STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 98-UC-01 Issued: January 21, 1998 ____________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Bargaining Agent and Petitioner, ) ) and ) UNIT CLARIFICATION ) REPORT STATE OF MAINE, JUDICIAL ) DEPARTMENT, ) ) Public Employer. ) ____________________________________) INTRODUCTION This is a unit clarification proceeding that was initiated on July 16, 1997, when Jack Hunt, Esq., a representative of the Maine State Employees Association, Local 1989, SEIU, (hereinafter referred to as the "Union"), filed a petition for unit clarifica- tion with the Maine Labor Relations Board ("Board" or "MLRB"). This petition was filed pursuant to paragraph 4 of the Supreme Judicial Court, Administrative Order in Regard to Judicial Employees Labor Relations, SJC-128, (effective July 25, 1984), Me. Rep. 467-478 A.2d LXXXIX-XCIV ("Administrative Order") and pursuant to section 1286(4) of the Judicial Employees Labor Relations Act ("Act" or "JELRA"), 26 M.R.S.A. ch. 14. The Union's petition sought to have the positions of Director, Court Appointed Special Advocate Program (CASA), and Director, Court Alternative Dispute Resolution Service (CADRES), added to the Professional Services Bargaining Unit. The Judicial Department ("Employer") contends that both of these positions are department heads and therefore excluded from the definition of employee pursuant to paragraph 11(4) of the Administrative Order and 1282(5)(D) of the Act. Prior to commencement of the formal hearing, the parties met with the hearing examiner to explore the possibility of settle- -1- ment and, in the alternative, to offer exhibits into evidence and formulate stipulations of fact. HEARING After due notice an evidentiary hearing on the petition was held by the undersigned hearing examiner on October 3, 1997, at the Board's conference room in Augusta, Maine. Jack Hunt, Esq., Maine State Employee's Association, appeared on behalf of the Union. Linda McGill, Esq., appeared on behalf of the Administrative Office of the Courts. No one requested to intervene. The Union presented no witnesses. The Employer presented as its witnesses Mr. J. David Kennedy, Regional Court Administrator for Region III, and Mr. James Theodore Glessner, the State Court Administrator. 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 This is the first decision issued by the Maine Labor Relations Board or by its executive director or designee regarding the collective bargaining process for employees of the Judicial Department. Although my jurisdiction has not been questioned by either party, enforcement of the collective bargaining rights granted to Judicial Department employees raises unique jurisdictional issues that must be addressed before proceeding. A brief review of legislative history is necessary to explain these issues. In 1983, legislation was enacted that ultimately led to the creation of the current collective bargaining system for Judicial Department employees. Public Law 1983, chapter 412, An Act to Authorize the Supreme Judicial Court to Provide for Collective -2- Bargaining for Judicial Department Employees, did three things: it declared it the public policy of the State to recognize the collective bargaining rights of Judicial Department employees, it authorized the Supreme Judicial Court to propose procedures for defining and implementing those rights, and it authorized the Supreme Judicial Court to appoint an advisory committee to make recommendations on those proposed procedures. The Supreme Judicial Court then established the Advisory Committee and eventually endorsed the Advisory Committee's recommendations prior to transmitting the proposals to the Legislature. See, Report of the Advisory Committee on Collective Bargaining for Judicial Department Employees, March, 1984 ("Report"). A key feature of the Advisory Committee's recommendation was to develop a system that could make use of the body of expertise and experience that had been developed over the years at the MLRB through the administration of the then existing collective bargaining laws for state and municipal employees. Report, p. 11. In taking this approach, the Advisory Committee recognized that creating a collective bargaining system utilizing an executive agency raised separation of powers issues both in terms of the authority to establish the system and the authority to use an executive branch agency to review administrative actions of the judicial branch. Report, pp. 11, 21. In its report to the Supreme Judicial Court and the Legislature, the Advisory Committee noted that legal authorities disagree over whether the separation of powers doctrine permits the legislative branch to establish a collective bargaining system for the Judicial branch. Report, p. 11. In Maine, Article VI of the Constitution of Maine and Title 4, section 1 of Maine's statutes provide that the Supreme Judicial Court has general administrative and supervisory authority over the Judicial Department. Article III, section 2 of the Constitution of Maine prohibits any one branch of government from exercising any power rightfully belonging to either of the other branches. -3- Strict application of the separation of powers doctrine would hold that legislation is an improper means of granting collective bargaining rights to Judicial Department employees. Legislation would be necessary, however, to require an executive branch agency to become the enforcement agency for another branch.[fn]1 Similarly, a separation of powers question arises in having an executive branch agency such as the MLRB review the actions of the judiciary. As the Advisory Committee noted, these issues were mentioned in District Court v. Williams, a case holding that the State Employees Appeal Board does not have jurisdiction to hear cases involving the discharge of a judicial department employee. See Report, p. 21, citing 268 A.2d 812 (1970). The Advisory Committee concluded that it was not necessary that they attempt to resolve these separation of powers questions definitively. Instead, they recommended the concurrent adoption of an Administrative Order by the Supreme Judicial Court and enactment of legislation which together would grant rights and create a collective bargaining system for Judicial Department employees. This two-pronged approach provided for the proper source of authority to establish a collective bargaining system that included an enforcement process without having the Supreme Judicial Court abandon its constitutional and statutory respon- sibilities over the Judicial Department. See, Report, p. 9, (reproducing Letter from Chief Justice Vincent L. McKusick to the Honorable Gerard P. Conley and the Honorable John L. Martin, transmitting the recommendations of the Advisory Committee). The Administrative Order proposed by the Advisory Committee set forth the rights and responsibilities associated with collective bargaining, defined who is covered and who must participate in collective bargaining, and designated agencies having authority to take action with respect to collective bargaining, including the Maine Labor Relations Board. ____________________ 1 Presumably this could also be achieved by an executive order as long as the order was not inconsistent with statute. -4- The legislation proposed by the Advisory Committee set forth the same rights and responsibilities as the Administrative Order and also provided the details of the collective bargaining proce- dures. The legislation was patterned after the Municipal Public Employees Labor Relations Law ("MPELRL") and the State Employees Labor Relations Act ("SELRA") See, L.D. 2175, An Act to Create the Judicial Employees Labor Relations Act, Statement of Fact (111th Legislature, Second Regular Session, 1984), pp. 24-25. The Advisory Committee and the Supreme Judicial Court saw "considerable practical utility" in having the details of the collective bargaining procedure established by statute so that if changes in details were necessary they could be made for employees of the executive and judicial branches at the same time. See, L.D. 2175, Statement of Fact, p. 24, quoting Report, p. 12. The Administrative Order proposed by the Advisory Committee was adopted by the Supreme Judicial Court effective on July 25, 1984. The Judicial Employees Labor Relations Act was effective on that same date. To determine whether I have jurisdiction to decide this unit clarification matter requires looking at both the Administrative Order and the statute. Paragraph 4 of the Administrative Order states: 4. Determination of bargaining unit Disputes between the Judicial Department and judicial employee or employees over the appropriateness of a unit for purposes of collective bargaining or over whether a supervisory or other position is included in a bargaining unit or over unit clarification shall be resolved by the executive director of the Maine Labor Relations Board. Section 1286 of the Judicial Employees Labor Relations Act is the statutory provision regarding the determination of a bargaining unit. This section closely parallels section 966 of the Municipal Public Employees Labor Relations Law (MPELRL) and section 979-E of the State Employees Labor Relations Act (SELRA). Section 1286 of JELRA states: -5- 26 1286. Bargaining unit; how determined 1. Unit determination. In the event of a dispute between the public employer and an employee or employees over the appropriateness of a unit for purposes of collective bargaining or between the public employer and an employee or employees over whether a supervisory or other position is included in the bargaining unit, the executive director or his designee shall make the determination, except that anyone excepted from the definition of judicial employee under section 1282 may not be included in a bargaining unit. The executive director or his designee conducting unit determination proceedings may administer oaths and require by subpoena the attendance and testimony of witnesses, the production of books, records and other evidence relative or pertinent to the issues represented to them. 2. Criteria. In determining whether a supervisory position should be excluded from the proposed bargaining unit, the executive director or his designee shall consider, among other criteria, if the principal functions of the position are characterized 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 performance standards for subordinate employees and taking corrective measures to implement those standards. 3. Determination of unit appropriateness. In determining the unit appropriate for purposes of collective bargaining, the executive director or his designee shall seek to insure to employees the fullest freedom in exercising the rights guaranteed by this chapter, to insure a clear and identifiable community of interest among employees concerned and to avoid excessive fragmentation among bargaining units. 4. Unit clarification. When there is a certified or currently recognized bargaining representative and when the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed sufficiently to warrant modification in the composition of that bargaining unit, the public employer or any recognized or certified bargaining agent may file with -6- the executive director a petition for a unit clarification, provided that the parties are unable to agree on appropriate modifications and there is no question concerning representation. The statutory provision on bargaining unit determination clearly authorizes the executive director's designee to make unit determinations. This is consistent with the recommendation of the Advisory Committee that "the Maine Labor Relations Board exercise the same functions and authority with respect to judicial employees' collective bargaining as it now possesses with respect to other state employees." Report, p. 11. The unit determination and unit clarification provisions under the Judicial Employees Labor Relations Act, the Municipal Public Employees Labor Relations Law and under the State Employees Labor Relations Act are essentially identical.[fn]2 All three authorize ____________________ 2 The relevant provision under SELRA is 26 M.R.S.A. 979-E which states: 979-E. Bargaining unit; how determined 1. In the event of a dispute between the public employer and an employee or employees as to the appropriateness of a unit for purposes of collective bargaining or between the public employer and an employee or employees as to whether a supervisory or other position is included in the bargaining unit, the executive director or his designee shall make the determination, except that anyone excepted from the definition of state employee under section 979-A may not be included in a bargaining unit. The executive director or his designee conducting unit determination proceedings shall have the power to administer oaths and to require by subpoena the attendance and testimony of witnesses, the production of books, records and other evidence relative or pertinent to the issues represented to them. In determining whether a supervisory position should be excluded from the proposed bargaining unit, the executive director or his designee shall consider, among other criteria, if the principal functions of the position are characterized 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 performance standards for subordinate employees and taking corrective measures to implement those standards. 2. In order to insure to employees the fullest freedom in exercising the rights guaranteed by this chapter, to insure a clear and identifiable community of interest among employees concerned, and to -7- the executive director or his designee to make the unit determination, all three prohibit the inclusion of anyone excepted from the definition of employee and all three provide a substantial amount of detail on the process and criteria to be used. The Administrative Order, on the other hand, gives in one sentence a general grant of authority to the executive director to make unit determinations and unit clarification decisions. It does not specifically authorize the executive director's designee to make such decisions. This does not deter me. The fact that the Administrative Order delegates authority for unit determina- tion issues to the executive director in general terms is consistent with the overall plan to establish a collective bargaining system generally, while leaving the details of the process to statute. The Administrative Order simply distin- guishes those types of issues that may be decided initially by the executive director and those that must be decided by the Board.[fn]3 The statute makes the same distinction but also further ____________________ avoid excessive fragmentation among bargaining units in State Government, the executive director of the board or his designee shall decide in each case the unit appropriate for purposes of collective bargaining. 3. 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 bargaining unit, any public employer or any recognized or certified bargaining agent may file a petition for a unit clarification, provided that the parties are unable to agree on appropriate modifications and there is no question concerning representation. MPELRL contains the same language and an additional subsection dealing with unit mergers. 3 Under all of the collective bargaining laws enforced by the Board, the executive director or designee makes the initial decision on bargaining units and representation issues and those decisions may be appealed to the Board. 26 M.R.S.A. 1288(2), 26 M.R.S.A. 968 (4), 26 M.R.S.A. 979-G(2), and 26 M.R.S.A. 1028(2). Prohibited practice complaints, on the other hand, are decided by the Board without any preliminary decisions by the Executive Director or designee other than determining the sufficiency of the complaint. -8- authorizes the executive director to designate another to make such a determination. In this case, I am the executive director's designee authorized to hear and decide this unit clarification matter. In summary, my jurisdiction to hear this matter and make a unit clarification decision lies in paragraph 4 of the Supreme Judicial Court's Administrative Order in Regard to Judicial Employees Labor Relations and section 1286 of the Judicial Employees Labor Relations Act. The Administrative Order and JELRA are companion pieces that together create a system of collective bargaining for the employees of the Judicial Department and together serve as the source of my jurisdiction. EXHIBITS The parties agreed to the admission of the following joint exhibits: Joint Exhibit #1 Professional Services Bargaining Unit Agreement, July 1, 1997 through June 30, 1999. Joint Exhibit #2 Organizational Chart, Judicial Department (8/26/97) Joint Exhibit #3 Job Description, Director, Court Alternative Dispute Resolution Service (3/25/97, 3 pp.) Joint Exhibit #4 Recruiting Notice, Director, Court Alternative Dispute Resolution Service (May 21, 1997) Joint Exhibit #5 Job Description, Director, Court Appointed Special Advocate (CASA) Program (4/15/97, 4 pp.) Joint Exhibit #6 Recruiting Notice, Director, Court Appointed Special Advocate Program (May 21, 1997) ____________________ 26 M.R.S.A. 1289, 26 M.R.S.A. 968(5), 26 M.R.S.A. 979-H, and 26 M.R.S.A. 1029. -9- STIPULATIONS 1. Maine State Employees Association, SEIU Local 1989, is the certified bargaining agent for the Professional Services bargaining unit of the Maine Judicial Department as defined in 26 M.R.S.A. 1282(1). 2. The Judicial Department, State of Maine, is the public employer within the meaning of 26 M.R.S.A. 1282(6). 3. The parties have entered into a collective bargaining agreement dated July 1, 1997, through June 30, 1999. 4. There is neither a contract bar nor an election bar to the petition. 5. The parties cannot agree on the inclusion or exclusion of the two positions which are the subject of the petition at issue. 6. Neither the Director of CADRES nor the Director of CASA has ever participated as a management representative in the collective bargaining negotiations for any bargaining unit of the Judicial Department. 7. Neither the Director of CADRES nor the Director of CASA has ever participated in the contractual grievance procedure on behalf of management. 8. The two positions were created on July 1, 1997. 9. There is no question concerning representation. 10. If the positions are determined to be public employees, then placement in the Professional Services Unit is appropriate. FINDINGS OF FACT 1. The Court Appointed Special Advocate Program (CASA) provides volunteer lay persons to serve as court appointed -10- guardians ad litem in child abuse and neglect cases. The program is established by Title 4, section 1501, et seq. The respon- sibilities of guardians ad litem are specified in Title 22, section 4005, subsection 1. 2. CASA volunteers receive training from the Judicial Department. An individual CASA volunteer is appointed to serve as a guardian ad litem by a court order in a particular child abuse or neglect case. A guardian ad litem reviews relevant medical and school records and interviews children, parents, teachers and others in preparation for hearings. The guardian ad litem reports to the court concerning the guardian's investiga- tion and recommendations as to what is in the best interests of the child. The guardian ad litem is assigned to the case until its completion and provides on-going reports to the court about reunification plans or services that are being provided to the child. 3. The CASA program has one office in West Bath and is staffed by the CASA Director and a secretary-receptionist who is shared with the CADRES program. The West Bath central office accepts requests for CASA volunteers from District Courts statewide. The central office determines whether a volunteer is available in that geographic area in the time frame needed and then responds to the court's request. The CASA office also receives periodic reports from the CASA volunteer that are forwarded to the individual court with a copy retained for the CASA office. 4. Prior to July, 1997, the CASA Director was an independent contractor appointed by the Chief Judge of the District Court. In July 1997, the statute was amended to make the position a full-time state employee and to make the State Court Administrator responsible for appointing the CASA Director with the advice and consent of the Court Appointed Special Advocate Advisory Panel. 4 M.R.S.A. 1502. The Director "serves at the pleasure" of the State Court Administrator. Id. -11- The State Court Administrator delegated supervisory responsibil- ity for this position to the Regional Court Administrator for Region III. 5. The CASA Program has between 120 and 150 volunteers located throughout the state. Within this group are a number of volunteers who also serve as regional coordinators. 6. The following job description for the CASA Director is a generally accurate reflection of the actual duties of the position: The Director of the Court Appointed Special Advo- cate Program, in concert with the Court Appointed Special Advocate Advisory Committee and the staff, regional coordinators and volunteer advocates utilized by the program, assures the fulfillment of the statuto- ry role of the Court Appointed Special Advocate Pro- gram, the quality of its services and its efficient administration. A. Leadership The Director promotes the needs, concerns and interests of the Court Appointed Special Advocate Program, and in particular: 1. Promotes and maintains informed and cordial relations with CASA volunteers, the public, the Department of Human Services, other social ser- vices agencies, the legislature, the judiciary and the bar, 2. Serves on relevant committees or teams within the Judicial Branch, within other governmental or inter-governmental structures, and with pri- vate sector, non-profit sector or mixed enti- ties, 3. Acts as a liaison with National CASA, and dis- seminates information from that organization as appropriate, 4. Attends conferences and seminars to the extent resources permit and stays current with develop- ments in the child protective field, 5. Acts as a spokesperson for the CASA Program, and 6. Promotes the policies adopted by the Supreme Judicial Court, the CASA Advisory Committee, the Administrative Office of the Courts, and other Judicial Branch policy making entities. -12- B. Program Administration The Director oversees the daily administration of the Court Appointed Special Advocate Program and: 1. In consultation with the clerks of court and the CASA program's regional coordinators, is respon- sible for CASA provider availability, 2. Appoints and supervises regional volunteer coor- dinators, 3. Keeps monthly statistics on number status and disposition of cases and funds expended for administration, volunteer court attendance and travel, and prepares periodic reports on case- load and year to date status of expenditures, 4. Approves payment of CASA volunteer monthly ex- pense vouchers, 5. Oversees and evaluates work of other CASA staff and contractors, if any, 6. Responds to all complaints, and keeps appropri- ate documentation, 7. Prepares the appropriate portion of the Judicial Branch's Annual Report, and 8. Assures all other appropriate record-keeping. C. Legal and Other Consultative Support to CASA Volunteers As counsel for the CASA Program and its volunteers, the director: 1. Stays current on statutory, rule and procedural changes, proposed changes and other new informa- tion relative to child protective cases, and provides needed information about these topics to Regional Coordinators and CASA volunteers, 2. Acts as a consultant for CASA volunteers on a statewide basis, and provides individualized advice and counselling to them on all aspects of case management and presentation, 3. In appropriate circumstances, appears in court on behalf of the CASA program, to assist a par- ticular CASA volunteer or to act as the volunteer's attorney relative to the volunteer's duties as a guardian ad litem, and 4. Provides telephone consultation services outside of regular office hours. D. Court Appointed Special Advocate Advisory Committee As primary staff to the Court Appointed Special Advocate Committee, the Director, in consultation with the Chair: -13- 1. Schedules regular and special meetings, 2. Proposes agenda items and develops and presents policy options, 3. Submits an annual status report, 4. Reports on the administrative and fiscal needs of the CASA Program, 5. Staffs policy development subsequent to initial committee review, and prepares final draft poli- cies for adoption by the Committee or other entities, and 6. Attends all meetings and keeps minutes for these meetings. E. CASA volunteer Selection, Training and Supervision To assure the overall quality of the Court Appointed Special Advocate Program, the Director oversees the selection, training, continuing education, supervision and evaluation of CASA volunteers. In particular, the Director: 1. Keeps a file of applicants, 2. Publicizes the need for CASA volunteers, 3. Screens applications and assesses qualifications of candidates, 4. Conducts final interviews and selects new pro- viders, 5. Assesses the training needs of new providers, and develops their training program and appren- ticeship, 6. Assures and develops the continuing education of CASA volunteers by: a. Planning professional development seminars for CASA volunteers, b. Promoting and attending statewide or regional meetings and discussions for CASA volunteers, c. Communicating with CASA volunteers through memoranda and a newsletter about CASA poli- cies and interests, new or revised statutes, administrative orders, developments in the child protective field, and information about skills development, and d. Developing and maintaining a library of re- sources for CASA volunteers, 7. Oversees the supervision and evaluation process for CASA volunteers, 8. Assures compliance with established standards of practice and the policies and procedures of the Court Appointed Special Advocate Program, 9. Removes CASA volunteers from the program roster when it is in the best interest of the program, and 10. Meets requirements of the evaluation process for -14- the CASA Director. F. Program Planning, Evaluation and Budgeting The Director is responsible for the implementation of an annual assessment of the Court Appointed Special Advocate Program. The Director: 1. Develops and implements a program assessment system that includes consumer surveys and feed- back from regional coordinators judges, attor- neys, and CASA volunteers, and 2. Reports the results of the Director's assessment to the Committee, and as part of that report, suggests solutions for identified problems, revisions of the program's short-term and long- term objectives and makes recommendations about the program's budgetary needs. G. Position Requirements and Employment Relationship A law degree, legal experience, current admission to the Maine Bar and excellent oral and written communica- tion skills are required. Substantial experience in: management, child protective cases, public policy development and implementation, together with a demon- strated record of providing leadership in complex environments, are strongly preferred. A graduate or undergraduate degree in family dynamics, counselling or other related field is also preferred. 7. The Chief Justice of the Supreme Judicial Court appoints individuals to serve on the Court Appointed Special Advocate Advisory Panel. 4 M.R.S.A. 1505. The size and makeup of this panel is entirely within the discretion of the Chief Justice. The current chair is Judge John Beliveau of the Maine District Court, the Supreme Judicial Court liaison is Justice Robert Clifford and the State Court Administrator or his designee serves as a member of the Panel. In addition, a judicial secretary who used to be the clerk in the Lewiston District Court handling protective custody cases serves on the Advisory Panel as do two CASA volunteers. In a recent meeting the CASA Advisory Panel decided to request the Chief Justice to expand the Advisory Panel to include another CASA volunteer, a representative of the private bar and a representative of either the Attorney General's Office or the Department of Human Services. -15- 8. According to the statute, the role of CASA Advisory Panel is to "set the policy for and monitor the Court Appointed Special Advocate Program." 4 M.R.S.A. 1505. The Advisory Panel is, by its current design, representative of various players and perspectives on the operation of the CASA program. In practice, the Advisory Panel functions as both a sounding board for the Director and a conduit for ideas and information on the operation of the program. The presence of the Advisory Panel ensures that the Director does not operate in a vacuum and that the program is administered consistent with the overall policy established by the Advisory Panel. The Regional Court Administrator likened the relationship between the Panel and the CASA Director as that of a Board of Directors and an Executive Director. However, unlike such a relationship, the CASA Director serves at the pleasure of the State Court Administrator, not at the pleasure of the Advisory Panel. The State Court Administrator testified that the Advisory Panel was truly advisory and had no real authority over the Director. 9. The job description states that the CASA Director is primary staff to the Advisory Panel and, in consultation with the Chair, proposes agenda items and develops and presents policy options, staffs policy development subsequent to the initial Panel review, and prepares final draft policies for adoption by the Panel or other entities. Generally, at an Advisory Panel meeting, the Director will update the Panel on the status of the program, particular areas of concern, proposed policy changes or changes in the operation of the program. In practice, the CASA Director may have to decide whether an issue presents a policy question that should be brought to the Advisory Panel for their consideration or whether it is a matter that the Director can decide and implement independently. For example, the Director recently determined that the number of regional coordinators was insufficient for the CASA program to carry out its mission. The Director added two regional coordinator positions without seeking prior approval from the Advisory Panel. The Director will also -16- increase recruitment and training efforts in a particular geographic area as the need arises without seeking prior approval from the Advisory Panel. On the other hand, the Director intends to bring the revisions to the volunteers' handbook to the Advisory Panel prior to its publication and the Director's proposed budget is approved by the Panel before going into the Judicial Department budget. 10. The CASA Director is fully responsible for the selection of CASA volunteers. The standard applied by the Director is whether using the CASA volunteer will be in the best interests of the CASA Program. This standard is applied to evaluate a potential volunteer when the application is received, to decide whether an applicant will be accepted as a full CASA volunteer following training, and to decide whether a particular volunteer should be retained in the program. The Director is solely responsible for determining whether an individual will be accepted as a CASA volunteer and determining whether a particular CASA volunteer should be removed from the program roster. The Director's decision on these matters is not reviewed by anyone else. The Director has removed a volunteer from the roster on at least one and as many as three occasions in the past six months. The CASA Director exercises a considerable amount of discretion in evaluating whether a particular CASA volunteer is performing effectively and should be retained in the program. 11. Although the CASA Director maintains the roster of CASA volunteers, the court appoints each guardian ad litem. If the CASA Director determines that the CASA volunteer is no longer qualified and removes that person from the roster, the Director notifies the court and it is up to the court to remove the guardian from a particular case and appoint a new one. 12. The CASA Director is responsible for the training and professional development of CASA volunteers. The CASA Director assesses the need for training and enlists the assistance of others, such as an Assistant Attorney General, a Department of -17- Human Services supervisor, a judge and others involved in the process. The Director serves as the lead trainer. 13. The CASA Director evaluates the performance of CASA volunteers on the basis of evaluations completed by judges and other forms of feedback received by the Director through the private attorneys, the regional coordinators or from the Depart- ment of Human Services. 14. The CASA Director is currently in the process of com- pleting a major revision of the handbook for CASA volunteers. The changes to the handbook will, among other things, reflect recent statutory changes to the responsibilities of a guardian ad litem specified in Title 22, section 4005. 15. The CASA Director is the primary contact for the CASA program with the Department of Human Services (DHS), the Depart- ment of the Attorney General and private attorneys representing parents involved in child abuse and neglect proceedings. The Director deals directly with DHS supervisors or managers when a CASA volunteer has a complaint about a DHS caseworker or vice versa. In making decisions regarding these contacts and resolving problems with DHS or private attorneys, the Director works independently and exercises substantial discretion in deciding how to resolve problems. The Director is not required to obtain prior approval of the Panel or the Regional Court Administrator on these issues. 16. The CASA Director is the primary representative of the Judicial Department on the operation of the CASA program with outside organizations such as the national association of CASA programs. The Director serves on a federally funded study looking at all aspects of Maine's child protective services. The former Director testified before Legislative Committees regarding the operation of the program on a couple of occasions. The Legislature has not been in session since the current Director was hired. -18- 17. The CASA Director is primarily responsible for developing the program's budget proposal and administering the budget. The budget proposed by the Director and approved by the Advisory Panel is incorporated into the initial draft of the Judicial Department budget by the Regional Court Administrator for Region III. The CASA program is broken out as a separate budget item. The Judicial Department budget is approved by the Chief Justice and submitted to the Legislature by the State Court Administrator. The Director is responsible for administering the budget through activities such as approving expense and mileage reimbursements to CASA volunteers. 18. The Court Alternative Dispute Resolution Service (CADRES) provides mediators or other alternative dispute resolution professionals for court-connected alternative dispute resolution (ADR) throughout the state. CADRES maintains three rosters of mediators for small claims cases, domestic relations cases and general civil cases. A fourth roster is being established for early neutral evaluation. CADRES is established by Title 4, section 18-B. 19. The CADRES program has as employees the CADRES Director and the secretary-receptionist who is shared with the CASA program. There are three or four mediators who also serve as regional coordinators. 20. The State Court Administrator is responsible for appointing the Director of CADRES, "with the advice and approval of the Court Alternative Dispute Resolution Service Committee." 4 M.R.S.A. 18-B, subsection 4. 21. The following job description for the CADRES Director is a generally accurate reflection of the actual duties of the position: The Director of the Court Alternative Dispute Resolution Service, in concert with the Court Alterna- tive Dispute Resolution Service Committee and the -19- providers utilized by the Service, assures the fulfill- ment of the statutory role of the Court Alternative Dispute Resolution Service, the quality of its program and its efficient administration. A. Leadership The Director promotes the needs, concerns and interests of the Court Alternative Dispute Resolution Service, and in particular: 1. Promotes and maintains informed and cordial relations with the public, the ADR community, the legislature, the judiciary and the bar. 2. Serves on relevant committees within and outside of the Judicial Branch, 3. Attends conferences and seminars to the extent resources permit and stays current with develop- ments in the Alternative Dispute Resolution field, and 4. Acts as a spokesperson for the Judicial Branch on ADR matters, and promotes the policies adopt- ed by the Supreme Judicial Court, the Court Alternative Dispute Resolution Service Commit- tee, the Administrative Office of the Courts and other Judicial Branch policy making entities. B. Program Administration The Director oversees the daily administration of the Court Alternative Dispute Resolution Service and: 1. In consultation with the clerks of the court and the Service's regional coordinators, assures appropriate staffing levels and is responsible for ADR provider availability, 2. Appoints and supervises regional coordinators, 3. Keeps monthly statistics on number of Alterna- tive Dispute Resolution sessions held, disposi- tion of cases and funds expended for administra- tion, provider services and travel, and prepares periodic reports on caseload and YTD status of expenditures, 4. Approves for payment mediator's monthly pay and travel vouchers, 5. Oversees and evaluates work of other Court Al- ternative Dispute Resolution, Service personnel or contractors, if any, 6. Responds to all complaints, and keeps appropri- ate documentation, 7. Prepares the appropriate portion of the Judicial Branch's Annual Report, and 8. Assures all other appropriate record-keeping. -20- C. Court Alternative Dispute Resolution Committee: As primary staff to the Court Alternative Dispute Resolution Committee, the Director, in consultation with the Chair: 1. Schedules regular and special meetings, 2. Proposes agenda items and develops and presents policy options, 3. Submits an annual status report, 4. Reports on the administrative and fiscal needs of the Service, 5. Staffs policy development subsequent to initial committee review, and prepares final draft poli- cies for adoption by the Committee or other entities, and 6. Attends all meetings and keeps minutes for these meetings. 7. The Director is an appointee of, and reports to, the State Court Administrator, or the SCA's designee, but also has a reporting relationship to the Court Alternative Dispute Resolution Service Committee and the Committee Chair. D. ADR Provider Selection, Training and Supervision To assure the overall quality of the Court Alternative Dispute Resolution Service program, the Director over- sees the selection, training, continuing education, supervision and evaluation of court ADR providers. In particular, the Director: 1. Keeps a file of applicants, 2. Publicizes the need for ADR providers when ros- ters require additions, 3. Screens applications and assesses qualifications of candidates, 4. Conducts final interviews and selects new pro- viders in consultation with the Court Alterna- tive Dispute Resolution Selection Committee, 5. Assesses the training needs of new providers, develops their individualized training program and apprenticeship, 6. Assures and develops the continuing education of ADR providers by: a. Planning professional development seminars for ADR providers, b. Promoting and attending regional meetings and discussions for ADR providers, c. Communicating with ADR providers through memoranda and a quarterly newsletter about CADRES policies and interests, new or revised statutes, administrative orders, developments -21- in the Alternative Dispute Resolution field, and information about skills development, and d. Developing and maintaining a library of re- sources for ADR providers, 7. Oversees the supervision and evaluation process of ADR providers, 8. Assures compliance with established standards of practice and the policies and procedures of the Court Alternative Dispute Resolution Service, 9. Assists ADR providers in developing personal performance improvement plans, and 10. Meets requirements of evaluation process for the CADRES Director. E. Program Planning, Evaluation and Budgeting The Director is responsible for the implementation of an annual assessment of the Court Alternative Dispute Resolution Service program. The Director: 1. Develops and implements a program assessment system that includes consumer surveys and feedback from regional coordinators judges, attorneys, and ADR providers, 2. Reports the results of the Director's assessment to the Committee, and as part of that report, suggests solutions for identified problems, revisions of the program's short-term and long- term objectives and 3. Makes recommendations about the program's bud- getary needs. F. Position Requirements 1. A bachelor's degree, as well as one or more ad- vanced degrees in dispute resolution, law, counselling or other related field are required. 2. Extensive formal training as well as extensive actual experience in dispute resolution are re- quired, as are excellent oral and written communication and interpersonal skills. The dispute resolution and training experience must be at least as great as that necessary for rostering as a CADRES ADR provider. Experience in supervision and training of ADR providers is strongly preferred. 3. Experience in administration together with a demonstrated record of providing leadership in complex environments, are required. Experience in public policy development and implementation are strongly preferred. 4. Working facility with computerized word process- ing, spreadsheets and data base programs is -22- strongly preferred, and will be required after a period of time after initial employment. 5. The Director may not engage in the provision of mediation or arbitration services, except for court connected ADR services within the scope of the director's job description, or as otherwise approved in writing by the CADRES Committee. The Director may not engage in the private practice of law for compensation in Maine, and may not appear as an attorney, except on a pro se basis in Maine's courts. 22. The Court Alternative Dispute Resolution Service Committee is established by Title 4 M.R.S.A. section 18-B, subsection 6, to "set policy for and monitor" the service. The Committee consists of the Chief Justice of the Supreme Judicial Court or a designee, the Chief Justice of the Superior Court or a designee, the Chief Judge of the District Court or a designee, the State Court Administrator or a designee, a Justice of the Superior Court and a Judge of the District Court both appointed by and serving at the pleasure of the Chief Justice of the Supreme Judicial Court, and any additional members that the Chief Justice of the Supreme Judicial Court considers necessary. 4 M.R.S.A. 18-B(6). Two CADRES mediators are members of the Committee. Other than the Chief Justice of the Superior Court and the Chief Judge of the District Court, all of the members of this committee are appointed by the Chief Justice of the Supreme Judicial Court and serve at his pleasure. 23. The CADRES Committee serves as a forum for discussing issues and a place to which significant policy issues are brought and reviewed. The CADRES Director sets the agenda for the meetings and will usually start each meeting with a status report on the program. The Director formulates policies and, depending on the subject and the importance of the policy, will either implement it herself or bring it to the CADRES committee. For example, the CADRES Director drafted the initial rules for the program and reviewed them with the committee. The Director then incorporated the committee's comments before the rules were finally adopted. Generally, the CADRES Director will make -23- specific recommendations on policy options presented to the Committee. An example of a policy issue that the CADRES Committee has dealt with is whether the CADRES Director could "de-roster" a mediator on the basis of a complaint about mediation occurring outside the scope of CADRES activity. 24. The authority of the CADRES Committee is essentially that of an advisory committee. The Committee does not have the power to remove the CADRES Director but its membership does represent key perspectives on the operation of the CADRES program. Like the CASA Advisory Panel, the presence of the CADRES Committee ensures that the Director does not operate in a vacuum and that the program functions in a manner consistent with the policies endorsed by the Committee. 25. The CADRES Director selects individual mediators to be placed on a roster. The Director also decides whether an indivi- dual should be removed from a roster or "de-rostered." According to the CADRES Program rules, if the CADRES Director decides not to place an individual mediator on a roster or decides to "de- roster" a mediator, that decision can be appealed to the CASA Committee. The Director is the person who decides whether the number of mediators on the rosters should be increased or decreased. 26. The CADRES Director evaluates the performance of the mediators using the evaluation forms completed by the parties and litigants. The Director has developed standards by which each mediator's performance is measured. In addition, complaints from within the Judicial Branch, from attorneys or from the Board of Bar Overseers are received by the Director. 27. The CADRES Director acts as a spokesperson for the judicial branch on all mediation-related issues. The Director has made presentations to the Maine Association of Dispute Resolution Professionals on policies that would have an effect on their members. The Director has served on a panel at the -24- national conference of the Society of Professionals in Dispute Resolution on the experience in Maine in court-connected mediation. These activities were performed independently and were not subject to supervision by the Administrative Office of the Courts. 28. The CADRES Director has testified before Legislative committees on two occasions in the past year and has attended committee work sessions. Her participation in the legislative committee process has not been under the direction of the Administrative Office of the Courts. The CADRES Director has drafted legislation regarding that program that will submitted to the Legislature after review by the Administrative Office of the Courts. 29. The CADRES Director's responsibilities for developing and administering the CADRES budget are the same as the CASA Director's responsibility for the CASA budget. In developing the CADRES budget, the Director has brought to the CADRES Committee for their consideration various budget scenarios based on differ- ent assumptions regarding mediation fees and utilization rates. 30. Both the CADRES Director and the CASA Director report to J. David Kennedy, the Regional Court Administrator for Region III. As the supervisor of these positions, Mr. Kennedy's primary focus is administrative concerns such as payroll issues, leave requests and completing performance evaluations on the Directors. Mr. Kennedy speaks to the CASA Director on an average of once a week. He has even less frequent contact with the Director of CADRES because the incumbent has been in that position longer. DISCUSSION The petition in this case was filed pursuant to section 1286(4) of the Act. That provision of the Act states: 4. Unit clarification. Where there is a certified or currently recognized bargaining representative and when -25- the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed sufficiently to warrant modification in the composition of that bargaining unit, the public employer or any recognized or certified bargaining agent may file with the executive director a petition for a unit clarification, provided that the parties are unable to agree on appropriate modifications and there is no question concerning representation. The parties have stipulated facts indicating that the requirements for filing a unit clarification petition have been met--the petition was filed by the certified bargaining agent, the parties are unable to agree on the modifications, and there is no question concerning representation. The fourth requirement for filing a unit clarification petition is that there have been alleged changed circumstances surrounding the formation of the bargaining unit. The parties have stipulated that the positions in question were created on July 1, 1997. The creation of a new job classification normally meets the requirement for changed circumstances as it is impossible to determine the bargaining unit status of a position before it exists. Maine State Employees Association and State of Maine, Department of Inland Fisheries and Wildlife, Nos. 83-UC-43 and 91-UC-11, slip op. at 8 (Me.L.R.B. May 4, 1993), citing Portland Public Library Staff Assoc. and Portland Public Library, No. 88-UC-03, slip op. at 9 (Me.L.R.B. June 2, 1988). Thus, all of the prerequisites for filing the unit clarification petition have been met. In response to the Union's petition, the Employer alleges that both the Director of CASA and the Director of CADRES are excluded from the definition of judicial employee and therefore may not be included in any bargaining unit. Section 1282(5)(D) of JELRA and paragraph 11(4) of the Administrative Order both exclude from the definition of judicial employee any person "[w]ho is a department head or division head." Section 1286(1) of JELRA prohibits including in a bargaining unit any person excepted from the definition of judicial employee. -26- The legislative history of the Act and the background of the Administrative Order shows that the intent was to parallel the provisions of the collective bargaining laws covering municipal employees and state employees (MPELRL and SELRA). See, Report p. 11 and L.D. 2175, Statement of Fact, pp. 24-25. The partic- ular exclusion from coverage in question is similar to the department head exclusions under both MPELRL and SELRA except there is no specific appointment criteria applied to Judicial Department employees.[fn]4 As between the two, the provisions governing municipal employees serve as a better source of guidance for interpreting JELRA. The scope of coverage under MPELRL is structurally more similar to JELRA than to SELRA as SELRA excludes over a hundred positions by specific reference to position titles rather than job function.[fn]5 JELRA excludes by reference to position title only the State Court Administrator and judicial law clerks. 26 M.R.S.A. 1282(5)(B) and (E). The only exclusion under MPELRL by reference to a position title is for school superintendents and assistant superintendents. 26 M.R.S.A. 962(6)(E). This difference in structure and approach can be attributed to the intimate role the Legislature plays in directing the affairs of the Executive Branch relative to the role it plays in the affairs of the Judicial Branch and in ____________________ 4 MPELRL excludes any person "[w]ho is a department head or division head appointed to office pursuant to statute, ordinance or resolution for an unspecified term by the executive head or body of the public employer." 26 M.R.S.A. 962(6)(D). SELRA excludes any person "[w]ho is a department or division head appointed to office pursuant to statute, ordinance or resolution for an unspecified term by the Governor or by a body having appointive power within the executive department." 26 M.R.S.A. 979-A(6)(D). 5 Section 979-A(6)(H) excludes any person "Who is a staff attorney, assistant attorney general or deputy attorney general in the Department of Attorney General" and section 979-A(6)(I) excludes any person "Who is appointed to a major policy- influencing position as designated by Title 5, chapter 71" (the chapter creating the State Unclassified Service). That chapter lists over a hundred executive branch positions by job title. -27- controlling municipalities.[fn]6 Furthermore, SELRA may be less useful as guidance than MPELRL because of the more pronounced role of politics in appointments to high-level positions in state government. In municipalities and the judicial branch, appoint- ments to high-level positions are typically apolitical. In the context of the other collective bargaining statutes, it is well established that exceptions to the definition of public employee should be narrowly construed in keeping with the legislative purpose of providing public employees the right to join unions and bargain collectively. See, e.g., State of Maine and Maine State Employees Association, No. 82-A-02, slip op. at 6 (Me.L.R.B. June 2, 1983), AFSCME Council 93 and Town of Paris, 97-UD-14, slip op. at 10 (Me.L.R.B. Oct. 1, 1997). Similarly, in this case there is no language in the statute or the Administra- tive Order which grants any discretion to expand the statutory exemptions. The Advisory Committee's Comments to the section of the statute defining "judicial employee" states that "[t]he section is designed to be as inclusive as possible unless there is some good reason for exclusion." Report, p. 26. The legislative history of the Act suggests that the meaning of "department or division head" must be determined by examining the function of the office, as is the case under SELRA and MPELRL. The only comment accompanying the legislation about the department or division head exclusion is that "Regional State Court Administrators would be excluded if the functions of their offices bring them within paragraph C or D."[fn]7 L.D. 2175, Statement of Fact, p. 26-27, quoting Report (emphasis added). This focus on the function of the position is entirely consistent ____________________ 6 The separation of powers doctrine is implicated in the relationship between the Legislative and Judicial Branches (see discussion above). The general policy favoring municipal autonomy, known as municipal home rule authority, can be seen in the Maine Constitution, Art. VIII, Part Second and 30-A M.R.S.A. 3001. 7 Paragraph C excludes persons whose duties imply a confidential relationship with the Judicial Department's bargaining representative. -28- with how the Board has analyzed the department head exclusion under the other collective bargaining laws. In a recent unit determination report addressing the department head exemption under MPELRL, the executive director summarized the analysis that is equally applicable in this case: The inquiry of whether the employee is the administrator of the department must focus on the actual job duties or functions, not the job title alone or its placement on the organizational chart. The Board has recognized that there are typically three types of job functions performed in a department: day- to-day rank and file work; supervision of other employees; and formulation and administration of department policies and practices, i.e., management of the department. The Board described how the section 962(6)(D) exclusion fits in that framework with the following: Our cases establish that for an employee to be a "department head" within the meaning of Section 962(6)(D), the employee's primary responsibility must be that of managing or directing the affairs of the department, as opposed either to acting as a supervisor or to performing the day-to-day work of the department. For example, in Teamsters Local 48 and City of Portland, Unit Determination Report at 2 (Sept. 13, 1978), the hearing examiner declared 12 employees to be Section 962(6)(D) division heads because they were "responsible for the day-to-day administra- tion" of their divisions, and because their principal duties were those of "formulating and administering division policies and prac- tices." On the other hand, in Teamsters Local 48 and Town of Bar Harbor, Unit Determination Report at 3 (Nov. 15, 1979), a Treatment Plant Operator who was responsible for the day-to-day operation of the treatment plant and who performed such administrative duties as setting the work schedules of other employees, arranging for the purchase of equipment and supplies, and submitting a budget to the town manager, was found not to be a department head because, among other things, the employee "spent the major portion of his time performing the same work as other operating employees." See also Teamsters Local 48 and Boothbay Harbor Water System, -29- Unit Determination Report at 6-8 (May 11, 1982) (Foreman who performed various administrative duties was not an administra- tor because "on balance the primary function of the Foreman's position is to act as a supervisor"). Our cases thus require hearing examiners, when presented with evidence showing that an employee performs both administrative duties and supervisory or rank-and-file duties, to decide whether the primary duties of the position are those of an administrator or those of a supervisor or a rank-and-file employee. Teamsters Local Union No. 48 and Town of Wells, No. 84-A-03, slip op. at 6-7, 6 NPER 20-15012 (Me.L.R.B. Apr. 11, 1984), aff'd sub nom. Inhabitants of the Town of Wells v. Teamsters Local Union No. 48, CV-84-235 (Me. Super. Ct., York Cty., Feb. 28, 1985). Paris, slip op. at 11-12. In determining whether a position is a department or division head, one must also keep in mind that supervisors, unlike department heads, are granted collective bargaining rights under the Act. See 26 M.R.S.A. 1286(2) and Administrative Order 4. Thus, possession of supervisory responsibilities cannot be the basis for holding that an individual is a department or division head. To be a department or division head, one must do more than simply coordinate, oversee and supervise a program. AFSCME Council 93 and Town of Sanford, No. 92-UD-03 (Me.L.R.B. Feb. 21, 1992), slip op. at 29 (citing Bangor Education Association and Bangor School Committee, No. 80-UC-02, slip op. at 8 (Me.L.R.B. Nov. 16, 1979)), aff'd, No. 92-UDA-03, (Me.L.R.B. May 7, 1992). CASA Director. In the present case, the evidence shows that the primary function of the CASA Director is to manage and direct the affairs of the CASA Program rather than to act as a supervisor or perform the day-to-day work of the department. Clearly, the CASA Director does more than simply coordinate, oversee and supervise the program: she formulates and administers policy for the Program with the approval of an -30- oversight committee, she evaluates the effectiveness of the program, she determines who is qualified to serve or continue to serve as a Court Appointed Special Advocate, she represents the program before the Legislature and national associations, and is generally responsible for the administration and direction of the program. All of these responsibilities are carried out using considerable independent judgment with a minimal degree of involvement by either the State Court Administrator or the Regional Court Administrator. The CASA Director's management duties are similar to those held by the individuals found to be division heads in the City of Portland based on duties of "planning, developing and executing the activities of their respective divisions; scheduling, supervising and evaluating the employees employed in the divisions; and formulating and administering division policies and practices." Teamsters Local Union No. 48 and City of Portland, Case No. 78-UD-39 (Me.L.R.B. Sept. 13, 1978), slip op. at 2. The CASA Director plays a substantial role in formulating the CASA Program policies and objectives and in evaluating the effectiveness of the program notwithstanding the existence of the Advisory Panel. Contrary to the contention of the Union, the involvement of the CASA Program Advisory Panel does not detract from the degree of policy-making authority held by the CASA Director or her status as a department head. It is not necessary that an individual be the ultimate decision-maker on all issues in order to be considered a department head. If that were the case, no one would be considered a department head because, in the final analysis, either the Governor, the Chief Justice of the Supreme Judicial Court or the municipality's elected government is the ultimate decision maker. The question is how much real management authority has been delegated to the position in question. See, e.g., Boothbay Harbor Water System, slip op. at 7. (Town Manager and not the Water System Foreman was the administrator of the water system where the Water Commission set the policy and the Town Manager hired and fired employees, -31- managed the budget and attended all of the Water Commission meetings), and Paris, slip op. at 15 (amount of authority retained by Town Manager precluded finding that Road Foreman was a department head). Here, the CASA Director is fully responsible for the day-to-day administration of the program and plays a very significant role in policy formulation and determining the overall direction of the program--decisions that directly affect the work of all CASA volunteers.[fn]8 The CASA Director's responsibilities regarding the staffing of the CASA Program also support my conclusion that she is a department head. The Director is fully responsible for determining who is qualified to serve as a CASA volunteer and whether a particular volunteer should be removed from the roster. Her decision on these matters is final and not subject to approval by any other person or panel. "Hiring/firing authority is a management function that, along with others, might support a finding that a job classification is a department head." Sanford, slip op. at 33-34. It is immaterial that these personnel responsibilities relate to volunteers rather than employees of the Judicial Department--the Director has final authority over the status of an individual volunteering with the program, a decision that does not lose its significance to that person or to the program simply because it is not paid employ- ment. People volunteer for the CASA program for a variety of reasons beyond the public service aspect of assisting the court system and children in need. The status and experience gained as a CASA volunteer can be a significant element for those who want to pursue careers in social services, counseling or advocacy. The Director can directly affect this status. Also, the fact that the Court actually appoints and removes the CASA volunteer ____________________ 8 The statement in the job description that the Director "promotes the policies adopted by the Supreme Judicial Court, the CASA Advisory Committee, the Administrative Office of the Courts, and other Judicial Branch policy making entities" does not nullify the Director's contribution to policy formulation. -32- in a particular case is not significant because the Director's decision determines the overall availability of the volunteer for the program. The CASA Director is also the primary contact for the program with a variety of outside entities and individuals including private attorneys, the Department of the Attorney General and the Department of Human Services. The CASA Director works independently on these activities and exercises a substantial amount of discretion in determining how to resolve any problems identified. This degree of autonomy is consistent with what one would expect from a department head responsible for managing the affairs of the department and would be inconsistent with the more limited responsibilities of a supervisor or a rank- and-file worker consumed with the day-to-day operation of the department. Similarly, the fact that she acts as a spokesperson for the program with other states and national associations is consistent with department head status. Finally, the CASA Director's budgetary responsibilities are consistent with what one would expect of a head of a department. The Director proposes a budget to the Advisory Panel for their approval. Once approved by them, it gets incorporated into the initial draft of the Judicial Department budget as a separate line item. The Director is also responsible for approval of expense payments to the CASA volunteers. Frequently, the presence of budgeting responsibility is not of much significance in determining department head status because budgeting is often such an unimaginative, mechanical process. See Wells, slip op. at 9 (Budget forms prepared by employee required an insignificant amount of time and effort). See also, Sanford, slip op. at 31, n.3. In this case, the Director's role in the budget process is not, in itself, particularly significant but combined with the other management responsibilities it adds further support to my conclusion that she is a department head. There have been a number of cases on department head status -33- that have a superficial resemblance to the current case that must be distinguished. These are cases involving a one-person department where the employer has contended that the department head exclusion applies to that one person. Sanford is an excellent example of such a case. In Sanford, the hearing examiner considered the department head status of a number of positions where there were no other employees in the department or just one or two clerical support positions, as in the current case. In each case, the hearing examiner looked at the primary function of the position and determined who was doing the substantive work of the department. For example, the hearing examiner reasoned that since the Planning Director and the Assessor were the only people in their respective departments with planning or assessing skills, their primary function must be that of performing the substantive work of the department rather than management duties. Sanford, slip op. at 31-32. Similarly, the job description of the Codes Enforcement Officer had as its major focus substantive code enforcement duties. Id. slip op. at 33. See also, Wells and Teamsters Local Union No. 48 and Town of Kennebunk, Case No. 83-UD-23 (Me.L.R.B. April 27, 1983) for similar analysis of one-person departments. In this case, the CASA Director does not serve as a court appointed special advocate herself nor is her primary function just coordinating the assignment of CASA volunteers. Her job description and other evidence presented support my conclusion that, unlike the positions in Sanford, the primary function of this position is to manage and direct the affairs of the department rather than performing the day-to-day substantive work of the department or supervise others doing such work. The Union emphasizes the location of this position on the Judicial Department's organizational chart relative to other positions that are included in bargaining units as support for inclusion of the CASA Director in the Professional Services Unit. Their argument seems to be if other positions that report to a Regional Court Administrator are in bargaining units, the CASA -34- Director should be as well. This argument carries little weight because my determination must be made on the basis of the CASA Director's job function, not its placement on an organizational chart. Paris, slip op. at 15. Similarly, an agreement between the parties to place other positions in a particular unit has no bearing on whether the CASA Director fits into one of the statutory exclusions. Consequently, evidence presented on various management functions performed by specific unit employees is irrelevant to this determination. CADRES DIRECTOR. In a similar vein, I conclude that the primary function of the CADRES Director is to manage and direct the affairs of the CADRES Program. The facts supporting my conclusion that the CADRES Director is a department head are similar to the CASA Director's case; that is, she has a substantial role in policy formulation for the program, she is fully responsible for administering the program, she has full responsibility for creating and maintaining the rosters of ADR providers, and she serves as the spokesperson for the program with the Legislature and other entities. Like the CASA Director, the CADRES Director carries out these responsibilities using independent judgment with very little involvement of either the State Court Administrator or the Regional Court Administrator. The role played by the CADRES Director in policy development and implementation is similar to the role of the CASA Director. Here, the Court Alternative Dispute Resolution Committee is an oversight committee to which the Director will bring issues, policy options and proposed rules for adoption. As with the CASA Advisory Panel, the existence of the CADRES Committee does not detract from the significant amount of responsibility the Director has for policy development and the overall direction of the program. The CADRES Director's responsibility regarding maintenance of the various rosters of ADR providers is the type of management responsibility typically held by department heads rather than -35- supervisors or rank-and-file workers. The CADRES Director is responsible for determining how many individuals should be placed on each roster and which individuals should be selected for or removed from a particular roster. The Director's decisions on the rosters have a substantial impact on the individual ADR providers and on the success of the ADR service. The fact that the Director's decisions on adding or removing an individual from a roster can be appealed to the CADRES Committee does not mean that the Director has no real authority in this area. It simply means that her decision can be appealed. This appeal process is no different than existing mechanisms public employees have for appealing adverse employment decisions. For example, personnel decisions of a State commissioner can be appealed to the State Employees Appeal Board or to an arbitrator. Similarly, personnel decisions of a municipal employer can be appealed to the Board of Arbitration and Conciliation or to a private arbitrator under the terms of most collective bargaining agreements. The CADRES Director is the primary spokesperson for the Judicial Branch on mediation issues and is the contact person for complaints regarding individual ADR providers. The Director has testified before legislative committees regarding mediation and has served on national panels regarding court-connected mediation. These activities were undertaken without direct supervision by the Administrative Office of the Courts. Finally, the CADRES Director's budgeting responsibility is additional evidence to support my conclusion that the position is a department head that may not be included in a bargaining unit. ORDER On the basis of the foregoing findings of fact and discussion, and by pursuant to the authority granted by -36- paragraph 4 of the Administrative Order and 26 M.R.S.A. 1286, it is ORDERED: The Union's petition for unit clarification is denied. The positions of Director, Court Appointed Special Advocate, and Director, Court Alternative Dispute Resolution Service, are department heads within the meaning of 26 M.R.S.A. 1282(5)(D) and paragraph 11(4) of the Supreme Judicial Court, Administrative Order in Regard to Judicial Employees Labor Relations, SJC-128. Dated at Augusta, Maine, this 21st day of January, 1998. MAINE LABOR RELATIONS BOARD /s/________________________ Lisa Copenhaver Attorney Examiner The parties are hereby advised of their right to appeal this report to the Maine Labor Relations Board pursuant to 26 M.R.S.A. 1288(2) (Supp. 1997) and paragraph 6(2) of the Supreme Judicial Court, Administrative Order in Regard to Judicial Employees Labor Relations, SJC-128. 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. -37-