members and OER materials; Sjoberg has access to these materials and maintains the file therefor. Items from OER requiring a reply may go to the Director of Administrative Services for reply - a confidential position. There are four line bureaus in the department having jurisdiction over air quality, land resources, water, and oil and hazardous materials. There is also the Administrative Services division which is not formally a bureau. The Commissioner also has an Administrative Assistant - Mr. Mann - for whom Sjoberg does some typing. Another secretary also does work for Mann and also serves as secretary to the Board - Linda Pottle. The Commissioner holds weekly staff meetings with the bureau directors and the Assist- ant Director of the Bureau of Water Quality Control, Mr. Leigh. and Mr. Mann. Mann prepares the agenda and Sjoberg types it. Leigh obtains his secretarial services _______________ * The witness on this position; and see also discussion of the Siket position supra in text. -39- ____________________________________________________________________________________ from the general secretarial staff, not from Sjoberg or Pottle, Sjoberg's backup. It was testified that everything from OER is discussed with Mann and Leigh - including grievance matters, contract interpretations, and contract pro- posals during negotiations. It was also testified that bargaining proposals, as they affect the department, are discussed at the weekly staff meetings. Where replies to specific requests are indicated Leigh would respond, whether the request involved OER, budget matters, or personnel concerns; the Commissioner would rely more on Mr. Mann in the area of grievances. The testimony was unclear whether Leigh had made responses to OER after review of bargaining proposals. The position will be excluded. The department is a large and complex en- terprise and there do not appear to be any confidential secretarial positions. Since labor relations and personnel discussions are principally located in the Commissioner's office, a confidential status is warranted for his primary secretary. The request of the State to exclude the position is granted. Assistant Director, Bureau of Water Quality Control - John Brochu The testimony of the Commissioner indicated that he relied very heavily on the staff meetings of bureau heads for discussing and resolving policy issues. All those who attend these meetings are excluded from collective bargaining except Mann and Brochu. At the time of the hearings, Mann's position was up for reclassi- fication, which if granted would result in exclusion. Exclusion is sought for Brochu because his bureau is much the largest and has wide ranging and complex re- sponsibilities involving large amounts of Federal and State funds; the Director is away from the office frequently and Brochu has spent much time as Acting Bureau Di- rector. Brochu's position was created in 1978. No other bureau has an Assistant Director position. Brochu did not attend the weekly staff meetings initially, but once the extent of his authority was appreciated the Commissioner and other Bureau Directors decided it was necessary for him to attend. Brochu has done "personnel trouble shooting" for the department, although the concerns were not in his Bureau. The testimony indicated that some of the Bureaus in the department, and the department itself, were in a state of transition. One Bureau did not have a Director at the time of the hearings; another had been established but a funding freeze put a hold on naming a Director for the Bureau and the Director of Water Quality Control was asked to assume the role temporarily - since his department had an Assistant Director who could assume acting control of Water Quality Control. (Also it was not clear at the hearing that the Director of Air Quality was a confidential position.) The hearing examiner does not intend to diminish the role of the Assistant Director's position, but since the department appeared to be in a period of con- siderable transition, it seems the best judgment to withhold exclusion at this time pending clarification of the management structure of the department. For the time being the request of the State to exclude this position is denied. -40- ____________________________________________________________________________________ DEPARTMENT OF EDUCATIONAL AND CULTURAL SERVICES Librarian V (Assistant State Librarian) - Carolyn Nolin The State Library has been in existence since 1839. In 1973 it was placed under the umbrella of the Department of Education. The Librarian is appointed by the Commissioner with the consent of the Governor. The Library has 70 employees. There are two major divisions - Reader and Information Services and Library Devel- opment Services; the Assistant Librarian (Nolin) has prime responsibility for the two divisions. There are six section heads under her. The Library budget consists of Federal and State funding approximating $2.6 million. Only the Librarian - Nichols - is excluded from collective bargaining. Nichols attends the bi-weekly meetings with the Commissioner of the Department of Education - the Administrative Council meetings previously testified to; Nolin covers for Nichols about one meeting in four. Matters concerning col- lective bargaining are reviewed at the Council meetings. Nichols shares the dis- cussions and results with Nolin; he also discusses with her policy and planning for the State Library system. It was testified that Nichols would discuss griev- ances with Nolin whether or not she was in the direct line of supervision. He testified that he would also discuss such confidential matters with her as over- time, fiscal policy, personnel concerns, selection of staff, and the like. In the early stages of collective bargaining Nichols and Nolin reviewed proposals received from OER. Admittedly there was more involvement of the Library in the first round of negotiations. For a period of time the union proposals and management response were prime topics of conversation at council meetings. When- ever a matter from OER is received, or any communication which may impact the agency, it would be reviewed with Nolin. When the matter involves fiscal impact it would be reviewed with the Business Manager as well. The business office of the Library operates with a good deal of independence. They do their own account- ing and bookkeeping although the budget is ultimately channeled through, and reviewed for approval by, the Department of Education. All three - Nicholas, Nolin and the Business Manager - review program evaluation, since questions of funding and priorities are involved. Nolin is privy to all fiscal information and con- cerns of the Library. The record shows that all important determinations regard- ing personnel, library hours, policy questions, and the like, are discussed with Nolin and then reviewed with the Commissioner prior to the making of a final deter- mination. Although the Librarian V position serves as the Assistant State Librarian and shares in large measure the operational and policy decision-making of the agency the extent of involvement of the library in collective bargaining is limited. The record does not substantiate a finding that the Librarian V position is so regularly and intensely involved in collective bargaining to warrant a finding of exclusion. Many of the routine collective bargaining matters are handled by the Central Office, a luxury that smaller independent agencies do not enjoy. The request of the State to exclude this position is denied. Business Manager I (State Library) - currently vacant (formerly Elizabeth Alley) This is essentially an Accountant position. It is responsible for all fiscal and financial aspects of the operations. The Business Manager works with -41- _____________________________________________________________________________________ with Nichols and Nolin in jointly developing fiscal and budget projections. Oc- casionally when there is a potential fiscal impact from collective bargaining proposals, Nichols and Nolin will consult with the BM. The position has grown in recent years until now - at the time of the hearing - it is relied upon heavily for development of fiscal analysis and impact. The BM also has some per- sonnel responsibilities. When there is a question of contract interpretation however, either Nichols or Nolin would contact the Commissioner's office or Mr. York for advice. Occasional or sporadic involvement in confidential labor relations con- cerns does not justify exclusion. The request of the State to exclude this position is denied. DEPARTMENT OF EDUCATIONAL AND CULTURAL AFFAIRS Clerk IV (KVVTI) - Charlene Gilley The Kennebec Valley Vocational Technical Institute has a unique history. Prior to 1979 the Institute was associated with the Waterville school system and the employees of the Institute were in the school department bargaining units. It had been a post-secondary VTI within the Waterville system. After some eight years a decision was made to bring it under the state VTI program effective July 1, 1979. A new bond issue authorized the creation of a new and separate campus for the Institute. As of July 1, 1979 therefore the employees of the Institute became State, rather than City of Waterville, employees. There were - at the time of the hearing - 27 instructional staff plus some part-time instructors on individual contract, 4 administrators and 11 support staff. Prior to July, 1979, therefore, the Director of the VTI was attending meetings concerning State VTI bargaining as well as City of Waterville meetings involving labor matters. There were "all kinds of fiscal complications" arising out of the transfer and many of these persisted after July, 1979. Gilley has been the primary secretary to the Director since the VTI was established. Gilley supervises the clerical staff, deals with the instructional staff, acts as clearing house for the administrative staff and works closely with the Business manager. Gilley handles all of the Director's correspondence and personally types all confidential correspondence and materials. The Director opens his own mail however. She maintains and has access to the Director's files, including evaluations. The Director meets with his administrative staff with Gilley present every two weeks. Gilley is there to provide information; occa- sionally something confidential regarding labor relations may be discussed. It is clear that prior to the changeover to State control and for a time thereafter there was heightened activity - sometimes intense - among critical staff in many areas including employee relations. During that period of time undoubtedly the Director was spending a good deal of his working day in working through fiscal, personnel, labor and other administrative problems with state officials and others. The time was equally hectic for Gilley, as a person who had been with the Institute from the beginning and as the chief clerical aide to the Director. Much of a confidential nature affecting employee relations necessarily passed between the Director and Gilley and from them to others during that time. -42- _____________________________________________________________________________________ However, a good deal of time has now elapsed since those hectic days and the administration of the VTI should by now have assumed a more normal tone. It does not appear to the hearing examiner that the activities of the principal secretar- ial to the Director of the VTI, under normal circumstances, are so regularly in- volved with confidential labor relations matters as to warrant exclusion. The request of the State to exclude this position is denied. Business Manager I (KVVTI) - Bernard Allen The testimony indicated that the Director would rely upon Allen to pre- pare fiscal materials for the Central Office and that he occasionally would rely on him for advice on hours and staffing. However it was also testified that Allen has not been involved in costing out data for the current collective bargaining nego- tiations, nor had he for the negotiations for the faculty unit which had been com- pleted in the Spring of 1980. The request to exclude this position is denied. Business Manager II (WCTVI) - Robert Hazelwood Washington County VTI has a main campus in Calais, a wood harvesting pro- gram at Forest City, and a Marine Center at Eastport. The Director and Assistant Director are the only excluded personnel. The Director, Assistant Director, Dean of Student Affairs and Director of Adult Education compose the administrative team of the Institute. The Business Manager prepares the budget, controls expenditures, is involved in the planning of programs and has provided fiscal and costing data with respect to bargaining proposals. The Director was on the employer bargaining team during the first VTI negotiations which went on for 17 months; on many occa- sions during that time he asked Hazelwood for figures and calculations. Hazelwood supervises and evaluates 12 other employees. Despite the important work performed by the Business Manager it does not appear that providing fiscal data and costing financial aspects of proposals neces- sarily requires the disclosure of confidential information associated with the ne- gotiations. Since it does not appear that the duties of the Business Manager neces- sarily involve confidential collective bargaining matters to a significant degree, the request for exclusion will be denied. The request of the State to exclude this position is denied. Clerk Typist III (WCVTI) - Susan Hatten-Record The position is secretary to the Director and Assistant Director and does all of their typing. She is also the Financial Aid Officer and does some typing for the faculty. Hatten-Record handles all mail; if the Director is in the office, mail marked "confidential" would go to him unopened. Occasionally the response to confidential collective bargaining inquiries from Augusta has been worked out be- tween the Director, Assistant Director and Hatten-Record; however, responses are also normally given by telephone as well and with respect to negotiations involving classified employees the record shows that although inquiries may have been re- ceived from Augusta, no dictated or written responses were required. Occasional or isolated involvement in collective bargaining matters does not justify the exclusion of a position under the Act. The request of the State to exclude this position is denied. -43- _____________________________________________________________________________________ Clerk Steno III (Bureau of Vocational Education) - Barbara Creamer Clerk Steno II (Bureau of Vocational Education) - Evangeline (Van) Newcombe The Bureau of Vocational Education is headed by an Associate Commissioner. There are six VTI's throughout the State. In the prior session of the Legislature the State Board of Education was given administrative control over the VTI's. Within the Bureau of Vocational Education the Director of the Division of Program Operations (sometimes Division of Post Secondary Education) has immediate responsi- bility for the administrative oversight of the VTI's. Creamer is principal sec- retary to the Deputy Commissioner (Padham) and Newcombe is the principal secretary to the Director of the Bureau (Newcomb). The Director is on the employer negotiat- ing team for the Administrative unit on a continuing basis. "Van" Newcombe main- tains all of the Director's files, including files for the Faculty and Administra- tive bargaining units. During the past negotiations "Van" gathered information for the Director with respect to certain fiscal proposals . Since the Director and "Van" share an office, she is privy to his conversations, including contract lan- guage discussions he has had with others. She also handles the Director's griev- ance correspondence and files. The Director holds monthly meetings with the VTI directors, and confidential employee relations items are discussed on occasion which might generate notes for the file or generate conversations with others. The Direc- tor has frequent contact with OER and typically his secretary would be privy to the content of the discussion, although written contact is limited. Newcomb occasion- ally keeps notes during negotiations and these and other materials will go into the file maintained by "Van." The faculty bargaining team consists of the Department Personnel Officer (Mr. York), the OER chief negotiator (Mr. Walo), Newcomb, and two others. It was testified that Padham's association with negotiations was consider- ably less than Newcomb's; Newcomb would inform and update Padham and contact him on occasion on issues of importance to him. Mail marked "confidential" would usually go directly to Newcomb; once opened his secretary would file it and have access to it. On the other hand, it was testified by the Director that discussions on avail- able monies for contract settlements are kept within the bargaining team; that recommendations made to the Commissioner on certain grievances and occasional dis- cussions with the Commissioner and Associate Commissioner in the Commissioner's office dealing with negotiations were not brought to his secretary's attention. It was also testified that OER does much of the "leg work" during negotiations. Creamer does all of Padham's secretarial and filing work. She has hear- ing access to all of Padham's telephone conversations. Although not a member of the bargaining team during the most recent negotiations Padham was present at some sessions and had regular conversations with the Director, Newcomb, about certain issues and about the course of negotiations generally. Padham is a formal step in the grievance procedure of the VTI contracts although grievances had been rare. Creamer maintains a file on State Board minutes and actions by the Board regard- ing the VTI's. It was testified that when major Policy chanqes are made by the Board regarding VTI's, the Board would usually direct Padham to take certain actions and he in turn would delegate the responsibility to Newcomb. -44- _____________________________________________________________________________________ York testified that Creamer assisted Padham in putting figures together for the Faculty and Administrative units and in preparing and refining proposals for the negotiating teams; she would type many proposals for the teams to share, some of which would never go to the table. He also testified that many of the current responsibilities of Padham had been reduced due to the delegation to New- comb, but that he was still heavily involved in terms of advice and review. New- comb testified that he could not recall if any writings were generated between Newcomb and Padham as a result of their verbal exchanges during negotiations. York also testified that Padham's involvement in collective bargaining matters was more intense than other Associate Comissioners because of his role and authority with respect to the VII's. He also testified that although the second round of negotia- tions was less protracted than the first, that Padham was involved in the review of grid matrices which started well before actual negotiations, and that Padham would have been aware of any substantial matters affecting his division. York also testified that during the last round, Padham met with the Commissioner to dis- cuss the economics of the proposals, but that these meetings were most probably in the Commissioner's office and were not the subject of any minutes or memos. Creamer testified that she has been a Department of Education employee for many years and has worked for Padham since 1968. She stated that she is not heavily involved in collective bargaining matters, although she acknowledged that on occasion she had handled or done work on "confidential" matters and felt that her position is one requiring "confidentiality." With respect to matters which might be considered of a collective bargaining confidential nature she stated that although Padham keeps informed about the progress of negotiations, he does not discuss the subject with her; that she compiled a report regarding instructor's salaries, degree levels, and the like, but she did not believe the report was con- fidential; she doesn't know what a "salary grid" is; that occasionally she open "confidential" mail if asked to, but doesn't recall anything dealing with collec- tive bargaining. She acknowledges that she has access to Padham's files and could be privy to his telephone and personal conversations, but that she "turns out much that goes on" and on occasion has left the office when a discussion did not involve her work. She believes that her access to intimate discussions is due to her physical location and not to the requirements of her job description. She has typed correspondence and has overheard conversation on occasion when Pad- ham has been involved in grievances. The hearing examiner is not persuaded that both of these positions war- rant exclusion. Clearly of the two, the Director's secretary is the more likely position warranting a finding of exclusion. Newcomb is on the VTI negotiating team and is also the State administrator directly and primarily responsible for the operations of the VTI's. His responsibilities are more of the day-to-day variety than are Padham's. Under the circumstances, particularly in view of Newcomb's position on the VTI bargaining team and his responsibilities as the State administrator most directly and intimately involved with the VTI's, a finding of exclusion for his secretary will be made; but not for Padham's. -45- _____________________________________________________________________________________ The request of the State to exclude the position of Clerk Steno III (Bureau of Vocational Education)[fn]* is denied. The request of the State to exclude the position of Clerk Steno II (Bureau of Vocational Education)[fn]** is granted. BAXTER SCHOOL - DEPARTMENT OF EDUCATIONAL AND CULTURAL AFFAIRS The Baxter School is a residential and day school for about 150 students. The School does outreach for 80-90 more throughout the State. It is a primary and secondary school and has three separate classroom buildings. The staff con- sists of 118 employees, approximately divided among house parents (in the Insti- tutional bargaining unit[fn]+); domestic, janitors and maintenance personnel (in the OMS unit represented by MSEA) and the faculty or professional staff (many of whom are in the Professional and Technical bargaining unit represented by MSEA). Al York, Department Personnel Officer located in the Central Office in Augusta, is on the State bargaining team for the Institutional and Professional and Technical bar- gaining units. The School has a budget consisting of $1,200,000 in State money plus various Federal funds. Although under the Department of Education, the School has a good deal of autonomy; the budget is nonetheless subject to the Commissioner's approval. Institutional Business Manager I - William Dunning The testimony showed that the Superintendent had delegated collective bargaining functions to Dunning. However, the evidence expanded on the extent of that delegation. Dunning in addition to being the budget officer for the School, functions as the personnel officer and maintains all personnel files for the insti- tution, which are locked in his office. He has administrative and supervisory re- sponsibility for all staff functions other than the professional staff. The pro- fessional employees - instructors, tutors, support staff - are under the general supervision of the Director of Academic Affairs, Robert Kelly. Dunning works closely with the Superintendent in budgetary and fiscal matters. Al York testi- fied that Dunning was requested to cost out a "double shift premium" proposal, and he discussed the proposal with Dunning, feeling it was necessary to do so. York also testified that he had daily contact with Dunning on personnel questions and con- tract problems and interpretation. His testimony also showed that he had communi- cation with the School about proposals that might impact its operations such as work outside common hours, shift differential, double shift premium and holiday pay; these areas were of greater concern to Baxter than to other institutions. It is clear however that the School has had no role or participation in bargain- ing strategy nor have they been routinely informed about the course of negotiations. The evidence shows that Dunning is the second level grievance step for areas of _______________ * At the time of the hearing the position was occupied by Barbara Creamer. ** At the time of the hearing the position was occupied by Evangeline (Van) Newcombe. + Represented by AFSCME. -46- _____________________________________________________________________________________ his administrative oversight. He also has functioned as the Superintendent's proxy in at least one grievance matter which reached that level. He has the authority to hire non-professional personnel and to review evaluations of super- visors. The case for exclusion is little better than marginal. In this situa- tion however, as distinguished from the Business Managers at many of the VTI's, it appears that a significant portion of Dunning's time is devoted to personnel and employee relations matters and he has been assigned the duty of collective bargaining liaison with the Central Office. The School is a unique operation which, the testimony indicates, functions with a good deal of autonomy. Under the circumstances, the position warrants exclusion. The request of the State to exclude this position is granted. Director of Academic Affairs - Robert Kelly Kelly functions as the head of the academic school and directly super- vises the support services - audiologists and tutors. His supervision is of the "hands-on" variety. He interviews, hires, supervises and evaluates them. Al- though the School has a Principal, he devotes most of his time to the out-reach program not to direct supervision of the on-site programs. The Superintendent consults with the Director on academic problems, goals and objectives, budget and staffing problems, and student admissions. About two-thirds of the School budget goes toward the faculty salaries and associated costs. Kelly maintains files of the faculty which includes transcripts, certification letters, and the like. All other personnel records are maintained by Dunning. Prior to the creation of the Business Manager position Kelly filled in as Acting Superintendent at times during the Superintendent's absence. Thereafter the two act as a team in the Superinten- dent's absence. The Superintendent does not meet regularly with any group of personnel; Kelly has regular faculty meetings; Dunning has regular weekly meetings with his department heads. Although Kelly's academic responsibilities parallel those of Dunning in his sphere, the evidence did not demonstrate any special col- lective bargaining role for his position. Consequently the request of the State to exclude the position is denied. DEPARTMENT OF FINANCE AND ADMINISTRATION The office is the principal financial agent of the State. It makes long range and short range computations of the costs of collective bargaining and determines the available resources for funding the negotiated agreements. It is the principal source of fiscal information and recommendations for the Governor. There are a number of bureaus in the department. Of these, Accounts and Controls, Bureau of the Budget, Central Computer Services, and Administrative Services are involved in the instant request for exclusion of certain positions. There are a total of 900 employees in the department; there are 16 in Administrative Services, 45 in Accounts and Control, 7 in Budget,and 55 in Central Computer Services. Finance and Administration is one of the largest Executive departments. -47- _____________________________________________________________________________________ Clerk Typist II (Administrative Services) - Doreen Brown The position is principal secretary to the Director of the Bureau of Administrative Services. She also performs secretarial tasks for two Personnel Technicians in the office, who are excluded by class. The Director is the prin- cipal contact in the department with OER; all collective bargaining proposals and requests from OER to the Commissioner are routed through the Director for review and response. The Director also makes grievance recommendations to the Commissioner. Brown does all of his typing and correspondence, maintains his files and opens all of his mail, including confidential. Occasionally the Director drafts correspondence for the Commissioner which Brown would type. The request of the State to exclude this position is granted. Administrative Secretary - Patricia Gelinas The position is principal secretary to the Commissioner. She per- forms all of his typing, maintains all his files, and opens all of his mail including confidential. She coordinates activities between the Governor and the bureaus in the department. Occasionally she will initiate responses to Legislative inquiries. The Commissioner receives copies of collective bargain- ing proposals and responds to any issues of fiscal importance. Gelinas types or otherwise supplies the response for the Commissioner. The department also costs-out counterproposals made by the State; it has the responsibility for looking at the financial feasibility of all proposals. The Commissioner is aware of all important activity involving collective bargaining matters. The request of the State to exclude this position is granted. Clerk IV (Accounts and Controls) - Sandra Smith The position is secretary to the State Controller. The State Controller and Assistant Controller are excluded positions. The Controller, Donald Brown, is a mem- ber of the State bargaining team. During the first negotiations the previous Controller was a member of the State bargaining team. The Controller rules on expenditure requests; he is the Chief Accountant for the State. Brown has access to all pro- posals and counterproposals; confidential collective bargaining materials have been shared between the Commissioner and Brown. Smith has been involved in com- munications of a confidential nature between OER and the Controller's office. She does typing and handles correspondence for the Controller and Deputy Control- ler. She maintains the collective bargaining and other files of the Controller's office. She opens all mail, including confidential. She also does typing for the Chief of Data Processing & Systems in the department. The request of the State to exclude this position is granted. Chief, Data Processing & Systems - John Carrick The position reports directly to the Deputy State Controller, an ex- cluded position. It is responsible for all computer applications regarding pay- roll and accounting; it determines whether existing systems are adequate. Carrick has four Computer Programers under him for whom exclusion is not sought. It was testified that Carrick has provided data pursuant to confidential collective bar- gaining requests concerning increasing employee deductions capacity, bi-weekly -48 _____________________________________________________________________________________ pay system, cost estimates regarding requests for pay increases, and others. It was testified that Carrick's office is the only place to obtain payroll or accounting information of this type. OER frequently discusses payroll or account- ing matters directly with Carrick. Although it was testified that Carrick's duties are basically the same as they were seven years ago, the record shows that many of requests for information received in the more recent past have been related directly to collective bargaining, a process that did not exist prior to 1977. The request of the State to exclude this position is granted. Clerk Steno III (Bureau of Budget) - Diane Rancourt This position is the principal clerical and secretary to the State Budget Officer and Assistant Budget Officer, both excluded positions. She also provides secretarial services to the Comissioner during absences of Gelinas. The State Budget Officer receives all proposals and counterproposals, on occasion receiving copies before they are formally offered. Rancourt opens all mail, in- cluding confidential. She occasionally opens the Commissioner's mail as well, since her office is next to the Commissioner's. She has access to all files in the office. She types materials in response to requests from OER. Occasionally the office may be asked whether and how a grievance settlement can be funded. Rancourt also types responses to the Governor's office. It was testified that three clerical personnel - Gelinas, Rancourt and Merrow - operate somewhat as a pool and Merrow participates as a backup to Rancourt and has access, much the same as Rancourt, to the confidential col- lective bargaining matters referred to her. The request of the State to exclude this position is granted. Word Process Operator - Karen Merrow The Word Process Operator is essentially a clerical position which uses a new word processing machine. However, typically the Word Processor would pro- cess public documents, and furthermore Merrow provides the principal clerical sup- port for Harding, whose position is not excluded. The request to exclude this position is denied. DEPARTMENT OF EDUCATIONAL & CULTURAL SERVICES Central Maine Vocational Technical Institute (CMVII) CMVII is a two year post secondary institute created in 1963. Its enrollment is 425 full time and 1700 part-time students with 67 full-time staff and 30 part-time staff. Essentially it is the same as other VTI's, organization- ally and structurally. There are three bargaining units - MSEA represents cleri- cal, custodial and administrative personnel; AFSCME, the food service employees; and the MTA,[fn]* the instructional staff,including department heads and the Director of Adult Education. The Director and Assistant Director are excluded positions. The Director generally is the administrator who is involved in enforcing and ad- ministering the collective bargaining agreements; he is more actively involved with the faculty unit and to a lesser degree with the other units. ________________ * The Maine Teachers Association represents VTI Faculty and Administrative staff bargaining units. -49- _____________________________________________________________________________________ Clerk Steno III (CMVII) - Carol Sevigny The position is secretary to the Director. She occasionally does work for the Assistant Director and for the Business Manager, such as staff evaluations. On occasion Sevigny has had involvement in collective bargaining matters when the Director has been requested for reaction to proposals and she has typed the response. She has also been involved in performing secretarial work with respect to grievances. It was testified by the Director that the propor- tion of direct confidential material with which he is involved is approximately 5-10 percent of his total administrative effort, although that did not neces- sarily reflect the relative proportion in terms of importance. He also testi- fied that Sevigny's time devoted to collective bargaining matters was somewhat less than his own. Sevigny has the "in house" title of Office Manager and super- vises three other clericals and the receptionist. She assigns work and evaluates them. This is typical supervisory content. The time Sevigny devotes to collective bargaining matters is not sig- nificant. It cannot be said, therefore, that the position necessarily involves confidential collective bargaining matters within the intent of the Act. The request of the State to exclude the position is denied. Business Manager II (CMVII) - William Leavitt The position is responsible for the financial and budget affairs of the institute. He directs and supervises non-instructional activities, supervises food service and plant maintenance; he supervises the staff in the business office, the Food Service Manager and the Director of Maintenance. He consults with the managerial staff in selecting personnel and assessing staff. The Director testi- fied that on occasion Leavitt is asked for information needed to cost-out salary re- quests; Leavitt is consulted in the development of the budget and his recomenda- tions are seriously considered. Occasionally Leavitt is contacted by York for in- formation. The Director does not consult with Leavitt on contract matters in- volving the MSEA unit. Leavitt testified that he doesn't believe any information he has provided involved confidentiality; he has simply taken information from the payroll and provided similar information. The request of the State to exclude this position is denied. DEPARTMENT OF FINANCE AND ADMINISTRATION Analyst Programmer II (Central Computer Services)- Donald Lynch This position reports to the Systems and Program Manager, for whom exclusion is also sought. There are 77 positions in Central Computer Services, including 21 Computer Programmers at various levels and 14 Computer Operators; there are seven Analyst Programmer II positions, 7 Analyst Programmer I positions and 7 Computer Programmers. Accounts and Controls has an Analyst Programmer II and 4 Analyst Programmer I positions. Analyst Programer II is one of the top programming positions in the Bureau. Lynch is a senior Programmer and although not a supervisor is assigned -50- _____________________________________________________________________________________ as the lead programmer when working with others. An Analyst Programmer II might do feasibility studies; develop and maintain programs for various agencies; might write a "utility program" to extrapolate from larger programs. A Programmer's time is "billed out" to user agencies; costs are recovered by "hiring" out the hardware and time. The OER research staff do all research and costing-out of all union proposals. OER is the top user of Lynch's time, although the Bureau's services are utilized by all Government agencies. OER and Lynch in the year prior to the hearing developed 4 or 5 new systems so that information would be readily available when negotiations began. The programs in part consist of distribution and costing runs; distribution involves data on class, step, salary and range, and costing may involve all classifications and salaries in the State service. The programs require data related to budget, payroll, and personnel. The programs are developed to have information readily available when negotiations get under way and are developed in the form of hypothetical analyses for both State and union demands. When bargaining is underway, generally the OER research staff concentrates on actual demands and works with Lynch on proposal costing. Lynch's time per month devoted to OER projects related to collective bargaining has averages just over 11 percent. On some occasions if the problem is complex, Lynch will be given the proposal itself and will in most cases know the purpose for the request. OER works more with Lynch than with Carrick because there are more proposals which require programing. Lynch's services are used as well within the department it- self to develop personnel and position files for a department's own needs. The Central Computer Services is the nerve center for computer activity - both programming and running programs - for State government. It is critical that OER and those responsible for collective bargaining functions on behalf of the State have freedom of access to the services provided by this Bureau. It is apparent that Lynch and Carrick are the key personnel at the operational level on whom depend the success of these efforts. The request of the State to exclude this position is granted. Systems & Program Manager (Central Computer Services) - Valton L. Wood, Jr. A more difficult question arises with respect to the request for exclu- sion of this position, than with the preceding one. Wood is in charge of approxi- mately 20 Computer Programmers and Analyst Programmers I and II. He assigns work to the Programmers, including Lynch, and he lends technical assistance to them and decides priorities. He does not work with computers on a daily basis, but he is ultimately involved and has responsibility for a program's effectiveness. Requests for programming are made through Wood who then determines who should handle it; if it is a request from OER, it would most probably go to Lynch, if he was avail- able. Occasionally Wood assists Lynch in developing a program, although it is unlikely that Wood would seek to develop a program on his own. The testimony indicates that Wood, although the manager of the section, has less intimate contact with OER personnel than does Lynch. He does, however, have accessibility to the product and responsibility for it as manager. Although excluding a Programmer and not the Manager of the section seems an awkward result, it is difficult upon the record to justify exclusion of this -51- _____________________________________________________________________________________ position. Lynch has direct contact with OER personnel in constructing programs, and in that manner becomes privy to sensitive collective bargaining matter. On the other hand the record appears to show that Wood's information may be limited to the request itself and perhaps the reason or urgency of the request, and may never be privy to the detail or interchange that is required to put a program together. He may have some responsibility for the result or access to the result, but it was not made evident how this fit into a rationale for exclu- sion. If the position is critical to the State's collective bargaining enter- prise, it should have the opportunity to re-petition for the position. In the meantime the State's request to exclude this position is denied. Computer Operations Manager (Central Computer Services) - Raymond Rice This position is manager of the office that activates and operates the computers. They run typical programs, such as the bi-weekly State payroll. Pro- grammers do not operate the computers. Rice sees any and all output. When there is a request from OER, and it involves anything of a confidential nature, Rice will run the program himself; he runs anything of a confidential nature, whether a request "in house" or from an outside agency. Rice would not know what the pro- posal or question was, but would know the results and therefore would know its use. Rice is the only computer Operator I position in the department. He is usually made aware whether the request or the result is confidential. Requests for runs go through the Director's office and, if a sensitive matter, the Director's office would most probably give it to Rice. Rice spends the majority of his time coping with problems of scheduling and assisting in resolving difficulties with runs, and the like - typical managerial activity. Although it is not entirely clear that a computer operator necessarily gains insight into sensitive areas underlying the request for a run, it is clear that Rice does routinely handle sensitive and confidential matters and, therefore, the position will be excluded. The request of the State to exclude this position is granted. Secretary (Central Computer Services) - Eleanor W. King The position is primarily the secretary for the Director and Deputy Director of the Bureau. King has a Clerk Typist who works with her. Since theirs are the only secretarial positions in the Bureau,they do secretarial and clerical work for all sections in the Bureau. Although Administrative Services provides cleri- al and other support services for the Bureau as well; King and the Clerk Typist do all the typing however. King maintains all files for the Director and Deputy Director and opens all mail including that marked "confidential." There have been requests from the Governor's office and from OER which have been handled by King, although specific examples could not be cited. King types responses for Lynch, Rice or Wood to inquiries made to them by OER or others. Since King is the primary secretary whose services are used by all of the critical personnel in the Bureau, handles correspondence, and processes materials related to sensitive collective bargaining matters, her position will be excluded. The request of the State to exclude this position is granted. -52- _____________________________________________________________________________________ DEPARTMENT OF MENTAL HEALTH AND CORRECTIONS (MHC)[fn]* This is the largest state department employing approximately one- quarter - 3100 employees - of the total state work force. There are ten institutions in all under the department umbrella. A Central Office staff provides support for the various institutions. The Central Office has a pay- roll of 350; many of these are probation officers, juvenile intake officers, and the like, who are administratively on the Central Office payroll; the actual Central Office administrative staff totals about 50 persons. The agency is the only Executive department which operates on a 7 day, 24 hour basis. It is a decentralized department which has personnel staff in each bureau. The department is headed by a Commissioner and two Associate Commissioners, one for Administration and the other for Programs. Clerk Steno III - Sandra Spencer The position is secretary to the Associate Commissioners. The Asso- ciate Commissioner of Administration, Mr. Martell, is responsible for budget, accounting and personnel; the other, Mr. Wilson, is responsible for planning, coordinating legislation, and legislative liaison. The latter position was vacant for about 2 years and was filled in late 1980. Prior to that Spencer was secretary to Martell. She types all correspondence, opens all mail except that marked "confidential," does filing, and screens telephone calls. Three secretarial personnel work closely with one another; one is a Senior Administrative Secretary, Dorothy Scott, which is an excluded class and works directly with the Commissioner. The other is a Clerk Typist II, Debra Robbins, for whom the State also seeks ex- clusion. Spencer assigns work to Robbins. At the time of the hearing Associate Wilson's position admittedly had not yet begun to impact Spencer's position in terms of confidentiality; he was still becoming oriented. From May, 1979 - at the conclusion of the first negotiations - to the beginning of the second nego- tiations in October, 1979, Martell was Acting Commissioner; the Commissioner's position was filled in December, 1979. In that time he received input from Bureau heads in preparation for the second round of negotiations. Initially he was on the State bargaining team as well, but after attending a couple of meetings he removed himself because it was too demanding. In the first nego- tiations Spencer was actively involved in various collective bargaining activi- ties. She attended management meetings which included the members of the nego- tiating team for the Institutional unit, and took notes and distributed memo- randa on the discussions of proposals. She copied and distributed bargaining proposals, as she has during later negotiations. She has been privy to dis- cussions on job actions and lock-up involving the prison in Thomaston. She has drafted various materials regarding a planned reorganization of the depart- ment; these plans affected a range of employee relations matters and were not _______________ * Effective September 18, 1981, Corrections became a separate department pursuant to P.L. 493 enacted in the 110th Legislature; the Department of Mental Health and Corrections became the Department of Mental Health and Mental Retardation. The effect of the legislative change, if any, on the positions involved in these proceedings has not been considered. Neither party has suggested other- wise. -53- _____________________________________________________________________________________ for general distribution. Since Spencer is the primary secretary and clerical person to the Associate Commissioner of the State's largest agency whose responsibilities cover personnel and employee relations matters and since there is adequate evidence of Spencer's involvement in confidential employee relations matters, the position will be excluded. The request of the State to exclude this position is granted. Clerk Typist II - Debra Robbins As indicated, Robbins works with, and in the same physical area as Scott and Spencer. They are the only support staff in that immediate area. Robbins does primary secretarial work for the Chief Advocate and the Director of the Division of Planning, as well as providing support for Scott and Spencer. She has access to the Commissioner's files. The Advocate is an advocate for clients and patients; he has a formal role in investigating patient abuse. He supervises the other advocates located in the institutions operated by the department. Ongoing investigations are confidential and not infrequently im- pact on employee concerns; there have been grievances and arbitration arising from abuse cases. There is much correspondence flowing to and from this office and Robbins has full access to it; some of the correspondence could be in the form of confidential memoranda and reports within the department. It was testified that Robbins' primary responsibility was the telephone console which takes all calls for the Central Office staff. There are two consoles and Robbins handles the one connecting for the Commissioners, Associate Commissioner, and the personnel office. She also assists with drafts of legislative bills or testimony in support of bills. The testimony also showed that much of what the Advocate is involved in may have nothing to do with employee concerns; client advocacy matters may be confidential but wholly unrelated to collective bargaining. Although she sometimes handles correspondence or memoranda for the Planning Division which may impact employee relations, the Planning Division has a secretarial position assigned to it. The record is not convincing that the duties of this position necessarily suggest a confidential relationship with respect to collective bargaining matters. The request of the State to exclude this position is denied. Clerk Typist III - Mary Stoddard The position is primary secretary to the Director of the Division of Personnel and Employee Relations, Frank Mack; the Director position was created about 1-1/2 years prior to the hearing. She also provides secretarial support for the Assistant Personnel Officer, Tom Meiser. Mack has contact with OER 3 or 4 times a week in the form of memoranda, correspondence and telephone calls. Mack was the department representative for the Supervisory Services unit during the first contract negotiations, and has been a member of Institutional team for the past two bargaining periods. He receives AFSCME bargaining proposals; 95 percent of the Institutional unit is composed of department employees. -54- _____________________________________________________________________________________ Mack is also copied by Meiser on the MSEA unit proposal. Mack is the Commissioner's representative for grievances. Personnel actions by the department personnel office are handled through Stoddard. She sees all correspondence and memoranda addressed to the Personnel Office from whatever source - the Governor's office, State Department of Personnel, or OER. Stoddard is chief liaison between the department and the State personnel of- fice, which she visits frequently; she processes all personnel matters, in- cluding reclassifications, terminations, and the like. She maintains person- nel forms and tracks unusual personnel actions. Stoddard has had access to bar- gaining proposals; she may distribute them to the institutions; she has ob- tained information from the institutions for Mack or Meiser. The department has employees covered by 5 MSEA contracts as well as the AFSCME contract; there are many grievances from the institutions. Mack and Meiser are out of the office at least one-half of the week and Stoddard handles much of the office routine, occasionally contacting either of them if something critical develops. Meiser is involved in designing management proposals for the current negotiations and Stoddard would be involved in collecting data. Meiser's position requires him to be an ongoing member of the negotiating team for MSEA units. The duties of the position are necessarily involved in confidential collective bargaining matters and it warrants exclusion. The reguest of the State to exclude this position is granted. Clerk Steno II - Debra Davis The position reports to Stoddard. Davis's duties include maintenance of all grievance files, scheduling grievances and sending notices, overseeing the seniority list, and completing the many personnel forms used by the depart- ment; in addition the position has assumed some responsibility with regard to Affirmative Action - compiling statistics, typing for the Affirmative Action officer, and the like. It was testified that the grievance files may contain working papers and certain information not available to the grievant. Accessibility to the files is limited to Mack, Meiser, Stoddard and Davis. Davis does most of Meiser's typing and types up grievance decisions. However, Davis is not directly in- volved in grievance hearings and most of her typing duties involve routine correspondence regarding potential applicants or concerning employee benefits. Meiser testified that in the current negotiations he received a composite of the union proposals and requested Davis to organize it by article for his note- book. Meiser keeps notes on negotiations in a notebook; it was not clear that Davis has access to the notes themselves. Despite her access to grievance files and the fact that occasionally there may be something of confidential quality in them, it is not clear that Davis's handling of the files involves her in a meaningful way in confidential matters. There were no clear examples of precisely the form or type of material that might be classed as confidential and contained in the files. The record shows that her involvement in collective bargaining-related matters is quite limited . The arranging of proposals for a negotiator's notebook does not sug- -55- _____________________________________________________________________________________ gest a reason for exclusion, unless it is accompanied by evidence of other, more regular, involvement in labor relations matters. Under the circumstances it does not appear that the duties of this position necessarily involve confidential collective bargaining participation sufficient to require exclusion. The request of the State to exclude this position is denied. Clerk Steno III - Kemberly Ellis The position is secretary to the Director of the Bureau of Corrections, Don Allen. The Director is responsible for the correctional facilities, in cluding three major centers and three pre-release facilities. There are 1,000 employees in the Bureau. Ellis does all of the Director's typing, main- tains his files and opens all of his mail, including confidential. Allen gets much correspondence from correctional institutions. Allen is in frequent con- tact with the department personnel office regarding collective bargaining proposals, much of it verbal; Allen, however, writes everything down and memor- ializes his conversations with the personnel office. Ellis types up these memos for Allen and keeps a copy. She has a key to Allen's desk. She has accumulated information from the institutions for Allen with respect to bargaining proposals. Ellis was involved in the "lockdown" plans for Thomaston. During the development of the plans it was necessary to maintain confidentiality from the prison staff, as well as the inmates. The "lockdown" had a major effect on employees since it affected schedules, hours, and the like. Ellis was aware of the plans as they developed and typed related memoranda and correspondence. Once the "lockdown" took effect the plan became public. Allen has been heavily involved in the plans to separate the functions of the department and to estab- lish a separate department. These efforts involve much discussion and corres- pondence between the Department, Bureau, the Governor's office and the Legisla- ture. The plans impact employee relations matters. Ellis has been privy to, and had participated in, these efforts. Upon the assumption that Ellis' position and responsibilities would con- tinue with substantial similarity upon the creation of a separate Department of Corrections the position will be excluded. The request of the State to exclude this position is granted. Secretary - Carleen Cote The position is secretary to the Director of Bureau of Mental Retardation. The Bureau has approximately 1200 employees. Cote is also the secretary for the Manager of the Field Operations office which oversees the Community Mental Re- tardation System. Although it was testified that the Director has received copies of union and management proposals, there was no evidence that Cote had actually seen the proposals, nor that any correspondence or memoranda was generated by the proposals. Although Cote may sit in on meetings where policy matters might be discussed, evidence was lacking that she actually sat in on meetings where collective bargaining matters were reviewed. There was no direct evidence that she has had a role in either the first or second rounds of negotiations. -56- _____________________________________________________________________________________ Although Cote has been involved in typing up memoranda and plans related to a "mini-reorganization" within the department, it was not clear the extent to which this may have impacted employee relations. Under the circumstances the request of the State to exclude the posi- tions is denied. Clerk Steno III - Lorraine LeClair This position is secretary to the Director of the Bureau of Mental Health. She performs typical secretarial duties, including the opening of mail and billing. LeClair also performs the same secretarial services for the Licens- ing Specialist - Mental Health Worker VI. The Bureau has 1,000 - 1,200 employ- ees. The Director receives copies of proposals from both sides and these also go to the institution heads within the Bureau for review and comment. There is no evidence in the record which showed any connection between her position and the negotiations during the first round. During the second round, due to the vacancy of the Director position for a period of about 6 months, LeClair "was effectively the Bureau of Mental Health," serving as a "conduit up and down." During the third round she did not have any involvement with collective bargaining since the Director was away in Bangor much of the time. Under the circumstances the request of the State to exclude the position is denied. Account Clerk I - Lynn Long The position is payroll clerk for the Central Office. Long does the pay- roll for the 350 people paid through the Central Office; she receives and posts time cards; she deals with anything payroll related, such as benefits, insurance, overtime. She gets copies of all personnel actions impacting the Central office. Her predecessor had been involved in "costing-out" certain items in bargaining proposals and for grievance purposes. It was testified that anyone costing-out for purposes of a potential grievance settlement would be able to figure out the purpose of the request although not informed at the time of the request. However the testimony also shows that since Long has been in her position she has not been requested to cost anything, although there has been a need for cost- ing. The department's prior representative in the coalition team costed-out vari- ous proposals but did not use Long's position for that purpose. It was also testi- fied that it was possible to obtain the information required for costing without the researcher knowing the reason for the information. Since it does not appear that the duties of this position of necessity involve confidential collective bargaining matters, the request of the State to exclude the position is denied. Director, Division of Probation and Parole - Peter Tilton (Acting Director) Assistant Director, Division of Probation and Parole - (vacant) The Division has five district offices and 14 sub-offices around the State. Each district has a supervisor in charge. There are a total of 93 personnel in the Division, 67 assigned to the Division and 26 in Juvenile Intake. The Director -57- _____________________________________________________________________________________ of Juvenile intake is located in Augusta; the Juvenile Officers are administered by the Division, but assigned to district offices. The Director of the Bureau of Corrections, Don Allen, holds regular monthly meetings with the three heads of the correction institutes and the Division of Probation and Parole (DPP). At the meetings, among other things, they may discuss collective bargaining, matters including negotiations proposals, contract administration concerns, such matters as the procedure for transfer, and staffing and scheduling patterns. The witness, Tilton, Acting Director of the Division, received copies of negotiation proposals during the last round. Although he did not receive the proposals in the most recent round they have been discussed at the monthly meetings after which Allen has relayed information back to the bargaining team. The Director is absent frequently; the Assistant Direc- tor has the same statutory authority. However, it is significant that the Assist- ant's actual duties depend very much on the Director's assignment. As Assistant Director, Tilton had been assigned to Parole Board hearings, Governor's Pardon Review, disciplinary matters and authority to issue warrants regarding arrest for violation of parole. The Director is the step-two level in grievance review and the Assistant fills in for him. During the current negotiations there have been discussions regarding issues concerning intake workers and parole officials. There have been regular meetings with the bargaining team member representing the department. Also, Tilton has had discussions with the department bargaining repre- sentatives about items in the proposals of immediate concern to the Division. Tilton has reviewed proposals with his district supervisors at monthly staff meet- ings. He expected that his views or proposals would not be traded away without prior consultation. The request of the State to exclude the position of Director, Division of Probation and Parole is granted. The request of the State to exclude the position of Assistant Director is denied. At the time of the hearings the position had been vacant for several months and it seems inappropriate to make a determination regarding exclusion at this time. It was testified that the duties of the Assistant depend pretty much on the dele- gation made by the Director. If necessary, a petition to exclude the position can be filed after there has been a period of experience once the position is filled. The request to exclude the position of Assistant Director is denied. Assistant Superintendent, Corrections - James R. Clemons Assistant Superintendent, Corrections - Hamilton W. Grant The Maine Correctional Center in South Windham houses all male offenders who have received sentences up to 5 years and all female offenders. There are approximately 220 prisoners at the facility. Pre-Release Centers are operated in Windham, Hallowell and Charleston. The Pre-Release Centers are under the con- trol of Correction Officers, except Charleston - the largest - which is under a director who reports directly to the Superintendent. There are a total of 200 employees who operate the facilities. At Windham there are 60 Correction Officers I, 15 Correction Officers II and four Correction Officers III; there is also a Chief of Security. -58- _____________________________________________________________________________________ Clemons' area of responsibility is Custody and Security; Grant's is Care and Treatment. The Correctional Officers at the various facilities are directly under Clemons' authority and then to Hanson, except the director at Charleston. Grant has been an Assistant Superintendent since 1971; Clemons since September, 1973. The Center deals with two unions; Clemons is principally involved with the Institutional unit representative, AFSCME; and Grant principally with MSEA. The Superintendent works closely with Clemons and Grant. By statute the A/S can act in the stead of the Superintendent when he is away or not avail- able. Not infrequently one or the other A/S will assume the position of Acting Superintendent; typically the Superintendent may be away two days per week, al- though during the Legislative session it may be more frequent. There are direc- tives which specifically govern some areas and limit the discretion of an Acting Superintendent, such as the areas of custody and care and treatment; in other areas, including collective bargaining, there are no explicit directives. The Superintendent has received selected items from both management and union proposals and has reviewed them with his Assistant Superintendents. He has also received information concerning collective bargaining matters from meetings held by the Director of the Bureau with his division heads. He meets with the Assistants on a daily basis when they are all available and then discussions may touch on negotiations and contract administration or interpretation. Usually a decision on grievances will be a joint decision between the Superintendent and the Assistant Superintendents. Members of the department are on the AFSCME and MSEA bargaining teams and the Superintendent receives memos from them regarding various aspects of negotiations which he discusses with the Assistants as needed. The Superintendent testified that he has close working relationship with both Assistants; that they are aware of all his activities; he expects them to be informed and to act on matters when he is away or unavailable. The Superintendent has not been involved in strategy or policy discussions concerning collective bargaining with members of the bargaining team. The Assistants have never been assigned a specific role with respect to collective bargaining. Although the Superintendent is out of the office with some regularity, he is usually accessible by telephone and it would be unlikely for an Assistant Superintendent to make decisions on policy while filling in for the Superintendent on a temporary basis. The hearing examiner is not persuaded that the Assistant Superintendents are necessarily involved in confidential collective bargaining matters to a sig- nificant degree. The Superintendent has not routinely received copies of collec- tive bargaining proposals for his critical review, although he has received selected items. There was no evidence that the items that were received impacted the Correctional Center in important ways or required serious study, review and comment. Although the relationship between the Superintendent and Assistant Superintendents is close and there is a good deal of sharing in the decision-making process, the record does not reveal a significant involvement in confidential employee relation matters. One is enticed to assume that top level correctional officials must plan for and be prepared to cope with crisis manning problems which may arise spontane- ously in a correctional facility, and which are endemic to such institutions. If -59- _____________________________________________________________________________________ such is the case there would appear to be an obvious need for intimacy and con- fidentiality in discussions leading to the formulation of policy and plans which would enable the officers of the institution to meet their important statutory responsibilities in crisis situations; such discussions would obviously touch on important employee relations subject matters. However, the content of this re- cord does not provide the substance to sustain the assumptions with respect to these positions and therefore the assumptions fail.[fn]* Under the circumstances the request of the State to exclude the positions is denied. Secretary (AMHI) - Irene Begin The position is secretary to the Superintendent of the Augusta Mental Health Institute. It is a facility for the chronic, mentally ill and has four major programs: Adult Psychiatric, Rehabilitation and Re-entry, Adolescent and Young Adult,and Nursing Home Service. The directors of the four programs, the Clinical Director, the Chief of Hospital Services, the Director of Staff Develop- ment and the Assistant to the Superintendent all report to the Superintendent. The Superintendent, Personnel Director, Clinical Director, Chief of Hospital Services and the Personnel Technician are exempted positions. The Institute has an annual budget of $7 million and 780 authorized positions; 550 are filled positions. The Superintendent reports directly to the Comissioner. The Insti- tute has a good deal of independence in running its affairs on a daily basis. The positions in the Bureau are divided approximately equally between the AFSCME and MSEA units. The position is primary secretary to the Superintendent and does all his filing and correspondence work. She also acts as receptionist for the Superin- tendent's office. The Personnel Director, Mr. Williams, is a member of the State bargaining team for the AFSCME unit; the Assistant, to the Superintendent, Mr. Howard, is on the State team for the Supervisory Services bargaining unit. The latest AFSCME unit proposals were transmitted to the Superintendent through Begin, as have memoranda on the proposals from Williams. Prior to any major policy decisions on personnel matters, there is discussion with the Superintendent and usually these matters are formalized in correspondence. The Superintendent is the final review step for Institute grievances and Williams sometimes hears griev- ances in his stead. Howard also keeps the Superintendent informed regarding nego- tiations for the Supervisory Services unit. Begin does collective bargaining work for Howard as well as the Superintendent. It is handled in this way because a policy decision was made about 2 years ago to limit other personnel from being privy to confidential collective bargaining materials. Both Williams and Howard keep the Superintendent current on the course of negotiations and have discussed with him the impact of various proposals on the Institute. The request of the State to exclude this position is granted. _______________ * Furthermore, it would appear that the effort to exclude a class of employees - in this instance, Assistant Superintendents in a correctional facility - should perhaps be addressed to the Legislature. -60- _____________________________________________________________________________________ Assistant to Superintendent (Supervisor of Special Services) (AMHI) - Millard Howard The principal responsibility of this position is to see that hospitals are in compliance with standards contained in the statutes and regulations. He has supervisory authority over 7 other positions. Howard was on the coalition bargaining team in the first two rounds of negotiations and at the time of the hearing was in the Supervisory Services team. Howard has many ancillary duties; he is Affirmative Action officer and an advisor on matters within the Institute. The Personnel Director and Howard discuss contract proposals and counterproposals and common concerns with respect to collective bargaining. Howard discusses bargaining proposals with the Superintendent and keeps him advised on the course of negotiations. Howard is occasionally consulted on questions of contract inter- pretation and as a resource person on grievances. Although the proportion of time Howard devotes to labor relations mat- ters is limited - on the average of one day per week - he has been a member of State bargaining teams from the beginning of collective bargaining and has had regular discourse with the Superintendent and Personnel Director on such matters as review of bargaining proposals, the course of negotiations, and on questions of contract interpretation. Under the circumstances the request of the State to exclude the position is granted. Clerk Steno III (AMHI) - Charlene Dutremble The position is secretary to the Personnel Director, Donald Williams, and to Janice LaPointe, the Personnel Technician. Williams has other clericals under him who do reception duty, maintain the payroll, and perform clerical work on performance appraisals, workmens' compensation, and the like. Dutremble main- tains all of Williams' files. She has access to all AFSCME unit proposals, notes related to negotiations, and communications with OER and with the Superintendent. She opens all mail including that marked "confidential." She handles all griev- ance files for Williams and types up 95 percent of all grievance decisions. Williams has frequent contact with the department representatives on the State negotiating team and Dutremble would handle whatever typing or correspondence was in- volved. She would type up responses to costing requests from OER or negotiating team members, although the actual data gathering would be done by others; however, these data reports consume a very minor part of her total work effort. The position is secretary to the Personnel Director of a sizeable State office with important ongoing responsibilities in areas of employee relations and collective bargaining. Williams has been a member of the AFSCME unit negotiating team for the past three years and plays a critical role for the Institute in collective bargaining matters. Dutremble's position is sufficiently involved in the confidential matters arising out of collective bargaining to warrant exclusion. The request of the State to exclude this position is granted. Account Clerk I (AMHI) - Janet Campbell The position handles the payroll for the Institute; the Institute pre- pares its own payroll. She responds to questions of employees regarding benefit programs, Blue Cross/Blue Shield, and the like. -61- _____________________________________________________________________________________ Exclusion is requested for this position on the grounds that Campbell has been asked to obtain data used in costing-out various bargaining proposals. It was testified that she would in some cases know the purpose for which the in- formation was required. However, it was also testified that much of the data is public information and that others, if need be, could go in and obtain the required data. It was also stated that in the several months preceding the hearing on this position a total of only 12-14 hours en toto was devoted to data gathering of this type. The request of the State to exclude this position is denied. Clerk Steno III (AMHI) - Joan Moore The position is secretary to the Chief of Hospital Services, Victor Perrault - an excluded position. Perrault is responsible for all ancillary services of the institution, including financial operations; the business office reports directly to him. Williams reports directly to Perrault and has periodic discussions with him regarding goals and objectives. Williams keeps Perrault in- formed on collective bargaining matters and shares AFSCME proposals with him; these exchanges are mostly verbal and informal. Perrault clearly is one of the policy makers at AMHI. In the past Perrault has instituted policies which have collective bargaining implications, such as proposed changes in work schedules, and he and Williams may review such proposed changes, Moore would know about the proposal and may type a memorandum with respect thereto. On occasion Moore overhears discus- sions on collective bargaining matters between Perrault and Williams or others. Moore opens mail for the whole hospital; she handles a very large vol- ume of mail, averaging 400 pieces a day. Moore also does typing for the Business Manager, the Safety Compliance Officer and the Executive Housekeeper. Moore's office is just outside the offices of Perrault and Mulhaney. The request to exclude the position is denied. The evidence indicated that the occasions when Moore is formally involved in collective bargaining mat- ters are sporadic at best; the awareness of informal discussions of collective bargaining matters does not suggest necessary involvement, as required by the Act. Nurse IV (Dir. Adolescent and Young Adult Unit) - Mae Gravel Mental Health Unit Director (Rehabilitation and Re-entry Unit) - Marion Carroll Mental Health Unit Director (Admissions and Transition Unit) - Vada Rose Director, Geriatric Services (General Medical & Nursing Home Unit) - (AMHI) Jo-Ann Mayo These four positions are responsible for administering the four pro- gramatic areas of the hospital operations. They supervise from 30 to 140 em- ployees. They have fiscal and staff responsibilities for their respective units. During the day they are the Superintendent's direct administrative representai tives in each of their areas. Their fiscal responsibilities may vary somewhat. They routinely are required to make quantitative and programmatic decisions, but not medical decisions. In the afternoon there is a consolidation of the hospital and programs under one supervisor, a Nurse IV position; this person -62- _____________________________________________________________________________________ has no policy responsibilities, but ascertains staffing needs, and the like, from the clinic directors. The same happens with the 11 p.m. to 7 a.m. shift. The four program directors meet on a daily basis with the Superintendent, the Chief of Hospital Services, the Clinical Director, the Director of Nursing, the Assistant to the Superintendent; and two days per week the Personnel Director is present. Prior to these meetings there are meetings on the wards with the clinical directors. At the meetings clinical and administrative matters are re- viewed. When Williams (Personnel Director) attends, the agenda includes personnel issues. Personnel issues may include such matters as assignment, overtime and sharing of staff. "Pooling" is important in the operation of the hospital; there is a need to have registered people available to pass out medications and provide appropriate coverage for certain patients, for example. Each director must estab- lish a program philosophy for the unit. A treatment plan must anticipate that resources are available, and consequently at the meeting the directors negotiate with one another regarding resources. When Williams is present there may be a re- view of collective bargaining matters and discussion of contract interpretation. It was testified that as advisors to the Superintendent they are responsible for pre- senting him with their negotiations needs. There are many grievances in the institutions and common experiences are exchanged at these meetings; policies are reviewed, such as overtime allocation, and the like. However, it was also testified that although this group is more aware of decisions affecting the staff than the general employee population, information regarding the strike plans was not shared with them; it was testified that the approach with respect to sharing critical information with the group of management personnel is "retrospective," rather than "prospective." It was also testified that they work closely with the Superintendent on contract interpretation once the contract is signed. The primary functions of this group of managers are typically supervisory in nature as that term is defined in the Act. Furthermore their involvement in confidential employee relations or collective bargaining matters is not routine or significant in degree. There was no evidence that they are consulted on questions of bargaining strategy or have acquired other trappings which would mark them as necessary instruments of the employer's collective bargaining effort. They have no assigned role as confidential collective bargaining operatives. The discussions of collective bargaining matters on negotiations at the meetings with the Superintendent and Williams appears to be informational in character.[fn]* Under the circumstances the request of the State to exclude the four directors of program positions is denied as to each. Assistant Superintendent, Corrections (Maine Youth Center) - Anthony 0. Sesto Assistant Superintendent, Corrections (Maine Youth Center) - E. Bruce Campbell[fn]** The Maine Youth Center is a facility created by statute to provide re- habilitative services for juvenile offenders referred by the courts. The basic _______________ * See State of Maine and Maine State Employees Association (State Police Captains and Lieutenants) Report of Appellate Review of Unit Clarification Report [No. 78-A-09] (MLRB, Mar. 2, 1979). ** Deceased -63- _____________________________________________________________________________________ rehabilitative approach employed is "Reality Therapy" and the services include regular educational and special education programs, skills training, counselling, and recreation. There are three major internal departments: Rehabilitation; Care, Custody, and Security; and Plant Operations and Services. Sesto heads Custody and Security; Campbell heads Rehabilitation; and a third Assistant Superintendent (an in-house title) heads Plant Operations and Services. Each has supervisors and staff under him. The Superintendent reports to the Bureau head, Mr. Allen, who in turn reports to the Commissioner. The Superintendent and two Assistant Superintendent positions are statutory and by statute the Assistant Superintendents are authorized to assume full responsibility during absences of the Superintendent. He is away about two days a week. There are 231 assigned employees, 12 of whom had been temporarily transferred to the state prison at Thomaston. Sesto has been Assistant Superin- tendent for about three years and has jurisdiction over approximately 140 employees; Campbell about 50 employees, and he has been an Assistant for eight years. The Superintendent, Richard Wyse, and the Assistants have a close working relation- ship and function as an administrative team for solving institutional problems; frequently they include the Business Manager (the in-house Assistant Superintendent in the discussions. The Superintendent testified that the Assistants are aware of everything in the department and it is necessary that they be so informed. The Superintendent does not participate in collective bargaining directly. A staff member is on the State team for the AFSCME unit. The employees are divided 50/50 between the AFSCME unit and MSEA units. The AFSCME representative keeps them informed concerning negotiations. In the current negotiations the office did not receive copies of the negotiations package. There have been occa- sional calls from OER for information on how the Center handles certain things; there have been 4-5 calls over a period of several months. The AFSCME representa- tive has been asked to brief the Center management team in the AFSCME negotiations. The Assistant Superintendents have discussed the impact of various issues with cer- tain department heads. In the second round of negotiations, which began in October, 1979, no staff member was assigned to any bargaining team. In that round the Superintendent received the entire packet of proposals from the Bureau Director's office and re- sponses were developed regarding impact of the proposals on the Center. There were infrequent contacts thereafter. For a time during the first round of nego- tiations the Business Manager of the Center[fn]* served on the Department team for the MSEA negotiations. He met with the Superintendent and Assistants to develop positions the Center should take at the negotiations. During his time on the team he also met with the Center management team about 5 times during the course of negotiations to discuss the progress of negotiations. Some meetings involved the Bureau Director as well, who wanted to keep informed. Campbell has been involved in grievances; as head of a department he has helped an OER attorney prepare certain cases for hearing. The Assistants have access to the Superintendent's confidential files and mail. There is frequent discussion _______________ * Not the current Business Manager. -64- _____________________________________________________________________________________ among the management team members regarding contract administration and how to handle discipline problems. The Superintendent relies on the recommendation of his Assistant Superintendents in discipline matters and in settlement of griev- ances. It does not appear that the Assistant Superintendents are regularly in- volved in confidential collective bargaining matters or involved with such matters to a significant degree. The request of the State to exclude these positions is denied. Business Manager II (Maine Youth Center) - Lois Vincell In past negotiations the Business Manager has been asked to cost-out certain items with respect to proposals either for a negotiating team member or for the Superintendent. On occasion the Superintendent would discuss the proposals with the Business Manager and then share the discussion with the Assistant Super- intendents. The Business Manager has in the past also costed out settlement alter- natives for grievances. In the most recent negotiations there have been no re- quests for costing of proposals. The Business Manager has access to confidential files of employees for various purposes and has access to grievance files. The Department has requested the Center to formulate a layoff plan for use if required; only the Superintendent, the Assistant Superintendents and the Business Manager are aware of the plan details. It was explained that the management team must be sure of its delivery system and has need to discuss the "gray areas" informally in terms of available options. It does not appear that the duties of the Business Manager are necessarily involved with confidential collective bargaining matters. Occasional discussions regarding sensitive matters or occasional costing of aspects of bargaining pro- posals does not warrant exclusion under the Act. The request of the State to exclude the position is denied. Clerk Steno III (Maine Youth Center) - Linda N. Chasse The position is principal secretary to the Superintendent of the Maine Youth Center. Chasse does all the typing and filing for the Superintendent. She opens all mail including, occasionally, that marked "confidential." The Superintendent's comments on proposals are typed by Chasse; she maintains the Superintendent's collective bargaining file. She also types confidential matters for the Advocate on the Center staff. The Superintendent dictates notes on the meetings with his Assistant Superintendents, including discussions involving collective bargaining matters. The evidence in support of the claim of exclusion is marginal at best. The hearing examiner does not believe that the duties of the position necessarily involve confidential collective bargaining matters to a significant degree. The request to exclude the position is denied. Clerk Steno II (Maine Youth Center) - Grace Sabin The position is principally that of secretary to the Assistant Super- intendents at the Maine Youth Center. She occasionally does some work for the Superintendent. She maintains the files and handles all correspondence for the -65- _____________________________________________________________________________________ Assistant Superintendents. The request of the State to exclude this position is denied. Clerk Steno III (Pineland) - Evelyn Snyder Pineland is a residential rehabilitation facility for the severely retarded. There are 345 residents in the facility and there are 775 employees. Approximately 55 percent of the employees are in MSEA units, and the remainder in the AFSCME unit. There are three major operational areas at Pineland: Resi- dential Services consisting of 24 live-in units which are supervised 24 hours a day, seven days per week; Programmatic Services which utilizes a Learning Develop- ment Sequence, and all residents are enrolled in one of the Sequence programs; and Support Services. The Clinical Services are supervised by the Clinical Direc- tor who, among other duties, has the responsibility for operating a 24 bed acute hospital. Support Services may be viewed as a separate area of responsibility. The Superintendent reports to the Commissioner of Mental Health and Corrections. Currently excluded positions are the Superintendent, Assistant Superintendent, Chief of Residential Services, Clinical Director, Personnel Director and Person- nel Technician I; the latter two are excluded by class. Snyder is Secretary to the Superintendent and also performs some cleri- cal work for the Assistant Superintendent and the Chief of Volunteer Services. She opens all his mail, although it was unclear if she opened that marked "con- fidential." She does all his typing and maintains all his files. During the first round of bargaining between October, 1977 and early 1979, Pineland re- ceived both union and management proposals and counterproposals. Some were addressed to the Superintendent and others to the Personnel Director. The pro- posals were discussed by the Superintendent and Personnel Director and were reviewed at Executive Management Comittee meetings. The Executive Management meet- ings are held every Monday, although in the three months prior to the hearing they were irregular. All top managers of Pineland attend the meetings, although not all were excluded from participating in collective bargaining. These meet- ings existed before collective bargaining. It was unclear whether the Secretary to the Superintendent regularly attended these meetings over the years. During the first negotiations several proposals were discussed at a time and communica- tions regarding negotiations were received weekly; many proposals did not pertain to Pineland and were not discussed. Collective bargaining matters were not dis- cussed at every meeting. In the second round of negotiations with both MSEA and AFSCME, the Executive Management Committee met at least weekly. The Personnel Director would spend an additional day per week, particularly with respect to the AFSCME contract, in meeting with management officials, and another partial day in meeting with various Pineland officers about the negotiations; the Superintend- ent attended departmental meetings and would thereafter discuss the meetings with the Personnel Director or with the management team. In the current negotiations (at the time of the hearing) the original proposals from both unions had been discussed thoroughly and recommendations were made by Pineland. Snyder had not attended the Executive Management meetings. The secretary to the Personnel Director typed up the responses. The request of the State to exclude the position is denied. -66- ____________________________________________________________________________________ Clerk Steno III (Pineland) Mary Russell The position is principal secretary in the Personnel Office. Russell provides secretarial assistance to the Personnel Director and Personnel Techni- cian I (both positions are excluded by class). She takes their stenography; is responsible for filing; opens all mail, including "confidential" material from OER, the Commissioner and the Superintendent. She has access to all of their files. There are a total of seven personnel in the office. Russell may delegate work to the other two secretaries in the office. About 4 days per week the Director gives Russell correspondence regarding labor relations matters; on the average of 3 times weekly there is contact with OER, although the actual paperwork regarding collective bargaining is not as much as when the Director was on the bargaining team. All responses regarding proposals are typed by Russell. Rus- sell is not involved in the Executive Committee meetings. The Director fills in for the Superintendent on all grievances and meets with him to discuss responses to grievances, and the like. Russell has access to the grievance files. In some instances the Director will discuss the confidentiality of certain areas with Russell, such as contingency plans of the institute regarding budget cuts and pos- sible layoffs. On occasions the Director will get inquiries from other sources regarding employees, such as from police or credit institutions, which he will keep to himself. Occasionally employees come to the Director with personal matters, which he also may keep restricted from the clerical staff. The request of the State to exclude this position is granted. Clerk Typist II (Pineland) - Yvonne A. Hunsinger This is one of the clerical positions in the Personnel Office at Pineland. Her primary responsibility is receptionist duty. When not so involved she will perform other tasks such as sending out performance appraisals, doing surveys re- garding wages of employees, and keeping seniority lists for RIF purposes. All employees in the office are advised of the confidentiality of matters involving personal concerns of employees, such as bank inquiries, and the like. Hunsinger keeps track of merit increases and evaluations, which the particular employee may not know of until it is cleared. She spends approximately 10 - 15 hours per work- ing week performing tasks other than straight reception work, as filing forms and typing. The request of the State to exclude this position is denied. Clerk Typist II (Pineland) - Kay F. Goulet This is a clerical position in the Personnel Office at Pineland and is the first backup secretarial position to Russell. About 2-1/2 to 3 days per week Goulet is assigned to work with an Account Clerk in the payroll section where she posts in time records and tracks vacation and sick leave credits, and the like. The rest of the time she is assigned to Russell, doing typing and performing filing and other tasks assigned to Russell by the Personnel Director. She has access to all files, including personnel files; it was testified she requires access to files for posting purposes. She fills in for Russell depending upon Russell's schedule and availability. One of her priorities is Workmens' Compensation. The request of the State to exclude this position is denied. -67- _____________________________________________________________________________________ Account Clerk II (Pineland) - Margaret T. Edwards This is a position in the Personnel Office at Pineland that has primary responsibility for the payroll. Edwards handles records for all employees and computes hours, vacations, sick time, and the like. She makes out the payroll register. She has costed-out bargaining proposals which involved payroll costing, such as overtime. She helped cost-out original proposals and was asked for sug- gestions, some of which were incorporated in the office's response. The informa- tion in the payroll records is public information, although the purpose of a re- quest or the result of the effort may be privileged. The hearing examiner is not convinced that the testimony demonstrated a need to share confidential aspects of collective bargaining negotiations with the personnel who retrieve the information for costing purposes, or who on oc- casion may do the actual costing. In any event occasional or isolated instances of involvement in sensitive collective bargaining matters does not warrant denial of the benefits of the Act. The request of the State to exclude this position is denied. Institutional Business Manager (Pineland) - John C. Conrad The position is the "in-house" Director of Support Services and has responsibility for the kitchen operations, all areas of maintenance including the power house, laundry, and the business office. He develops the "all other" and "capital" areas of the institute budget; he receives the "personal services" portion from the Personnel Director and then completes the budget. Conrad works closely with the Superintendent, Personnel Director and the Chief of Residential Services in the budget process. It was testified that the Business Manager was a member of the inner group of managers which includes the Superintendent, Chief of Residential Services, Assistant Superintendent, Personnel Director, Supervisor of Special Services (Program Director) and the Clinical Director. Since he has responsibility over all physical plant and maintenance areas, union proposals are discussed with him in these important areas. Since his responsibility with re- spect to money concerns and overview of the budget are so important to the insti- tution, he is included in the group which will discuss bargaining proposals, budgetary planning, and concerns of internal management. The budget for Pineland is approximately $20,000,000. At the time of the hearing Pineland was faced with the prospect of sig- nificant layoffs. It was stated that Conrad was among the central group who were instrumental in developing contingency plans regarding alternatives. This inner group does not have a formal structure but convenes when certain critical prob- lems occur. The record also showed that Pineland was under a Federal Consent Decree which requires certain direct care ratios and other standards of care. Conrad has been involved in the basic discussions regarding how the institute would meet its obligations under the Decree and make the necessary allocation of services; the Consent Decree implementation was the responsibility of the Executive Management team. The institute has a Labor/Management Committee with both MSEA and AFSCME which meet monthly. The Committee attempts to develop areas where -68- _____________________________________________________________________________________ management and labor can work cooperatively and anticipate problem areas. Con- rad is a management representative on the Committee. Many state agencies have such committees. The agenda and product of these meetings are public informa- tion; the preparatory discussions on either side may be confidential. As an ex- ample, proposed schedule changes may be a typical agenda matter. For certain types of institutional problems which may be affected by bargaining proposals - such as meals, mileage, and the like - the Personnel Director would consult with the Business Manager. The testimony indicated that the Superintendent and Conrad meet frequently - daily - on budget and related problems, renovations, outside contracts, and the like. Conrad has a close work- ing relationship with the Associate Commissioner of the Department on such matters as developing the budget, proper accounting procedure,and audit. Conrad's advice to the Superintendent regarding the budget is perceived as going beyond mere technical advice, but rather touches on policy. Although Conrad may have occasional direct contact with OER, it is clear that most collective bargaining matters are funneled through the Personnel Director's office. It was admitted that any costing-out done by the Business Manager would involve the compiling of information which was not necessarily confidential. The evidence is not convincing that the duties of Business Manager po- sition are necessarily involved with confidential collective bargaining matters in any routine or significant manner. The request of the State to exclude the position is denied. Clerk Steno III (Pineland) - Norma B. Higgins The position is secretary to the Institutional Business Manager at Pineland. Higgins does all the budget paper work and stenography for Conrad. She does all correspondence for him with the Superintendent, Personnel Director and the Bureau of the Budget. She has access to all his files. She does not attend the Executive Management Committee meetings. On occasion she has handled responses from Conrad regarding requests for his input on proposals. The request of the State to exclude this position is denied. Supervisor, Special Services (Pineland) - Mary Crichton The position carries the in-house title of Director of Program Services. The position is a member of the so-called "Inner Circle" and Executive Management Committee. Those who report to Crichton include the Chief Occupational Therapist, Chief Speech Pathologist, Director of Recreation and four of the five Mental Retar- dation Supervisors, and the Teacher/Principal in charge of the Berman School. The various program supervisors have people under them who each handle groups of resi- dents involved in programs to enhance their daily living skills. Crichton's position was created to handle the Consent Decree requirement that all residents receive at least 6 hours per day of program involvement. She and the Commissioner have fre- quent contact concerning program needs and ways of meeting the problems of individ- ual residents. It was again testified that it was unlikely that the Superinten- dent would make important decisions without consulting the Inner Circle group. The members of the Executive Management group rotate weekend on-call assignments -69- _____________________________________________________________________________________ so that one responsible official will be available at all times to aid staff in resolving special problems which may occur. The record does not support the claim that the duties of this position necessarily involve confidential labor relations or collective bargaining matters in a significant or routine way. The request to exclude is denied. DEPARTMENT OF MENTAL HEALTH AND CORRECTIONS Bangor Mental Health Institute The Institute is a facility for treating the mentally ill which has facili- ties to accomodate 325-350 patient beds, and employs approximately 540 persons. The Superintendent operates the facility and reports directly to the Commissioner. One-half of the facility is devoted to geriatric programs. Approximately one-half of the staff is in MSEA units, and the other half, AFSCME. At the time of the hear- ing the Institute was in the process of recruiting a Superintendent; the long time former Superintendent, Joseph Saxl, died in January, 1981. Saxl had been Superin- tendent during the entire span of collective bargaining, and it was testified that his loss had a traumatic effect on the administration of the Institute, as well as the staff. Excluded positions at the Bangor Mental Health Institute include the Superintendent, the Assistant Superintendent, the Personnel Director and Personnel Technician I (both excluded by class), and the Clinical Director. Clerk Steno III (Bangor Mental Health Institute) - Gwynneth Payer Clerk Steno III (Bangor Mental Health Institute) - Gertrude MacDonald The two positions hold equivalent status as principal secretary or clerical to the Superintendent. They perform all the typing, correspondence chores, filing, and opening of mail for the Superintendent. They also open and distribute all the mail for the Institute at large. They perform secretarial work for the Assistant Superintendent as well. As is the case with the Augusta Mental Health Institute, at BMHI the Superintendent meets regularly with the Executive Management Committee which consists of the Superintendent, Assistant Superintendent (Acting Superinten- dent at the time of the hearing), the Chief of Volunteer Services, the Psychologist IV, the Nurse V, the Institutional Business Manager, the Business Manager I, the Director of Geriatric Programs, and the Director of Personnel (Daniel Michaud). The State is seeking exclusion of all positions which are not currently excluded. No representatives of the Institute have been on any bargaining team during the second and third rounds of bargaining. The Personnel Director, Michaud, was on a team during the first round. During the first round of negotiations Saxl received copies of the bargaining proposals from the Central Office. The proposals were discussed at the Executive Management meetings and recommendations were made. On occasion information was solicited from OER. One of the secretaries would norm- ally attend the Committee meetings and would have access to the discussions, cor- respondence and feedback. Minutes are kept of the meetings and only members and the secretaries receive copies. During the first round many sessions were devoted almost entirely to collective bargaining and at least one of the secretaries was normally present. Sessions may otherwise involve staffing questions or accreditation; accred tation concerns may involve staffing ratios, patterns and coverage, as well as long range goals and plans. Many of these matters are considered confidential. -70- _____________________________________________________________________________________ The testimony was unclear whether or not Superintendent Saxl received copies of bargaining proposals during the second round of negotiations; during the current round (third round) only isolated issues affecting the Institute particularly, such as changes in work schedules, have been reviewed by the Committee. During the first round Saxl and the Personnel Director had frequent discussions regarding the negotiations. In the year prior to the hearing, Saxl and the Personnel Direc- tor had discussions several times a month concerning collective bargaining or griev- ances. The Personnel Director has received confidential matter regarding collective bargaining or grievances which has been typed by the secretaries, either Rayer or MacDonald. The Superintendent had delegated the handling of grievances at his level to Michaud. Michaud handled routine grievances on his own, but would consult with the Superintendent in difficult or precedent setting situations. Michaud testified that bargaining proposals would first go to Saxl, who would delegate to Michaud the responsibility for generating a response or obtaining information. The hearing examiner concludes that except during the first negotiations there have not been regular and routine discussions of collective bargaining mat- ters at the Executive Management Committee meetings to the extent that it can fairly be said that the members of the Committee are intimately involved in the collective bargaining process, or their duties necessarily involve confidential collective bargaining matters arising from membership on the Committee. The Committee's involvement in collective bargaining appears to be principally informational at best and that is not sufficient to warrant exclusion. Furthermore, the intensity of activi- ty generated during the first round of negotiations has greatly diminished and only occasionally are collective bargaining matters of import discussed at the meetings or brought to the attention of the members. That level of involvement cannot justify the exclusion of an entire group or stratum of managerial personnel.[fn]* Since the claim for exclusion of the Superintendent's principal secretar- ies is, to a significant degree, based upon their attendance at the Committee meet- ings, and since they otherwise - since the first negotiations - have only occasional contact with collective bargaining matters of a confidential nature, and for the reasons expressed with respect to the secretary to the Superintendent at AMHI, the request of the State to exclude these two secretarial positions is denied. Clerk Steno III (Bangor Mental Health Institute)- Dorothy Cheney The position is secretary to the Personnel Director, Daniel Michaud. The Personnel Office consists of the Director, the Personnel Technician I, three clericals and three employees involved in staff training. Cheney is described as "primarily an office manager." She has charge of and delegates the typing, filing, and records maintenance functions of the office; and processes all new personnel. She maintains all the confidential files of the Institute, including the grievance files, collective bargaining correspondence, and emergency proced- ure for manning during strikes and other descriptions. Michaud has frequent con- tact with OER concerning grievances, proposals and contract interpretation; con- _______________ * For further discussion of the role of the individual positions in collective bargaining and further discussion of the Executive Committee, see the dis- cussion of the other positions at BMHI, infra. -71- _____________________________________________________________________________________ tact is both verbal and written. Cheney has a key to Michaud's desk. She was present when the attorney from OER and Michaud discussed preparations for these hearings. Cheney sometimes responds to OER requests for information directed personally to her. The departmental bargaining team representatives confer directly with Cheney on occasion concerning collective bargaining and she there- after will relate the substance of the contact to Michaud. The request of the State to exclude this position is granted. Clerk Typist III (Bangor Mental Health Institute) - Justina Barrows Clerk Typist II (Bangor Mental Health Institute) - Cynthia A. Dore These two positions assist Cheney in performing the secretarial and cleri- cal tasks in the Personnel office. Barrows' basic responsibilities involve the processing of new employees, maintaining key files, and occasionally spending time maintaining staff development records. Cheney delegates most of the correspondence required in the office to Barrows or Dore. Dore is principally responsible for handl- ing workmens' compensation for Institute personnel and maintaining the sick and vacation records. She maintains the seniority lists. When Cheney is absent either of the two will fill in for her. The evidence does not establish that the duties of either of these employ- ees necessarily involved confidential collective bargaining matters. It does not appear that either position has the close relationship with Michaud that the statu- tory provision contemplates; Cheney's position does. The request of the State to exclude either of these two positions is denied. Institutional Business Manager II (Bangor Mental Health Institute) - Leo Dunn, Jr. This position has primary responsibility for budget preparation and im- plementation; other areas of responsibility include all maintenance concerns, the operation of the business office, and supervision of approximately one-third of the Institute personnel. Both the Superintendent and the Personnel Director have a close working relationship with Dunn. The Superintendent relies on Dunn's counselling on questions of staffing, capital improvements and renovations. Michaud works closely with Dunn as fellow members of the Executive Committee and its sub- committees; Dunn's office is responsible for the payroll; they consult on budget questions involving staffing. The budget is reviewed and discussed by the Execu- tive Management Committee. Since the death of Superintendent Saxl the Executive Committee has been involved with carrying out the day to day functions of the Institute; the Acting Superintendent had been the Assistant Superintendent under Saxl. At the time of the hearing it was expected that a new Superintendent would be named by June, 1981. The Executive Committee discusses program and staffing needs; the thrust of col- lective bargaining proposals and their impact in various areas; they discuss griev- ances affecting the Institute. Each member of the Committee on occasion reports to the Committee on activities in his or her project area during the prior week; discussion might involve grievances in their particular area. The Institute strike plans were reviewed and approved by the Committee. On a semi-annual basis -72- _____________________________________________________________________________________ the Committee reviews all policies of the hospital. Special problems which arise during "on-call" weekend duty may be discussed at the following Executive Committee meeting. The Executive Committee has formulated input for inclusion in management proposals to be presented at the bargaining table. During the first round of nego- tiations all members of the Executive Committee received copies of the proposals made by either side. On other occasions only aspects of proposals directly affect- ing the Institute might be discussed. It was testified that normally the Superin- tendent would gather information and report it back to the department or he might delegate it to Michaud; the members of the Committee would be informed of the re- sponse. Typically the Superintendent reports to the Executive Committee on things of importance that he has been involved with such as Legislative hearings and plans to separate the Department into two agencies. Members of the Committee serve on the Labor/Management Comittee. It was testified that in recent months (measured from the time of the hearing) there had been no updates on collective bargaining to the Committee. It was not clear that the Superintendent had received copies of the most recent proposals prior to his death, but Michaud testified that he and Saxl had discussed them; Michaud had attended a review of negotiations held at the Central Office which Saxl did not attend. He later discussed the meeting with Saxl, Michaud also testified that his knowledge of the recent negotiations came largely from attend- ance at meetings of departmental personnel officers and he would thereafter re- port back to the Executive Committee on these meetings. The Institutional Business Manager has been involved in collective bar- gaining matters principally through his association with the Executive Committee. Occasionally he may be consulted in regard to some matter which may touch on collective bargaining. However, the testimony on this position verifies that the principal, collective bargaining operative at the Institute is the Personnel Direc- tor and that, in the main, reports are made to the Executive Committee as a matter of updating the members and informing them. The Committee and its members are not, qua Committee, necessary instruments of confidential collective bargaining insofar as the interests of the State, the Department or the Institute are concerned. The request of the State to exclude the position of Institutional Business Manager I at Bangor Mental Health Institute is denied. Director, Geriatric Services (Bangor Mental Health Institute) - Hope Hurd Director of Rehabilitative Services/Psychologist IV (Bangor Mental Health Institute - Ruth Ann Phelps Hurd's areas of responsibility involve approximately one-half of the Institute's activities. Her principal responsibility is to see that the standards of the Department of Human Services are complied with. She is principally an ad- ministrator, but has clerical responsibilities since she must review the clinical needs of the programs she administers. The claim for exclusion is based upon three activities on Hurd's part: her relationship to the Superintendent and the Executive Committee, the responsibilities when on On-Call duty, and as Chairperson of the Policy Review Committee. It was testified that when "On-Call" it is not necessary to be on the grounds, but must be available when staff need advice or have problems. A monthly On-Call schedule is posted. Some On-Call personnel serve on other rotat- -73- _____________________________________________________________________________________ ing On-Call rosters, such as in the medical and psychological areas of responsi- bility. When on "On-Call" and problems arise, the Superintendent would be con- tacted only in extreme situations. The Policy Review Committee was established as a sub-committee of the Executive Management Committee. It is charged with reviewing and drafting poli- cies for later Executive Committee Review in 3 areas: personnel, administrative, and patient care. JCHH requires a policy review program and the Policy Review Committee has responsibility for maintaining review for that purpose. On the Policy Review Committee are Hurd as Chairperson, Nurse V (Carlisle), a member of the pro- fessional clinical staff (Anderson), the Business Manager (Woodbury) and the Staff Development Coordinator (Thomas Wood). Some of these individuals are not regular members of the Executive Management Committee, but presumably are on the PRC as designees of members. The PRC has consulted with the Personnel Director on mat- ters of collective bargaining interpretation when necessary in deliberating on policy; contract change requirements may dictate change in policy. Phelps has about 30 staff members who report to her. She is a Clinical Psychologist who has responsibility for many auxiliary matters, such as recrea- tion and physical therapy. She is a member of the Executive Committee and the psychologist On-Call roster. She reports directly to the Superintendent. Her pro- gram must meet accreditation standards, and her responsibilities touch all program- matic areas. At the time of the hearings she was on an educational leave of ab- sence and no other individual or position was filling in for her. The request of the State to exclude these two positions is denied. Other than service on the Executive Management Committee and Policy Review Commit- tee their relationship with confidential collective bargaining matters is peripheral What contact they do have is largely informational in nature. They do not have key roles in confidential labor relations or collective bargaining matters. The re- quest to exclude either of these positions is denied. Business Manager I (Bangor Mental Health Institute) - vacant (formerly Thomas Woodbury) At the time of the hearing the position had been vacant for about two weeks. The Business Manager (BM) has primary responsibility for the business office functions, including payroll and budget. Budget responsibilities include establishing priorities for spending levels and drafting budget provisions. Al- though the Institutional Budget Manager would consult with Woodbury on difficult matters, day-to-day budget affairs were handled by Woodbury. The BM has been in- volved in costing-out proposals on occasion regarding changes of hours or sched- ules, and has costed-out grievance settlement alternatives. Requests for costing may come from the Personnel Director, OER or from the Central Office. He is on the On-Call roster and is first level grievance officer for the personnel he super- vises. Many of the BM's budgetary functions and costing activities are unrelated to collective bargaining, but may be related to such things as Legislative budget review; much of the information provided is public information or payroll data. In determining budget priorities budget personnel, and the BM in par- ticular, may have to look at such things as overtime considerations or other -74- _____________________________________________________________________________________ contract related matter. At the time of the hearing, negotiations included an attempt to change work schedules and the BM was engaged in gathering cost information; his oversight of the payroll was given as the reason for his involvement. Cost im- pact would be discussed with the BM and reviewed by the Executive Committee. How- ever, it was also testified, that in view of Woodbury's non-confidential status, in most sensitive costing situations either Dunn would get the information, or the in- formation might be obtained through the Central Office. It was also testified that persons receiving the request for such information would normally not know the pur- pose behind the request, although in reality they would probably perceive the rea- sons. The evidence does not indicate that the Business Manager has a critical or necessary role in confidential collective bargaining matters involving the Institute or the Department, and should not be excluded. It was testified that costing activity, although related to ongoing negotiations or other sensitive employee relations purpose, need not require disclosure to the investigator of the underlying reason for the request. The Business Manager is not otherwise engaged in collective bargaining related activity, other than attendance at Executive Committee meetings. The request to exclude this position is denied. DEPARTMENT OF TRANSPORTATION (DOT) The department employs approximately 2,500 employees; about 500 of the total are in the Capital Area. It has seven Regional Divisions. A management study was completed in the Fall of 1980. In a recent reorganization the depart- ment went from two Deputy Commissioner positions to a single Deputy position tied closely to the Commissioner, and who can act in the Commissioner's stead in a variety of capacities. Staff officers to the Commissioner include heads of the Office of Equal Opportunity, Employee Relations, Internal Audit, Policy Analysis, Policy Studies (a new office to assist the Commissioner in making policy studies), Legal Services, and Special Services (public information, maps, etc.). There are several major, functional bureaus of the department; most, if not all, of the heads of the various bureaus and principal divisions are excluded positions. At the time of the hearing there were 25 excluded positions including the Commissioner, Deputy Commissioner, two positions in the Employee Relations Division, the Person- nel Officer and two Personnel Technician positions in the Personnel Office, and various division or bureau heads within the department. There was one excluded clerical position - the Senior Administrative Secretary, a position excluded by class. The Employee Relations Division and Personnel Office are separate offices.[fn]* The Director of Employee Relations reports directly to the Commissioner; is the _______________ * It appears that there is a Personnel Officer position in the Employee Relations Division and also a similar position in the Personnel Office. It also appears from Exhibit P158 (organizational chart) that the Personnel Office is an office within the Bureau of Finance and Administration. -75- _____________________________________________________________________________________ central contact person for collective bargaining matters; has been the DOT repre- sentative on State bargaining teams; and is the designate for hearing grievances at the Commissioner's level. On the other hand the Personnel Officer in Person- nel is primarily involved in the administration of the personnel laws and regula- tions on behalf of DOT and in its relationship with the State Department of Per- sonnel. The Personnel Office works closely with the Employee Relations Division, including providing information needed to carry out its collective bargaining functions. Clerk Steno II (DOT) - Rebecca S. Greene The position is principal secretary to the Personnel Officer or Personnel Director (in the Personnel Office). Greene is the receptionist for that office, handles correspondence for the Director, and conducts all personnel transactions for the competitive positions in the department. She opens general mail addressed to the Director, but not mail from OER or that marked "personal" or "confidential." She does not open mail addressed to the Commissioner or Deputy Commissioner. She does filing for the department and also delegates filing tasks. Because of cleri- cal turnover, in the past year, she has also had the burden of handling the pro- cessing of new hires and other tasks regarding highway crews and has done quality control checks before payment approval. The typical files handled by Greene in- clude the individual files of DOT employees which contain most of the major trans- actions involving the individual, such as personnel actions, evaluations, and disci- plinary entries; files containing correspondence with the State Personnel Depart- ment and with units within the department; and such items as salary surveys. The Personnel Director has occasional correspondence with OER. He has some correspondence with the two departmental representatives on one of the State bargaining teams, but has much more personal contact with them. He has correspond- ence with the Employee Relations Division of DOT, but he handles some of this per- sonally. The Director's office adjoins the Employee Relations office and the Com- missioner's office adjoins the Employee Relations office on the other side; they have ready access to one another. Greene's desk is not located in the immediate area of the Director's office but is several positions distant. Occasionally Green does overflow typing for the bargaining team representatives. Greene occasion- ally responds to questions from field personnel concerning contract provisions, such as questions on sick leave, and the like. During the first round of negotia- tions the Personnel Director was on the State negotiating team; during the second round it was not necessary to have a representative on each team. Greene became the Director's principal secretary in December, 1978 when she was reclassified as a Clerk Steno II. It was testified that the Director keeps certain files in his office; Greene does not know the substance of these files. Greene does not know where collective bargaining related files are kept. In prior years Greene received items related to bargaining proposals to file; in the current round nothing of that nature has been given to her. The Employee Relations office does not have an assigned secretary, but Greene has done very little typing for them; she does reception duty for them, but not typing. -76- _____________________________________________________________________________________ This position does not involve duties which "necessarily imply" a confidential relationship with respect to matters related to collective bargain- ing. On the contrary, the records reflects that the principal duties involve activity quite distinct from collective bargaining. Green's involvement in collec- tive bargaining concerns has been peripheral and isolated. Indeed it was testified that the central contact point for collective bargaining within the department was the Employee Relations office, not Personnel. The request of the State to exclude this position is denied. Clerk Typist II (DOT) - Gloria Carey (formerly Diane Stevens) This position handles most of the crew documentation for the office under the direction of Greene, which involves responsibility for getting necessary docu- ments into the system. She does general typing and filing for the office; it is the principal filing position in the office. Occasionally the Director will give work to Carey directly. She has access to all office files except those on the Director's desk. This position is less likely to do typing for the Employee Relations office. The request of the State to exclude this position is denied. Clerk Steno III (DOT) - Joseph Durocher This position is in the Bureau of Finance and Administration. It is the principal receptionist in the Bureau and is principal secretary to the Bureau Director, Henry Cranshaw. Durocher handles all correspondence for the Director, receives all mail and distributes mail and other items throughout the Bureau. The Personnel Office is an office within Finance and Administration. The Bureau handles all support functions for the department, including data processing, office services, and budget; it handles all of the non-engineering functions of DOT. The Bureau has approximately 70 employees. Durocher also does some typing for the Employee Relations office; it was testified that his is the initial posi- tion they would go to. The department bargaining team members give their negotia- tions notes to him for typing and he reports to Cranshaw regarding their attend- ance at bargaining sessions. The Employee Relations office and OER often times exchange correspondence, and it may be transmitted through one of the negotiating team members or through Cranshaw as a member of the Personnel Policies Group (PPG). The Personnel Policies Group consists of all major Bureau directors, office heads, and other key personnel; all positions are either excluded or in the pro- cess of request for exclusion. It meets on an as needed basis - approximately 6 - 12 times in the year preceding - and reviews policy areas and makes recommenda- tions to the Commissioner in the areas of personnel, finance, and safety. A summary of the meeting is drawn up by the Commissioner and typed by Durocher. Re- commendations or comments on proposals may go out under the Commissioner's signa- ture, but comments frequently go back in verbal form. Durocher would probably type up these memoranda. The PPG may also discuss other labor relations policy mat- ters either for the purpose of obtaining consistency throughout the department or to resolve policy issues prior to determinations. Occasionally the Personnel Di- rector will correspond with OER and Durocher may type these memos. Copies of PPG -77- _____________________________________________________________________________________ summaries are most often hand carried to the individual members; if the content is highly sensitive it will always be hand carried. It was testified that should Employee Relations get approval for a new secretarial position, Durocher may be relieved of some of the foregoing duties. It appears that at the time of the hearing Durocher filled a critical secretarial position with respect to the conduct of collective bargaining by DOT. Until another secretarial position fills that role, this position should be excluded The request of the State to exclude the position is granted. Secretary (DOT) - Claire Fitzgerald This position is assigned to the Director of Policy Analysis, a relatively new office. The office conducts studies on subject areas designated by the Commis- sioner. At the time of the hearings it was primarily involved in management stud- ies and a study of the cost allocations system. Because of the current fiscal cli- mate, the office had a special relationship with the Commissioner. Fitzgerald was still under the partial supervision of the Senior Administrative Secretary, Iva Fox, from whom she still received some work for the Commissioner or Deputy Commis- sioner; prior to her transfer she reported to the Deputy Commissioner. The Deputy Comissioner has his own secretary, Norma Bolduc, for whom exclusion is also sought. Fox, Fitzgerald and Bolduc's stations are close to one another. Fitzgerald has access to the same bank of files as the Commissioner's secretary - PPG files, cor- respondence with the Governor and with OER. It was testified that the Office of Policy Analysis would be involved in policy decisions regarding potential layoffs. The record does not contain sufficient definition of the role of the Office of Policy Planning in confidential collective bargaining areas, such as would justify the exclusion of this position at this time. It is a relatively new office and perhaps more time is required before a realistic appraisal of this involvement can be made. The request of the State to exclude this position is denied. Clerk Steno III (DOT) - Norma Bolduc This position provides secretarial support to the Deputy Commissioner. Prior to the consolidation of Deputy positions the position reported to the Deputy Commissioner for Planning and Administration. The Commissioner and Deputy Commis- sioner currently function as one office. Bolduc opens all mail. She is the first backup secretary to Iva Fox. It was not clear whether Fox would screen out sensi- tive material from Bolduc. The request of the State to exclude this position is denied. Trial Attorney (DOT) - Eugene Murray The office of Counsel at DOT employs 9 attorneys. Six are Trial Attorneys; the others are Transportation Attorneys who do title searches and research. The office also employs some paralegals. Murray attends PPG meetings as the designee of the Chief Counsel. It was testified that the Commissioner would seek advice from the Chief Counsel on collective bargaining-related matters, rather than from Murray or other attorneys -78- _____________________________________________________________________________________ in the office. At one time Murray participated in or gave advice relative to grievances, or the grievance process, or helped in preparation for arbitration, but for the past year or so he has not so participated. It was testified that much of the work he may formerly have done in the area of labor relations would now be handled by OER. The request of the State to exclude this position is denied. Analyst Programmer III (DOT) - Raymond E. Halperin This position is the only Anlayst Programmer III in the department. The Data Processing section of DOT Computer Services is under the supervision of the Director of Data Processing, which was a new title and not yet filled at the time of the hearing. Other state agencies have their own computer sections - such as Manpower Affairs - but DOT is the only department which has a major personnel segment - approximately 1500 Highway Maintenance employees - whose personnel records and data are not tied in with the State personnel system and computer banks, and consequently information for bargaining costing and related purposes can be obtained only by running programs through the DOT computer services. Halperin is the senior programmer and senior non-engineer in the department. Only DOT com- puter personnel can program and operate the department computer systems, although some employees in the Personnel Division have access for limited purposes. Hal- penn has been asked to cost-out proposals for OER. Approximately 60-70 percent of the Operations, Maintenance and Support Services bargaining unit of State em- ployees consists of DOT highway crew persons. It was testified by an OER Research Specialist - Vurle Jones - that he has worked with the head of DOT Computer Services[fn]* extensively. Because the Central Computer Services of the State does not have in- formation on file from the 2500 file - DOT highway crew or maintenance - it is neces- sary to obtain it from DOT Computer Services. Jones testified that he, Verrill and the Director of Employee Relations (DOT) spent 7 or 8 days reviewing all of the collective bargaining proposals. It is not possible for DOT to provide more infor- mation to the Central Computer Services of the State so that OER could obtain data from a single computer source. To do that it would be necessary to transcribe the DOT programs or data bases, and that is improbable since the two are in entirely different computer languages. Jones has occasionally dealt with individual program- mers in Central Computer about needed data. Jones and Verrill have discussed possi- ble-State alternative bargaining proposals, and Jones has received information from Verrill for supporting counterproposals. Jones attends some negotiating sessions, but otherwise relies on OER negotiators for keeping informed about the course of negotiations. Jones has developed programs from which he can project or create special programs for purposes of costing proposals. The general programs involved the gathering of all critical employee data statewide and the development of aver- age costs for employees in State government. With this base information he is in a position to cost out union and State proposals. For general informational and preparation purposes he will run programs two times per year - after the contract _______________ * At the time of the hearing on DOT positions, the position of Director of Computer Services was vacant. Verrill, the former Director, had been appointed Director of the Office of Policy Analysis. -79- _____________________________________________________________________________________ is signed and on January 1 of the following year. New proposals are projected on data on file. Jones testified he could not get information for DOT maintenance crews without dealing with Verrill, or someone in that position. Halperin was one of the Programmer's to whom Verrill would assign an OER request. Halperin has been asked to cost out proposals; as with other requests he may delegate a junior Programmer to the request. The State had petitioned for the exclusion of other Programmers in DOT on the basis of delegation of assignments from Halperin, but withdrew the request on the additional positions at the hearing. In view of the importance of the DOT Computer Services in the State's collective bargaining scheme, the senior Programmer position should be excluded. The request of the State to exclude this position is granted. Clerk IV (DOT) - Jennie D'Auteuil The position is secretary to the Director of the Bureau of Maintenance and Operations, Alden Small. The Bureau is responsible for all highway, bridge and traffic operations, all state aid programs, and the Motor Transport service of the department. It has 1500 employees, approximately 1200 of whom are in the OMS bar- gaining unit represented by MSEA. Other employees are in other MSEA units. D'Auteuil has been in her position - secretary to the Director - for many years. The Regional Division offices cover specific geographical areas, each handled by a Civil Engineer, and they are under Small's immediate jurisdiction. In the most recent bargaining negotiations Small has participated in discussions with the mem- bers of State bargaining teams from the department and the Commissioner. He has received copies of a few bargaining proposals and has given his analysis to the Commissioner and to the bargaining representatives. Small has not received cor- respondence from OER directly but has received copies of correspondence between OER and others. Small has daily exchange of correspondence with the Commissioner and D'Auteuil types these for him and opens the responses from the Commissioner; some of these may involve collective bargaining-related matters. Thus far - at the time of the hearing - correspondence received from others regarding collective bargaining - as from Doucette and Jaecks, members of the OMS bargaining team - has been hand delivered. However such material is delivered to Small, once received and reviewed by Small it is then returned to D'Auteuil for filing. Doucette and Jaecks have left correspondence for Small with D'Auteuil, some of which Small believed to be confidential collective bargaining material. Small is also in- volved in contract administration, and he is the 2nd step in the grievance pro- cedure. He sometimes has discussion with Augusta and the Regional Offices regard- ing these matters. D'Auteuil maintains his grievance files. It was testified that Small's predecessor in office, Rissel, was chair- person of the Personnel Policy Committee (PPC), and during the first round of nego- tiations as chairperson of PPC he analyzed the bargaining proposals. Rissel was in charge of coordinating these activities. This concentration on bargaining proposals was due to the character of the OMS unit and the large number of DOT members in that unit; it was testified that seemingly minor proposals can have a serious impact. The impact of overtime, for example, is much less dramatic for other bargaining units than for a unit with hundreds of highway employees. There -80- _____________________________________________________________________________________ are a great variety of classifications and alternate classifications and these complexities require the intimate involvement of the Bureau Director in collec- tive bargaining matters that may impact the Bureau and the department. As another example of the impact of a grievance or a proposal on a large group of employees, the recent case involving proposed telephone charges was cited. Because of the importance of the Bureau the responses of the Bureau of certain types of proposals are critical; any proposed personnel rule changes, or the like, would have to be reviewed by the Director of the Bureau. Whether as Bureau Chief or as chairperson of the PPC, Rissel made a number of comments in writing on various bargaining pro- posals. In many cases D'Auteuil may have typed these memoranda and hand delivered them to the Employee Relations Personnel Officer, Nichols. Although it appears that the role of the Director of this Bureau in sen- sitive employee relations matters may have been delineated on the record of these proceedings more clearly, there is sufficient in the record to underscore the im- portance of this Bureau in the collective bargaining activities of the department and the State. The request to exclude this position is granted. Civil Engineer IV (DOT) - Merton Brackett Civil Engineer IV (DOT) - Paul Tibbetts Brackett and Tibbetts are Division officers who report to the Director of the Bureau of Maintenance and Operations, Alden Small. Brackett had been a mem- ber of the Coalition bargaining team during the first two rounds of negotiations. He was not a member of the current team. He is a management member of the Labor/ Management Committee. It was testified that Brackett is consulted by management because of his experience and past membership on the State bargaining team. Both Brackett and Tibbetts are in the Supervisory Services bargaining unit. Tibbetts is currently on the Coalition bargaining team. The only other permanent team member from the department is the Director of Employee Relations, Howard Doucette, who represents the Commissioner in the Supervisory unit bargaining team. Tibbetts has provided information on the progress of bargaining through in- formal meetings with Doucette; he has attended PPC meetings as guest speaker; and he has kept the Commissioner advised. Brackett has not been involved in these in- formal sessions during the current round, nor is there any evidence that OER has consulted with Brackett because of his past membership on the Coalition team. During Brackett's service on the team he met on occasion in Doucette's office. with Roselle, Jaecks (Employee Relations Specialist in Doucette's office), and Cranshaw to review the negotiations or discuss particular issues; occasionally Verrill would attend. Except for Tibbetts' position on the Coalition team during the current round of negotiations, the record is all but devoid of evidence of his involvement in confidential labor relations matters. However, since Tibbetts is a member of the Coalition team and therefore privy to confidential negotiating strategies and discussions, he will be excluded. Should he cease to hold that position, a petition to restore him to the bargaining unit would appear to be in order. Since Brackett is no longer a member of any negotiating team and there is little evidence of his continuing involvement in collective bargaining affairs, -81- _____________________________________________________________________________________ he will not be excluded. The request of the State to exclude the position of Civil Engineer IV (DOT) - Paul Tibbetts - is granted. The request of the State to exclude the position of Civil Engineer IV (DOT)- Merton Brackett - is denied. DEPARTMENT OF MANPOWER AFFAIRS (DMA) The department employs approximately 900 employees; it is the fifth largest state agency. The department is divided into several Bureaus, including the Bureau of Employment Security and the Bureau of Labor Standards. Among cur- rently excluded positions are the Commissioner, Director of Administrative Serv- ices, Executive Secretary of the Employment Security Commission (Bureau), the Department Personnel Officer (DPO), and Administrative Coordinator.[fn]* Clerk IV (DMA) - Susan Bell At present there are no clerical positions which are excluded under the Act. The DPO, Mr. Flaherty, has been a member of the State Coalition bargaining team since the beginning of collective bargaining. Flaherty does not report to the Commissioner (William Malloy) but rather to the Director of Administrative Services and through him to the Executive Secretary of the Employment Security Commission. Flaherty administers the collective bargaining agreements for the Bureau of Employment Security; gives advice on a departmentwide basis with respect to Collective bargaining and contract interpretation; and represents the Commissioner on grievances that proceed to the Comissioner's level. Flaherty at times has daily contact with OER. Flaherty is Bell's immediate supervisor; she does not re- port to anyone else. Bell does all of Flaherty's typing and filing and only the two have access to his files. She has been in the position since October, 1977 - at the beginning of the first negotiations. Flaherty considers Bell to be an "Administrative Aide" rather than his secretary. The Commissioner and Flaherty receive copies of all proposals. Flaherty has sent written comments about various proposals to OER. Bell would type these comments. Flaherty processes all grievances for the Commissioner; he sometimes is a witness for the State in grievance or arbitration and will receive written ma- terials regarding the matter. Bell types all grievance decisions and has access to all grievance or arbitration materials. In Flaherty's absence, Bell on occasion responds to questions concerning personnel regulations or contract interpretation. They occupy the same office and Bell is privy to all of Flaherty's telephone con- versations. The office is frequently requested to supply information by OER or the Commissioner's office. Either Flaherty or Bell will gather the information and Bell will type it up. It was testified that normally Flaherty would review pro- posals or counterproposals with Bell simply to "get her reading" of them. The request of the State to exclude this position is granted. _______________ * There may be others. Those listed are important for purposes of this proceeding. -82- _____________________________________________________________________________________ Administrative Secretary - Linda Layman This is the principal secretary to the Commissioner. In the office there is also an Administrative Coordinator position, which is excluded under the Act. The Coordinator, Marjory Morrison, principally has the responsibility for coordinat- ing the activity of the Commissioner's office; Layman's principal responsibility is to handle the correspondence. Layman's position is more clerical; Morrison's more administrative. As Commissioner of a major department, Malloy receives copies of all proposals, counterproposals and copies of reviews of negotiations. Although Layman may not see some of these materials on receipt, particularly if marked "confidential," she will either be given responses to type or receive the materials for filing. Layman typically would open all the mail addressed to the Commissioner. Flaherty has frequent contact with the Commissioner on requests from the Governor's office, Personnel, or OER, and although much of this may be verbal contact, much is by way of memo or "buck" slip and Layman has access to these. Layman has been in the Commissioner's office for nine years. The request of the State to exclude this position is granted. STATE BOARD OF NURSING Assistant Executive Director - Jean Caron The State Board appoints the Executive Director and Assistant Executive Director. At the time of the hearing there were seven employees. The roles or job definitions of the two positions are quite different. Although the Assistant Execu- tive Director fills in for the Executive Director during absences, the Assistant Executive Director's primary role is to handle all complaints and disciplinary proceedings involving licensed nurses, who are not employees of the Board. In this capacity the Assistant takes matters before the Board and handles all correspondence related thereto. One of the primary duties of the Executive Director is to make site visits to schools of nursing; if however it is a matter of practice, the Assistant would get involved. The Executive Director and the Board do site reviews every three years. The Assistant Director is in charge of the management of the office. She had direct supervision of three employees; she evaluates them, and if a decision were required regarding one of these positions the two would consult on disposition. There has been some contact with OER regarding bargaining proposals. In the first negotiations the two reviewed a packet of proposals that was received. There was no evidence that a response was made. The contact between the Director and Assistant Director is frequent. The Board meets 10 times a year and both attend these meetings; on occasion the Board may discuss a personnel matter. The bargain- ing proposals were not brought before the Board. There have not been any grievances involving staff over a period of 10 years nor are there any arrangements for handling grievances. The hearing examiner does not believe that there is sufficient evidence that the duties of this position necessarily involve confidential collective bar- gaining matters. Under the circumstances the request to exclude this position is denied. -83- _____________________________________________________________________________________ DEPARTMENT OF MENTAL HEALTH & CORRECTIONS - STATE PRISON SYSTEM The State Prison at Thomaston employs approximately 245 employees, includ- ing 170 Security Force personnel. Two-thirds of the employees are in the AFSCME Institutional Services bargaining unit and the remaining one-third are in MSEA units. There are two Deputy Wardens - a Deputy Warden for Care and Treatment and a Deputy Warden for Custody. The Deputy Warden positions are statutory. The Warden reports directly to the Director of Corrections. The Prison is a reasonably self-contained facility. Currently among excluded positions are the Warden, Paul Vestal, and the Personnel Officer, Carl Hennings. Deputy Warden, Care and Treatment - Lars Hendrikson Deputy Warden, Custody - Joseph Smith When the Warden is absent - on the average of one day per week - Smith will assume the role of Acting Warden and during those times he has authority to fully act except for instituting policy changes. Smith is Supervisor of the Security Force, the garage and outside crews. The Wardens and Deputies are usually in close contact with one another on a daily basis; however, the lines of authority are well delineated. In the current round of negotiations the department representative on the State team has had discussion with the Warden on various proposals; the Warden has provided information and has made suggestions. The Personnel Officer, Hennings, has normally acted as the transmittal agent in these exchanges and has also expressed his own views in various areas. There is no evidence that the team representative or the Warden has had any discussions with either of the Deputies regarding the nego- tiations. Hennings testified that occasionally one of the Deputies might provide a suggestion to him concerning something relevant to collective bargaining. It was also testified that during the first round of bargaining the Warden and Hennings received copies of proposals by management and labor, but there was little or no input or response; there is no evidence that either one discussed the proposals with either of the Deputies. There is no evidence that either Deputy was involved in a meaningful way in the second round of negotiations. The Warden holds staff meetings every Monday which include the Deputies, Chief of Security and the Insti- tutional Business Manager. Meetings are also held on Wednesday afternoons. The testimony did not indicate that sensitive collective bargaining matters were dis- cussed or resolved at these meetings. There is an emergency plan for the operation of the Prison: Discussions concerning the plan were held with the Deputies and others; discussion s included personnel among the Security Forces down to the Lieutenant level. Lieutenants are in the bargaining unit. There was nothing to indicate the discussions leading to formulation of the plan involved confidential employee relations subject matter which would suggest the necessity for excluding the participating personnel. The request of the State to exclude the Deputy Warden positions is denied as to each position. Chief of Prison Security - Don Jacobson The position involves much greater contact with inmates than the Deputy Warden positions. There is a close relationship between the Warden and Chief of -84- _____________________________________________________________________________________ Security. A principal aspect of the position is the responsibility for investi- gating inmate activity. The State Police have the responsibility for investigating suspected employee activity. However as the supervisor for the Security Force, Jacobson would obviously have a role in such investigations. There is nothing in the record to suggest that this position is neces- sarily and regularly or routinely involved in confidential collective bargaining matters. The request of the State to exclude this position is denied. Secretary - Elaine Wood (formerly Doris Healey) This position is secretary to the Warden. Wood supervises two typists and the office receptionist. She schedules the Warden's appointments, handles his mail, does the filing and performs all of his correspondence and typing. Wood assigns some of these clerical tasks to those she supervises. Although she does not open mail marked "confidential," she would receive the material back for filing or for typing any response that was indicated. A typing pool handles most of the work for the Deputy Wardens. The Warden hears grievances at that level; the Personnel Officer maintains the general grievance files. Wood sees all grievances at the Warden level and main- tains the Warden's files on these grievances. Memoranda from the Personnel Officer to the Warden would normally go through the Warden's secretary, whether or not the matter was handwritten by the Personnel Officer - as is sometimes the case - or typewritten; some of these may involve collective bargaining concerns. Wood handles all correspondence between a grievant and the Warden; between the department bar- gaining representative and the Warden; and between the Governor's office and the Warden, which occasionally occurs. The emergency "strike" plan was typed up by the Personnel officer but Wood probably filed it for the Warden, whether or not she actually saw the contents. The record falls short of establishing that the duties of this position necessarily imply a confidential relationship with respect to matters subject to collective bargaining. It may be that the principal secretary to the Warden of the State Prison should be a privileged or confidential position. No doubt there are many aspects of prison administration which are a matter of confidentiality or protected privilege. However in this proceeding we are concerned with confiden- tiality associated with collective bargaining matters solely, and the record does not support a conclusion that this position is involved with such matters sufficient to exclude it from enjoying the benefits of the Act. The request of the State to exclude this position is denied. DEPARTMENT OF MENTAL HEALTH & CORRECTIONS - MAINE CORRECTIONAL CENTER Secretary - Judith Bailey (formerly Marjorie R. McDonald) The position is principal secretary to the Superintendent. It is the only secretarial position in the office. The secretary receives and opens all mail, in- cluding collective bargaining correspondence. In the past the Superintendent has received copies of bargaining proposals and has been asked to respond on the impact -85- _____________________________________________________________________________________ on the Center and its budget; the proposals were received through the Department Personnel Officer, Mr. Mack. The Secretary would have typed the responses. Only she and the Superintendent have access to the collective bargaining file. She maintains the Superintendent's grievance file. He is the 2nd step of the grievance procedure. The Secretary types the responses to grievances. Occasionally the Superintendent will request an interpretation of a contract provision for grievance or discipline purposes and the Secretary will handle the correspondence. He takes notes on all disciplinary matters and she has access to these notes. His notes may on occasion be communicated to the DPO for use at the 3rd step procedure; these notes may contain information of a private character with respect to the grievant. In the span of the past two years he has heard 40 or 50 grievances, one-half of which have gone to the 3rd step. In the most recent negotiations the Superintendent has not received the full management package. He has had some verbal comunication with the DPO and Bureau Director regarding some of the proposals and Bailey has overheard some of these exchanges because of the lack of separate offices. The Secretary spends less than 5 percent of her normal working day on confidential collective bargaining matters. The request of the State to exclude this position is denied. Business Manager II - Scott Birnheimer (formerly Anthony L. Meucci) The position is responsible for all financial matters involving the in- stitute. The Business Manager also serves as the Personnel Officer for the Center. When there are discussions of collective bargaining matters, most frequently the Superintendent will involve the two Assistant Superintendents and the Business Manager. However, the current Business Manager has been in the position approxi- mately seven months and has not participated in discussions concerning bargaining proposals in that time. In the past the Business Manager has been asked to pro- vide fiscal information or has provided cost factors with respect to proposals or grievances. On occasion Birnheimer may have provided cost input for grievance purposes. On occasion the Department Personnel Officer contacted Mr. Meucci regard ing matters related to collective bargaining. The Superintendent and Business Mana- ger share much of the information related to grievances. The Business Manager supervises six employees and has managerial responsibility for plant maintenance, food services, and the correctional trades. The Superintendent is the only excluded position at the Center and no one from the Center has ever served on a management bargaining team. The request to exclude this position is denied. DIVISION OF PROBATION AND PAROLE Clerk Typist III - Eloise Peaslee The position is the Administrative Secretary of the Division of Probation Parole. The position is also secretary to the Director of the Division. The Director position has been filled by the Acting Director, Peter Tilton, since April -86- _____________________________________________________________________________________ 1980.[fn]* The Acting Director keeps collective bargaining related material in a locked file to which only he and Peaslee have access. In prior negotiations the bargaining team representative from Mental Health and Corrections had contact with Tilton on certain proposals and questions which arose during negotiations. On occasion he would respond to their inquiries and Peaslee would type the correspond- ence. In the current negotiations Peaslee has not been involved in any confiden- tial correspondence concerning matters related to collective bargaining. Since the separation of the Department of Corrections Tilton has not had access to Meiser. The Department of Corrections Personnel Officer, Frank Mack, has attended the AFSCME negotiations but the Division of Probation and Parole does not have any employees in the Institutional bargaining unit. Tilton, as Acting Director, has responsibility at Step 2 of the griev- ance procedure. He investigates and makes decisions. On occasion he may consult with others concerning the interpretation of contract provisions. Some of these contacts may be written and involve Peaslee. Peaslee also has access to consulta- tion among staff on these questions. Tilton has advised Peaslee to be aware of confidential collective bargaining matters and to refrain from assigning such matters to other clericals. Frank Mack has been assigned the responsibility for contract interpre- tation within the Corrections Department. Tilton has had dialogue with Mack - both written and verbal - on questions of contract interpretation. It was testi- fied that Peaslee has access to some of this dialogue. It was also testified that a good deal of correspondence or communication regarding contract interpre- tation occurred when Meiser was the contact person for the Department of Mental Health and Corrections. The testimony does not indicate this position is so regularly or rou- tinely involved with sensitive collective bargaining matters as to justify ex- clusion. The request to exclude this position is denied. DEPARTMENT OF DEFENSE & VETERAN SERVICES The Commissioner of this department is a Major General in the National Guard. It is a cabinet level position. The department has distinct federal re- sponsibilities with respect to the National Guard and distinct State responsibili- ties in the areas of Civil Preparedness and Veterans Services. As State Commander of the National Guard Major General Day has command over 3,700 National Guardsmen and 600 Federal technicians; all of these are financed by the Federal Department of Defense. At the State level there are 150 employees who are on the State payroll. The department received $25,000,000 in Federal funding for its military support _______________ * See the discussion of the positions of Director and Acting Director of the Division of Probation and Parole supra in this report. Evidence on this position was received after September 18, 1981. -87- _____________________________________________________________________________________ operations and $5,000,000 in Federal and State money for its state-related activi- ties The State employees are in various MSEA bargaining units. General Day maintains separate offices at Camp Keyes and in the State Office Building. The Central Business Office is located in the State Office Building. Although General Day spends much time out of Augusta or out-of-state, when in Augusta he spends approximately 55-60% of his time at Camp Keyes and the remainder in his office at the State Office Building. Among excluded positions, in addition to Adjutant General Day, are the Personnel Officer, a Deputy Adjutant General, the Director of Civil Emergency Preparedness and Veterans Services, the Deputy Director of Civil Emergency Preparedness and a few others. Deputy Adjutant Reed is Director of the Military Bureau and in that capacity he supervises all the support services for General Day in his capacity as Commander of the National Guard. Deputy Reed has an office at Camp Keyes but does not have an office at the State Office Building. Secretary - J. A. MacKenzie This position is principal secretary to the Commissioner. General Day has held the position of Adjutant for approximately 10 years. MacKenzie has been in her position approximately 14 years. Prior to the past two years MacKenzie was located at Camp Keyes as was General Day's office. Two years ago the civilian, or State, administrative functions were transferred to the State Office Building and MacKenzie's position was transferred as well; at that time an office for General Day's State re- sponsibilities was provided in the State Office Building. As a consequence of the move General Day performs some administrative tasks through his Camp Keyes office, and some through his office in the State Office Building. MacKenzie, however, never does any of the General's military-related secretarial work, but only that related to his State responsibilities. To that extent her job has changed dramatically in the past two years. Whereas formerly she maintained the General's files, now she does little of this since his principal files are kept at Camp Keyes; filing however is an integral part of her job description. Formerly she did some work for Colonel Adams, who is in immediate charge of clerical support for the Military Bureau. Now Mackenzie does some work for Ray Dutil, the Director of Administrative Services and Personnel Officer, whose offices are in the State Office Building. Dutil's office provides budget, auditing, purchasing, personnel, and like services for the State- related aspects of the department; Dutil does not spend any time at Camp Keyes. The Commissioner hears grievances at the department level. Dutil does research on grievances for Commissioner Day and has heard grievances for the General on a couple of occasions. MacKenzie may be required to handle grievance documents or to write up grievance decisions. It is claimed that grievance decisions are con- fidential until released. Day has received communications and proposals from OER and has discussed them with Dutil. There was no evidence that MacKenzie has handled any correspondence regarding proposals. Day has occasional correspondence from the Governor's office and MacKenzie has handled some of this. In some instances Dutil has himself typed up research work or grievance materials because he hasn't wanted to put MacKenzie or Vickery in a compromising position vis-a-vis unit membership. Dutil and MacKenzie have access to Dutil's grievance files. Although the department has received packets containing bargaining proposals in each of the contract negotia- tions, much of the contact has been by telephone or in conversations with OER per- -88- _____________________________________________________________________________________ sonnel. Commissioner Day and Dutil have reviewed the proposals in depth and Dutil has usually made the response for the department; when correspondence or memoranda are indicated the Business Office clericals may be involved and MacKenzie is not assigned to the Business Office. Nor would MacKenzie have any role in the processing of grievances brought by Business Office personnel; in these instances only Dutil or Vickery would have a role in Business Office grievances. MacKenzie testified that in the past two years she has had little to do with collective bargaining, although when located at Camp Keyes she did. In that time she has handled little in the form of correspondence between the Commissioner and other Commissioners or the Governor's office. She was unaware whether General Day kept a file on collective bargaining. Because the evidence failed to establish that Mrs. MacKenzie has had significant and regular involvement with confidential employee relations matters over the past two years, the exclusion of her position is not justified. The request of the State to exclude this position is denied. Clerk IV - J. Vickery The position is assistant to Dutil and carries the in-house title of Assistant Personnel Officer. Vickery is also the Affirmative Action officer for the department. In her Personnel Officer capacity she has responsibility for pro- cessing all personnel forms; she is involved in establishing job criteria, standards of performance, reclassifications, range changes, promotions and turn-around forms, recruiting and retention. She is on the interview board for recruiting, retention, and the like. She has been involved in disciplinary matters and layoffs. She has assisted in providing research requested by OER regarding bargaining proposals. In reclassification cases she provides research on the task components of a position, and define the activities and tasks of various positions. Reclassification decisions are subject to the grievance procedure. With respect to all of the foregoing activi- ties, Vickery performs clerical work for the Personnel Officer, Mr. Dutil. Occasion- ally Vickery does work for General Day. However Vickery does not do much typing. The FJA for the position lists among her primary duties, "provides input in inter- pretation of personnel rules and regulations, union contract provisions and related Departmental Policies." Of course, providing "input" does not necessarily suggest that Vickery has the primary responsibility for giving advice in these areas. The justification for excluding this position is little better than mar- ginal and, further, it does not appear that excluding Vickery would satisfy the per- ceived need for a confidential clerical position in the department; Vickery's re- sponsibilities appear to require little typing or stenography. Nonetheless, since exclusion is requested for this position and there is sufficient justification for doing so, it will be excluded. The request of the State to exclude this position is granted. -89- _____________________________________________________________________________________ With respect to the determination of unit inclusion or exclusion for each of the foregoing positions,[fn]* it is SO ORDERED. Dated at Augusta, Maine, this 3lst day of December, 1981. MAINE LABOR RELATIONS BOARD /s/_________________________________ Robert I. Goldman Hearing Examiner _______________ * The name of the position holder or incumbent is used only as an aid in identifying the position for which exclusion is sought. The specific position is excluded, or not excluded, and not the position holder or incumbent since the individual may move on, while generally the position remains intact. -90- _____________________________________________________________________________________