State of Maine and MSEA, No. 82-A-02 Interim Order dated June 2, 1983, (affirming in part 
and modifying in part decision no. 80-UC-15). 
Appeal dismissed by Superior Court, CV-83-287, Dismissal affirmed by Law 
Court, Oct. 5, 1984, 482 A.2d 461.  
Board Second Interim Order Issued August 9, 1983.


STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 82-A-02
                                                   Issued:  June 2, 1983
    
_______________________    
                       )
STATE OF MAINE         )
                       )                  REPORT OF APPELLATE REVIEW
   and                 )                 OF UNIT CLARIFICATION REPORT
                       )                         INTERIM ORDER
MAINE STATE EMPLOYEES  )
ASSOCIATION            )
_______________________)


     This case came to the Maine Labor Relations Board ("Board") by way of a Peti-
tion for Unit Clarification, filed on April 23, 1980, by the Division of Employee
Relations of the Maine Department of Personnel ("State").  The State filed three
petitions, under Title 26 M.R.S.A. Section 979-E(3), seeking a determination that
certain state employees are excluded from collective bargaining under the State
Employees Labor Relations Act, Title 26 M.R.S.A. Section 979, et seq., ("Act").
The petitions concerned state employees who were then in bargaining units as the
result of the original unit determinations of the Executive Director of the Board
in September of 1976, appellate decisions of the Board in 1977, or subsequent
agreement between the State and the Maine State Employees Association ("Union").
The units involved are Administrative Services Bargaining Unit, Professional and
Technical Services Bargaining Unit, and Supervisory Services Bargaining Unit.  The
Union is the certified bargaining agent for said units.  The State's claim for
exclusion are based upon the alleged confidential status of the employees involved,
under Section 979-A(6)(C) of the Act.

     After twenty-eight days of hearings before the hearing examiner designated by
the Executive Director, under the authority of Title 26 M.R.S.A. Sections 979-E(1)
and (3), a decision was rendered on 155 positions that remained in dispute.  Said
decision was dated on December 31, 1981 and was received by the parties on January
4, 1982.  On January 15, 1982, the Union filed its appeal to the unit clarification
report, involving 56 positions.  The State filed its appeal, concerning 44 positions,
on January 18, 1982.
    
     Pre-hearing conferences were held on April 14, 21, and 27, 1982 and on May 5,
1982, Attorney/Examiner Marc P. Ayotte presiding.  On June 14, 1982, Attorney/Exam-
iner Ayotte issued a pre-hearing conference memorandum and order, the contents of 

                                       [-1-]
____________________________________________________________________________________

which are incorporated herein by reference.  The parties agreed, at the pre-hearing
conferences, to bifurcate our handling of this appeal.  Those positions appealed
only on questions of law were argued through written briefs and oral argument there-
on was held before the Board on November 19, 1982.  Chairman Edward H. Keith pre-
sided at the oral argument and was joined on the Board by Employer Representative
Don R. Ziegenbein and Employee Representative Harold S. Noddin.  The State of Maine
was represented by Attorney Linda D. McGill, Chief Counsel, Division of Employee
Relations, Department of Personnel.  The Maine State Employees Association was repre-
sented by its Chief Counsel John J. Finn, Esq.  The Board has duly considered the
parties' briefs and their oral arguments.


                                JURISDICTION                                       
    
     The State of Maine and the Maine State Employees Association are aggrieved
parties within the meaning of 26 M.R.S.A. Section 979-[G](2).  The jurisdiction of
the Maine Labor Relations Board to hear this appeal and render a decision and order
herein lies in 26 M.R.S.A. Section 979-[G].
    
                              FINDINGS OF FACT
    
     The facts in this portion of the bifurcated appeal in this case are not in
dispute.  The facts, relevant to the positions being considered herein and as found
by the hearing examiner in his decision of December 31, 1981, are incorporated herein
by reference.  In addition to the said hearing examiner's findings of fact, the Board,
pursuant to authority granted in Title 5 M.R.S.A. Section 9058, takes official
notice of the following information, contained in its own non-confidential records:
    
     1.  On or about November 19, 1982 and December 3, 1982, the Governor's
         Office of Employee Relations, on behalf of the State, filed new unit
         clarification petitions affecting over 500 State employees, including
         several positions involved in the current State appeal.
    
     2.  The following positions, or equivalent replacement classifications re-
         sulting from reclassifications of the former positions, are included
         in the new unit clarification petitions, mentioned in paragraph 1 here-
         of, and are also included in the State's appeal on questions of law in
         this matter:

                                        -2-
____________________________________________________________________________________    
    
        Department of Education and Cultural Services    
        
          Business Manager II, SMVTI           Richard Cooper
          Business Manager II, EMVTI           Richard Drinkwater
          Business Manager II, NMVTI           Dana McGlauflin
          Business Manager I, KVVTI            Bernard Allen
          Business Manager I, WCVTI            Robert Hazlewood
          Business Manager II, CMVTI           William Leavitt
                        
        Department of Secretary of State

          Business Manager I                   Gloria Kenney
                                 
        Department of Mental Health and Corrections

          Institutional Business Manager       John C. Conrad         
          Institutional Business Manager II    Leo Dunn, Jr.                       
          Business Manager II                  Scott Birnheimer                      
                                                      
     3. The following positions, or equivalent replacement classifications re-
        sulting from reclassifications of the former positions, are included in
        the new unit clarification petitions, mentioned in paragraph 1 hereof,
        and are also included in the State's appeal on questions of fact and
        law in this matter:
    
        Department of Personnel
    
        Clerk IV                             Madeline Colby
        Clerk IV                             Barbara Lord                                                              
            
        Baxter State Park Authority

        Business Manager I                   John P. Madeira, Jr.  
                                            
        Department of Marine Resources 
                      
        Business Manager II                  Anna Stanley                   
                                           
        Department of Education and Cultural Services

        Assistant State Librarian            Carolyn Nolin    
                                            
        Department of Inland Fish and Wildlife

        Business Manager II                  Peter Brazier                  
                                            
        Department of Finance and Administration

        Systems & Program Manager            Valton L. Wood, Jr.            
                                            
        Department of Mental Health and Corrections

        Assistant Superintendent, Corrections       James Clemons
        Assistant Superintendent, Corrections       Hamilton Grant
        Assistant Superintendent, Corrections       Anthony Sesto
        Assistant Superintendent, Corrections       Vacant
        Business Manager II                         Lois Vencill
        Deputy Warden                               Lars Hendrickson
                                               
                                                 
                                        -3-
____________________________________________________________________________________    

        Department of Mental Health and Corrections Contd.

        Deputy Warden                               Joseph Smith
        Secretary                                   Elaine Wood


                                   DECISION
    
     At the outset, we must note the applicable standard of review in unit clari-
fication appeals.  We have often stated that "[w]e will overturn a hearing examiner's
rulings and determinations if they are 'unlawful, unreasonable, or lacking in any
rational factual basis.'"  City of Bath and Council 74, AFSCME, Report of Appellate
Review of Unit Clarification Report, MLRB No. 81-A-01, p. 6 (12/15/80); AFSCME
Council 74 and City of Bangor, Report of Appellate Review of Unit Clarification
Report, MLRB No. 79-A-02, p. 1 (10/17/79).  Although these decisions were issued
under the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961,
et seq., we hold that the relevant portion thereof, Section 968(4), is essentially
identical to Section 979-[G](2) of the Act and, therefore, said standard of review is
applicable herein.
    
     We will, for the sake of clarity, first discuss the issues of law raised by the
Union, in its appeal, and we will then turn to those raised by the State.  The Union
has alleged that the State's appeal should be dismissed because it was untimely.
Although the hearing examiner's decision is dated December 31, 1981, it was not re-
ceived by the State until January 4, 1983.  Although the Board has not previously
addressed this issue, the York County Superior Court, in dismissing a Rule 80B judi-
cial review of one of the Board's decisions, has held that "the effective date of
[the] decision is the date on which actual notice is given to a party" and the rele-
vant appeals period begins to run on the date of said actual notice.  Town of Old
Orchard Beach v. Old Orchard Beach Police Patrolmen's Assoc., York Superior Court,
Docket No. CV-82-613 (December 27, 1982).  We agree with the Superior Court and
hold that the tenets of notice and opportunity for hearing, embodied in the Due
Process Clauses of the Constitutions of the United States and of the State of Maine,
mandate that the effective date of our decisions is that date when the parties
receive actual notice thereof.  Since the State filed its notice of appeal herein
on January 18, 1982, 14 days after its receipt of the hearing examiner's decision,
we hold that its appeal was timely filed.

                                        -4-
____________________________________________________________________________________    
   
     The Union has argued that Rule 1.13 of the Board's Rules and Procedures
mandates reversal of the hearing examiner's decision as it relates to certain
job categories which are in single position classes.  The Union has summarized
its argument as follows:
    
          "All of the [relevant] positions, then, have been the subject
      of express determination by the Board on appeal from the determina-
      tions of the MLRB Executive Director or of express agreements nego-
      tiated by the State and MSEA and have thereby been determined not to
      necessarily imply a confidential collective bargaining nexus.  Thus,
      the description of the job categories contained in the bargaining
      units is clear and unequivocal, and the exclusion of the [relevant]
      positions should be reversed by this Board on the basis of MLRB Rule
      1.13(a)."
    
Union's Brief, pp. 3-5.  The Union's averment ignores the nub of the unit clari-
fication procedure.  The purpose of the process is, under the terms of Section
979-E(3), to analyze job classifications in light of changes which have occurred
since the formation of the bargaining unit in question to determine whether said
changes are sufficient to warrant modification in the composition of that bargaining
unit."  That portion of Rule 1.13, which is the basis of the Union's allegation,
states:
    
     "Unit clarification petitions may be denied if (a) the description of
      the job categories contained in the bargaining unit is clear and un-
      equivocal, (b) the question raised should properly be settled through
      the election process, or (c) the petition attempts to modify the com-
      position 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."
    
The language of the rule permits denial of the petition on one of the stated grounds;
it does not mandate that result.  Although the job descriptions may be clear and un-
equivocal and the parties, at one time, agreed or the Board determined, some years
ago, that the positions did not have sufficient collective bargaining nexus to be
considered "confidential," the fact remains that the hearing examiner determined
that circumstances, surrounding the inclusion of said classifications as single
position classes in the bargaining unit had changed sufficiently to warrant exclu-
sion of the positions.  This holding is the crux of the unit clarification procedure
and the Union's argument must, therefore, fail.

                                        -5- 
____________________________________________________________________________________    

     The Union next argues that the "confidential" exclusions under the Act must
be narrowly construed.  This is because employees who are deemed to be "confiden-
tial" lose all collective bargaining rights under the Act.  Employees found to be
supervisory but not "confidential" are not, under Section 979-E, denied collective
bargaining rights but are placed in a separate supervisory employee bargaining unit.
The broad purpose of the Act is outlined in Section 979 which states:
    
          "It is declared to be the public policy of this state and it is
      the purpose of this chapter to promote the improvement of the rela-
      tionship between the State of Maine and its employees by providing
      a uniform basis for recognizing the right of state employees to join
      labor organizations of their own choosing and to be represented by
      such organizations in collective bargaining for terms and conditions
      of employment."
    
Collective bargaining coverage for state employees is the rule, under Section 979-A,
and exclusion is the exception.  We have, in the past, held that "the legislature
has narrowly defined the exemptions to coverage under the Act and has not included
any language which may reasonably be interpreted as a grant of discretion to ex-
pand the statutory exemptions."  State of Maine and Maine State Employees Associa-
tion, Report of Appellate Review of Unit Clarification Report [No. 78-A-09], p. 7 (3/2/79).  We
continue to believe that the exemptions under the Act were narrowly drawn by the
legislature to effectuate the fundamental purpose of the Statute and we will apply
said restrictive definition in this case.
    
     The Union avers that we should adapt the same standard of "confidentiality"
in this case which we stated in State of Maine and Maine State Employees Associa-
tion, supra, at 8.  The exemptions at issue in this case are based upon Section
979-A(6)(C) of the Act.  Said statute reads as follows:
    
          "State employee.  'State employee' means any employee of the
      State of Maine performing services within the executive department
      except any person:
    
           C.  Whose duties as deputy, administrative assistant or
               secretary necessarily imply a confidential relation-
               ship with respect to matters subject to collective
               bargaining as between such person and the Governor,
               a department head or body having appointive power
               within the executive department; or . . ."
    
In the prior unit clarification appeal, we held that employees who have been
"permanently assigned to collective bargaining or to render advice on a regularly

                                        -6-
____________________________________________________________________________________    
    
assigned basis to management personnel on labor relations matters" are excluded
from collective bargaining coverage as "confidential" employees, under the above
section of the Act.  Idem.  The "labor relations matters" encompassed in the
above standard does not refer to contract administration, State of Maine and Maine
State Employees Association, supra, at 6, but rather contemplates the strategic
and tactical considerations involved in negotiating collective bargaining agreements
between the State and its employees.  Under the provisions of Section 979-E(1) of
the Act, such contract administration duties as "exercising judgment in adjusting
grievances, applying other established personnel policies and procedures and in en-
forcing a collective bargaining agreement or establishing or participating in the
establishment of performance standards for subordinate employees and taking correc-
tive measures to implement those standards" warrant placing the employee performing
the same into a bargaining unit with supervisory employees but not, therefore, ex-
cluding said employees from collective bargaining.  The foregoing standard continues,
in our view, to represent the current meaning of Section 979-A(6)(C), as cited above.[fn]1
    
     In a recent case, the United States Supreme Court reviewed the history of the
"confidential" employee exclusion as fashioned by the National Labor Relations Board.
The Court reversed a decision of the United States Court of Appeals for the Seventh
Circuit and affirmed a decision of the N.L.R.B. which refused to exclude the persona'
secretary to the general manager and chief executive officer of an employer from a
bargaining unit.  Mr. Justice Brennan, writing the Court's majority opinion, stated:
_______________

1/  We are aware that the legislature, through Chapter 381 of the Public Laws of
    1981, amended this Section of the Act.  Section 979-A now reads:
    
              "State employee. "State employee" means any employee of the
          State of Maine performing services within the executive depart-
          ment except any person:

               Whose duties necessarily imply a confidential relation-
               ship with respect to matters subject to collective bar-
               gaining as between such person and the Governor, a de-
               partment head, body having appointive power within the
               executive department or any other official or employee
               excepted by this section; or . . ."

    The Section, as amended, became effective after most of the hearings before the
    hearings examiner had been held.  The parties had prepared their respective
    cases and presented evidence in support thereof in light of the statute, prior
    to its being amended.  Likewise, the hearing examiner, consistent with the pre-
    cepts of due process of law, treated the unit clarification proceeding as being
    under the Statute, prior to its being amended.  Sitting in an appellate capacity,
    we will consider the merits of the parties' positions under the former unamended
    Section of the Act.

                                        -7-
____________________________________________________________________________________
    
          "Section 2(3) of the [National Labor Relations Act, 29 U.S.C.
       152(3)] provides that the 'term "employee" shall include any
      employee . . .' (emphasis added), with certain stated exceptions
      such as 'agricultural laborers,' 'supervisors' as defined in  2(11),
      and 'independent contractors.'  Under a literal reading of the phrase
      'any employee,' then, the workers in question are 'employees.'  But
      for over forty years, the [National Labor Relations Board ("NLRB")],
      while rejecting any claim that the definition of 'employee' in  2(3)
      excludes confidential employees, has excluded from the collective
      bargaining units determined under the Act those confidential employees
      satisfying the Board's labor-nexus text.  [The employers herein] argue
      that contrary to the Board's practice, all employees who may have
      access to confidential business information are impliedly excluded from
      the definition of employee in  2(3).
    
     "Although the Act's express exclusions did not embrace confidential em-
      ployees, the Board was soon faced with the argument that all individuals
      who had access to confidential information of their employers should be
      excluded, as a policy matter, from the definition of 'employee.'  The
      Board rejected such an implied exclusion, finding it to have 'no warrant
      under the Act.'  Bull Dog Electric Products Co., 22 N.L.R.B. 1043, 1046
      (1940).  See also Creamery Package Manufacturing Co., 34 N.L.R.B. 108,
      111 (1941).  But in fulfilling its statutory obligation to determine
      appropriate bargaining units under  9 of the Act, 29 U.S.C.  159, for
      which broad discretion has been vested in the Board, see Packard Motor
      Car Co. v. NLRB, 330 U.S. 485, 491-492, 67 S.Ct. 789, 793, 91 L.Ed.1O4O
      (1947); Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S.Ct. 908,
      85 L.Ed. 1245 (1941), the Board adopted special treatment for the narrow
      group of employees with access to confidential, labor-relations informa-
      tion of the employer.  The Board excluded these individuals from bargain-
      ing units composed of rank-and-file workers.  See, e.g., Brooklyn Daily
      Eagle, 13 N.L.R.B. 974, 986 (1939); Creamery Package Manufacturing Co.,
      supra, at 110.  The Board's rationale was that 'management should not be
      required to handle labor relations matters through employees who are repre-
      sented by the union with which the [c]ompany is required to deal and who
      in the normal performance of their duties may obtain advance information
      of the [c]ompany's position with regard to contract negotiations, the
      disposition of grievances, and other labor relations matters.'  Hoover
      Co., 55 N.L.R.B. 1321, 1323 (1944)."

NLRB v. Hendricks County, 454 U.S. 170, 177-179, 102 S.Ct. 216, 222-223, 70 L.Ed.
2d 323 (1981).  The Court went on to outline a modification to the labor-nexus
test which was subsequently adopted by the NLRB.  The Court's opinion states:
    
          "In 1946, in Ford Motor Co., 66 N.L.R.B. 1317, 1322, the Board
      refined slightly the labor-nexus test because in its view the
      'definition [was] too inclusive and needlessly preclude[d] many
      employees from bargaining collectively together with other workers
      having common interests.'  Henceforth, the Board announced, it in-
      tended 'to limit the term "confidential" so as to embrace only those
      employees who assist and act in a confidential capacity to persons

                                        -8-
____________________________________________________________________________________
  
      who exercise "managerial" functions in the field of labor relations.'
      This was the state of the law in 1947 when Congress amended the NLRA
      through the enactment of the Taft-Hartley Act 61 Stat. 136."
    
NLRB v. Hendricks County, supra, 454 U.S., at 180-181, 102 S.Ct., at 223-224.  The
Court went on to review the Taft-Hartley Act and its impact upon the Board's labor-
nexus standard.  The Supreme Court concluded that the "Congress intended to leave
the Board's historic practice undisturbed," in the area of "confidential" employ-
ees, when it enacted the Taft-Hartley Act.  NLRB v. Hendricks County, supra,
454 U.S., at 185, 102 S.Ct., at 226.  The Supreme Court concluded its historical
review of the NLRB's exclusion of "confidential" employees, through its applica-
tion of the labor-nexus test, as follows:
    
     "In the years following the passage of the Taft-Hartley Act, the
      Board continued to apply the labor-nexus criterion in determining
      whether individuals were to be excluded from bargaining units as con-
      fidential employees.  In B.F. Goodrich Co., 115 N.L.R.B. 722 (1956),
      the Board reaffirmed its previous ruling in Ford Motor and underscored
      its intention in future cases . . . to limit the term "confidential"
      so as to embrace only those employees who assist and act in a confi-
      dential capacity to persons who formulate, determine and effectuate
      management policies in the field of labor relations.  115 N.L.R.B.,
      at 724 (footnote omitted) (emphasis deleted).  In succeeding years,
      while continuing to apply the labor-nexus test, the Board has deviated
      from that stated intention in only one major respect: it has also,
      on occasion, consistent with the underlying purpose of the labor-
      nexus test, see supra, at 223, designated as confidential employees
      persons who, although not assisting persons exercising managerial
      functions in the labor-relations area, 'regularly have access to
      confidential information concerning anticipated changes which may
      result from collective bargaining negotiations' Pullman Standard
      Division of Pullman, Inc., 214 N.L.R.B. 762, 762-763 (1974); see
      Triangle Publications, Inc., 118 N.L.R.B. 595, 596, and nn 3-4 (1957).
    
      In sum, our review of the Board's decisions indicates that the Board
      has never followed a practice of depriving all employees who have
      access to confidential business information from the full panoply of
      rights afforded by the Act.  Rather, for over 40 years, the Board, while
      declining to create any implied exclusion from the definition of
      'employee' for confidential employees, has applied a labor-nexus test in
      identifying those employees who should be excluded from bargaining
      units because of access to confidential business information.  We cannot
      ignore this consistent, longstanding interpretation of the NLRB by the
      Board.  See Bell Aerospace, [416 U.S. 267, 275, 94 S.Ct. 1757, 1762,
      40 L.Ed.2d 134 (1974)]; Red Lion Broadcasting Co. v. FCC, 395 U.S.
      367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969)."
    
NLRB v. Hendricks County, supra, 454 U.S., at 188-190, 102 S.Ct., at 227-228.

                                        -9-
____________________________________________________________________________________    

Our extensive citation of the foregoing case does not mean, nor should it be read
to imply, our wholesale adoption of the "confidential" exemption from collective bar-
gaining coverage, developed under the provisions of the National Labor Relations
Act, which applies to the private sector.  We do quote at length from said case for
the purpose of outlining the evolution of the private sector standard.  The State
Act, involved in this case, expressly allows supervisory employees to organize and
to be represented for the purposes of collective bargaining and the N.L.R.A. speci-
fically excludes said employees from the scope of its coverage.  This significant
distinction between the State and the Federal laws precludes the application of some
of the private sector precedent to State employees in the State of Maine.
    
     Our previously announced standard, defining "confidential" employees under
Section 979-A(6)(C) of the Act, continues to have validity and vitality.  We believe
that our standard is consistent with that enunciated by the United States Supreme
Court in Hendricks County, supra.  The latter decision, when read within the context
of the State Act, serves to further clarify the definition of "confidential" employ-
ees.  Our standard for the exclusion of "confidential" employees is that those per-
sons affected are employees who are "permanently assigned to collective bargaining
or to render advice on a regularly assigned basis to management personnel on labor
relations matters."  State of Maine and Maine State Employees Association, supra,
at 8.  As we have noted above, the "labor relations" matters, in the foregoing con-
text, do not include contract administration actions or duties.  Applying Hendricks
County, to this context, those employees who have, as part of their work responsi-
bilities access to the employer's negotiations positions, in advance of said positions
being disclosed at the bargaining table, and who, as an integral part of their job
duties, assist and act in a confidential capacity with respect to persons who formu-
late or determine the employer's bargaining positions or bargaining strategy are
"confidential" employees, under Section 979-A(6)(C) of the Act.
    
     We will now consider the individual positions appealed by the Maine State Em-
ployees Association, on questions of law only, in light of the foregoing discussion.
The first of job classifications excluded were challenged by the Union on the grounds
that they consisted of single-position classes which had been placed in a bargaining
unit either by agreement of the parties or by decision of this Board in the original
unit determination process.  Having rejected the Union's legal argument relevant
thereto, we hold that the following positions were properly excluded from the bargain-
ing unit by the hearing examiner:

                                       -10-
____________________________________________________________________________________    

               Department of Conservation
    
                   State Supervisor, Forest Fire Operations

               Department of Human Services
    
                   Director, Bureau of Medical Services

               Maine Criminal Justice Planning & Assistance Agency
    
                   Deputy Director, MCJPAA

               Department of Inland Fisheries and Wildlife
    
                   Game Warden Major

               Public Utilities Commission
    
                   Assistant Secretary, PUC

               Department of Finance and Administration
    
                   Chief, Data Processing & Systems
                   Computer Operations Manager

               Department of Corrections
    
                   Director, Division of Probation and Parole

Our review of the Pre-Hearing Conference Memorandum and Order, pp. 5-6, indicates
that the Union is appealing the exclusion of several of the above positions on
questions of fact, as well as on the basis of the legal argument disposed of herein.
We are not ruling on the propriety of exclusions of said positions on questions of
fact herein.

     The Union has argued that the hearing examiner improperly applied the "con-
fidential employee" standard to several positions and, therefore, said positions
were allegedly excluded erroneously from collective bargaining as a matter of law.
The positions thus cited by the M.S.E.A. were the following:

               State Planning Office
    
                   Clerk Typist III (Sally Gagnon)

               Department of Fisheries and Wildlife
    
                   Game Warden Major (Russell E. Dyer)

               Public Utilities Commission
    
                   Assistant Secretary, PUC (Ruth White)
    
               Human Rights Commission
    
                   Administrative Aide (Jane A. Lepore)

               Department of Finance and Administration
    
                   Chief, Data Processing & Systems (John Carrick)

                                       -11-
____________________________________________________________________________________
    
               Department of Corrections

                   Director, Division of Probation and Parole (Peter Tilton)

               Department of Mental Health and Mental Retardation

                   Assistant to Superintendent, AMHI (Millard Howard)

               Department of Transportation

                   Civil Engineer IV (Paul Tibbetts)

We will examine each of the foregoing job positions in light of our analysis, above,
of the relevant provision of the Act.  The format which we will follow to describe
the positions under discussion will be to name the job classification; to identify
the incumbent employee at the time that the Unit Clarification Petition was filed,
in parentheses; to list the department, to which the position is assigned; and, in
brackets following the name of the department to list the pages of the hearing
examiner's decision where his findings of fact, relevant to said position, are out-
lined.  The hearing examiner's findings of fact, relevant to each of the positions
discussed herein, are not in dispute in this portion of the appeal.  We will, there-
fore, adopt said findings of fact by reference, as if the same were fully set forth
in this decision.

     The first job classification at issue is that of Clerk Typist III (Sally Gagnon)
in the State Planning Office [27].  Were we deciding the fate of this position as a
matter of first impression, our holding might well be different from that of the
hearing examiner.  On review, however, we hold that there is substantial evidence
supporting the hearing examiner's decision, therefore, the same is not clearly
erroneous.  The Clerk Typist III position was properly excluded from the bargaining
unit.

     The second position in contention is that of Game Warden Major (Russell E.
Dyer) in the Department of Fisheries and Wildlife [29].  The Game Warden Major's
collective bargaining contact is limited to a discussion of proposals with the
State's chief negotiator.  The Major's other labor relations activities include
investigating and presenting grievances and conducting internal investigations con-
cerning Wardens.  The former functions are clearly limited to contract administra-
tion and, under the statute at issue herein, do not warrant exclusion.  The latter
internal investigation activities were held, in Waterville Police Department and
Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination
Hearing [No. 78-A-06], at 4, (Oct. 4, 1978), not to constitute "confidential" functions.  In sum,
we hold that, because the Game Warden Major's labor relations functions are almost

                                       -12-
____________________________________________________________________________________    
    
exclusively related to ordinary contract administration, the hearing examiner's
decision must be reversed in connection therewith, and the Game Warden Major
must be returned to the relevant bargaining unit.
    
     The third position involved herein is that of Assistant Secretary, PUC
(Ruth White) at the Public Utilities Commission [31-32].  This classification
is that for the personnel officer for the Public Utilities Commission.  The
incumbent "spends more than 20 percent of her time on personnel and collective
bargaining matters."  Clearly, under our test, this individual is "permanently
assigned to collective bargaining" and, therefore, the hearing examiner's deci-
sion must be upheld. The Assistant Secretary, PUC job classification, was properly
excluded from the relevant collective bargaining unit.

     The fourth job classification at issue is that of Administrative Aide (Jane A.
Lepore) at the Human Rights Commission [33-32].  The hearing examiner found:

     "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 . . . . . Lepore does
      typing only on personnel, and fiscal matters and when correspondence
      with OER is required."
    
Hearing Examiner's Decision at 33.  Furthermore, the Administrative Aide has ana-
lyzed union collective bargaining proposals, during negotiations, to determine the
impact thereof on the agency.  The hearing examiner held, at pages 33 and 34 of his
decision, that the Administrative Aide's permanent assignment to collective bar-
gaining and labor relations matters constituted a "significant part of her overall
responsibilities."  Ibid.  We hold that the hearing examiner correctly applied the
"confidential" employee standard and we uphold the exclusion of the Administrative
Aide from the ambit of collective bargaining.

     The fifth position in contention is that of the Chief, Data Processing & Sys-
tems (John Carrick) of the Department of Finance and Administration [48-49].
The hearing examiner found:

     "It was testified that Carrick has provided data pursuant to con-
      fidential collective bargaining requests concerning increasing
      employee deductions capacity, bi-weekly 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 account-
      ing information of this type."  Idem.
    
This position illustrates our discussion concerning a significant, albeit infrequent,

                                       -13-
____________________________________________________________________________________    
    
collective bargaining nexus justifying exclusion of a position from a bargain-
ing unit on "confidential" grounds.  The Chief of Data Processing and System's
contact with collective bargaining is only occasional in providing costing data
for proposals during actual bargaining.  The Chief's imput is essential, however,
since he is the only source for such information available to the State.  We,
therefore, uphold the hearing examiner's exclusion of the Chief, Data Processing
and Systems position from the bargaining unit on "confidential" status grounds.

     The sixth position involved herein is that of the Director, Division of Pro-
bation and Parole (Peter Tilton) in the Department of Corrections. [57-58].
The hearing examiner's relevant findings indicate that the Director has had regu-
lar meetings with a State bargaining team member to discuss bargaining and that
the Director has formulated positions for bargaining in areas affecting his Divi-
sion.  We hold that said contacts with collective bargaining are significant enough
to justify exclusion of the Director, Division of Probation and Parole under
Section 979-A(6)(C) of the Act and, therefore, we uphold the hearing examiner's
decision thereon.
    
     The seventh job classification at issue is that of the Assistant to Superin-
tendent, AMHI (Millard Howard) in the Department of Mental Health and Mental Retar-
dation [61].  The hearing examiner found, in relevant part, as follows:

     "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 counter-
      proposals and common concerns with respect to collective bargaining.
      Howard discusses bargaining proposals with the Superintendent and
      keeps him advised on the course of negotiations."  Ibid.
    
The hearing examiner further found that the Assistant to the Superintendent spends
one day per week on labor relations matters.  In light of the above intimate con-
tact of the Assistant to the Superintendent, AMHI, with collective bargaining, we
uphold the hearing examiner's exclusion of said position from the relevant bargain-
ing unit.

     The final position in contention is that of Civil Engineer IV (Paul Tibbetts)
in the Department of Transportation [81].  The hearing examiner stated his conclu-
sion on this position as follows:
                                
                                       -14-
____________________________________________________________________________________    

         "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 there-
     fore privy to confidential negotiating strategies and discussions,
     he will be excluded.  Should he cease to hold that position [on the
     State bargaining team], a petition to restore him to the bargaining
     unit would appear to be in order."
    
Idem.  Note of clarification added by the Board.  We agree with the hearing ex-
aminer's holding, including the caveat on bargaining team membership, and, with
said reservation, uphold the hearing examiner's exclusion of the Civil Engineer
IV from the bargaining unit.

     We now turn to consider the arguments advanced by the State in its appeal.
The State's first contention is that the hearing examiner applied incorrect
standards in determining that certain positions should not be excluded from
bargaining units, as labor relations confidentials, under 26 M.R.S.A. Section
979-A(6)(C).  The second major premise argued by the State was that the hearing
examiner erred by implying that the State had the burden of persuasion on the
issue of confidential exclusion.  We will analyze these positions, including
the sub-averments of each, in detail, starting with the latter argument.
   
     The nature of unit clarification hearings, such as the proceeding appealed
from herein, is set forth in Rule 1.09 of our Rules and Procedures.  Rule 1.09
(D) states:

          "Nature of Hearing - The hearing shall be investigatory and not
      adversary.  Its purpose is to develop a full and complete factual
      record.  The rule of relevancy is paramount.  There are no burdens of
      proof, and technical rules of evidence shall not apply."  [Emphasis
      added]
    
A separate relevant consideration is contained in the Section of the Act under
which the proceeding below was conducted.  Title 26 M.R.S.A. Section 979-E(3)
states:

          "Unit clarification.  Where there is a certified or currently
      recognized bargaining representative and where the circumstances
      surrounding the formation of an existing bargaining unit are al-
      leged to have changed sufficiently to warrant modification in the
      composition of that bargaining unit, any public employer or any
      recognized or certified bargaining agent may file a petition for a
      unit clarification, provided that the parties are unable to agree
      on appropriate modifications and there is no question concerning
      representation."

                                       -15-
____________________________________________________________________________________

The Statute raises, as a threshold issue, the question of whether the circumstances
existing at the time that a bargaining unit was created, have varied enough to man-
date an alteration in the composition of said unit.  The allegation of a change in
circumstances carries with it a duty to establish that said change has, in fact,
transpired.  AFSCME, Council 74 and City of Bangor, Unit Clarification Report 
[No. 79-UC-05], p.4 (3/6/79), rev'd on other grounds, AFSCME, Council 74 and City of Bangor, MLRB Case
No. 79-A-02 (10/17/79).  The petitioner, in unit clarification proceedings, bears
the burden of alleging the requisite change and, further, of establishing the
occurrence of said change in the unit then at issue.  Since the State was the
petitioner in the unit clarification proceeding being reviewed, herein, the State
had the duty of avering and substantiating the existence of sufficient change, in
the circumstances surrounding formation of the relevant bargaining units, to war-
rant modification of said units.
    
     In addition to citing Rule 1.09, the State relies on our decision in Teamsters
Local 48 and City of Portland, Report of Appellate Review of Unit Determination
Hearing [No. 78-A-10], at 4 (2/20/79) in support of its position that no burden of persuasion
exists in unit clarification proceedings.  It is significant to note that the
Portland case was a unit determination appeal and was explicitly limited to that
context.  Ibid. at 4.  The threshold issue discussed above is unique to the unit
clarification procedure and no similar issue arises in the unit determination pro-
cess. The State's reliance on the Portland case in the matter now before us is,
therefore, misplaced.

     The State's main contention, on the merits, is that the hearing examiner
applied incorrect standards in determining that certain positions not be excluded
as labor relations confidentials, under Section 979-A(6)(C) of the Act.  In sup-
port of its principle averment, the State follows five lines of analysis.  The
State's five sub-contentions are:  (1) the hearing examiner's conclusions are
contrary to the underlying policy for exclusion of confidential employees, (2)
the hearing examiner erred by requiring that involvement in collective bargaining
matters be significant as well as necessary, (3) the hearing examiner erred in bas-
ing determinations on whether confidential duties could be avoided or redistributed,
(4) the hearing examiner erred in taking a constricted view of what matters are con-
fidential for sub-paragraph C exclusion, and (5) the hearing examiner erroneously
assumed that information public in some form cannot be confidential labor relations
information.  We will discuss each of the State's averments in detail.

                                        -16-
____________________________________________________________________________________    
    
     The State's first averment is that the hearing examiner's conclusions
are contrary to the underlying policy for exclusion of confidential employees.
We have outlined the policy which is the basis for excluding confidential em-
ployees from collective bargaining units as follows:

          "The reason for our inquiry into whether the duties performed
      by the alleged confidential employee involve collective bargaining
      or employee relations matters is clear:  an employee who is in-
      cluded in a bargaining unit and whose duties involve confidential
      matters could, depending upon the nature of the confidential matters,
      be faced with a substantial conflict of loyalty between his or her
      employer and his or her bargaining agent.  The legislature has at-
      tempted to minimize this potential conflict of loyalty by providing in
      26 M.R.S.A. Section 962(6)(C) that employees whose duties involve
      such confidential matters are not 'public employees' entitled to be
      included in bargaining units under 26 M.R.S.A. Section 966(1).

           "The confidential matters which might create this conflict of
      loyalty are the public employer's confidential collective bargaining
      or employee relations ideas, positions or policies which, if disclosed
      to the bargaining agent, could provide the bargaining agent with un-
      fair leverage or advantage over the public employer.  Because confiden-
      tial information regarding matters other than collective bargaining or
      employee relations would not in most cases provide the bargaining agent
      with undue advantage, an employee whose duties involve such other con-
      fidential matters is not subject to the same potential conflict of
      loyalty as is the employee whose duties involve confidential collective
      bargaining or employee relations matters.  Consequently, we focus upon
      whether the employee's duties involve collective bargaining or employee
      relations matters when deciding whether the employee is a 'confidential
      employee' under 26 M.R.S.A.  962(6) (C)."
    
Town of Fairfield and Teamsters Local Union No. 48, Report of Appellate Review of
Unit Determination Hearing [No. 78-A-08], at 3-4 (11/[30]/78).  Although this decision was issued
under the parallel section of the Municipal Public Employees Labor Relations Act,
26 M.R.S.A. Section 961, et seq., the same rationale applied to the "confidential
employee" exclusion presently under consideration.  As was noted in our discussion
of the Union's appeal above, our adoption of the above rationale does not mean that
we are adopting the entire concept of the "confidential employee" exclusion promul-
gated by the National Labor Relations Board.  The unique language of the Act pre-
cludes such wholesale adoption.  As we have done with the Union's appeal, above,
we will consider the specific job classifications being appealed, subsequent to
our discussion of the legal issues raised by the State.

                                       -17-
____________________________________________________________________________________

     The State second argument is that the hearing examiner erred by requiring
that an employee's involvement in collective bargaining matters be significant
as well as necessary to warrant exclusion on "confidential employee" grounds.
We hold that the hearing examiner has correctly interpreted our long-standing
policy in this regard.  We have often stated that, to be a "confidential employee,"
one must be "permanently involved in collective bargaining matters on behalf of
the public employer or that the duties performed by the employee involve the formu-
lation, determination and effectuation of the employer's employee relations poli-
cies."  Waterville Police Department and Teamsters Local Union No. 48, Report of
Appellate Review of Unit Determination Hearing [No. 78-A-06] at 3 (10/4/78).  This requirement,
that the employee's participation in collective bargaining matters be significant,
does not set out a strict empirical formula mandating the inclusion or exclusion
of employees from collective bargaining.  That determination must be made on an
ad hoc basis by the hearing examiner on the facts developed through the unit hear-
ing process. The requirement of significance of an employee participation in
collective bargaining matters may be satisfied either when the individual's in-
volvement is substantial, although it is performed rarely, or when the activity
is relatively minor but is undertaken on a regular basis as part of the employee's
job functions.  The significance of the employee's involvement turns on the nature
of his or her access to information which could, if revealed to the bargaining agent,
jeopardize the employer's collective bargaining position, Town of Fairfield, supra,
at 3, and also on what the employee does with such information.  The employee must
use said information in the formulation and determination of the employer's labor
relations policies or collective bargaining proposals in order to be found to be a
confidential employee."  Waterville Police Department, supra, at 3.

     The third position argued by the State is that the hearing examiner erred in
basing determinations on whether confidential duties could be avoided or redistri-
buted. The State has phrased its position as follows:

     "It is not the function of the hearing examiner to judge whether the
      duties of a position or the modus operandi of an agency could be
      altered with regard to confidential labor relations responsibilities.
      So long as confidential duties are not assigned in bad faith for the
      purpose of excluding the employee from coverage under the Act, the
      public employer is free to make that assignment.  Under the statute,
      the hearing examiner is limited to determining whether the assigned
      duties, whatever they are, "necessarily imply" a confidential rela-
      tionship.  One hearing examiner has previously inquired whether access

                                        -18-
____________________________________________________________________________________

      to confidential information is a 'necessary offshoot of the nature of
      the job duties of the employee.'  U/C Rept., Bangor Education Associa-
      tion and Bangor School Committee [No. 80-UC-02], (Nov. [16], 1979).  The State urges
      that this inquiry exceeds the requirements of Section C.  At any rate,
      the hearing examiner here has gone well beyond the 'necessary offshot'
      standard.  He has effectively imposed a requirement to show that 'but
      for exclusion of positions' the employer cannot reasonably conduct
      required collective bargaining business.  Decision, p. 24.  This require-
      ment is not contemplated by Section C and is not supported by analogous
      decisions by the NLRB or this Board."
    
Memorandum of the State on Issues of Law, at 11.  The critical language of Sec-
tion 979-A(6)(C) provides that State employees "whose duties necessarily imply
a confidential relationship" with the State as the public employer are excluded
from collective bargaining.  The language cited clearly justifies and mandates
that a hearing examiner, weighing whether an employee is "confidential," in-
quire as to whether the allegedly confidential aspects of the employee's work
are an inherent portion thereof.  Such an inquiry is contemplated by the Act
and is required to effect the legislative intent embodied in Section 979-A(6)(C).
    
     The main thrust of the State's argument, within this portion of its analysis,
is that it was improper for the hearing examiner to consider whether "confidential"
duties could be reassigned, if the employee performing them was denied exemption.
In reviewing the remaining position in the State's appeal to which this averment
allegedly applies, we have, as is discussed more fully below, been able to affirm
the hearing examiner's decision, without considering the question of whether or
not the allegedly "confidential" duties could somehow be avoided.  The State's
issue is, therefore, moot.  Although our decision to affirm the hearing examiner's
determination in connection with the relevant position is based on other grounds,
we add, by way of obiter dicta, that the hearing examiner's decision may be correct
in its specific analysis.  In important consideration in the State's argument is:

     "So long as confidential duties are not assigned in bad faith for the
      purpose of excluding the employee from coverage under the Act, the
      public employer is free to make that assignment."
    
The State seems to aver that the passive diffusion of labor relations and collective
bargaining functions throughout the various State departments and agencies, if the
same is accomplished without the subjective intent to thereby deprive employees of
collective bargaining rights, is acceptable, within the ambit of the Act.  We be-
lieve that the structure envisioned in and, to an extent, mandated by Section 979-A
(5) of the Act is that the State make an affirmative effort to centralize said

                                       -19-
____________________________________________________________________________________    
    
functions.  While recognizing that total centralization of said operations is not
possible, the State should attempt to do so to the maximum practicable extent.
    
     The State's fourth averment is that the hearing examiner erred in taking a
constricted view of what matters are confidential for Section C exclusion.  Since
we have fully outlined the standard to be applied in considering Section 979-A(6)
(C) exclusions above, we will not restate the same at this juncture.  We will use
said standard, when we consider the individual positions being appealed by the
State below, to examine whether or not the hearing examiner correctly applied the
same in his decision.
    
     The State's fifth and final argument is that the hearing examiner erroneously
assumed that information public in some form cannot be confidential labor rela-
tions information.  The State has made no effort to relate this argument to any
specific position under appeal nor to any particular portion of the hearing ex-
aminer's decision.  It is not the policy of this Board to engage in speculation as
to the merits or the impact of any issue, divorced from the controversy under con-
sideration.
    
     We will now examine the individual position determinations appealed by the
State.  Prior to doing so, however, we note, as did the State at page 6 of its
Reply Brief on Issues of Law, that Section 979-A(6) of the Act was amended, during
the course of the case before the hearing examiner below.  We further note that
the same legislative enactment, Chapter 381 of the Public Laws enacted by the
One Hundred and Tenth Legislature at its First Regular Session, which amended
Section 979-A(6)(C) also added two new sub-paragraphs to paragraph 6 of Section
979-A.  These two new sub-paragraphs further define the categories of State em-
ployees who are exempted from collective bargaining under the Act.  Pursuant to
Title 5 M.R.S.A. Section 9058, we take official notice of our own nonconfidential
records that, on or about November 19, 1982 and December 3, 1982, the Governor's
Office of Employee Relations, on behalf of the State, filed new unit clarification
petitions affecting over 500 State employees, including several positions involved
in the present State appeal.  In said new petitions, the State avers that the job
classifications listed therein should be excluded from collective bargaining on
the basis of the changes made in paragraph 6 of Section 979-A.  Arguing in favor
of application of Section 979-A(6)(C), as amended by Chapter 381, supra, to the
case now before us, the State avers:

                                       -20-
____________________________________________________________________________________

     "M.S.E.A. insists that whether certain positions have the title
      or role of deputy, administrative assistant or secretary and whether
      they have a confidential relationship directly to the Governor or
      department head should be 'determinative in itself.'  This is particu-
      larly ill-taken.  The statutory standard changed during the course
      of the case; these strictures did not apply the close of the case.
      26 M.R.S.A.  979-A(6)(C) (Supp. 1981).  It would be absurd to go
      through the entire case again on such a technicality."
    
Reply Brief of the State on Issues of Law, at 6.  It would be equally absurd, in
our view, for this Board to decide the State's appeal on those positions which are
contained in the new unit clarification petitions, filed by the State on or about
November 19 and December 3, 1983, while the same classifications are being con-
sidered by one of the Board's hearing examiners, pursuant to the aforementioned
new petitions.  The State, herein, is seeking review of unit clarification deci-
sions based on the statutory standard in effect until September, 1981 and under
which the hearing examiner based his decision, while simultaneously seeking to
exempt many of the same positions from collective bargaining, under the current
Act in new proceedings before the hearing examiner.
    
     The strictures of due process of law require that a party be afforded notice
and a reasonable opportunity to participate in a hearing, on issues of fact, and
an opportunity for argument, written or oral, on questions of law.  2 K.C. Davis,
Administrative Law Treatise 406 (2d ed. 1979).  Since the parties did not prepare,
present, nor argue their respective cases before the hearing examiner in light of
the current statutory standard, we feel constrained to apply the former standard
herein, as did the hearing examiner below.  To avoid repeated proceedings before
this Board, over identical or replacement job classifications, we will remand those
positions, which are contained in the State's appeal herein and which are currently
before the hearing examiner, pursuant to the State's petitions for unit clarification
filed on or about November 19 and December 3, 1982.  We will instruct the hearing
examiner to reconsider said positions, in light of the amendment to Section 979-A
(6)(C) as well as in reference to sub-paragraphs I and J of said Section, all of
which were adopted by the Legislature in Chapter 381 of the Public Laws of 1981.
The hearing examiner will consider such new evidence and arguments, relevant to
said classifications and within the context of the current law.  The hearing examin-
er shall consider the positions on remand separately from the other positions con-
tained in the new petitions and he shall issue a decision, concerning the status
thereof with respect to collective bargaining coverage, as soon as is practicable,

                                       -21-
____________________________________________________________________________________    
    
following his hearing evidence thereon.  Should the parties wish to appeal the
hearing examiner's determinations on remand and subsequent to the issuance of
the hearing examiner's decision thereon, said appeal will be considered as part
of this proceeding.  The remand should, therefore, not be deemed to constitute
waiver of the right of either of the parties, to appeal from the hearing examiner's
determinations before this Board and, ultimately, before the Superior Court.  The
State's appeal, on those job classifications being remanded herein to the hearing
examiner, is merely kept in abeyance, pending the hearing examiner's reconsidera-
tion thereof and his supplemental decision thereon.
    
     The following positions were appealed by the State on questions of law only
and are in contention in this proceeding.  The Board, pursuant to authority granted
in Title 5 M.R.S.A. Section 9058, takes official notice of its own nonconfidential
records that the following positions, or equivalent replacement classifications re-
sulting from reclassification of the same, are included in new unit clarification
petitions now pending before a hearing examiner of the Board.  As was noted above,
said petitions were filed with the Board on or about November 19, 1982 and Decem-
ber 3, 1982.  The positions at issue herein and contained in the aforesaid new pe-
titions are:
    
     Department of Education and Cultural Services

     Business Manager II, SMVTI                 Richard Cooper
     Business Manager II, EMVTI                 Richard Drinkwater
     Business Manager II, NMVTI                 Dana McGlauflin
     Business Manager I, KVVTI                  Bernard Allen
     Business Manager I, WCVTI                  Robert Hazlewood
     Business Manager II, CMVTI                 William Leavitt
    
     Department of Secretary of State

     Business Manager I                         Gloria Kenney
    
     Department of Mental Health and Corrections

     Institutional Business Manager             John C. Conrad
     Institutional Business Manager II          Leo Dunn, Jr.
     Business Manager II                        Scott Birnheimer
    
All of the above-listed positions will be remanded to the hearing examiner for his
reconsideration, as mentioned in our foregoing discussion. 

                                       -22-
____________________________________________________________________________________    
     
     The following positions are not listed in the State's new petitions for
unit clarification and are, therefore, ripe for our review herein:
    
     Department of Education and Cultural Services

     Business Manager I                         Esther Shaw
     Accountant I, EMVTI                        Jane Brann
    
     Department of Mental Health and Corrections

     Clerk Steno II                             Debra Davis
     Clerk Steno III                            Linda N. Chasse
     Clerk Steno III                            Evelyn Snyder
     Clerk Steno III                            Gwynneth Royer
     Clerk Steno III                            Gertrude MacDonald
     Clerk Typist III                           Justina Barrows
     Clerk Typist II                            Cynthia Dove
     Secretary                                  Judith Bailey
    
     We will discuss each position and review the hearing examiner's decision,
as it pertains to each, in light of our foregoing analysis of the applicable
"confidential" employee exemption standard.  The hearing examiner's findings of
fact, in relation to each of the job classifications discussed below, are not
at issue in this portion of the appeal.  We will therefore, adopt said findings of
fact by reference, as if the same were fully set forth in this decision.  The
location of the specific findings for each position, in the hearing examiner's
decision of December 31, 1981, is noted in brackets, following the title of the
position, the name of the incumbent employee at the time of the hearings before
the hearing examiner in parentheses, and the State department or agency to which the
job classification is attached.
    
     The first position at issue is that of Business Manager I (Esther Shaw) at the
State Museum in the Department of Education and Cultural Services [19].  In connec-
tion with his analysis of this position, the hearing examiner found as follows:
    
          "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."

                                       -23-
____________________________________________________________________________________    
    
Idem.  Our review of the hearing examiner's findings of fact indicates that the
business Manager's access to collective bargaining information appears to be
historical in nature.  The Business Manager is informed as to what has trans-
pired at the bargaining table.  Clearly, the bargaining agent is aware of such
information before the same becomes known to the Business Manager.  The hearing
examiner concluded that the Business Manager has a nexus with collective bargain-
ing, "nevertheless these duties do not appear to be a necessary implication of
the Business Manager's function."  Idem.  Although we did not hear all of the
evidence, upon which the hearing examiner based his findings of fact and his
conclusion, our review of said findings, together with our analysis thereof,
demonstrates that there is substantial evidence supporting the hearing examiner's
decision relating to this classification.  We hold that the hearing examiner's
decision, as it relates to the Business Manager I, must be upheld.
    
     The second job classification in dispute is that of Accountant I, EMVTI
(Jane Brann) in the Department of Education and Cultural Services [22 and 23].
The relevant portion of the hearing examiner's findings is as follows:
    
          "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 imply 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 collec-
      tive 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 bargaining 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 es-
      tablish - with a significant involvement of time and effort in matters
      directly related to collective bargaining negotiations, or other
      confidential labor relations concerns."  Ibid., at 23.

                                       -24-
____________________________________________________________________________________

Since we have held, above, that contract administration responsibilities do not
justify exclusion of positions from collective bargaining under Section 979-A(6)
(C) of the Act, this classification's sole contact with collective bargaining is the
maintenance of the Director's collective bargaining file.  The uncontroverted
findings of fact do not describe the nature of the materials contained in said file.
The hearing examiner does suggest, however, that the file is little used.  The
only mention of actual collective bargaining participation by the VTI's was in the
round of negotiations, which culminated in the 1979 collective bargaining agree-
ments.  Idem.  Were we to rule on this position, as a matter of first impression
rather than on review from the hearing examiner, our conclusion may well be
different, however, we hold that the hearing examiner's decision is supported by
substantial evidence and is not, therefore, clearly erroneous.  We uphold the
hearing examiner's decision concerning the continued inclusion of the Accountant
I, EMVTI position in the bargaining unit.
    
     The third position at issue is that of Clerk Steno II (Debra Davis) in the
Department of Mental Health and Corrections [55 and 56].  The hearing examiner
found:
    
     "Davis' 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 department; in addi-
      tion the position has assumed some responsibility with regard to Af-
      firmative 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.  Accessi-
      bility 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 involved 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 notebook.  Meiser
      keeps notes on negotiations in a notebook; it was not clear that Davis
      has access to the notes themselves."  Ibid. at 55.

In light of our holding that contract administration duties do not warrant exclu-
sion under Section 979-A(6)(C) of the Act, the Clerk Steno II's handling of griev-
ance files is irrelevant hereto.  Organizing the Union's proposals by article for
a bargaining notebook, too, does not constitute "confidential" work, since the
Union promulgated the same.  There is substantial evidence supporting the hear-
ing examiner's decision and, therefore, we will sustain the same.

                                       -25-
____________________________________________________________________________________    
    
     The fourth job classification in controversy is that of Clerk Steno III
(Linda N. Chasse) in the Department of Mental Health and Corrections and located
at the Maine Youth Center.  [65].  Reviewing said findings, we find more than a
scintilla of a labor-relations nexus for the Clerk Steno III, however, we hold that
the position's involvement does not rise to the level of "confidentiality" re-
quired for exclusion from collective bargaining.  This is particularly true be-
cause the Maine Youth Center staff, in the round of negotiations occurring during
the hearings below, "did not receive copies of the negotiations package" and their
collective bargaining involvement was limited to "occasional calls from OER for
information on how the Center handles certain things; there have been 4-5 calls
over a period of several months."  Ibid, at 64.  Furthermore, the Superintendent
of the Maine Youth Center, for whom the Clerk Steno III is principal secretary,
"does not participate in collective bargaining directly."  Idem.
  
     The fifth position at issue is that of Clerk Steno III (Evelyn Snyder) in
the Department of Mental Health and Corrections, located at the Pineland Center
[66].  Although this position is that of secretary to the Superintendent of the
Center and the latter individual has participated in several meetings where col-
lective bargaining progress was discussed, the Clerk Steno III did not attend
said meetings and the collective bargaining responses, relating to the Center,
were typed by the secretary to the Personnel Director, a position excluded by the
hearing examiner.  No collective bargaining nexus between the Clerk Steno III and
collective bargaining having been established, we must uphold the decision of the
hearing examiner on this position.
    
     The next two positions to be discussed are those of Clerk Steno III (Gwynneth
Royer) and Clerk Steno III (Gertrude MacDonald) in the Department of Mental Health
and Corrections and located at the Bangor Mental Health Institute [70 and 71].
Since these positions "hold equivalent status as principal secretary or clerical
to the Superintendent," hearing examiner's decision at 70, they were considered
together in the proceedings below.  We will discuss them together, for the same
reason, in this appeal.  During the first round of negotiations, these positions
had frequent contact with confidential collective bargaining information.  Since
that time, however, their involvement which such data has been sporadic and in-
frequent.  Were we to rule on the exception of these positions,as a matter of
first impression, our conclusion might have been different.  There is substantial
evidence supporting the hearing examiner's decision, relevant to the two Clerk
Steno II's and, therefore, we sustain the same.

                                       -26-
____________________________________________________________________________________    

     The next two job classifications in controversy, Clerk Typist III (Justine
Barrows) and Clerk Typist II (Cynthia Dove) at the Bangor Mental Health Institute
in the Department of Mental Health and Corrections, [72] like the two preceding
positions, share the same job duties and were discussed together by the hearing
examiner.  We will, likewise, consider them together herein.  The hearing examiner
found:
    
          "These two positions assist Cheney in performing the secretarial
      and clerical tasks in the Personnel office.  Barrows' basic respon-
      sibilities 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 [Dove].  [Dove] is principally responsible
      for handling workmen's compensation for Institute personnel and
      maintaining the sick and vacation records.  She maintains the senior-
      ity lists.  When Cheney is absent either of the two will fill in for
      her."
    
Idem.  These facts establish no collective bargaining nexus at all, therefore,
the hearing examiner's decision relating to both positions is upheld.

     The final position in dispute is that of Secretary (Judith Bailey) at the
Maine Correctional Center in the Department of Mental Health and Corrections.
[85 and 86].  The hearing examiner found, in relevant part, as follows:
    
          "The position is principal secretary to the Superintendent.
      It is the only secretarial position in the office.  The secretary
      receives and opens all mail, including collective bargaining cor-
      respondence.  In the past the Superintendent has received copies
      of bargaining proposals and has been asked to respond on the im-
      pact 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. . . .
    
          "In the most recent negotiations the Superintendent has not
      received the full management package.  He has had some verbal com-
      munication 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."

Idem.  We hold that this position's minimal exposure to collective bargaining,
in the round of negotiations occurring during the hearings below, fully justifies
the hearing examiner's decision thereon.  Although this job classification is pure-
ly clerical in nature, that status is not dispositive of the Section 979-A(6)(C)

                                       -27-
____________________________________________________________________________________
    
exclusion.  We believe that in many if not most cases, "confidential" supervisory
employees need access to at least one "confidential" clerical employee, in order
to carry out their "confidential" duties.  Although the Secretary is the only
clerical person in the office, the position to whom she reports, the Superin-
tendent, has only been marginally involved in collective bargaining in the last
round of negotiations.  The facts before the hearing examiner below, however, do
not reveal significant recent collective bargaining nexus, therefore, we uphold
the hearing examiner's holding on the Secretary's position.
   
     The Board, pursuant to authority granted in Title 5 M.R.S.A. Section 9058,
takes official notice of the following information contained in the Board's
nonconfidentjal files.  On or about November 19, 1982 and December 3, 1982, the
Governor's Office of Employee Relations, on behalf of the State of Maine, filed
new unit clarification petitions with the Board affecting over 500 State employees,
including several positions involved in this appeal.  The following positions, or
equivalent replacement classifications resulting from reclassification of the
former, are included in the new unit clarification petitions, now pending before
a hearing examiner of this Board, and the same are also included in the State's
appeal on questions of fact and of law:
    
     Department of Personnel

     Clerk IV                                     Madeline Colby
     Clerk IV                                     Barbara Lord

     Baxter State Park Authority

     Business Manager I                           John P. Madeira, Jr.
    
     Department of Marine Resources

     Business Manager II                          Anna Stanley
    
     Department of Education and Cultural Services

     Assistant State Librarian                    Carolyn Nolin
    
     Department of Inland Fish and Wildlife

     Business Manager II                          Peter Brazier
    
     Department of Finance and Administration

     Systems & Program Manager                    Valton L. Wood, Jr.

                                        -28-
____________________________________________________________________________________    
    
     Department of Mental Health and Corrections

     Assistant Superintendent, Corrections        James Clemons
     Assistant Superintendent, Corrections        Hamilton Grant
     Assistant Superintendent, Corrections        Anthony Sesto
     Assistant Superintendent, Corrections        Vacant
     Business Manager II                          Lois Vencill
     Deputy Warden                                Lars Hendrickson
     Deputy Warden                                Joseph Smith
     Secretary                                    Elaine Wood
    
All of the above-listed job classifications will be remanded to the hearing examiner
for his reconsideration, in the manner mentioned in our foregoing discussion.


                                    ORDER
    
     On the basis of the foregoing findings of fact and discussion and by virtue
of and pursuant to the powers granted to the Maine Labor Relations Board by 26
M.R.S.A. Section 979-[G](2), it is ORDERED:
    
     1.  That, except as modified in this Order, the December 31, 1981
         unit clarification report in this matter if affirmed, as to
         those positions appealed by the Maine State Employees Association
         and by the State of Maine on questions of law only.
    
     2.  That the position of Game Warden Major in the Department of Fish-
         eries and Wildlife, which had been excluded from collective bar-
         gaining by the hearing examiner under Section 979-A(6)(C) of the
         Act, be and hereby is returned to its appropriate bargaining unit,
         with full collective bargaining rights under the Act.
    
     3.  That the balance of the Maine State Employees' Association's appeal
         herein, on questions of law, be and hereby is denied.

     4.  That the following positions, contained in the appeal by the State of
         Maine on questions of law only, be remanded to the hearing examiner
         for his reconsideration of said classifications, in light of the
         amendment to Section 979-A(6)(C), adopted by the 110th Legislature,
         as well as in reference to sub-paragraphs I and J of said Section.
    
         Department of Education and Cultural Services
   
         Business Manager II, SMVTI               Richard Cooper
         Business Manager II, EMVTI               Richard Drinkwater
         Business Manager II, NMVTI               Dona McGlauflin
         Business Manager I, KVVTI                Bernard Allen
         Business Manager I, WCVTI                Robert Hazelwood
         Business Manager II, CMVTI               William Leavitt

                                       -29-
____________________________________________________________________________________
                                                
         Department of Secretary of State

         Business Manager                         Gloria Kenney

         Department of Mental Health and Corrections

         Institutional Business Manager           John C. Conrad
         Institutional Business Manager II        Leo Dunn, Jr.
         Business Manager II                      Scott Birnheimer

     5.  That the balance of the State of Maine's appeal herein, on questions of
         law, be and hereby is denied.

     6.  That the following positions, contained in the appeal by the State of
         Maine on questions of fact and of law, be remanded to the hearing
         examiner for his reconsideration of said classifications, in light of
         the amendment to Section 979-A(6)(C), adopted by the 110th Legislature,
         as well as in reference to sub-paragraphs I and J of said Section.

         Department of Personnel

         Clerk IV                                 Madeline Colby
         Clerk IV                                 Barbara Lord

         Baxter State Park Authority

         Business Manager I                       John P. Madeira, Jr.

         Department of Marine Resources

         Business Manager II                      Anna Stanley

         Department of Education and Cultural Services

         Assistant State Librarian                Carolyn Nolin

         Department of Inland Fish and Wildlife

         Business Manager II                      Peter Brazier

         Department of Finance and Administration

         Systems & Program Manager                Valton L. Wood, Jr.

         Department of Mental Health and Corrections

         Assistant Superintendent, Corrections    James Clemons
         Assistant Superintendent, Corrections    Hamilton Grant
         Assistant Superintendent, Corrections    Anthony Sesto
         Assistant Superintendent, Corrections    Vacant
         Business Manager I                       Lois Vencill
         Deputy Warden                            Joseph Smith
         Secretary                                Elaine Wood
          
                                       -30-
____________________________________________________________________________________    

Dated at Augusta, Maine, this 2nd day of June, 1983.    
    
    
    
                                        MAINE LABOR RELATIONS BOARD
    
    
    
                                        /s/_________________________________________
                                        Edward H. Keith
                                        Chairman
    
    
    
                                        /s/_________________________________________
                                        Don R. Ziegenbein
                                        Employer Representative
    


                                        /s/_________________________________________
                                        Harold S. Noddin
                                        Employee Representative

                                       -31-
____________________________________________________________________________________    
(State and MSEA, No. 82-A-02, 2nd Interim Order)

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 82-A-02
                                                   [Issued:  August 9, 1983]

______________________
                      )
STATE OF MAINE        )
                      )                       REPORT OF APPELLATE REVIEW
  and                 )                      OF UNIT CLARIFICATION REPORT
                      )                         SECOND INTERIM ORDER
MAINE STATE EMPLOYEES )
ASSOCIATION           )
______________________)      


     This is an appellate review of a unit clarification proceeding, initiated by
the filing of a Petition for Unit Clarification, filed on April 23, 1980, by
the Division of Employee Relations of the Maine Department of Personnel ("State").
The State filed three petitions, under Title 26 M.R.S.A. Section 979-E(3), seek-
ing a determination that certain state employees are excluded from collective bar-
gaining under the State Employees Labor Relations Act, Title 26 M.R.S.A. Section
979, et seq., ("Act").  The petitions concerned state employees who were then in
bargaining units as the result of the original unit determinations of the Executive
Director of the Board in September of 1976, appellate decisions of the Board in
1977, or subsequent agreement between the State and the Maine State Employees Asso-
ciation ("Union").  The units involved are Administrative Services Bargaining Unit,
Professional and Technical Services Bargaining Unit, and Supervisory Services Bar-
gaining Unit.  The Union is the certified bargaining agent for said units.  The
State's claim for exclusion is based upon the alleged confidential status of the
employees involved, under Section 979-A(6)(C) of the Act.
      
     After twenty-eight days of hearings before the hearing examiner designated by
the Executive Director, under the authority of Sections 979-E(1) and (3) of the
Act, a decision was rendered on 155 positions that remained in dispute.  Said de-
cision was dated on December 31, 1981 and was received by the parties on January 4,
1982.  Both the State and the Union filed timely appeals from the decisions contained
in the unit clarification report.  The State's appeal involved 44 positions and the
Union's appeal concerned 56 positions.
      
     Pre-hearing conferences were held on April 14, 21, and 27, 1982 and on May 5,
1982, Attorney/Examiner Marc P. Ayotte presiding.  On June 14, 1982, Attorney/Exam-
iner Ayotte issued a pre-hearing conference memorandum and order, the contents of
which are incorporated herein by reference.  The parties agreed, at the pre-hearing

                                      [-1-]
__________________________________________________________________________________

conferences, to bifurcate our handling of this appeal.  The appeals of both par-
ties, on questions of law only, were to be argued, through written memoranda
and oral argument by each party, and decided by the Board.  Hearings were to be held
on the parties' appeals, on questions of fact or mixed questions of fact and law,
arguments were to be presented by each party, and a decision thereon issued.
      
     Our prior interim order in this case dealt with those positions, appealed
by the parties on questions of law only, and the legal argument relevant thereto.
The decision of June 2, 1983 outlined the appropriate legal standard, to test
whether or not state employees are "confidential," under Section 979-A(6)(C) of
the Act, and applied said standard to all of the positions appealed by the Union
and to some of the positions appealed by the State, on the basis of questions of
law only.  Some of the job classifications appealed by the State on the basis of
questions of law and all of the positions appealed by the State on the basis of
mixed questions of fact and law were, in the interests of due process of law and
the orderly administration of the Board's procedures, remanded to the hearing ex-
aminer for further hearings thereon.
      
     A hearing was conducted, on May 18, 1983, on those job classifications appealed
by the Union on the basis of issues of fact.  Chairman Edward H. Keith presided at
said hearing, together with Employer Representative Don R. Ziegenbein and employee
Representative Harold S. Noddin.  The Union was represented by Shawn Keenan, Esq.,
and the State was represented by Attorney Linda D. McGill.  The parties were, within
the limits placed on this type of appellate proceeding, given the opportunity to
examine and cross-examine witnesses, introduce evidence, and make argument.  Neither
party requested the opportunity to file post-hearing briefs, in this phase of these
proceedings, and the Board did not require the filing thereof.
      
      
                                JURISDICTION
      
     The State of Maine and the Maine State Employees Association are aggrieved par-
ties, within the meaning of 26 M.R.S.A. Section 979-G(2).  The jurisdiction of
the Maine Labor Relations Board ("Board") to hear this appeal and render a decision
and order herein lies in 26 M.R.S.A. Section 979-G.

                                       -2-
__________________________________________________________________________________      

                                 FINDINGS OF FACT
      
      Upon review of the entire record, in this portion of this proceeding, the
Board finds that the facts, relevant to the positions being considered herein,
determined by the hearing examiner, in his decision dated December 31, 1981, are
correct.  The Board expressly adopts the following findings of fact, made by the
hearing examiner, relevant to each job classification noted below, and reported
by the hearing examiner, in the decision of December 31, 1981, at the pages cited
below:

     Job Classification                     Location of hearing examiner's
                                                  findings of fact

  Maine State Retirement System
  Secretary - Laura Carlow . . . . . . . . . . . . . . . . 9
      
  Department of Conservation
  State Supervisor, Fire Operations - Earle Williams . . . 13-14
  Clerk Typist III - Jan Leary . . . . . . . . . . . . . . 15
      
  Department of Education and Cultural Services
  Education Specialist III (Coordinator, State/
    Local Relations) - Dale Douglass . . . . . . . . . . . 18         
  Clerk Steno II (Bureau of Vocational Education) -
    Evangeline Newcombe  . . . . . . . . . . . . . . . . . 44-45
  Institutional Business Manager I (Baxter School
    for the Deaf) - William Dunning  . . . . . . . . . . . 46-47
      
  Maine Criminal Justice Planning and Assistance Agency
  Deputy Director - Geraldine Brown  . . . . . . . . . . . 26-27
      
  Department of Finance and Administration
  Computer Operations Manager (Central Computer Services)
    Raymond Rice . . . . . . . . . . . . . . . . . . . . . 52
      
  Secretary (Central Computer Services) -
    Eleanor W. King  . . . . . . . . . . . . . . . . . . . 52
      
  Department of Mental Health and Corrections
  Secretary (AMHI) - Irene Begin . . . . . . . . . . . . . 60
      
  Department of Transportation
  Clerk Steno III - Joseph Durocher  . . . . . . . . . . . 77-78                        
  Analyst Programmer III - Raymond E. Halperin . . . . . . 79-80           
  Clerk IV - Jennie D'Auteuil  . . . . . . . . . . . . . . 80-81


                                       -3-
___________________________________________________________________________      
      
     At the outsetof the hearing, the Union indicated, without objection being
raised thereto by the State, that it wished to withdraw the following positions
from its appeal herein. The following job classifications were, accordingly,
withdrawn from the Union's appeal on questions of fact:
      
     Community Services
     Deputy Director - Janet W. Peters
      
     Office of Attorney General
     Business Manager II - Otto W. Siebert
      
     Department of Human Services
     Director of Bureau of Medical Services - James Lewis
      
     Department of Secretary of State
     Clerk IV - Margaret Brann
      
     Department of Mental Health and Corrections
     Clerk Steno III (AMHI) - Charlene Dutremble
     Clerk Steno III (Pineland) - Mary Russell
     Clerk Steno III (BMHI) - Dorothy Cheney
      
     Department of Defense and Veterans Services
     Clerk IV - J. Vickery
      
      
                                    DECISION
      
     This second interim decision, in this proceeding, is limited to consideration
of those positions, appealed by the Union on issues of fact only.  All of the posi-
tions appealed by the State, on mixed questions of fact and law, have been remanded
to the hearing examiner for further hearings thereon.  State of Maine and Maine
State Employees Association, MLRB No. 82-A-02, Interim Decision, at 29-30 (June 2, 1983).
      
     At the outset of this decision, it is important to note that the hearing, be-
fore the Board which preceded this interim order and upon which our decision herein
is based, was an appellate proceeding and not a hearing de novo on the facts in
dispute.  We have, previously, discussed the limits placed on the introduction of
evidence during such a proceeding and the nature of the hearing itself.  In Teamsters
Local Union No. 48 and City of Portland, Report of Appellate Review of Unit Determina-
tion Hearing [No. 78-A-10], at 5-6 (Feb. 20, 1979), we stated:

                                       -4-
__________________________________________________________________________________      
    
     ". . . Section 968(4) of the [Municipal Public Employees Labor Relations]
      Act provides the right to appeal a hearing examiner's report to a party
      aggrieved by the report.  That Section states that upon the receipt of an
      appeal, the Board shall conduct a hearing in the manner specified in Sec-
      tion 968(5) (B), which provides that the parties to a hearing have the right
      to give testimony.  Section 968(4) also provides that after the hearing,
      the Board shall issue a decision which 'shall either affirm or modify the
      ruling or determination of the executive director and specify the reasons
      for such action.'  The appellate hearing conducted by the Board pursuant
      to Section 968(4) thus is for the purpose of reviewing the hearing exam-
      iner's rulings and determinations, and either affirming or modifying these
      rulings and determinations.
      
           "In ascertaining whether the hearing examiner's rulings and determ-
      inations should be affirmed or modified, the Board's task is to review
      the evidence upon which the hearing examiner based his decisions.  New
      evidence not offered to the hearing examiner clearly is inadmissable for
      purposes of this review.  There is nothing in Section 968(4) or (5) or in
      any other provision of the Act which suggests that the Board when hearing
      an appeal of a unit determination report may conduct a de novo hearing
      and admit new evidence not offered at the unit determination hearing.  Such
      new evidence obviously could distort our review of the hearing examiner's
      report. Since the unit determination hearing is the only evidentiary hear-
      ing on unit matters provided for in the Act, it would obviously offend both
      the provisions of the Act and coninon sense to suppose that a party was en-
      titled to two evidentiary hearings on a bargaining unit dispute - one be-
      fore the hearing examiner and the second before the full Board.  Thus, as
      we held in our Report of Appellate Review of Unit Determination Hearing 
      [No. 75-A-03], in Brunswick Ass'n of Paraprofessionals and Non-Teaching Personnel and
      Brunswick Superintending School Comm. (1975):
      
                '. . . we believe that the appeal procedure, authorized
           in  968,  4, of the Act, should be based on a clear and
           thorough review of the evidence adduced at the hearing before
           the Executive Director.  To hold otherwise would open the
           appeal procedure to a continuous and never-ending flow of new
           allegations.  Our charge is to review the Unit Determination
           Report of the Executive Director pursuant to the provisions of
            968,  4, of the Public Employees Labor Relations Act and,
           under that authority, we must look at the facts and evidence
           made available to the Executive Director when he acted as a
           hearing examiner pursuant to  966 of the Act.'
      
          "An important policy consideration which supports the procedures for
     determining bargaining unit questions set forth in the Act is that it would
     be a waste of time and resources for the Board to be primarily responsible
     for determining each and every bargaining unit question which arises.  In
     terms of expediency and efficiency, such determinations are best made at
     the administrative level, subject to limited review by the full Board.  This
     is the procedure followed by the National Labor Relations Board and by most
     public sector labor boards in the country.  If the full Board were primarily
     responsible for making these determinations, resolution of our already
     over-burdened prohibited practice complaint docket would become hopelessly
     delayed.

                                       -5-
__________________________________________________________________________________      
      
          "In addition, the procedures set forth in the Act also have the
     beneficial effect of establishing a time certain at which the parties
     must be prepared to present their complete case regarding a dispute
     over a unit matter, i.e., at the unit determination hearing.  Because
     the Board will not admit new evidence not offered at the unit determina-
     tion hearing, there should be no incentive for the parties to use the
     unit determination hearing to 'feel out' the opposing party's case or,
     subsequent to the unit determination hearing, to attempt to 'create a
     record' for use on appeal to fill gaps made evident at the evidentiary
     hearing."
      
We subsequently held that the foregoing rule and analysis also applies to appellate
reviews of unit clarification reports.  City of Bath and Council 74, AFSCME, MLRB
No. 81-A-01, at 6 (Dec. 15, 1980).  Since the relevant provisions of the Municipal
Public Employees Labor Relations Act, cited above, are analogous with those of
the Act involved herein and because the policy reasons stated apply equally hereto,
we now hold that the foregoing rule and rationale apply to unit clarification and
determination appeals brought under the State Employees Labor Relations Act.  In
keeping with this rule, the Union was only permitted to present, at the appellate
hearing hereon, the same witnesses and documents as had been heard or received by
the hearing examiner below.
      
     Since this portion of this appellate proceeding concerns the hearing examiner's
findings of fact, we will set forth the applicable standard of review which is used
by this Board to evaluate the correctness of said findings.  We have often stated
that "[w]e will overturn a hearing examiner's rulings and determinations if they
are 'unlawful, unreasonable, or lacking in any rational factual basis.'"  City of
Bath and Council 74, AFSCME, supra, at 6, quoting from Teamsters Local 48 and City
of Portland, supra, at 6.  See also, Town of Yarmouth and Teamsters Local 48, MLRB
No. 80-A-04, at 5 (June 16, 1980).  Although said cases were decided under the
Municipal Public Employees Labor Relations Act, the same standard of review, out-
lined therein, applies hereto.
      
     We have reviewed the hearing examiner's findings of fact, relevant to each of
the job classifications at issue herein and whose location within the hearing exam-
iner's decision is listed in our foregoing findings of fact.  We have also considered
the evidence presented by the Union, at the hearing.  As a result of said review,
we hold that the hearing examiner's findings of fact are correct.  We must, there-
fore, deny the Union's appeal on questions of fact for all but one of the positions
at issue herein.  That position will be discussed below.

                                       -6-
__________________________________________________________________________________      
      
     The Union has argued that the hearing examiner erred in holding that the
following positions are confidential within the meaning of Section 979-A(6)(C)
of the Act, either because the duties being performed by the incumbent employee
are unique to that employee and are not inherently a part of the duties of the
position or that, at the time of the hearing before the hearing examiner, the
duties of the position were in a state of flux.  The following job classifications
were those cited by the Union, to which either of these arguments allegedly apply:
      
          Department of Conservation
          State Supervisor, Fire Operations - Earle Williams
      
          Department of Education and Cultural Services
          Educational Specialist III (Coordinator, State/Local
            Relations) - Dale Douglass                         
      
          Department of Transportation
          Clerk Steno III - Joseph Durocher
          Clerk IV - Jennie D'Auteuil
      
We note herein, as did the hearing examiner below, that the decision to find that
said positions are confidential and, therefore, are excluded from collective bar-
gaining coverage under the Act, was made on the basis of the evidence presented to
the hearing examiner.  Said evidence related to the duties attendant to each posi-
tion, at the time of the hearings below. In the event that the duties of these po-
sitions change; through an employee no longer being on the State bargaining team,
through reclassifications, or otherwise; and, as a result of said changes, the
classifications no longer have a nexus with collective bargaining, it would be
appropriate for the Union to then petition for a unit clarification to have said
positions returned to the appropriate bargaining unit.
      
     In the case of Clerk Steno II (Evangeline Newcombe) in the Department of
Education and Cultural Services, the Union has argued that too much weight was
given to the fact that the employee shares an office with a confidential employee
in determining the confidential status of that position.  We have reviewed the
hearing examiner's findings of fact, relevant thereto, closely and we hold that
the Clerk Steno II's following duties mandate holding that that position is con-
fidential:  gathering collective bargaining information, taking notes on behalf
of the State during bargaining, and typing letters containing confidential col-
lective bargaining information.  Were the Clerk Steno II to be transferred physi-
cally into a different office location, the duties inherent to the position are
ample to justify said position's exclusion from collective bargaining coverage, as

                                       -7-
__________________________________________________________________________________      

a confidential employee.

     At pages 19 and 20, of our first interim order in this case, we noted:
      
          "The State seems to aver that the passive diffusion of labor
           relations and collective bargaining functions throughout the
           various State departments and agencies, if the same is accom-
           plished without the subjective intent to thereby deprive
           employees of collective bargaining rights, is acceptable, within
           the ambit of the Act.  We believe that the structure envisioned
           in and, to an extent, mandated by Section 979-A(5) of the Act is
           that the State make an affirmative effort to centralize said
           functions.  While recognizing that total centralization of said
           operations is not possible, the State should attempt to do so
           to the maximum practicable extent."
      
We are pleased to note that the facts, relating to several of the positions appealed
by the Union on issues of fact, illustrate the type of consolidation of confidential
duties which we discussed in our prior decision. These positions are: 
      
          Department of Finance and Administration
          Computer Operations Manager (Central Computer Services) - Raymond Rice
          Secretary (Central Computer Services) - Eleanor W. King
      
          Department of Mental Health and Corrections
          Secretary (AMHI) - Irene Begin
      
          Department of Transportation
          Analyst Programmer III - Raymond E. Halperin
      
In each case, the evidence indicated that, although other employees were technically
qualified to perform the same, the departments' confidential collective bargaining
functions were consciously assigned to the above employees exclusively.  We commend
the State for its efforts in this regard.
      
     The one position which we will discuss in detail herein is that of the Deputy
Director (Geralding Brown) of the Maine Criminal Justice Planning and Assistance
Agency.  As noted in our foregoing findings of fact, the hearing examiner's findings
of fact relevant to this position were correct and have been incorporated herein by
reference.  In analyzing this position, however, we note that, applying the standard
for determining whether a classification is confidential within the meaning of the
Act, this position does not fall within the ambit of the confidential exclusion.
In our previous interim decision in this case, we held:
      
     "Our standard for the exclusion of 'confidential' employees is that
      those persons affected are employees who are 'permanently assigned to
      collective bargaining or to render advice on a regularly assigned basis
      to management personnel on labor relations matters.'  State of Maine and
           
                                       -8-
__________________________________________________________________________________      
      
      Maine State Employees Association, [Report of Appellate Review of Unit
      Clarification Report [No. 78-A-09] (Mar. 2, 1979)], at 8.  As we have noted above,
      the 'labor relations' matters, in the foregoing context, do not include
      contract administration actions or duties.  Applying Hendricks County,
      [454 U.S. 170, 102 S.Ct. 216, 70 L.Ed.2d 323 (1980)], to this context,
      those employees who have, as part of their work responsibilities access
      to the employer's negotiations positions, in advance of said positions
      being disclosed at the bargaining table, and who, as an integral part
      of their job duties, assist and act in a confidential capacity with
      respect to persons who formulate or determine the employer's bargaining
      positions or bargaining strategy are 'confidential' employees, under
      Section 979-A(6)(C) of the Act."
      
State of Maine and Maine State Employees Association, MLRB No. 82-A-02, Interim
Order, at 10 (June 2, 1983).  The hearing examiner, at pages 26 and 27 of his
decision, found that the Deputy Director was assuming the role of department
personnel officer, advised the Director on employee contracts and benefits; was
the contact person with the Office of Employee Relations to clarify layoff policy,
was directly involved in reviewing and determining layoff plans, signed layoff
notices, advised the Director on layoff grievances, and advised the department
grievance officer because of her familiarity with the collective bargaining agree-
ment.  All of these duties of the Deputy Director are contract administration
functions and no collective bargaining involvement was attributed to said position.
In light of our previously announced standard, for determining the confidential
status under the Act, we must reverse the hearing examiner's decision to exclude
the Deputy Director classification.  The Deputy Director's position will be re-
turned to its appropriate bargaining unit.
      
      
                                      ORDER
      
     Based on the foregoing findings of fact and discussion and by virtue of and
pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A.
Section 979-G(2), it is ORDERED:
      
     1.  The motion of the Maine State Employees Association, to withdraw
         the following job classifications from its unit clarification
         appeal, be and hereby is granted.  The following positions, by
         order of the hearing examiner dated December 31, 1981, shall be
         excluded from collective bargaining coverage as confidential em-
         ployees:
      
         Community Services
         Deputy Director - Janet W. Peters

                                       -9-
__________________________________________________________________________________      
      
         Office of Attorney General
         Business Manager II - Otto W. Siebert
      
         Department of Human Services
         Director of Bureau of Medical Services - James Lewis
      
         Department of Secretary of State
         Clerk IV - Margaret Brann
      
         Department of Mental Health and Corrections
         Clerk Steno III (AMHI) - Charlene Dutremble
         Clerk Steno III (Pineland) - Mary Russell
         Clerk Steno III (BMHI) - Dorothy Cheney
      
         Department of Defense and Veterans Services
         Clerk IV - J. Vickery
      
     2.  That the appeal of the Maine State Employees Association, on questions
         of fact relating to the following job classifications, be and hereby is
         denied.  The following positions, by order of the hearing examiner dated
         December 31, 1981, shall be excluded from collective bargaining coverage
         as confidential employees:
      
         Maine State Retirement System
         Secretary - Laura Carlow
      
         Department of Conservation
         State Supervisor, Fire Operations - Earle Williams
         Clerk Typist III - Jan Leary
      
         Department of Education and Cultural Services
         Educational Specialist III (Coordinator, State/Local Relations) -
           Dale Douglass
      
         Clerk Steno II (Bureau of Vocational Education) - Evangeline Newcombe
         Institutional Business Manager I (Baxter School for the Deaf) -
           William Dunning
      
         Department of Finance and Administration
         Computer Operations Manager (Central Computer Services) - Raymond Rice
         Secretary (Central Computer Services) - Eleanor W. King
      
         Department of Mental Health and Corrections
         Secretary (AMHI) - Irene Begin

         Department of Transportation
         Clerk Steno III - Joseph Durocher
         Analyst Programmer III - Raymond E. Halperin
         Clerk IV - Jennie D'Auteuil

                                      -10-
__________________________________________________________________________________      
      
     3.  That the appeal of the Maine State Employees Association, on
         questions of fact relating to the following job classification,
         be and hereby is denied.  The decision of the hearing examiner,
         dated December 31, 1981 and excluding said position from collec-
         tive bargaining coverage as a confidential employee, be and hereby
         is reversed.  As a matter of law, the following position is not
         a confidential employee, within the meaning of 26 M.R.S.A. Section
         979-A(6)(C), and must, therefore, be returned to the appropriate
         bargaining unit:
      
         Maine Criminal Justice Planning and Assistance Agency
         Deputy Director - Geraldine Brown
      
      
Dated at Augusta, Maine, this 9th day of August, 1983.

                                         MAINE LABOR RELATIONS BOARD



                                         /s/________________________________________
                                         Edward H. Keith, Chairman
      


                                         /s/_______________________________________
                                         Don R. Ziegenbein, Employer Representative



                                         /s/_______________________________________
                                         Harold S. Noddin, Employee Representative

                                      -11-
      _____________________________________________________________________________