State of Maine and MSEA, No. 78-UC-06, affirmed by 78-A-09. STATE OF MAINE MAINE LABOR RELATIONS BOARD [Case No. 78-UC-06] [Issued: August 10, 1978] _______________________ ) THE STATE OF MAINE ) ) and ) UNIT CLARIFICATION REPORT ) MAINE STATE EMPLOYEES ) ASSOCIATION ) _______________________) As the result of the filing of a Petition for Unit Clarification by Lanning S. Mosher, Director, Office of State Employee Relations,[fn]1 on behalf of the State of Maine, on April 3, 1978, Unit Clarification hearings were conducted on May 25 and June 1, 1978, at the State Office Building, as provided in 26 MRSA Section 979-E. Present at the hearing for the petitioner were: John J. Sears, Esquire Counsel, Office of State Employee Relations David Longmuir Chief Negotiator, Office of State Employee Relations Dean F. Clukey Captain, Maine State Police Ron Eccles Lieutenant, Maine State Police G. Paul Falconer Captain, Maine State Police Albert Jamison Major, Maine State Police Rupert Johnson Captain, Maine State Police Edward Wilson Lieutenant, Maine State Police Present for the Maine State Employees Association was: John J. Finn, Esquire Counsel, Maine State Employees Association Also present was the undersigned, Robert I. Goldman, hearing examiner, as designee of the Executive Director of the Maine Labor Relations Board. By its petition the State of Maine seeks to exclude the positions of State Police Captain and State Police Lieutenant from coverage under the State Employees Labor Relations Act (hereinafter, "the Act"). The said employees are now included in the Supervisory Services bargaining unit of State employees and the State seeks not only to have the positions detached from this unit, but excluded entirely from coverage under the Act. The State's claim, simply stated, is that since the __________ 1 The Office of State Employee Relations (hereinafter, "OSER") is the designee of the Governor for the purpose of engaging in collective bargaining on behalf of the executive branch of state government under the State Employees Labor Relations Act. Section 979-A, Paragraph 5 provides, ". . . It is the responsibility of the executive branch to negotiate collective bargaining agreements and to administer such agreements. To coordinate the employer portion in the negotiation of agree- ments, the Legislative Council or its designee shall maintain close liaison with the Governor or his designee representing the executive branch relative to the negotiation of cost items in any proposed agreement. The Governor's office or its designee is responsible for the employer functions of the executive branch under this chapter, and shall coordinate its collective bargaining activities with operating agencies on matters of agency concern. . . ." [-1-] ____________________________________________________________________________________ original unit determination hearings concluded back in June 1976, there have been various changes in the Bureau of State Police and in the job content of these positions which are now sufficient to warrant their exclusion pursuant to Section 979-A, Paragraph 6(C) of the Act; that is, they are now confidential employees with respect to matters subject to collective bargaining.[fn]2 The second string to the State's bow is the claim that the Captains and Lieutenants should be recognized as managerial employees and excluded as a matter of policy even though there is no such explicit exclusionary provision in the Act. The Maine State Employees Association (hereinafter, "MSEA") is the certified bargaining agent for the employees in the Supervisory Services bargaining unit and it seeks to have the Petition dismissed claiming it is untimely, fails to allege a material change in circumstances, and fails to state a claim upon which relief can be granted. MSEA has substantive objections as well, i.e., 1) that any alleged changes are not sufficient to warrant modification in the composition of the bargaining unit, 2) that the earlier decision considered the more important aspects of the positions and the State's attempt here is really an appeal for re- consideration, and 3) that the legislation contains specific and limited grounds for exclusion and "managerial" or "administrative" are not among them. In the latter part of 1975 and during the first half of 1976, the Executive Director of the Board conducted extensive hearings on the various requests then pending for the establishment of appropriate units of State employees under the Act. He ultimately found seven state-wide units to be appropriate, including a State Police Services unit comprised of Troopers, Corporals and Sergeants employed in the Bureau of State Police, and the aforementioned Supervisory Services bar- gaining unit.[fn]3 During the course of those hearings OSER steadfastly sought the __________ 2 Section 979-A. Definitions * * * "6. State employee. "State employee" means any employee of the State of Maine performing services within the executive department except any person: A. Elected by popular vote; or B. Appointed to office pursuant to statute, ordinance or resolution for a specified term by the Governor or by a department head or body having appointive power within the executive department; or C. Whose duties as deputy, administrative assistant or secretary neces- sarily imply a confidential relationship with respect to matters subject to collective bargaining as between such person and the Governor, a depart- ment or body having appointive power within the executive branch; or D. Who 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; or E. Who has been employed less than 6 months; or F. Who is a temporary, seasonal or on-call employee; or G. Who is serving as a member of the State Militia or National Guard." 3 The bargaining units for State employees are: Administrative Services; Professional and Technical Services; Institutional Services; Law Enforcement, Public Safety and Regulatory Services (Non Police); State Police Services; Operations Maintenance and Support Services; and Supervisory Services. Supervisory employees are not excluded from the protections of the Act, even though they may exercise judgment in adjusting grievances, applying estab- lished personnel policies and procedure and enforcing a collective bargaining agreement. Section 979-E, Paragraph 1. -2- ____________________________________________________________________________________ exclusion of State Police Captains and Lieutenants from inclusion under the Act on the same grounds urged in the current Unit Clarification proceeding. The Executive Director placed each of the positions in question therein in the Supervisory Services unit. The determination of the Executive Director was appealed to the Board which confirmed the unit placement of the Captain position. In the course of its decision the Board stated, "It is our determination that the placement by the Executive Director is appropriate unless the employee in the State Police Captain position is permanently assigned to collective bargaining functions, employee relations matters or renders advice on a regularly assigned basis to management personnel regarding either collective bargaining or employee relations matters. If a person is engaged in such collective bargaining activities, he should be and hereby is excluded under . . . the Act . . . ."[fn]4 Both OSER and MSEA have the decision of the Board under appeal to the Superior Court of Kennebec County where the matter is pending.[fn]5 Some time after the appeal to the Board was entered, the parties in interest, including OSER, entered into a stipulation which, inter alia, confirmed the placement of the Lieutenant position in the Supervisory Services unit.[fn]6 During the course of the hearings in the instant proceeding, it became evident that various changes of significance have occurred within the Bureau of State Police and with respect to the Captain and Lieutenant positions. Clearly there have been changes, both organizational and operational, which have affected the roles of Captains and Lieutenants and which have been energized by the new philosophy affecting the com- mand of the State Police which has asserted itself over the past two years. The ques- tion is whether the changes are of a character and dimension that requires a change in the unit placement of these positions, or a change in their treatment under the Act. On July 1, 1976, Colonel Allan Weeks, who had been Deputy Chief, assumed command of the Bureau, having been appointed Chief of the Bureau and Commissioner of the Department of Public Safety.[fn]7 With his succession to the command position __________ 4 Decision of Appellate Proceedings before the Maine Labor Relations Board dated March 17, 1977. 5 State Police Captains are but one of a number of positions involved in the appeal. 6 The reason for the abandonment of OSER's exclusionary claim with respect to the Lieutenant position is unexplained. 7 The Department of the State Police was reorganized by the Legislature in 1971. P.L. 1971, c. 592. The reorganization was completed in 1975, resulting in a Department of Public Safety intended "to strengthen the department to assure the safety and well being of Maine Citizens in the efficient management of law enforcement responsibilities of the State . . ." P.L. 1975, c. 579. Under the new organization the Department consists of: the Bureau of State Police, the Bureau of Liquor Enforcement, the Office of the State Fire Marshal, and the Maine Criminal Justice Academy. 25 MRSA, Section 2901. In addition, the Legislature, in 1978, transferred responsibility for the Bureau of Capitol Security to the Commissioner of Public Safety. P.L. 1978, c. 138. The Legislature has mandated that appointment of the Chief of the Maine State Police be made from among the commissioned officer ranks of the State Police and has further provided that the Governor may appoint the same person to serve as Commissioner of Public Safety and Chief of the Maine State Police. 25 MRSA, Section 1501. This is the procedure that has been followed since 1971. The Commissioner is the chief executive officer of the Department and in that capacity he is responsible for coordinating and supervising the activities and programs of the several bureaus. -3- ____________________________________________________________________________________ there came a "new philosophy of participatory management," which in the operational sense, and as practiced, placed greater managerial and administrative responsibil- ities in the hands of Troop and Division commanders. To effectuate this, in January 1977 Colonel Weeks revised the divisional set-up of the Bureau with the intent of decentralizing management responsibility. The evidence shows that after full discussion with all commissioned officers, and responding to the enthusiasm of Captain Falconer who had represented him in a recent seminar held in Boston which dealt with advanced trends in state police organization, Colonel Weeks established three Field Divisions, each under command of a Captain, to replace the old positions of field forces commander. The jurisdiction of the Divisions approximates proportional geographical areas of the State. The effect of this was to place greater responsibility, in the operational and administrative sense, at the Field Division and Troop level. There are eight field Troops, each under the command of a Lieutenant. Each Division, therefore, has two or three Troops directly responsible to it. As part of the process of decentralization, and in itself evidence of the repositing of more responsibility in the hands of line officers, the central criminal investigation office was disbanded and a Criminal Investigation Division (CID) was attached to each Field Division and was physically placed in the barracks of a centrally located Troop in the Division. Each CID is under the command of a Lieutenant and its resources are available at the Troop level as needed; obviously this has improved the access of this resource with respect to Troop or Division investigations. At approximately the same time the Legislature authorized a Division of Special Investigation (DSI) with its own legislative appropriation which is not budgeted through the Bureau. DSI is under the direction of a State Police Captain who reports to the Operations Major of the Bureau. There is the expectation that within the near future this office will come under civilian direction. In addition to the foregoing changes, on or about June 1977, changes were made in the Planning and Research office expanding the role of that office measurably, and it is claimed that it is "now a critical part of management." The role of that office, formally attached to the Department of Public Safety, is impressive indeed, although it may reflect somewhat the capability of the Lieutenant currently in charge of the office. It was testified that the Planning and Research office has responsibility for the overall planning for the entire Department, including program planning, obtaining and digesting information of funding sources and the types of programs for which the funds are available, grant writing, and follow through. This office, or the current incumbent, has been responsible for advocating various programs and, once they have been approved, managing the acquisition and on-line installation of same, including a new state-wide communications system, a highly sophisticated computer operations system which is, or will be, capable of interconnecting with a Northeast regional information sharing system, and the Division of Special Investigations, among others. Unquestionably the reorganization, the results of which have been only par- tially outlined above, has meant that the roles of specific offices in the Bureau, and consequently the responsibilities of officers in charge of the individual offices, have been rather dramatically expanded and broadened. These include the Crime -4- ____________________________________________________________________________________ Laboratory (reporting to the Operations Major and administered by a Lieutenant), Planning and Research Office (reporting to the Administrative Major and administered by a Lieutenant), Division of Special Investigations (under the command of a Captain), Communications Operations (headed by a Lieutenant), Personnel Office (headed by a Captain), Director of Special Support Services (commanded by a Captain and having under his aegis such varied support offices as the Uniform Crime Reporting Division and the Supply Division), the three Criminal Investigation Divisions (each adminis- tered by a Lieutenant). This variety of roles, shared as they are by Captains and Lieutenants alike, impresses upon the observer not only the range and importance of matters which are administered by persons holding these positions in the Bureau, but adds emphasis as well to the repeated theme in the testimony that it is part of the tradition in the Bureau to expose all commissioned officers to a variety of roles in the Bureau in the course of their service, so that each will be soundly versed in the many aspects of the Bureau's operations. Thus each officer is pre- pared insofar as possible for ease of transition when promoted, assuming a new role, or when utilizing a specific Bureau service in connection with his normal duties. The hearing examiner accepts the contention of the State that Captains in charge of Field Divisions and Lieutenants in command of individual Troops have acquired roles of a significantly enhanced managerial stature under the reorgani- zation. The Troop commander hires support personnel; he adopts schedules for his Troop. He may transfer personnel within his troop; he deploys men and materials; he may commit significant sums for equipment or other needs; he is consulted on policy and programs; he has attended advanced managerial seminars. He may be in charge of important criminal investigations and coordinate related anti-crime missions or strikes. He is preparing himself for managerial advancement within the Bureau or Department; he has charge of maintenance of facilities; he makes performance appraisals of personnel and equipment; he makes recommendations for promotions and transfers. His responsibility in the area of budget has increased. More and more as the Division and Troop commanders assume greater responsibility, approval of upper echelon superiors has become more perfunctory. It was testified that the activities of Troop commanders in the area of their responsibilities are exercised without the close scrutiny of the Division Captain or other superiors. The role of the Captain in the managerial and administrative sense is equally clear. It was testified that the Division organization has meant a greater degree of uniformity in carrying out policy in the Bureau. Since the Division Captains can resolve areas of doubt by consultation, this necessarily means the Troops under their direction will operate on a more uniform and administratively coherent basis. In sum, it would appear that a Troop Commander may be likened to a Precinct Captain in a metropolitan police force, and the Division Captain to his next superior. The changes that have been wrought in the Bureau are substantial, and considering the policy of the current Chief of the Bureau to place decision making in the hands of the commanders at the Troop and Division level (insofar as practicable), it is clear the positions of Captain and Lieutenant are more managerial or administrative positions than at the time of the original unit hearings. This conclusion is reached without considering their role in the collective bargaining area. However, under the statutes and decisions that govern this determination, that is not enough to -5- ____________________________________________________________________________________ justify excluding these positions from the coverage of the Act. Although there may be persuasive policy reasons fortified by determinations in other jurisdictions for establishing a management class of employees and then exempting it from the scope of the law, neither the Legislature nor the Board[fn]8 has seen fit thus far to expand the exclusions found in Section 979-A, Paragraph 6, of the Act. Nor is the direction of other jurisdictions consistently compelling in this regard.[fn]9 As indicated above, the question remains whether each position, since the earlier hearings, have or have not been transformed into that of "deputy, admini- strative assistant or secretary necessarily implying a confidential relationship with respect to matters subject to collective bargaining as between such person and the Governor, a department head or body having appointive power within the executive department."[fn]10 Or as stated by the Board in its Decision of March 17, 1977, the position to be exempt must be "permanently assigned to collective bar- gaining, employee relations matters or renders advice on a regularly assigned basis to management personnel regarding either collective bargaining or employee relations matters."[fn]11 It is clear that neither Division Captains or Troop Commander Lieutenants, nor the officers in charge of any of the offices enumerated herein, may be classi- fied as a deputy, administrative assistant or secretary to the head of the depart- ment (either the Bureau or the Department of Public Safety). However, testimony of witnesses shows that Captains and Lieutenants have been involved in the collective bargaining process as it relates to the non-commissioned officers and troopers unit. The Chief Negotiator for the State, Mr. Longmuir, testified that it was his modus operandi to seek out and consult with the personnel in the organization who had the greatest familiarity with the "real world" of State Police operations and organization; that is, those who held positions at the critical junctures of the organization vis-a-vis its operational functions. As a result of his own persis- tence and the emerging re-organizational patterns within the Bureau, Mr. Longmuir found himself consulting with the officers representing the two positions now in question. This coming together was also consonant with Colonel Weeks' view that the Captains and Lieutenants were a critical level of management in terms of advising on policy and then carrying it out. Meetings were then held on a fairly regular basis and they were both informational, concerning Mr. Longmuir's need to know how the Bureau operated and was administered, and advisory in terms of his seeking the views of these employees and sharing with them many of the developments as nego- tiations proceeded. In fact, Mr. Longmuir felt it personally necessary to clear __________ 8 Managerial control duties, including the exercise of judgment in adjusting grievances and enforcing a collective bargaining agreement, are recognized in the Act as typical indicia of supervisory status and justify inclusion, rather than exclusion, under the Act. See Unit Determination Report of the Executive Director dated September 22, 1976 [Nos. 75-UD-04, et al.], and Decision of Appellate Proceedings before the Maine Labor Relations Board dated March 17, 1977 [No. 77-A-02]. 9 See Matter of City of Tacoma, Wash PERB, 710 GERR 13 (April 8, 1977). For a discussion of the problem see review by Professor Tim Bornstein, University of Massachusetts in 718 GERR 11 (July 25, 1977). 10 Section 979-A, Paragraph 6(C). 11 Decision of Appellate Proceedings, supra, fn. 2. -6- ____________________________________________________________________________________ final language with them on such matters as grievance procedure and management rights. As phrased by Mr. Longmuir, he wanted to be sure "it was something they could live with" because they would be the administrators most directly affected. It is clear then that these meetings involved discussions of substance and were not mere formalities. The testimony also showed that the formal negotiating com- mittee on behalf of management included a Major and two Captains, who were appointed or designated by someone other than the body of Captains and Lieutenants as a group. It does not appear that these negotiators reported back to the Captains and Lieu- tenants as a group, or felt the responsibility to do so. However, some time well after negotiations began a system of rotation was initiated whereby each Captain was to have the opportunity to sit in on actual negotiations, but the collective bargaining agreement was concluded before every officer enjoyed that opportunity. Captains and Lieutenants as a body apparently had no formal structure for the purpose of their meetings with Mr. Longmuir, or with respect to their involvement in the process as otherwise outlined herein; the collective bargaining role of the two positions is not the subject of any formal orders or edicts issued by the Bureau command.[fn]12 The participatory role of the Captains and Lieutenants has continued beyond contract negotiations. Meetings have been held to prepare line level officers for their role in the administration of the collective bargaining agreement. Meetings are also held to review problems of administering the agreement and to prepare for the coming negotiations on a successor agreement. Troop Commanders may be conceived as front line collective bargaining administrators in that they may be involved in grievances, disciplinary hearings, contract interpretation on questions of pay, and so on. That is clearly the case. But it is also true that they had a similar role before the current collective bargaining agreement became operative. It was testified that the substance of many of the contract provisions existed previously, but that the process for dealing with the subject matter had been changed in the provisions of the agreement. The evidence does not support the conclusion that a major and primary role in administering the collective bargaining agreement had devolved on the Troop Commanders or the Field Division Commanders, as contrasted with other levels of the Bureau, as the result of the consummation of the agreement. Maine State Police commissioned officers are an impressive group of citizens by any measure. They are articulate, bright, learned and dedicated. They justi- fiably believe in the Bureau, its mission, and its standards. The record shows that it takes a minimum of nine years of service in the Bureau for appointment to Lieutenant, and a minimum of 11 years, more probably 15, for appointment to Captain. As stated earlier, there apparently is a policy to provide the widest possible experience within the Bureau for its officers. All the officers who testified have had a distinguished breadth of service in their years with the organization. A recent change of policy has been adopted whereby each Captain fills in for the Operations Major on a rotating basis whenever he is away or off duty; similarly, Troop Commanders cover for their Division Captain on a rotating basis. When so __________ 12 At least none were submitted as evidence, other than the job descriptions which stipulate a role in grievance and discipline matters. -7- ____________________________________________________________________________________ doing any officer is responsible for and is expected to fulfill all the duties of his superior, not merely innocuous administrative tasks. As emphasized by the State in its post-hearing memorandum, it is apparent from the testimony of all the witnesses that the intensity of the identity with management of the entire group of Captains and Lieutenants has increased measurably as a result of the organi- zational changes and philosophical bent of the regime since July 1, 1976. Whereas at the earlier hearing there was no expression of preference in the record con- cerning the desires of the disputed group of employees, the instant record is alive with the unanimity of their desire to be considered managerial employees and to be excluded from any unit for collective bargaining purposes. The State's position as articulated in its memorandum, accompanied as it is by an extensive review of the treatment of "managerial" employees in other juris- dictions, is impressive. But, when viewed in the light of the character of the evidence in the record, it is not enough. The Captains and Lieutenants simply cannot be considered as deputies, administrative assistants or secretaries to the head of their department, whose duties necessarily imply a confidential relationship with respect to matters subject to collective bargaining. Their duties do not necessarily imply a confidential relationship of the type contemplated by the statute. It is not enough that they may be taken into the confidence of the State negotiators during contract discussions or that they are versed in and have a role in contract administration. The record did not indicate that as a body or indi- vidually they are permanently assigned to collective bargaining functions, employee relations matters or render advice on a regularly assigned basis to management personnel regarding either collective bargaining or employee relations matters, as the Board would require by its March 17, 1977 decision. From all that the record demonstrates they well may be considered management or administrative employees, but that alone is not sufficient to provide exclusion from the collective bargaining process of the Act. Neither the statute nor the Board by its decisions has so authorized. It must be kept in mind that OSER has been created to handle the responsibility for the employer functions of the executive branch under the Act and coordinates collective bargaining activity with operating agencies on matters of agency concern.[fn]13 It is apparent that OSER, which employs skilled labor relations personnel in various disciplines, performs much of the work on behalf of the State or State agencies in the collective bargaining area. It is the negotiator of collective bargaining agreements and it administers such agree- ments. Therefore, it would appear that agencies within the executive branch would have a reduced or lesser role in the labor relations area, depending somewhat on the capacity of OSER to perform its mandate within the limits of its staff and resources. This being the case and given the foregoing as background, it does not seem the best judgment to select out a few of the contested positions which may individually warrant exclusion. MSEA agrees that the Personnel Officer might be properly excluded. Grounds may be found to do the same with the Planning Research Officer or the head of the Division of Special Investigation. However, the State did not request specific exclusions and the evidence was not directed particularly toward that __________ 13 See fn. 1, supra. -8- ____________________________________________________________________________________ possibility. Furthermore, based upon the record of this proceeding, it does not seem proper to begin fragmenting this body of officers unless there is accord on the matter. There is persuasive justification to honor the peculiar cameraderie and sense of identity shared by the group as a whole. No one has sought a separate operational bargaining unit of the commissioned officers of the State Police and the hearing examiner does not see the need to address that matter in this report. The Motions of MSEA, assuming their acceptability in this type of proceeding, are denied. The State did state a claim within the Unit Clarification provisions; there have been significant changes in the positions; and the petition is not untimely. The fact that an appeal is pending to review the earlier decision of the Board with respect to the position of State Police Captain is no reason to withhold a determination on the instant Petition for Unit Clarification filed by the State, since it is based upon an allegation of changed or new conditions affecting the position. Based upon the evidence there is no justification under the State Employees Labor Relations Act for excluding the positions of State Police Captain and State Police Lieutenant from the coverage of the Act or from the Supervisory Services bargaining unit of State employees. SO ORDERED. Dated at Augusta, Maine, this 10th day of August, 1978. MAINE LABOR RELATIONS BOARD /s/________________________________ Robert I. Goldman Hearing Examiner, designee of the Executive Director -9- ____________________________________________________________________________________