STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 91-UC-12 Issued: February 4, 1991 ___________________________________ ) TOWN OF KITTERY, ) ) Petitioner, ) ) and ) UNIT CLARIFICATION REPORT ) TEAMSTERS LOCAL UNION NO. 340, ) ) Bargaining Agent. ) ___________________________________) On December 17, 1990, pursuant to section 966(3) of the Municipal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 966(3) (1988), and Maine Labor Relations Board ("Board") Rule 1.16, the Town of Kittery ("Town") filed a petition for unit clarification with the Board, seeking a determination that the positions of secretary to the chief of police and secretary/clerk of the Public Works Department are properly excluded from the Town of Kittery clerical and administrative bargaining unit. Teamsters Local Union No. 340 ("Local 340") opposes the exclusion of these two positions. The Town asserts that these exclusions are proper based on the change in bargaining agent, from the Kittery Employees Association ("KEA") to Local 340 (accomplished through a decertification/bargaining agent election), that occurred on October 29, 1990. More specifically, the Town argues that since Local 340 also represents employees in the police department, for which the secretary to the chief of police performs confidential duties, and employees in the Public Works Department, for which the secretary/clerk of the Public Works Department performs confidential duties, inclusion of those positions in the clerical and administrative unit is inappropriate. An evidentiary hearing was convened at 9:30 a.m. on Friday, January 18, 1991, in Room 714 of the State Office Building, Augusta, Maine. Duncan A. McEachern, Esquire, represented the Town, and William J. Turkewitz represented -1- ________________________________________________________________________________ Local 340. No one requested participation in the proceeding as an interested party. In an informal conference with the hearing examiner prior to commence- ment of the formal hearing, the parties were able to reach a complete stipula- tion of facts, obviating the need for a formal evidentiary hearing. The stipulations reached by the parties at that time are incorporated herein. Each party briefly argued its position orally. The parties were also afforded an opportunity to file written briefs; neither chose to do so. Participating in the informal conference, in addition to the representatives of record for each party, were the following: Philip 0. McCarthy (town manager) Edward F. Strong (chief of police) Lana Rae Small (secretary to the chief of police) JURISDICTION The jurisdiction of the hearing examiner to hear this matter and to make a unit clarification decision lies in 26 M.R.S.A. 966(3) (1988). STIPULATIONS In prehearing discussion, the parties reached the following factual and legal stipulations: 1. Petitioner is the Town of Kittery, which is a public employer within the meaning of 26 M.R.S.A. 962(7) (1990 Suppl.) 2. Respondent is Teamsters Local Union No. 340, which is the bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), for the Town of Kittery clerical and administrative unit. 3. The parties are unable to agree to an appropriate modification to the clerical and administrative unit, and there is no question concerning represen- tation to operate as a bar to the petition under 26 M.R.S.A. 966(3) (1988). 4. By duly executed Form 1's (agreements on appropriate unit) dated January 9, 1986, two units -- a bargaining unit for clerical and administrative employees and a unit for technical employees -- were established. A third unit -2- ________________________________________________________________________________ was established, for professional employees, by a unit determination dated February 13, 1986 (Case No. 86-UD-06 and 08). On March 6, 1986, KEA was cer- tified as the bargaining agent for each of the three units. Thereafter, the Town and KEA negotiated a collective bargaining agreement that covered all three units. 5. By unit determination dated November 22, 1989, (Case No. 90-UD-02), it was determined that the position of secretary to the police chief is confiden- tial within the meaning of 26 M.R.S.A. 962(6)(C) (1988), and therefore could not constitute an appropriate, one-person bargaining unit as petitioned for by Local 340, the bargaining agent for three Kittery Police Department units. 6. By letter dated January 24, 1990, Local 340, which also represents employees of the Kittery Public Works Department, withdrew its unit deter- mination petition seeking to establish a one-person unit for the secretary/clerk of the Public Works Department (Case No. 90-UD-12). That withdrawal was based on discussions preceding the scheduled evidentiary hearing which indicated that the secretary/clerk of the Public Works Department performs confidential duties within the meaning of 26 M.R.S.A. 962(6)(C) (1988). At the time of the hearing, the Town indicated that it would not necessarily object to including the position in one of the three units represented by KEA. 7. In an Opinion and Award dated August 23, 1990, the Board of Arbitration and Conciliation ("BAC") found that through correspondence, the Town had agreed that as of April 17, 1990, the position of secretary/clerk of the Public Works Department was covered by the collective bargaining agreement then in effect for the three units represented by KEA. That agreement expired on June 30, 1990. 8. The correspondence upon which the BAC relied for its decision referred to both the secretary/clerk of the Public Works Department and the secretary to the chief of police. Consequently, the current status of these two positions is the same. 9. On October 29, 1990, in a decertification/bargaining agent election, Local 340 was certified as the new bargaining agent for the three units previously represented by KEA. -3- ________________________________________________________________________________ DISCUSSION This proceeding was conducted pursuant to 26 M.R.S.A. 966(3) (1988) and Unit Determination Rule 1.16. Section 966(3) of the municipal statute 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 alleged to have changed sufficiently to warrant modification in the composition of that bargain- ing 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 represen- tation. The parties have stipulated and the record indicates that three of the four requirements for filing a unit clarification petition have been met -- the petitioner is a public employer, the parties do not agree on the exclusions at issue, and there is no question concerning representation. The requirement for changed circumstances, like the other three statutory requirements, "is a threshold question on which the petitioner, in a unit clari- fication proceeding, 'bears the burden of alleging the requisite change and further, of establishing the occurrence of said change in the unit then at issue.'" MSAD No. 14 and East Grand Teachers Assoc., No. 83-A-09, slip op. at 7, 6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983), quoting from State of Maine and MSEA, No. 82-A-02, slip op. at 16, 6 NPER 20-14035 (Me.L.R.B. June 2, 1983) (Interim Order). The Town alleges that the change in bargaining agent for the clerical and administrative unit, from KEA to Local 340, meets the fourth requirement -- that is, that it constitutes a change in circumstances sufficient to warrant a finding that the positions of secretary to the chief of police and secretary/ clerk of the Public Works Department should be excluded from that unit. The hearing examiner agrees. Section 962(6)(C) of the MPELRL, 26 M.R.S.A. 962(6)(C) (1988), excludes confidential employees from the definition of "public employee," thereby excluding such employees from the protections of that statute. The purpose of this exclusion is to avoid the conflict for an employee between duty to his/her employer and loyalty to fellow employees; this conflict flows from the fact that -4- ________________________________________________________________________________ the employer's confidential collective bargaining "ideas, positions and policies . . ., if disclosed to the bargaining agent, could provide the bargaining agent with unfair leverage or advantage over the public employer." Town of Fairfield and Teamsters Local Union No. 48, No. 78-A-08, slip op. at 3 (Me.L.R.B. Nov. 30, 1978). There is no dispute that the two secretaries at issue perform duties related to collective bargaining for the bargaining units in their respective departments. However, it might reasonably be argued that (6)(C) should be interpreted to exclude confidential clerical personnel such as the secretary to the police chief and the secretary/clerk of the Public Works Department only from the bargaining unit(s) for which they perform confidential duties, and not from collective bargaining altogether.[fn]1 Thus, the argument might go, while these employees could not be included in bargaining units within their own departments, there is no reason not to include them in the general clerical and administrative unit that covers town hall employees. While this argument holds some appeal[fn]2 where the bargaining agent for the Public Works and Police Departments is different than the bargaining agent for the town hall unit, that has not been the case since October 29, 1990. Because Local 340 now represents all of the units at issue -- that is, the Police Department and Public Works Department units as well as the units pre- viously represented by KEA, including the clerical and administrative unit -- ______________________________ 1 In fact, the Town and KEA were moving in that direction prior to October 29, 1990. 2 The original (1969) version of (6)(C) read as follows: C. Whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relation- ship to the executive head, body, department head or division head of the applicable bargaining unit; or [Emphasis added.] In 1973, in legislation described as a "clarification" of the statute, the phrase "of the applicable bargaining unit" was removed. Since there is no such thing as the "head" of a bargaining unit, a "body" of a bargaining unit, the "department head" of a bargaining unit, or the "division head" of a bargaining unit, removal of that phrase in 1973 may have been simply to make the exclusion gramatically correct; it did not necessarily constitute an intention to change the meaning of the original exclusion. -5- ________________________________________________________________________________ the very conflict that the statutory exclusion was meant to avoid is present. In its contract negotiations, the Town's basic bargaining "ideas, positions and policies" might well be the same for the town hall, Police Department and Public Works Department units, even though the job classifications in those units vary substantially. There may even be specific provisions of the various contracts that are very similar if not identical. While it may well be that the persons holding the two clerical positions at issue would not reveal confidential information to Local 340, the employer should not be required to take that risk. Conducting collective bargaining negotiations under such circumstances would, at best, be a risky proposition for all concerned. ORDER On the basis of the foregoing stipulations and discussion and pursuant to the provisions of 26 M.R.S.A. 966 (1988), it is hereby ORDERED: The Town's unit clarication petition, filed on December 17, 1990, and seeking exclusion of the secretary to the chief of police and the secretary/clerk of the Public Works Department from the Town of Kittery clerical and administrative bargaining unit, is granted. Dated at Augusta, Maine, this 4th day of February, 1991. MAINE LABOR RELATIONS BOARD /s/______________________________________ JUDITH A. DORSEY Designated Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4) (1988), to appeal this Order 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) calendar days of the date of issuance of this report. See Board Rules 1.12 and 7.03. -6- ________________________________________________________________________________