STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 97-UD-13 Issued: September 5, 1997 ________________________________ ) WINTHROP SCHOOL DEPARTMENT ) EDUCATIONAL SUPPORT PERSONNEL/ ) MAINE EDUCATION ASSOCIATION, ) ) Petitioner, ) ) UNIT DETERMINATION REPORT and ) ) WINTHROP SCHOOL DEPARTMENT, ) ) Employer. ) ________________________________) This unit determination proceeding was initiated on April 11, 1997 (amended April 22, 1997) when Ms. Joan M. Morin, a UniServ Director with the Maine Education Association ("M.E.A." or "union"), filed a petition with the Maine Labor Relations Board (Board) for determination of an appropriate bargaining unit pursuant to section 966(1) of the Municipal Public Employees Labor Relations Law ("MPELRL"). The union's petition seeks the formation of a bargaining unit composed of the following positions in the Winthrop School Department: educational technicians, custodian/maintenance personnel and school secretaries[fn]1. The Winthrop School Department ("employer") objects to inclusion of the three principals' secretaries in the proposed unit, on the basis that they are "confidential" employees excluded from coverage of the MPELRL pursuant to 26 M.R.S.A. 962(6) (C). Prior to commencement of the formal hearing, the parties met with the hearing examiner to explore the possibility of ____________________ 1 It appears from the record that the classification of "school secretaries" includes the positions of high school principal's secretary, middle school principal's secretary, grade school principal's secretary, guidance secretary, and student information management secretary, but does not include the position of secretary to the superintendent of schools (who is not physically situated in any of the schools, and whose duties were distinguished from those of principal's secretary during the hearing). -1- settlement and, in the alternative, to formulate stipulations of fact and offer exhibits into evidence. EXHIBITS The parties agreed to the admission of the following exhibits[fn]2: Respondent's Ex. No. 1 Job Description: High Schobl Principal's Secretary Respondent's Ex. No. 2 Job Description: High School Guidance Secretary Respondent's Ex. No. 3 Job Description: Middle School Principal's Secretary Respondent's Ex, No. 4 Job Description: Grade School Principal's Secretary Respondent's Ex. No. 5 Job Description: Grade School Student Information Management Secretary STIPULATIONS The parties agreed to the following pertinent facts: 1. The petitioner, Maine Education Association/NEA, is a bargaining agent within the meaning of the MPELRL. 26 M.R.S.A. 962(2). 2. The respondent, Winthrop School Department, is a public employer within the meaning of the MPELRL. 26 M.R.S.A. 962(7). 3. To the knowledge of the parties, none of the positions addressed in this petition have been the subject of a prior unit determination by the Board. 4. There is no certification bar (see Rule 1.14) or contract bar (see Rule 1.15) to the filing of this unit determination petition. ____________________ 2 The only other exhibit admitted into evidence is Respondent's Exhibit No. 6, "List of 'confidential' duties compiled by witness Jan Perry," which was admitted into evidence at hearing over the objection of the union. -2- 5. In the event the proposed unit is not found to be appropriate, the union wishes to participate in an election in any units determined to be appropriate. 6. There are three different schools within the Winthrop School Department, each employing employees in the classifi- cations proposed for inclusion in the unit. 7. The employees in the job classifications of educational technician, custodian/maintenance personnel and school secretary are all essentially support staff, even though their job duties differ. 8. All employees in the subject classifications are supervised by their school principal and subject to labor relations policies established by the Winthrop Board of Education. 9. The three school principals report to the superintendent of schools and the superintendent reports to the Winthrop Board of Education. 10. All employees in the subject classifications are paid on an hourly basis except for educational technicians II and III. The superintendent of schools is responsible for recommending to the Board of Education the wages of each of the employees employed in the subject classifications. 11. There is a similarity in the scale of earnings of all of the subject classifications; the range of wages is $7.16 an hour up to $11.18 an hour. 12. With the exception of a few differences in benefits based on job classification, all benefits and terms and conditions of employment are based on the number of hours worked rather than on job classification. 13. Each classification requires a high school diploma or a -3- GED. The educational technicians II and III require post- secondary education as required by the State Department of Education. 14. There are two other existing bargaining units in the Winthrop School Department, both represented by MEA. One unit is comprised of teachers and the other unit is comprised of bus drivers. There is also a current organizational drive on behalf of food service employees by the United Paperworkers Inter- national Union. 15. The job description for the student information management secretary at the grade school is the same as the job description for the student information management secretary at the high school. 16. The educational technicians, the custodian/maintenance personnel and all of the school secretaries share a community of interest as that term is defined in Board Rule 1.11. 17. The only issue presented to the Board is whether the three principal secretaries should be excluded from the coverage of the MPELRL because they are "confidential employees" as that term is defined in 26 M.R.S.A. 962(6) (C). HEARING After due notice an evidentiary hearing was held by the undersigned hearing examiner on June 4, 1997 at the Board's conference room in Augusta, Maine. Ms. Joan Morin and Mr. Joseph A. Stupak, Jr., appeared on behalf of the Maine Education Association, and Mr. L. Roger Lajeunesse, superintendent of schools, appeared on behalf of the Winthrop School Department. No one requested to intervene. The employer presented as its witnesses: Ms. Paula Gaudet, principal of Winthrop Grade School; Mr. Phil Richardson, -4- principal of Winthrop High School; and Ms. Jan Perry, secretary to the superintendent of schools. The union presented as its witness Ms. Melody Jenkins, school secretary at the grade school. The parties were given the opportunity to examine and cross- examine witnesses, offer evidence and present oral argument at the close of the hearing. JURISDICTION The jurisdiction of the hearing examiner to hear this matter and make a unit determination lies in 26 M.R.S.A. 966 (1) and (2) (1988). FINDINGS OF FACT Upon review of the entire record, the hearing examiner finds: 1. Each of the three school principals has one secretary. The principals' secretaries have access to or are responsible for handling a variety of matters for the principals such as: (i) compiling and computing school budgets for presentation to the superintendent; (ii) typing and filing employee performance evaluations and corrective "action plans"; (iii) typing and filing employee disciplinary matters; (iv) screening telephone calls which, at times, are complaints from parents about school employees or calls from the Department of Human Services concerning students and their families; (v) opening mail which, at times, consists of "privileged communications" from attorneys; (vi) typing or opening correspondence of a personal and private nature to/from the superintendent, or teachers or parents; (vii) "keeping track" of staff absences and the reasons therefor; and, (viii) student medical information. 2. Each principal's proposed budget is prepared with -5- information elicited from teachers as to their "needs" such as: what materials (e.g., books) they would like, dues and fees. All salary information originates in the superintendent's office so it is not a part of a principal's proposed budget. The superintendent's budget which comes back to the principals may contain information suggesting the possibility of a reduction-in- force (RIF) in a particular school, although this has not happened recently. Both of the principals who testified indicated that they would not want school personnel to hear about the possibility of RIF's, by way of the superintendent's proposed budget. Their fear is that staff morale may be needlessly negatively affected by rumors of lay-offs. 3. School principals do not play any "official" role or have any "direct say" in collective bargaining negotiations for any of the existing bargaining units, nor are they "privy to" labor relations strategy. Principals are a part of the so-called "A-Team" (administration team) which meets with the superin- tendent occasionally about matters unrelated to collective bargaining (e.g., student population rates and the resultant possibility of reductions-in-force) . There are no typed minutes of these A-Team meetings. 4. Ms. Paula Gaudet, principal of the Winthrop Grade School for five years, testified that in her eight years with the Department she has probably been asked informally three or four times for an opinion about some part of a collective bargaining contract, and she is not sure what happened with her input. Ms. Gaudet stated that her only "role" in the collective bargaining process is "to live with whatever comes my way." 5. Ms. Jan Perry, presently the secretary to the superintendent, has been employed as a school secretary for 8 1/2 years. Ms. Perry testified that it was her understanding as a school secretary that she would be fired if she divulged the confidential information she had access to in the principal's -6- office. Ms. Perry never typed correspondence related to labor negotiations or strategy while employed as a school secretary. 6. Ms. Melody Jenkins, presently a school secretary, has been the secretary to the superintendent of the Winthrop School Department. Ms. Jenkins testified that in the 1 1/2 years she worked as the superintendent's secretary she did type the superintendent's notes from labor negotiating sessions for a teachers contract. Ms. Jenkins testified that in the five or so years she has worked as a school secretary she has never typed contract proposals. DISCUSSION As stipulated by the parties, the only issue presented by this petition is whether the three principal secretaries are excluded from collective bargaining coverage pursuant to section 962(6) (C) of the Municipal Public Employees Labor Relations Law. This section of the MPELRL defines "public employee" to mean any employee of a public employer, except any person: . . . [w]hose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head, body, department head or division head[.] 26 M.R.S.A. 962(6) (C). As this section of the law constitutes an exception to the general rule of public employee coverage under Maine's collective bargaining statutes, it is strictly construed. State of Maine and Maine State Employees Association, No. 82-A-02, slip op. at 6 (Me.L.R.B. June 2, 1983). The exception for "confidential employees" is not intended to include all employees with access to information considered "confidential" in other contexts. The Board has repeatedly held that to be a "confidential employee," one must be "permanently assigned to collective bargaining or to render advice on a regularly assigned basis to management personnel on labor -7- relations matters." State of Maine, No. 82-A-02, slip op. at 18 (June 2, 1983) (quoting Waterville Police Department and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Hearing, slip op. at 3 (October 4, 1978)). The term "labor relations matters" does not include contract administration duties, such as grievance handling, but refers to "the strategic and tactical considerations involved in nego- tiating collective bargaining agreements." Id., slip op. at 7. In addition, the Board has held that "[i]n many if not most cases, 'confidential' supervisory employees need access to at least one 'confidential' clerical employee, to carry out their 'confidential' duties," State of Maine, slip op. at 28, but the employer should make an effort to centralize confidential functions to the maximum extent possible. Id.,slip op. at 19-20. The purpose of this exclusion is to avoid situations where employees would be faced with conflicts in loyalty in the collective bargaining context between that owed to the employer and that owed to the bargaining agent. The potential of such a conflict may arise with employees who, as an inherent part of their job duties, have access to the employer's collective bargaining positions and strategies before they are presented at the bargaining table. These collective bargaining ideas, policies or positions, "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); AFSCME, Council 93 and Town of Sanford, No. 92-UD-03, slip op. at 36-37 (Feb. 21, 1992). In the present case, it is clear that the principals' secretaries do not have access to the type of confidential matters contemplated by the exclusion under section 962(6) (C) In fact, the principals for whom they work are not privy to those -8- such collective bargaining matters. Their participation at A-Team meetings may be considered, at most, "information- providing"; these meetings do not amount to labor negotiation strategy sessions. State of Maine and Maine State Emnlovees Association, No. 78-A-09, slip op. at 8 (March 2, 1979) (An employee whose only role related to collective bargaining matters is that of an information provider is not a confidential employee.) Even if they did touch on such matters, the information shared in these meetings is not recorded by any of the principals' secretaries. The only evidence presented that approaches the standard applicable to the confidential employee exclusion was the testimony of Ms. Jenkins that as secretary to the superintendent, a position that is not in contention in this proceeding, she typed notes taken by the superintendent in negotiation sessions. The fact that principals' secretaries have regular access to confidential matters regarding staff evaluations, budget planning (including potential reductions-in-force), grievance adminis- tration, private and personal correspondence to/from the superintendent and principal has not been missed by the hearing examiner. There is nothing about this determination that prevents the school department from continuing to assign such matters to the principals' secretaries and requiring that they be held in the strictest confidence as a condition of continued employment. This job requirement does not, however, create a conflict in loyalties for these secretaries in the collective bargaining context as elaborated earlier in this report. Having found that the principals' secretaries are not confidential employees within the meaning of section 962(6) (C) and based on the stipulation of the parties that all of the positions in the proposed unit share a community of interest, it is established that the petitioned-for unit is an appropriate unit for purposes of collective bargaining. -9- APPROPRIATE UNIT DETERMINATION On the basis of the foregoing findings of fact and discussion and by virtue of and pursuant to the provisions of 26 M.R.S.A. 966, the following unit of employees of the Winthrop School Department is held to conform to statutory requirements: Included: educational technicians, custodians and school secretaries (including principals' secretaries) Excluded: secretary to the superintendent of schools and all other employees of the Winthrop School Department. Dated at Augusta, Maine this 5th day of September, 1997. MAINE LABOR RELATIONS BOARD /s/________________________ Joyce A. Oreskovich Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4) (Supp. 1996), 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 issuance of this report. See Board Rules 1.12 and 7.03 for requirements. -10-