STATE OF MAINE MAINE LABOR RELATIONS BOARD No. 90-UD-02 Issued: November 22, 1989 ____________________________________ ) TEAMSTERS UNION LOCAL 340, ) ) Petitioner, ) ) and ) UNIT DETERMINATION REPORT ) THE TOWN OF KITTERY, ) ) Public Employer. ) ____________________________________) This unit determination proceeding was initiated on June 30, 1989, when Teamsters Union Local 340 (Teamsters) filed a petition for unit deter- mination with the Maine Labor Relations Board (Board) pursuant to 26 M.R.S.A. 966 (1988) and the Board's Unit Determination Rules.[fn]1 The Teamsters' petition seeks a determination that the position of Secretary to the Chief of the Kittery Police Department constitutes an appropriate, one- person collective bargaining unit. A full evidentiary hearing on the issues raised by the petition was conducted by the undersigned at the Board's offices in Augusta, Maine, on August 15, 1989. The Teamsters are represented in this proceeding by Teamsters Vice President and Business Agent Harvard Brassbridge. The Town of Kittery (Employer) is represented in this matter by Duncan McEachern, Esquire. At hearing the parties were afforded the opportunity to present evi- dence and argument and the opportunity to cross-examine witnesses. The Teamsters elicited testimony from Ms. Lana Rae Small, the Secretary to the Chief of the Kittery Police Department. The Employer elicited testimony from Police Chief Edward F. Strong and Town Manager Philip McCarthy. The following documents were marked for identification as indicated: Town Exhibit number 1, a one-page document entitled "An Ordinance to Amend . . . _______________ 1 Processing of the petition was initiated upon receipt, on July 13, 1989, of proof of service of the petition upon the Town of Kittery. [-1-] ___________________________________________________________________________ "The Personel Position Classification Plan," of the Kittery Town Code to Include a Job Description for the position of Secretary to the Chief of Police;" Town Exhibit number 2, a four-page document entitled "Proposed Contract Changes 1989-1990;" Town Exhibit number 3, a twenty-three page document entitled "Management Proposals." All three exhibits were admitted without objection by the Teamsters. The Teamsters submitted no documentary evidence. Neither party expressed a desire to file briefs in the matter. The transcript was completed on October 4, 1989. JURISDICTION The undersigned Hearing Examiner's jurisdiction to conduct a unit determination hearing herein and to issue a report thereof lies in 26 M.R.S.A. 966 (1988). STIPULATIONS In prehearing off-the-record discussions the parties reached the following stipulations: 1. The Town of Kittery is a public employer within the meaning of 26 M.R.S.A. 962(7) (1988). 2. But for the Employer's contention that the Secretary to the Police Chief is a confidentinal employee, neither party asserts that she is other- wise excluded from the definition of the term "public employee" contained in 26 M.R.S.A. 962(6) (1988). 3. The Secretary to the Police Chief constitutes an appropriate one- person collective bargaining unit. 4. There is no certification or contract bar to the instant unit determination petition. 5. Teamsters Union Local 340 is a lawful organization having as its primary purpose the representation of public employees, which seeks to represent the Secretary to the Police Chief as an exclusive collective bargaining agent within the meaning of 26 M.R.S.A. 962(2) (1988). -2- ___________________________________________________________________________ POSITIONS OF THE PARTIES The Teamsters contend that the Secretary to the Police Chief (Secretary) has no access to material kept confidential from any other employee of the Police Department. The Employer contends that the Secretary is excluded from the definition of the term "public employee" because she has access to a variety of confidential information in the discharge of her job functions, which if disclosed to the bargaining agent would be detrimental to the Employer. The Employer contends the Secretary lacks a community of interest with employees in any of the three existing Police Department collective bargaining units. FINDINGS OF FACT There are presently eleven employees in the Kittery Patrolmen's unit, which was originally certified on December 16, 1977, and amended on April 1, 1984. The patrolmen's unit, presently represented by the Teamsters, is described: INCLUDED: Kittery Police Department Patrolmen, Detectives and Youth Aid Officer EXCLUDED: All other employees of the Town of Kittery There are presently five employees in the Kittery Police Dispatch unit, which was originally certified on December 16, 1977. The Dispatch unit, presently represented by the Teamsters, is described: INCLUDED: Dispatchers of the Town of Kittery EXCLUDED: All other employees of the Town of Kittery There are presently three employees in the Kittery Police Supervisory unit, which was certified on April 21, 1983. The supervisory unit, presently represented by the Teamsters, is described: INCLUDED: Kittery Police Department Sergeants -3- ___________________________________________________________________________ EXCLUDED: All other employees of the Town of Kittery[fn]2 Edward F. Strong has been the Chief of Police for four years and has held the ranks of Acting Chief, Sergeant and Patrolman during his eleven- year tenure with the Town. With the exception of the present year when the Town met with the supervisory and patrolmen's bargaining units together, the Town has conducted annual negotiations on a rotating basis among the department's three bargaining units. Until last year the Chief and the Town Manager constituted the Town bargaining team for Police Department contracts. Last year two Town Council members were also members of the bargaining team, and in the most recent negotiations the Chief and Town Manager have been assisted by a representative of the Maine Municipal Association. Although the Town Manager ultimately decides which proposals to recommend to the Town Council for their approval, the Police Chief is an active participant in negotiations and has provided the Town Manager with prioritized proposals for contract changes in advance of negotiations. The Chief has informed the Town Manager of these proposed changes by memo, over the phone and in person at bargaining caucuses. The Town Manager has, by memo, requested that the Chief render tactical bargaining recommenda- tions and cost analyses of proposals, such as recently in regard to "switching" the retirement plan. The Department's criminal investigations are done by the detectives in internal affairs. Contract grievance investigations regarding the patrol or dispatch units are conducted by sergeants. The Chief conducts his own investigations regarding supervisors. The Chief makes confidential recom- mendations to the Town Manager, supplementing his summary denials at his step of the grievance procedure. These recommendations, the Chief's memos _______________ 2 The Board's records indicate that the following additional Town and School Kittery employee units exist: Kittery Administratve Clerical Employees Bargaining Unit, Kittery Technical Employees Bargaining Unit, Kittery General Employees Bargaining Unit, Kittery Water District Employees Bargaining Unit, Kittery Highway, Sewer and Water Department Bargaining Unit, Kittery Teachers Bargaining Unit, Kittery School Department Custodians Bargaining Unit, Kittery School Committee School Lunch Program Bargaining Unit and Kittery School Committee Principals and Assistant Principals Bargaining Unit. -4- ___________________________________________________________________________ to the file and final reports promulgated prior to and in anticipation of grievance hearings are typed either by the Chief or by the Secretary to the Police Chief. The Chief has rarely conducted grievance investigations by himself in the last few years. The Chief did do investigations regarding two employees he terminated within the past four years. The position of Secretary to the Chief of Police was approved, and the Town Code's Personnel Position Classification Plan amended to include a job description therefor, on September 9, 1988. The job description requires confidential secretarial and administrative support to the Chief. Ms. Lana Rae Small (Small), the present Secretary to the Police Chief, has been employed by the Town of Kittery for eleven years. An unspecified portion of her tenure with the Town at the beginning was as clerk to the Chief. In her present capacity Small supplies all the Chief's typing requirements, opens all the departmental mail, composes the department payroll, performs filing, bookkeeping and computer work and issues gun permits. Small also performs typing work for supervisors and other departmental employees. Small has never been present in contract negotiations. Small has typed proposals for changes in contracts which the Chief has submitted, during and in preparation for negotiations, to the Town Manager. Small has typed up some of the reports of departmental investigations relating to grievance and arbitration hearings. Small is responsible for typing up any investigative report promul- gated by the Chief with respect to sergeants. Small keeps a "personal" file in her desk in which she keeps the Chief's correspondence to and from the Town Manager. The Chief keeps a private locked file cabinet in his office, in which all pending grievance matters are kept. Additionally, the Chief keeps negotiations proposals locked in his desk, to which only he has the key. The department's three supervisors, like Small, have access to the department's personnel files. Small typed the Chief's analysis of the retirement plan "switch" on the word processor to which the Systems Controller, a member of an unspecified town bargaining unit, also has access. Plans are in effect which will isolate the matter input at the chief's terminal, from access through the main computer, without a password which will be known only by Small and the Systems Controller. Incidents of -5- ___________________________________________________________________________ access by the controller will under these plans be verifiable. Strong has admonished Small in the past about opening his personal mail which is marked "personal." Strong has no problems with Small opening business mail marked personal. A half-time dispatcher/half-time secretary, Julie Ruggeri, also performs departmental clerical duties. Ruggeri does some typing for supervisors, all the typing for Detective Avery and Juvenile Officer Hackett and, when Small is busy, performs unspecified work for the Chief. Ruggeri has access to all department records that Small has access to, with the exception of the department's personnel files which are kept in the Chief's office. Ruggeri does not have access to any of the materials prepared by the Chief and typed by Small, respecting negotiations with any of the collective bargaining units. Ruggeri has never typed up any such materials. Ruggeri has typed up reports of investigations relating to grievance and arbitration hearings for the Detective. Small's work space is just outside the door to the Chief's office on the second floor of the police department building. The juxtaposition of Small's work station to that of the Chief, in practicality, renders Small privy, on all subjects, to discussion taking place in the Chief's office and to at least the Chief's end of all phone conversations. Such is the case even with the Chief's door closed. The Chief's work station is one eighth of a mile from Town Hall. The Chief visits the Town Hall at least once per day. There are no other confidential employees in the police department. Philip O. McCarthy has been Kittery Town Manager for seven and a half months. The Town Clerk and to a lesser degree the Deputy Town Clerk, a bargaining unit employee, provide secretarial services to the Town Manager. The Town Manager has received two or three typed memos from the Chief respecting labor relations matters. There are clerical employees distrib- uted throughout the Town's general government as follows: One secretary works in the Recreation Department, one part-time and two full-time clerks work at the town office, the Town Clerk and Deputy Town Clerk perform secretarial duties, and one clerk works at public works. With the excep- tion of the Town Clerk and the Public Works Clerk, all of the town cleri- cals are presently members of the Kittery Administrative/Clerical Employee Bargaining unit, represented by the Kittery Employees Association in a -6- ___________________________________________________________________________ unit certified March 6, 1986, and described: INCLUDED: Assistant Town Clerk, Recreation Clerk, Administrative Clerk, Assessor's Clerk, Clerk/Bookkeeper (Sanitation Department) EXCLUDED: All other employees of the Town of Kittery The only other Town employee who may have handled confidential labor rela- tions materials as a clerical responsibility, in addition to the Police Chief's Secretary and the Town Clerk, is the public works department cleri- cal. Notices of the hearing regarding the unit placement of the Secretary to the Police Chief were duly posted. DISCUSSION The evidence establishes that the Kittery Chief of Police has con- sistently participated as a member of the Kittery Police Department bargaining team. The Chief has been called upon by the Town Manager to formulate and prioritize proposals for modification of the Town's three Police Department collective bargaining agreements. The Chief synthesizes the modification suggestions of subordinate supervisors regarding the patrolmen and dispatchers' unit contracts. The Chief has participated as the longstanding sole police department collective bargaining negotiations resource person, and has assisted the Town Council in executive session to formulate the Town's labor relations strategy. The Town bargains with three departmental units and has recently been involved in successor police department negotiations on what has come to be an annual basis. The record reflects that the Secretary to the Police Chief is exposed to a great deal of oral and written confidential information in the ordinary and routine performance of her job responsibilities. Many of these confidences have no bearing on whether she is appropriately designated a confidential employee and excluded from the coverages of the Municipal Public Employees Labor Relations Law. Two specific variations of her exposure to confidential matters are, however, dispositive of the issue of her confidential status. The record establishes that Small has routinely been called upon to type all of the contract modification proposals, proposal prioritizations and analyses which the Chief has been called upon to prepare for the Town -7- ___________________________________________________________________________ Manager. Additionally, Small is routinely exposed to the incoming and outgoing memo interplay with the Town Manager regarding the Chief's initial proposals. The Chief uses no other employee in any manner having a labor relations nexus sufficient for confidential designation. Apparently among all of the balance of Town employees only the Town Clerk regularly performs clerical duties with a labor relations nexus. A discussion of the Board law relating to the underlying purpose and stringent application of confidential designation is set forth in the case styled Kittery Employees Association and Town of Kittery, Nos. 86-UD-06 and -08 (Me.L.R.B. Feb. 13, 1986). The pertinent portions of that decision bear repeating here: The Municipal [Law] negatively defines the term "public employee" by providing seven specific exceptions which, when applicable, operate to deprive employees of public employers sta- tus. See 26 M.R.S.A. 962(6) (Supp. 1985-1986). These excep- tions are narrowly construed by the Board in order to prevent unnecessary abridgment of the statutory collective bargaining rights guaranteed to public employees by 26 M.R.S.A. 961 and 963 (Supp. 1985-86). See Teamsters Local Union No. 48 and Town of Lisbon, Hearing Examiner's Unit Determination Report [81-UD-17], slip op. at 4 (Me.L.R.B. June 8, 1981), quoting, State of Maine v. Maine Labor Relations Board, No. CV-77-135 (Me. Super. Ct. Ken. Cty., Oct. 10, 1980). See generally Teamsters Local Union No. 48 and City of Biddeford, Hearing Examiner's Unit Determination Report [80-UD-22], slip op. at 5 (Me.L.R.B. Apr. 9, 1980). The Act provides one such specific exception for employees of public employers "[w]hose duties as . . . deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head, body, department head or division head." In determining the applicability of this "confidential" exception the Board balances the bargaining rights of employees concerned wtih the statutory right of their public employers to require a reasonable number of employees to assist them in preparing for and engaging in collective bargaining negotiations. See generally M.S.E.A. and Maine Maritime Academy, Hearing Examiner's Unit Determination Report [82-UD-04], slip op. at 7-8 (Me.L.R B. Jan. 22, 1982); Teamsters Local Union No. 48 and City of Biddeford. Hearing Examiner's Unit Determination Report [78-UD-34], slip op. at 2 (Me.L.R.B. Aug. 4, 1978); Teamsters Local Union No. 48 and Town of Fairfield, Hearing Examiner's Unit Determination Report [78-UD-42], slip op. at 4 (Me.L.R.B. July 31, 1978). The underlying purpose of the exclusion of confidential employees from bargaining units is to prevent such employees from being subjected to an irreconcilable conflict of interest in which their loyalties are divided between their employer, who -8- ____________________________________________________________________________ expects confidentiality, and their union, which may seek disclo- sure of confidential employer labor relations material to gain advantage in bargaining. An employee in possession of confiden- tial information not connected with labor relations matters is not generally subjected to such divided loyalty. Union member- ship is not incompatible with an employee's duty of loyalty to the employer when that duty requires confidentiality regarding matters other than labor relations. See Town of Fairfield and Teamsters Local 48, Report of Appellate Review of Unit Deter- mination Report [78-A-08], slip op. at 3 (Me.L.R.B. Nov. 27, 1978). Furthermore, only involvement in aspects of collective bargaining negotiations is sufficient to support "confidential" designation. Involvement in contract administration and grievance adjustment is not. See State of Maine and Maine State Employees Associa- tion, No. 82-A-02, slip op. at 9 (Me.L.R.B. Aug. 9, 1983). The Board has stated that the following standards are to be applied in determining whether an employee is "confidential," within the meaning of the Municipal Act: We have often stated that, to be a confidential employee," one must be "permanently involved in collec- tive bargaining matters on behalf of the public employer or that the duties performed by the employee involve the formulation, determination and effectuation of the employer's employee relations policies. Waterville Police Department and Teamsters Local Union No. 48, Report or Appellate Review of Unit Determina- tion Report [78-A-06], slip op. at 3 (Me.L.R.B. Oct. 4, 1978). Maine School Administrative Distirct No. 14 and East Grand Teachers Association, No. 83-A-09, slip op. at 8-9 (Me.L.R.B. Aug. 24, 1983), quoting, State of Maine and Maine State Employees Association, No. 82-A-02, Interim Order at 18 (Me.L.R.B. June 2, 1983). This requirement, that the employee's participation in collective bargaining matters be significant, does not set out a strict empirical formula mandating the inclu- sion or exclusion of employees from collective bargain- ing. That determination must be made on an ad hoc basis by the hearing examiner on the facts developed through the unit hearing process. The requirement of significance of an employee's participation in collec- tive bargaining matters may be satisfied either when the individual's involvement is substantial, although it is performed rarely, or when the activity is rela- tively 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 -9- ___________________________________________________________________________ employer's collective bargaining position, Town of Fairfield [and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Hearing [78-A-08], slip op. at 3 (Me.L.R.B. Nov. 27, 1978)], and also on what the employee does with such information. The employee must use said information in the formulation and deter- mination of the employee's labor relations policies or collective bargaining proposals in order to be found to be a confidential employee. Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, No. 85-A-01 slip op. at 9-10 (Me.L.R.B. Feb. 6, 1985), quoting, Maine School Administrative District No. 14 and East Grand Teachers Association, No. 83-A-09, slip op. at 8-9 (Me.L.R.B. Aug. 24, 1983). The Board has also opined that: Clerical employees who do not formulate or determine the employer's labor relations policies may, neverthe- less, be found to be confidential employees. This conclusion is in recognition of the fact 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. Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, No. 85-A-01, slip op. at 10 (Me.L.R.B. Feb. 6, 1985). The Chief's involvement in collective bargaining matters is indisput- ably significant and permanent. I find that Small's access to the collec- tive bargaining negotiations' proposals, prioritizations and analyses of the employer also constitutes significant involvement of a permanent nature in collective bargaining. Mindful of the Board standards set forth in the quoted passages above and in light of the fact that the Chief's present and past clerical requirements having a labor relations nexus have been con- centrated solely in Small, I find her designation as a confidential employee to be warranted. Having so found it is not necessary to resolve the further issue of whether, given the Board's policy against the unnecessary over- proliferation of single person units and the existence of an established Town of Kittery Administrative/Clerical bargaining unit, the stipulation of the parties regarding the appropriateness of a single-person Police Chief's Secretary collective bargaining unit should be accepted without further -10- ___________________________________________________________________________ inquiry by the hearing examiner. APPROPRIATE UNIT DETERMINATION On the basis of the parties' stipulation, the foregoing findings of fact and discussion and by virtue of and pursuant to the provisions of 26 M.R.S.A. 966 (1988), I conclude that the Secretary to the Kittery Police Chief is a confidential employee within the meaning of 26 M.R.S.A 962(6)(C) (1988). The Teamsters petition for unit determination is there- fore DISMISSED. Dated at Augusta, Maine, this 22nd day of November, 1989. MAINE LABOR RELATIONS BOARD s/s___________________________________ M. Wayne Jacobs Designated Hearing Examiner The parties are hereby advised of their rignt, pursuant to 26 M.R.S.A. 968(4) (1988), to appeal this report to the Maine Labor Relations Board. To initiate such an appeal the party seeking appellate review must file a notice of appeal with the Board within fifteen (15) days of the date of the issuance of this report. See Board Unit Determination Rule 1.10. Board General Provisions Rule 6.03. -11- ___________________________________________________________________________