Maine Federation of Nurses and Health Professionals, AFT and Penobscot Valley Hospital, Case No. 85-UD-08; affirmed in part and reversed in part in 85-A-01. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 85-UD-08, et al. Issued: December 7, 1984 ______________________________________ ) MAINE FEDERATION OF NURSES AND HEALTH ) PROFESSIONALS, AFT, AFL-CIO, ) ) Petitioner, ) ) ) and ) UNIT DETERMINATION REPORT ) PENOBSCOT VALLEY HOSPITAL, ) Lincoln, Maine, ) ) Public Employer. ) ______________________________________) The questions presented in this unit determination case are (1) how many bargaining units of employees should be created at the Penobscot Valley Hospital (Hospital) and (2) what job classifications should be included in these units? The hearing examiner concludes that two bargaining units are appropriate for purposes of collective bargaining, one composed of professional and technical employees and the other of support and clerical workers, and also makes several determinations regarding supervisory and confidential employees. The Maine Federation of Nurses and Health Professionals, AFT, AFL-CIO (Union), filed petitions for a unit determination and an elec- tion pursuant to 26 M.R.S.A. 967(2) (Supp. 1983-84) on September 14, 1984, seeking to represent one "wall-to-wall" bargaining unit of all non-supervisory public employees at the Hospital. The Union proposed to exclude all department heads, management employees, supervisors, and confidential employees from the unit. On October 10, 1984 the Union filed a petition signed by a majority of the professional employees at the Hospital stating that the signers wished to be included in a single bargaining unit with the non-professional employees. After a pre-hearing conference on November 2, 1984, a hearing on the petitions was held on November 8, 1984 in Augusta, Maine. The Union was represented by National Representative Eileen McManus and [-1-] ______________________________________________________________________ the Hospital by Charles S. Einsiedler, Jr., Esq. The Hospital urged at the hearing that four bargaining units of Hospital workers should be created--a professional unit, a technical unit, a support unit, and a clerical unit--and also contended that the Unit Managers, Shift Managers, Patient Accounting Supervisor, and the Secretary to the Director of Nursing should be included in the units. The Union's position was that one bargaining unit of all employees was appropriate, that the Unit and Shift Managers and the Patient Accounting Supervisor are supervisors who should not be included in the unit, and that the Secretary to the Director of Nursing is an excluded confiden- tial employee. The Hospital presented the following witnesses at the hearing: Penelope Stevens Director of Nursing Nancy Brandow Director of Personnel Susan Harvey Director of Physical Services The Union presented as witnesses: Donna Pereira Registered Nurse Connie Zagorianakos Unit Secretary Nellie Stevens Certified Nursing Assistant Elsie Duplisea Registered Nurse The following documents were admitted into the record as exhibits: Union Exhibit No. 1 A list of job classifi- cations which the Union proposes to exclude from the bargaining unit. Hospital Exhibit No. 1 A list of employee names and job classifications organized according to the four bargaining units which the Hospital proposes to establish. In addition, after the hearing the hearing examiner received from the Union a copy of the Hospital Administrative District No. 1 Board of Directors' By-Laws. This copy of the by-laws was marked Union Exhibit No. 2 and was admitted into the record. Both parties filed post-hearing briefs which have been considered by the hearing exam- iner. The last brief was filed on November 19, 1984. -2- ______________________________________________________________________ JURISDICTION The Union is a "public employee organization" within the meaning of 26 M.R.S.A. 967(2) (Supp. 1983-84). Although given the oppor- tunity to do so, the Hospital did not contest this agency's jurisdic- tion over this case. However, because the question of the Labor Relations Board's jurisdiction over a hospital administrative district has never before been decided and because an administrative officer has the authority to raise jurisdictional questions on his own motion, the hearing examiner requested that the parties submit evidence regarding the jurisdictional issue. The evidence, which consists of Chapter 58 of the Private and Special Laws of 1967 and the Hospital's by-laws, shows the following: Hospital Administrative District No. 1, the district which oper- ates Penobscot Valley Hospital, was created in April 1967 when the Legislature enacted chapter 58 of the Private and Special Laws. Section 1 of chapter 58 authorized a number of towns in northern Penobscot County to enter into an agreement for the formation of a hospital administrative district which "shall acquire, or construct, maintain and operate a community general hospital for the care of those persons requiring it." Section 2 of chapter 58 provides that the district shall be governed by a board of directors composed of 2 mem- bers from each town, except that the town of Lincoln shall have 3 mem- bers. The members are elected for three-year terms by popular vote at town meeting in each town. Section 3 authorizes the board of direc- tors, in order to carry out the purpose of the agreement, to incur debt up to a limit of $1,000,000 by borrowing money and issuing bonds and notes. The district is declared to be a "quasi-municipal corporation" within the meaning of 30 M.R.S.A. 5053 (1974), a provision dealing with the debt liability of municipalities and quasi-municipal corpora- tions. Section 5 authorizes the directors to issue annual tax warrants to assessors of the towns in the district in order to raise the funds needed to make sinking fund payments and to pay interest on any bonds or notes. According to Section 2 of Article V of the Hospital's by-laws, fifteen towns are members of the district (Lincoln, Mattawamkeag, -3- ______________________________________________________________________ Howland, Enfield, Burlington, Lowell, Springfield, Lee, Passadumkeag, Chester, Winn, Seboeis, Maxfield, Prentiss, and Webster). Section 2 of Article I of the by-laws states that "[o]wnership and control of the hospital and all facilities shall be in the name of the citizens" of these towns. A number of committees are established by Article VII, including a Building and Grounds Committee, a Finance Committee, a Personnel Policies Committee, and a Planning Committee. Article X of the by-laws authorizes the directors to hire an administrator to run the hospital. The adminstrator is authorized to hire the employees necessary to operate the facility. Based on these facts, the hearing examiner finds that Hospital Administrative District No. 1 and Penobscot Valley Hospital are "public employers" subject to this agency's jurisdiction because they are "bod[ies] acting on behalf of [a] municipality or town" within the meaning of 26 M.R.S.A. 962(7) (Supp. l983-84).[fn]1 The governing body which operates the Hospital is a board of directors elected by popular vote from the towns which make up the district. Among other things, the directors are authorized to incur necessary debt, to tax the member towns in order to service the debt, and to hire an admini- strator to run the Hospital. Various committees of the board of directors are responsible for different phases of the Hospital's operation. The district has been declared to a be a "quasi-municipal corporation" by the Legislature for purposes of debt liability, and the by-laws provide that control of the Hospital and all facilities shall be in the name of the citizens of the towns. These facts establish that the district and the Hospital are subject to the towns' control or right to control, and that they are consequently "acting on behalf of" the towns within the meaning of Section 962(7). Baker Bus _______________ 1 Section 962(7) states in its entirety: "Public employer" means any officer, board, commission, council, committee or other persons or body acting on behalf of any municipality or town or any subdivision thereof, or of any school, water, sewer or other district, or of the Maine Turnpike Authority, or of any county or any subdivisions thereof. -4- ______________________________________________________________________ Service, Inc. v. Keith, 416 A.2d 727, 730-31 (Me. 1980). Because the Hospital is a "public employer," the hearing examiner has jurisdiction to hear this case and rule on the Union's petitions pursuant to 26 M.R.S.A. 966 (Supp. 1983-84). FINDINGS OF FACT AND CONCLUSIONS OF LAW The Hospital is a facility of approximately 42 beds, about 14 of which were closed shortly before the hearing of this case due to a low patient census. A number of employees were laid off as a result of this reduction in beds. The Hospital has a number of small departments including nursing, laboratory services, pharmacy, central supply, dietary, buildings and grounds, fiscal services, radiology, physical therapy, administration, personnel, medical records, social services, and housekeeping. Approximately 130 employees holding about 40 job classifications are involved in this case. The issues presented for decision are (1) how many bargaining units should be created and which job classifications should be included in the units, (2) should the Unit Managers, the Shift Mana- gers, and the Patient Accounting Supervisor, whom the Union alleges are supervisors, be included in the bargaining units, and (3) should the Director of Nursing's Secretary, alleged by the Union to a con- fidential employee, be included in the units? The hearing examiner will decide these questions in the order presented. I. THE BARGAINING UNIT DETERMINATIONS The Union urges that one large unit of all non-supervisory public employees at the Hospital is appropriate for purposes of bargaining, while the Hospital contends that four bargaining units are required. The standards governing unit determinations are set forth in 26 M.R.S.A. 966(2) (Supp. 1983-84) and provide that the hearing examiner must attempt to establish units that which both insure employees "the fullest freedom" in exercising their organizing and bargaining rights -5- ______________________________________________________________________ as well as a "clear and identifiable" community of interest.[fn]2 Having carefully considered the record of this case in relation to these two standards, and especially considering the 11 commmunity of interest criteria set forth by the Labor Relations Board on numerous occasions,[fn]3 the hearing examiner has decided that two bargaining units of Hospital employees are appropriate. One unit will consist of the professional and technical employees, and the other will include the support and clerical employees. Particularly crucial to this decision was consideration of the following community of interest factors: (1) similarity in the kind of work performed, (2) similarity in qualifications, skills, and training, and (3) to a lesser extent, similarity in wage scales. In addition, dividing the employees into two units will allow both groups of employees the fullest freedom in exercising their labor rights. The units proposed by both the Union and the Hospital would inhibit the full exercise of _______________ 2 Section 966(2) states: The executive director of the board or his designee shall decide in each case whether, in order to insure to employees the fullest freedom in exercising the rights guaranteed by this chapter and in order to insure a clear and identifiable community of interest among employees concerned, the unit appropriate for purposes of collective bargaining shall be the public employer unit or any subdivision thereof. No unit shall include both professional and nonprofessional employees unless a majority of such professional employees vote for inclusion in such unit, except that teachers may be included in a unit consisting of other certificated employees. 3 "(1) similarity in the kind of work performed; (2) common supervision and determination of labor-relations policy; (3) similarity in the scale and manner of determining earnings; (4) similarity in employment benefits, hours of work and other terms and conditions of employment; (5) similarities in the qualifications, skills and training of employees; (6) frequency of contact or interchange among the employees; (7) geographic proximity; (8) history of collective bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the public employer's organizational structure." AFSCME, Council 74 and City of Bangor, MLRB No. 79-A-01 at 3-4 (Oct. 17, 1979). -6- ______________________________________________________________________ these rights in the hearing examiner's opinion; the Union's proposed unit would force employees with greatly different jobs, training, and interest to bargain as a group, while the Hospital's proposal would unnecessarily fragment the employees into several small units. A. THE PROFESSIONAL/TECHNICAL UNIT. The employees included in the professional/technical unit are distinguished from the support and clerical employees in that they are engaged in some facet of actual patient care or treatment. Within this common denominator, the employees perform a variety of duties, including directly caring for or treating the patients, preparing medications, transcribing and routing doctors' orders, preparing and performing laboratory tests, analyzing or diagnosing the results of lab tests, or functioning as an assistant in the performance of any of these duties. The two units of employees are also distinguishable in that most of the professional and technical employees are required to have some sort of post-high school education or training as well as a license or certificate before they can perform their duties. Finally, the professional and tech- nical employees generally are paid at higher wage scales than are the support and clerical employees. The job classifications included in the professional/technical unit, the number of employees holding each classification, and a brief description for each classification of (a) duties performed, (b) required training and licensure, and (c) pay scale are as follows: 1. Physician's Assistant (4 employees) (a) Physician's assistants (PA's) examine and treat patients in the emergency room and also respond to acute emergency situations on the hospital floor. PA's give shots, stitch up cuts, do pap smears, and write orders for medication. (b) Baccalaureate degree plus two years of post- graduate training. Licensed by both the State of Maine and the Federal government. (c) PA's are salaried employees, with a salary range of $18,500 to $24,100 per annum ($8.89 - $11.58 per hour). -7- ______________________________________________________________________ 2. Medical Technologist (2 employees) (a) Medical Technologists analyze and diagnose the results of lab tests. (b) Baccalaureate degree and a license. (c) $7.08 - $9.24 per hour. 3. Registered Nurse (16 employees) (a) RN's assess patients, prepare written care plans, and then monitor and evaluate the patients to determine whether the care plan is effective. They also perform all direct patient care duties and are qualified to administer all forms of medication procedures, including intravenous medication. Although RN's are not supervisors, they direct the Licensed Practical Nurses, the Certified Nurses Assistants and the Unit Secretaries in the carrying out of direct patient care. (b) RN's may have a baccalaureate degree, a three-year diploma degree, or two-year associate's degree. All are required to hold a license issued by the State. (c) $7.50 - $9.68 per hour (plus 45> per hour shift dif- ferential for the evening shift and a 60> differential for the night shift). 4. Licensed Practical Nurse (18 employees) and Licensed Practical Nurse/Operating Room Technician (1 employee) (a) LPN's assist the RN's in developing patient care plans and they also perform patient care duties such as giving baths, changing dressings, and administering all medications except for intravenous medications. The LPN's differ from the RN's in that LPN's are not responsible for assessing or evaluating patients to the same degree as RN's are. The LPN/OR Technician assists in the operating room. (b) One year of post-high school education and a license. (c) $5.35 - $6.98 per hour (with the same shift differ- tials as RN'S receive). 5. Certified Nursing Assistant (9 employees) (a) The CNA's work with the RN's and the LPN's in pro- viding direct patient care. CNA's perform procedures -8- ______________________________________________________________________ involving patient hygiene, dietary care, and feeding. They make beds, give enemas, and take vital signs. (b) A 100-hour post-high school course and a cer- tificate. Some CNA's do not have a certificate because they were grandfathered when the certificate requirement was imposed. (c) $4.08 - $5.32 per hour (with the same shift dif- ferential as RN's and LPN's receive). 6. Unit Secretary (6 employees) (a) Unit Secretaries perform clerical duties on the hospital floor. These employees transcribe doctors' orders from the patient charts regarding medications, treatments and diet, and see that these orders go to the correct department. They type floor census sheets, the daily nur- ses' reports, and the information on the patient charts. They also answer the telephone. (b) A one-day, national certification test. (c) $4.08 - $5.32 per hour. 7. Assistant Chief Technologist (1 employee) (a) This employee collects laboratory specimens, runs tests on then, monitors the results, and institutes new lab procedures and methodologies when needed. (b) Two-year associate degree and a certificate. (c) $7.00 - $8.83 per hour. 8. Medical Laboratory Technician (3 employees) (a) MLT's collect laboratory specimens, run tests on them, and dispose of the specimens. (b) Two-year associate degree and a certificate. (c) $6.00 - $7.84 per hours. 9. Certified Laboratory Assistant (1 employee) (a) The Certified Laboratory Assistant functions as an MLT and works in the areas of microbiology and hematology. -9- ______________________________________________________________________ (b) A one-year post-high school course and a certificate. (c) $6.00 - $7.84 per hour. 10. Technical Laboratory Assistant (1 employee) (a) This employee works in the lab running routine tests and procedures. The employee is not involved in eva- luation of the results of lab tests. (b) On-the-job training. (c) $4.08 - $5.32 per hour. 11. Lab Secretary/Phlebotomist (1 employee) (a) The Lab Secretary/Phlebotobmist performs such duties as drawing blood and taking it to the lab, filing lab slips and lab reports, typing and answering the telephone, disposing of lab specimens, scheduling lab tests, and inven- torying lab supplies. (b) On-the-job training. (c) $4.08 - $4.89 per hour. 12. Pharmacy Nurse Technician (2 employees) (a) These employees are LPN's who work with the phar- macist. They fill the dose bins, keep records, and perform other duties in the pharmacy. (b) One year of post-high school education and a license. (c) $5.35 - $6.98 per hour. 13. Pharmacy Technician (1 employee) (a) This employee works with the Pharmacy Nurse Tech- nicians mixing and packaging drugs and solutions, getting drugs to the nursing department, and keeping track of inventory. (b) On-the-job training. (c) $4.12 - $5.38 per hour. -10- ______________________________________________________________________ 14. Operating Room Technician (2 employees) (a) OR Techs set up the operating room for surgery, making sure that all instruments are laid out, assist the doctors during surgery, and clean up after surgery. (b) A one-year post-high school course and a cer- tificate, although the Hospital does not require certification. (c) $5.10 - $6.66 per hour 15. Staff Radiological Technologist (4 employees) (a) These employees position patients for X-rays, take the X-rays, and then expose and process the film. (b) Two-year post-high school course, and registration with the American Medical Association. (c) $5.30 - $6.91 per hour. 16. Physical Therapy Assistant (1 employee) (a) The Physical Therapy Assistant performs all physi- cal therapy and rehabilitation treatments except for the initial diagnosis, which is done by a doctor. (b) Two-year associate degree and a license. (c) $7.25 - $9.18 per hour. 17. Emergency Medical Technician (7 employees) (a) The EMT's primary responsibility is riding the ambu- lance and performing on-the-scene emergency medical care. EMT's assess patients on-the-scene, take vital signs, bandage wounds, put on splints, and perform tracheotomies and defibrillation. The EMT's also work in the emergency room. (b) A 150-hour State-approved course and a license which must be maintained through continuing education course. All of the EMT's except one are also CNA's because during the recent reduction in force a number of CNA's "bumped" into EMT posi- tions. (c) $5.35 - $6.98 per hour when on the ambulance; $4.15 to $5.42 per hour when working in the emergency room if the EMT is also a CNA, $4.05 to $5.29 per hour if not a CNA. -11- ______________________________________________________________________ In addition to the facts that the professional/technical employees primarily perform patient care or treatment functions, usually are required to have some post-secondary education or training and a license or a certificate, and have somewhat similar salary scales these employees also have frequent interchange as they perform their duties and work in close geographical proximity (the patient floors, the emergency room, the lab, and the pharmacy). Finally, a majority of the professional employees (the Physician's Assistants, Medical Technologists, and Registered Nurses) have signed a petition stating their desire to be included with the non-professional employees in a single bargaining unit.[fn]4 These facts showing similari- ties between the professional and technical employees mean that these employees likely share common concerns and interests about such mat- ters as patient care issues, staffing levels, educational and training opportunities, and promotion possibilities. In light of all these considerations, the hearing examiner finds that the professional and technical job classifications listed above share a clear and iden- tifiable community of interest and constitute an appropriate bargaining unit for purposes of collective bargaining.[fn]5 B. THE SUPPORT/CLERICAL UNIT. The employees included in this bargaining unit generally perform support and clerical duties as opposed to patient care or treatment functions. The support duties include such matters as cooking, cleaning, doing laundry, receiving and distributing hospital supplies, and making small repairs, while the clerical duties include typing, filing, record keeping, operating the switchboard, bookkeeping, and entering and retrieving computer data. Unlike the professional and technical employees, the support and clerical employees for the most part are not required to have any post-secondary education or training, nor are they required to hold _______________ 4 This petition satisfies the requirement in Section 966(2) that a majority of professional employees must vote to be included in the unit before such employees can be included in a unit with non- professional employees. See, e.g., Northern Aroostook Vocational Educators and Saint John Valley Vocational Cooperative Board, Unit Determination Report at 2 (Jan. 20, 1983). 5 The hearing examiner is aware that this unit is not fully con- sistent with either the earlier "community of interest" approach or -12- ______________________________________________________________________ licenses or certificates. Most of the support and clerical workers are required to have a high school degree or the equivalent or some relevant experience. All of the support and clerical employees occupy one of six salary scales, as follows: $3.75 - $4.89 per hour (central supply, dietary, laundry, and housekeeping workers); $4.08 - $5.32 per hour (various clerical employees); $4.15 - $5.42 per hour (general maintenance workers); $4.35 - $5.68 per hour (assistant cooks); $4.70 - $6.13 per hour (various clerical); and $5.00 - $6.53 per hour (the cook). The job classifications in the support/clerical unit and the number of employees holding each classification are as follows:[fn]6 1. Central Supply Worker (4 employees) 2. Laundry Worker (1 employee) 3. Dietary Helper (3 employees) 4. Housekeeper (4 employees) 5. General Maintenance Worker (5 employees) 6. Assistant Cook (3 employees) _______________ the more recent "disparity of interests" approach taken by the National Labor Relations Board when determining hospital bargaining units. Both of these approaches are based on the 1974 health care amendments to the National Labor Relations Act, 29 U.S.C.A. 152(14), 158(d) and (g), 169, and 183, and on federal case law interpreting these amendments. See, e.g., St. Francis Hospital, 271 NLRB No. 160, 116 LRRM 1465, 1467-70 (1984). Because similar amend- ments have not been enacted for Maine's labor relations statutes, the hearing examiner has concluded that the traditional community of interest analysis developed under the Maine statutes applies in this case even though a hospital is involved. Pursuant to this analysis, professional/technical units have on occasion been established in Maine. See, e.g., Council 74, AFSCME and State of Maine, Unit Determination Report at 7-11 (Sept. 22, 1976). Many of the con- siderations and rationales discussed in the State of Maine case are equally applicable here. 6 The record is not clear whether all the support and clerical job classifications at the Hospital were discussed at the hearing. If any rank-and-file support or clerical classification does not appear in this list, it should nonetheless be understood to be included in the bargaining unit, as the hearing examiner's intent is to include all such positions. -13- ______________________________________________________________________ 7. Cook (1 employee) 8. Patient Account Representative (5 employees) 9. Patient Registration Representative (6 employees) 10. Medical Records Clerk (1 employee) 11. Switchboard Operator (3 employees) 12. Transcriptionist/Coder (1 employee) 13. Medical Records Transcriptionist (2 employees) 14. Accountant (1 employee) 15. Utilization Management Coordinator/Medical Records Transcriptionist (1 employee) 16. Computer Operator (1 employee) 17. Accounts Payable Coordinator (1 employee) In light of the similarities in the type of work performed, in the qualifications and training of the employees, and in the wage scales, the hearing examiner finds that the job classifications listed above share a clear and identifiable community of interest and that these classifications form an appropriate unit for purposes of collec- tive bargaining. As is the case in most unit determination pro- ceedings, there are several positions in the "gray" area which could be properly included in either bargaining unit. For example, the Unit Secretaries and the Lab Secretary/Phlebotomist perform secretarial and clerical duties and could reasonably be included in the support/clerical unit. However, the hearing examiner decided to include these employees in the professional/technical unit because the testimony of Elsie Duplisea, RN, and Unit Secretary Connie Zagorianakos establishes that the Unit Secretaries are an "indispensable" part of the nursing team. The Unit Secretaries work closely with the RN's, LPN's and CNA's in providing patient care, and have little contact or interchange with the other clerical employees. Moreover, like the RN's, LPN's, and CNA's, the Unit Secretaries are answerable to the Director of Nursing and are evaluated by the Unit Managers. In the hearing examiner's judgment these facts show that -14- ______________________________________________________________________ the Unit Secretaries are much more closely allied with employees in the professional/technical unit than with the members of the support/clerical unit. The same rationale applies to the Lab Secretary/Phlebotomist, who works in the laboratory, not in the Hospital's business offices, and to other positions such as the Tech- nical Lab Assistant and the Pharmacy Technician. II. THE SUPERVISORS The Hospital contends that three classifications, the Unit Managers, Shift Managers, and the Patient Accounting Supervisor, should be included in the bargaining units. The Union opposes inclusion of these classifications on the ground that these are supervisory posi- tions which should not be included in rank-and-file bargaining units. The issues which must be decided are (1) are the employees holding these 3 positions supervisors and (2) if they are supervisors, should the positions be included in the bargaining units? The record shows with regard to the Unit and Shift Managers that the Director of Nursing is the head of the nursing department and the Operating Room Supervisor/Assistant Director of Nursing is second-in- command. Under these two positions are 3 Unit Managers and 4 Shift Managers, all of whom are RN's. Penelope Stevens, the Director of Nursing, testified that the primary function of both Unit and Shift Managers is patient care. However, the record shows that these employees also perform other significant duties. The Unit Managers are responsible for various areas of the hospi- tal. As do the Director and Assistant Director of Nursing, they usually work the day shift. In addition to patient care, the Unit Managers perform such duties as scheduling the work hours of the nursing staff (the RN's, LPN's, CNA's and Unit Secretaries), reviewing time cards for accuracy, and, along with the Shift Managers, evalu- ating the members of the nursing staff, subject to the review of the Director of Nursing. They review job applications and interview job candidates. They can verbally reprimand employees but otherwise have no responsibility for disciplining or discharging employees. Two of -15- ______________________________________________________________________ the Unit Managers have offices out of which they work (the emergency room Unit Manager does not have an office). Witness Duplisea esti- mated that the Unit Managers spend about 10% of their time directly caring for patients and the rest of their time managing and supervising. The Shift Managers supervise the nursing staff on the evening and night shifts. During these shifts they are the highest authorities in the nursing department. They interpret and apply Hospital policies during these shifts and insure that proper patient care is being carried out. They have the authority to send a nursing employee home if the shift is overstaffed and can call employees in to work if the shift if understaffed. They participate in the evaluations of nursing employees and can give verbal reprimands. The Shift Managers share an office. Both the Unit and the Shift Managers are salaried employees who are not eligible for overtime. The RN's and other members of the nursing staff are hourly employees. If averaged out, the yearly salary for the Unit Managers would be $10.50 - $11.77 per hour, while the Shift Managers' salaries would be $9.61 - $11.05 per hour on the evening shift and $9.75 - $11.20 per hour on the night shift. The Mangagers receive more vacation time than do the other members of the nursing staff. Finally, the Unit and Shift Managers are members, along with the Director and Assistant Director of Nursing, of the Nursing Executive Committee. The purpose of this committee, which meets weekly, is to monitor patient care in the hospital. Among the matters discussed are Hospital policies and procedures, discipline of employees who commit errors, the qualifications of employees for the supervisory positions, and employee skill inventories. In light of this evidence, the hearing examiner finds that both the Unit Managers and the Shift Managers are supervisors under the Act. These employees clearly perform some or all of the following "management control duties" identified in 26 M.R.S.A. 966(1): (1) scheduling, assigning, overseeing and reviewing the work of subordi- nate employees, (2) performing duties which are distinct and dissim- ilar from those performed by the supervised employees, (3) and -16- ______________________________________________________________________ exercising judgment in applying established personnel policies.[fn]7 While the Shift Managers presumably spend a greater percentage of their time on direct patient care than do the Unit Managers, the Shift Managers unquestionably are the supervisors of their shifts, interpreting and applying hospital policy and insuring that the other employees perform their duties. Because of their membership in the Nursing Executive Committee, the Shift Managers clearly are more closely allied with the Unit Managers and the Director of Nursing than with the rank-and-file members of the nursing staff. The hearing examiner also finds that the Patient Accounting Supervisor is a supervisor. According to the testimony of Sue Harvey, the Director of Physical Services, the Patient Accounting Supervisor works at the registration desk registering patients and also performs such duties as scheduling the work of the other employees in the department of patient registration; hiring employees in conjunction with the Director of Patient Accounting; evaluating employees; develop- ing policies and procedures for the department; disciplining employees with the approval of the Director; and approving and signing the time cards for about 10 employees. These duties clearly establish that this employee is a Section 966(1) supervisor. Having determined that the 3 job classifications at issue are supervisory positions, the hearing examiner must now decide whether _______________ 7 Section 966(1) states in pertinent part: "In determining whether a supervisory position should be excluded from the proposed bargaining unit, the executive director or his designeee shall consider, among other cri- teria, if the principal functions of the position are charac- terized by performing such management control duties as scheduling, assigning, overseeing and reviewing the work of subordinate employees, or performing such duties as are distinct and dissimilar from those performed by the employees supervised, or exercising judgment in adjusting grievances, applying other established personnel policies and procedures and in enforcing a collective bargaining agreement or establishing or participating in the establishment of perfor- mance standards for subordinate employees and taking correc- tive measures to implement those standards." -17- ______________________________________________________________________ these positions should be included in the bargaining units. The Hospital correctly points out that the Labor Relations Board's policy is to include supervisory positions in rank-and-file bargaining units at least in some circumstances. However, this policy is limited to situations involving only one or two supervisors In such situations the Board reasons that inclusion of the supervisors is warranted in order to avoid the proliferation of small bargaining units with their attendant expenses. See, e.g., M.S.A.D. No. 14 and East Grand Teachers Association, MLRB No. 83-A-09 at 12-13 (Aug. 24, 1983) (one supervisor). When more than 1 or 2 supervisors are involved, the Board usually creates a separate supervisory bargaining unit on the theory that separate units give both groups of employees their fullest freedom in exercising their bargaining rights and also avoid conflicts of interest between supervisors and the employees they supervise. See, e.g., Town of Kennebunk and Teamsters Local 48, MLRB No. 83-A-01 (Oct. 4, 1982) (three supervisors). The most appropriate course in this case is to exclude the super- visors from the two rank-and-file units. At least 8 supervisors have been identified, and others may well work at the Hospital in classifi- cations not considered in this proceeding. These supervisors super- vise a fairly large number of employees; the 7 Unit and Shift Managers supervise 16 RN's, 19 LPN's, 9 CNA's, 6 Unit Secretaries, and 7 EMT's, while the Patient Accounting Supervisor supervises at least 10 employees. As the duties performed by the supervisors show, these employees are somewhat allied with management and thus do not share a clear and identifiable community of interest with the rank-and-file employees. Moreover, exclusion of the supervisors will insure that all employees are granted the fullest freedom in excercising their rights to select a bargaining agent and engage in bargaining, and also will avoid any potential conflicts of interest. The hearing examiner therefore concludes that supervisors should not be included in either of the two rank-and-file units. Because no employee organization has petitioned to represent the supervisors at the Hospital, the hearing examiner makes no determinations with regard to the proper composition of a supervisory unit. -18- ______________________________________________________________________ III. THE CONFIDENTIAL EMPLOYEE QUESTION The final matter to be determined is whether the Secretary to the Nursing Director should be included in the support/clerical bargaining unit; the Hospital contends that the Secretary is a "public employee" who should be included, while the Union argues that she is a "confidential employee" excluded by the Act.[fn]8 The test for deter- mining whether a secretary is a confidential employee is whether the secretary as part of her regular duties has access to the employer's employee relations positions and policies prior to the time that these matters are revealed to the employees or the union. See, e.g., Council 74, AFSCME and Town of Brunswick, Unit Determination Report at 4 (Feb. 22, 1984); State of Maine and Maine State Employees Association, MLRB No. 82-A-02 at 10 (June 2, 1983). The evidence shows that the Secretary, Holly McCafferty, works part-time for Nursing Director Penny Stevens, and the rest of her time for another department. She performs general clerical duties for the Nursing Director. Among the matters which she types are nursing poli- cies formulated by Stevens, the minutes of Nursing Executive Committee meetings, disciplinary notices, and employee evaluations. She also typed the lay-off list for the recent reduction in force. These duties show that the employee has access to confidential employee relations decisions and policies prior to the time that these matters are revealed to the employees. Disciplinary matters and employee qualifications for promotion are discussed at the NEC meetings. The employee's access to such matters as disciplinary notices, employee evaluations, and lay-off lists means that if the employee was included in a unit the content of these matters could be _______________ 8 Section 962(6)(C) (1974) states that "public employee" means any employee of a public employer except for any person "[w]hose duties as deputy, administrative assistant or secretary necessarily imply a con- fidential relationship to the executive head, body, department head, or division head." Section 966(1) (Supp. 1983-84) provides that "anyone excepted from the definition of public employee under section 962 may not be included in a bargaining unit." -19- ______________________________________________________________________ revealed to the union prior to the time that the Hospital was ready to disclose them, thereby.giving the union an unfair advantage and jeopar- dizing the Hospital's positions. The hearing examiner therefore concludes that the Nursing Secretary is a "confidential employee" who cannot be included in any bargaining unit. ORDER On the basis of the foregoing findings of fact and discussion and by virtue of and pursuant to the powers granted to the hearing examiner by 26 M.R.S.A. 966 (Supp. 1983-84), it is ORDERED: 1. The Professional/Technical Bargaining Unit at Penobscot Valley Hospital is composed of the following job classi- fications: Physician's Assistant, Medical Technologist, Registered Nurse, Licensed Practical Nurse and LPN/Operating Room Technician, Certified Nursing Assistant, Unit Secretary, Assistant Chief Technologist, Medical Laboratory Technician, Certified Laboratory Assistant, Technical Laboratory Assistant, Lab Secretary/Phlebotomist, Pharmacy Nurse Technician, Pharmacy Technician, Operating Room Technician, Staff Radiological Technologist, Physical Therapy Assistant, Emergency Medical Technician, and any other professional or technical classifications which could properly be included in this unit. 2. The Support/Clerical Bargainng Unit at Penobscot Valley Hospital is composed of the following job classifi- cations: Central Supply Worker, Laundry Worker, Dietary Helper, Housekeeper, General Maintenance Worker, Assistant Cook, Cook, Patient Account Representative, Patient Registration Representative, Medical Records Clerk, Switchboard Operator, Transcriptionist/Coder, Medical Records Transcriptionist, Accountant, Utilization Management Coordinator/Medical Records Transcriptionist, Computer Operator, Accounts Payable Coordinator, and any other support or clerical classifi- cations which could properly be included in this unit. 3. The Unit Managers, Shift Managers and Patient Accounting Supervisor are supervisors who are not included in any bargaining unit at the present time. 4. The Secretary to the Director of Nursing is a confiden- tial employee who is statutorily barred from being included in a bargaining unit. -20- ______________________________________________________________________ 5. Representation elections should be held for the two bargaining units as soon as practical. Dated at Augusta, Maine, this 7th day of December, 1984. MAINE LABOR RELATIONS BOARD /s/________________________________ Wayne W. Whitney Hearing Examiner The parties are advised of their right, pursuant to 26 M.R.S.A. Section 968(4) (Supp. 1983-84), to appeal this report to the full Labor Relations Board by filing a notice of appeal with the Board within 15 days of the date of this report. -21- ______________________________________________________________________