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- _____________________________________________________________________________