STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 86-17
Issued: August 19, 1986
_____________________________
)
ANTHONY D. SEWALL, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
PORTLAND WATER DISTRICT, )
)
Respondent. )
_____________________________)
On March 12, 1986, Anthony D. Sewall filed a prohibited practice
complaint with the Maine Labor Relations Board (Board) pursuant to 26
M.R.S.A. Sec. 968(5)(B) (Pamph. 1985) and Board Prohibited Practice
Complaint Rules 4.01 through 4.04. Sewall's complaint alleges that
Portland Water District (District) General Manager Joseph B. Taylor
terminated him on March 7, 1986, for his instigation of and leadership
in the concerted activities of a group of organized supervisory
employees regarding their wages, hours and working conditions. On
March 28, 1986, the District filed its response to the charge. The
District's response states that it terminated Sewall for just cause,
that Sewall is not a public employee within the meaning of the
Municipal Public Employees Labor Relations Act (Act) and that the
District had the absolute right to terminate Sewall because he served
at the pleasure of the District.
On May 30, 1986, Alternate Chairman Donald W. Webber conducted a
prehearing conference in this matter. The Prehearing Conference
Memorandum and order issued by Alternate Chairman Webber on June 2,
1986, is incorporated in and made a part of this decision and order.
On June 5, 1986, the Board, consisting of Chairman Edward S. Godfrey,
presiding, Thacher E. Turner, Employer Representative, and George W.
Lambertson, Employee Representative, conducted an evidentiary hearing
concerning the issues framed by the complaint and response and
narrowed by the Prehearing Conference Memorandum and Order. Sewall
appeared as his only witness and was represented in the controversy by
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Attorney Harold Lichten. The Respondent elicited only the testimony
of Joseph Taylor and was represented by Attorneys Roger W. Lehr and
Larry Winger. The parties were afforded full opportunity to appear,
to present testimonial and documentary evidence, to cross-examine wit-
nesses and to orally argue. Neither party expressed a desire to file
briefs. The Board deliberated the case immediately after the presen-
tation of all evidence relevant to the issue of the Complainant's
status as a public employee and ordered the complaint dismissed.
JURISDICTION
For reasons stated below, we have determined that Complainant
Sewall is not a public employee within the meaning of 26 M.R.S.A.
Sec. 962(6) (1974 & Pamph. 1985). We therefore have no jurisdiction over
the complaint. See 26 M.R.S.A. Sec. 968(5)(B) (Pamph. 1985).
FINDINGS OF FACT
Sewall was hired as the District's Director of Employee Relations
by District General Manager Joe Taylor in September of 1980. When
Sewall was appointed by Taylor and confirmed by the Board of Trustees
he believed that his employment at the District was for a lifetime
job. Sewall served as the District's Director of Employee Relations
until March of 1986. Teamsters Local Union No. 48 represents units of
the District's operations and construction, and clerical and technical
employees. The composition of each of these units was determined by
agreement of the parties. The District and the Teamsters have nego-
tiated one contract covering all of the employees in both of these
units for some time. Sewall's Personnel Assistant, Charlotte Russell,
is excluded from both of these units by the recognition clauses of
such contracts on the basis of the confidential nature of her
employment.
Directly under the General Manager in the District's hierarchy is
Director of Operations Steven F. Gorden. Gorden, Sewall and the
District's labor counsel constitute the District's bargaining team.
Directly under Gorden are the three Superintendents of the operating
departments of general services, water and wastewater; the
Comptroller; the Chief Engineer; and the Directors of employee rela-
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tions, quality control and marketing and customer services.
The minutes of the June 3, 1986 meeting of the District's Board
of Trustees memorialize the Board's apparent vote to confirm the
General Manager's recommendations of specified individuals, including
Sewall, to fill various District positions for an ensuing twelve-month
period. The District's bylaws state that "all department heads of the
district shall be appointed by the General Manager, after confirmation
[sic] by the Board of Trustees," and that such employees "shall hold
their employment during the pleasure of the General Manager." Corre-
spondence from Sewall directed to the General Manager establishes that
Sewall consistently perceived himself to be occupying a "complex
Department Head position reporting directly to the C.E.O., responsible
for industrial relations, and leading the contractual bargaining
team."
Sewall composed position announcements during approximately three
percent of his work time and devoted ten percent of his time to inter-
viewing job applicants. For any one position Sewall would typically
select five to six persons from applicant pools as large as forty.
The names of applicants thus selected by Sewall along with their job
application forms and resumes were then forwarded to hiring authori-
ties consisting of various District superintendents or department
directors. During Sewall's tenure at the District no one was ever
hired other than from such pre-selected panels. Sewall directly
possessed the power only to hire the personnel assistant who worked
directly for him.
Sewall spent roughly twelve percent of his work time composing
video tapes for training, six percent of his time on actual safety
training and eight percent making safety inspections and reporting
violations. Sewall possessed no disciplinary power over safety viola-
tors. Sewall devoted about three percent of his total work time to
authoring or redrafting policy and procedure letters for the approval
of the General Manager. Among such policy and procedure letters
drafted by Sewall are letters addressing the following matters:
psychological evaluations, the use of sick time, vacation and bene-
fits, long term disability status, health care plans for early
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retirees, annual evaluations, vacation policies for administrative
personnel, vacation policies for nonunion employees in grades twelve
and thirteen, executive physical examinations and progressive
discipline. Sewall's policy and procedure letters constituted
recommendations or suggestions tendered to the General Manager.
Although many of these letters were ultimately approved by Taylor, he
did not approve one letter concerning the details of a smoking policy
recommended by Sewall.
Sewall scheduled psychological evaluations during approximately
one percent of his work time. Results of these evaluations would be
reviewed by Sewall and Sewall would discuss the evaluations with the
performing psychologist and forward a copy of the evaluation to the
General Manager or the evaluated employee's supervisor. Sewall
acted as the ultimate custodian of these evaluations. Sewall composed
statistical reports concerning various subjects such as accidents,
sick time, injuries and other workforce variables. During four per-
cent of his work time Sewall met with other management level employees
to review employee problems. Sewall spent two percent of his time
completing employee deferred compensation forms and reviewing union
employee evaluations, although Sewall personally evaluated only his
personnel assistant. The District's performance evaluation forms were
designed, generated, and maintained by Sewall. Sewall arranged light-
duty assignments for injured workers and spent two percent of his time
counselling persons about to retire, concerning benefits. Safety com-
mittee leadership accounted for one percent of Sewall's time and
editing of the District's newspaper accounted for one percent.
Review of supervisors' letters of discipline and selective
reference of such letters to legal counsel for review accounted for
another one percent of Sewall's time. Opening and reviewing mail and
keeping abreast of personnel issues in professional periodicals
accounted for an additional twelve percent of Sewall's work. Review
of job postings to assure accord with union contracts accounted for
one percent of Sewall's time. Supervision of his personnel assistant
comprised one percent of his work and attendance at arbitration cases
involving operations and construction unit employees accounted for one
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additional percent. The accounting department prepared the budget for
Sewall's personnel department. Sewall's spending authority was
limited to purchases of $35 or less with higher amounts requiring the
approval of the General Manager and the Board of Directors. Sewall
was not the custodian of the evaluations of supervisory personnel
which were performed by the General Manager. Sewall recommended the
use of an outside firm to review and conform the internal equity among
District job classifications and salary levels. The salary recommen-
dations of the Olney firm which was selected to perform such analysis
were followed in large part, with regard to all forty non-union posi-
tions. The job descriptions for non-union managerial employees were
prepared by Olney Associates. Sewall devoted approximately three per-
cent of his work time to composing union employees' job descriptions.
Sewall possessed a separate office and set his own work schedule.
Although the director of operations and the superintendents of the
operating departments met with the General Manager at regularly sched-
uled daily meetings, Sewall's meetings with the General Manager were
ad hoc. Sewall prepared an organizational chart of the District.
With the exception of added duties concerning video training tapes and
driver training and the deletion of responsibility for recommendations
regarding non-union salary in 1982 or 1983, Sewall's job duties did
not change in any material way from his hire until his termination.
With the exception of requirements concerning equal employment oppor-
tunities pursuant to which Sewall developed an unused skeletal plan,
Sewall's job duties conformed to those outlined in his job description
dated January, 1984. That job description was promulgated by Olney
Associates with Sewall's assistance.
Although Sewall did not possess the authority to set the salary
and benefit levels of non-union personnel, he did make recommendations
concerning such matters to the General Manager. Sewall was respon-
sible for implementing all personnel matters within general guidelines
established by the Trustees. Sewall spent five percent of his time
hearing the grievances of union employees. Settlement of such
grievances by Sewall required the approval of the General Manager.
Grievances by non-union and managerial level employees were taken to
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the General Manager for discussion. Sewall spent between four and
eight days every two years on negotiating team activities, in his capa-
city as the Distict's chief negotiator. As chief negotiator Sewall
called staff meetings to poll management for their desires concerning
contract changes and coordinated the scheduling of negotiations.
Administration of union contracts accounted for four percent of
Sewall's time.
Sewall's signature along with the signatures of eleven others
appears on a letter dated February 24, 1986, addressed to District
Trustees' President Vaughan Twaddel, by the District's "management
staff." This letter requests a meeting with the District's Board of
Trustees, or a committee thereof, "to discuss certain conditions of
employment directly affecting" the management staff. The areas which
the letter specifically addresses are the Olney system, senior staff
evaluations, wages and benefits, management staff authority and
District goals.
POSITION OF THE PARTIES
Sewall states that he was terminated for the allegedly protected
activity of signing a letter, along with eight or nine other senior
management employees of the District, which requested a meeting with
the Board of Trustees of the District to discuss certain issues con-
cerning the employment relations of the management staff. Sewall con-
tends that he was a public employee and not a department head within
the meaning of the public employee exception contained in 26 M.R.S.A.'
Sec. 962(6)(D) (1974), because he was in no sense a deputy, had no power
to hire and fire or discipline employees, had no department, had no
responsibility for making a budget and supervised only his assistant.
Sewall further contends that the exclusion from the definition of the
term "public employee" contained in 26 M.R.S.A. Sec. 962(6)(B) (Pamph.
1985) does not operate to deny him the protections of the Act because
he was hired for an unspecified term as a personnel officer.
Sewall also contends that he was not a confidential employee
within the meaning of 26 M.R.S.A. Sec. 962(6)(C) (1974) with regard to
supervisory or managerial employees with whom he acted in concert,
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who might possibly constitute an appropriate collective bargaining
unit. Sewall avers that in his capacity as Personnel Director he was
officially involved only in the employment relations of non-
supervisory personnel and had absolutely no involvement with the
setting of management employees' salaries, fringe benefits or working
conditions. Although he admits that he was on the management nego-
tiating team for the District's operations and construction unit,
Sewall states that all decisions regarding negotiations ultimately had
to be approved first by the General Manager and then by the Board of
Trustees. Sewall admits that he did have responsibility for admin-
istering the collective bargaining agreement between the District and
the operations and construction unit but contends that his role in
this regard was no greater than any other supervisory or management
employee of the District. Finally, Sewall argues that even if he is
determined to be confidential with regard to supervisory and manage-
ment employees of the District, his actions in concert with such
employees were protected under the Act.
The District contends that Sewall was the District's Director of
Personnel and Employee Relations with regard to all of the District's
employees and that he was the District's chief negotiator in bargaining
with the District's operations and construction unit. The District
states that Sewall conferred and consulted regarding labor relations
matters affecting both union and nonunion personnel with both the
District's General Manager and labor attorney. On the basis of these
duties the District avers that Sewall was a confidential employee
within the meaning of 26 M.R.S.A. Sec. 962(6)(C) (1974).
The District also contends that Sewall was not a public employee
due to his exclusion as a department head within the meaning of the
Act. The District contends that Sewall was appointed by the Board of
Trustees on the recommendation of the General Manager or executive
head of the District, and that only the trustees had that power to so
appoint Sewall. The District further contends that Sewall's
employment consisted of multiple twelve month reappointments during
which he served at the pleasure of the General Manager and-that this
employment arrangement satisfies the requirement of appointment for an
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"unspecified" term as set forth in 26 M.R.S.A. Sec. 962(6)(D) (1974).
The District also contends by way of affirmative defense that the pro-
visions of 35 M.R.S.A. Sec. 3223(3) (Pamph. 1985) supersedes the
Municipal Employees Labor Relations Act and allows the District's
trustees to terminate employees at their pleasure.
DISCUSSION
As is more fully explained below, we have determined herein that
because Sewall was both a confidential employee and a department head
appointed for an indefinite term, he was not a public employee within
the meaning of the Act. We have, therefore, dismissed the case for want
of jurisdiction. In so holding we note that there is no allegation by
a public employee organization or public employee that Sewall was ter-
minated for giving testimony adverse to the District at a Board pro-
ceeding or during the processing of a grievance, or any allegation of
District retaliation for refusal by Sewall to commit a prohibited
practice. See generally Parker Robb Chevrolet, Inc., 262 NLRB 402
(1982).
We shall deal first with the question of whether Sewall was
exempted from the definition of the term "public employee" by opera-
tion of 26 M.R.S.A. Sec. 962(6)(D) (1974). On consideration of the
complete record it is our conclusion that Sewall was not a public
employee by virtue of this statutory provision. The two-part test
which we have consistently applied to determine whether an employee is
a department head or a division head within the meaning of 26 M.R.S.A.
Sec. 962(6)(D) (1974) poses the following crucial inquiries:
1. Is the employee the Administrator of the department or
division, and
2. Is the employee appointed to office pursuant to statute,
ordinance or resolution, for an unspecified term, by the
executive head or body of the public employer.
See Teamsters Local Union No. 48 and Town of Lebanon, No. 86-A-01
Me.L.R.B. Dec. 5, 1985), appeal docketed, No. CV-85-656 (Me. Super.
Ct., Yor. Cty., Dec. 13, 1985); Teamsters Local Union No. 48 and Town
of Wells, No. 84-A-03 (Me.L.R.B. Apr. 11, 1984), aff'd, No. CV-84-235
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(Me. Super. Ct., Yor. Cty., Feb. 28, 1985). Moreover, since a finding-
of department or division head exclusion, like all other "public
employee" exclusions, results in complete deprivation of statutory
collective bargaining rights, we construe the exclusion strictly in
determining its applicability. Applying the test in this manner we
find that Sewall was both a department head and appointed to office
for an unspecified term.
Sewall testified that it was his understanding, from unspecified
conversations with senior staff persons and members of the Board of
Trustees, that his appointment was to a life-time position. The
District's position is that Sewall's term was unspecified, because he
served at the pleasure of both the Trustees and the General Manager,
even though his term of employment consisted of no more than twelve
months per appointment. The General Manager testified that he sought
Sewall's reappointment yearly. Although the record establishes that
the Trustees confirmed Sewall as Director of Personnel Relations at
their June 3, 1985 Annual Meeting, the bylaws of the District make no
mention of any requirement that Sewall be reconfirmed yearly. The
bylaws merely state, assumedly with regard to initial appointment,
that department heads "shall be appointed by the General Manager,
after confirmation [sic] by the Board of Trustees" and that department
heads "hold their employment during the pleasure of the General
Manager." We find that Sewall was appointed as the Director of
Employee Relations by the General Manager and confirmed by the Board
of Trustees for an indefinite term within the meaning of 26 M.R.S.A.
Sec. 962(6)(D) (1974). By similar reasoning the provisions of 26 M.R.S.A.
Sec. 962(6)(B) (Pamph. 1985) do not apply.
Upon consideration of the record evidence we find that Sewall's
duties as Director of Employee Relations encompassed significant
responsibilites in the areas of preparation for the conduct of collec-
tive bargaining negotiations, employee relations, personnel and
contract administration, and in the formulation of and assistance in
the formulation of policies applicable to bargaining unit personnel.
The record establishes that Sewall conferred with department heads
regarding their desires for changes in the contract and that after
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obtaining approval of those proposed changes by the General
Manager, Sewall coordinated the scheduling and conduct of collective
bargaining for the District. Sewall acted as chief contract admini-
strator, assuring that the employee relations practices of the
District's managers conformed to the District's contract with its two
bargaining units. Moreover, Sewall participated as the District's
sole representative at step three of the contract grievance procedure,
the last step before arbitration in the grievance procedure for the
District's organized employees. Although Sewall's power to grant
affirmative remedies in these matters required the General Manager's
approval, the evidence does not show that he lacked power, as the
District's contract administrator, to deny such grievances.
Although Sewall's express performance evaluation, hiring and
supervisory authority affected only his personnel assistant, Sewall's
exercise of independent judgment directly affected the employment
relations of most of the District's two hundred employees, unionized
or not. Sewall's activities in the areas of applicant selection,
performance and psychological evaluation review, safety training,
policy and procedure establishment and contract negotiation and admi-
nistration are more than sufficient to qualify Sewall as a department
head or administrator within the meaning of 26 M.R.S.A. Sec. 963(6)(D)
(1974). We find that Sewall's duties in these matters are, on the
whole, neither routine, clerical nor ministerial. We find, therefore,
that Sewall did not have public employee status because he was "a
department head or division head appointed to office pursuant to . . .
resolution for an unspecified term by the executive head or body of
the public employer." 26 M.R.S.A. Sec. 962(6)(D) (1974).
We now turn to a discussion of the issues of the extent and con-
sequences of Sewall's confidential status. Sewall argues alter-
natively that although he is a confidential employee vis-a-vis the
District's operations and construction bargaining unit, he should be
considered a public employee and entitled to the Act's protection with
regard to activities in which he has engaged in concert with District
supervisory employees. We do not agree. We find that Sewall's duties
as chief negotiator for the District's operations and construction
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unit make him a confidential employee, not entitled to the protection
of the Municipal Public Employees Labor Relations Act.
Section 962(6)(C) of the Municipal Act unambiguously states that.
the phrase "'[p]ublic employee' means any'employee of a public employer
except any person [w]hose duties as deputy, administrative
assistant or secretary necessarily imply a confidential relationship
to the executive head, body, department head or division head."
The effect of this definitional statutory provision is to exclude
an employee who, in any aspect of his employment, is significantly
involved with public employee collective bargaining or labor relations
matters on behalf of his public employer. See Penobscot Valley
Hospital and Maine Federation of Nurses and Health Care Professionals,
No. 85-A-01 (Me.L.R.B. Feb. 6, 1985).
The word "deputy" is generally defined as "a person appointed to
act as a substitute for, or as an assistant to, another." Webster's
New World Dictionary 380 (2d ed. 1974). As the chief negotiator for
the District with regard to the District's operations and construction
unit, Sewall was clearly District General Manager Taylor's "deputy,"
within the generally accepted definition and common understanding of
the word. Sewall was, therefore, a confidential employee within the
meaning of 26 M.R.S.A. Sec. 962(6)(C) (1974). Since Sewall was a con-
fidential employee because of his role as chief negotiator for the
District, the Act excludes him from being classified as a "public
employee" of the District in any other respect. Moreover, even if it
were within our power to construe this statutory provision in the
manner suggested by Sewall, we would not do so.
Our prior determinations concerning this statutory provision have
arisen in the context of questions concerning the appropriateness of
including certain allegedly confidential employees in collective
bargaining units being sought by petitioning bargaining agents.
As a result, the language in our previous cases has only addressed the
conflict inherent in a confidential employee's loyalties to both his
employer and to the petitioning bargaining agent which would represent
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him if he were accorded public employee status. Typical of such
language is that contained in Town of Fairfield and Teamsters Local
Union No. 48, Report of Appellate Review of Unit Determination Hearing.
(Me.L.R.B. Nov. 30, 1978). In Fairfield we stated, at pages 3 and 4:
The reason for our inquiry into whether the duties
performed by the alleged confidential employee
involve collective bargaining or employee rela-
tions matters is clear: an employee who is
included in a bargaining unit and whose duties
involve confidential matters could, depending upon
the nature of the confidential matters, be faced
with a substantial conflict of loyalty between his
or her employer and his or her bargaining agent.
The legislature has attempted to minimize this
potential conflict of loyalty by providing in 26
M.R.S.A. Sec. 962(6)(C) [(1974)lthat employees whose
duties involve such confidential matters are not
"public employees" entitled to be included in
bargaining units under 26 M.R.S.A. Sec. 966(1)
[(Pamph. 1985)].
The confidential matters which might create this
conflict of loyalty are the public employer's con-
fidential collective bargaining or employee rela-
tions ideas, positions or policies which, if
disclosed to the bargaining agent, could provide
the bargaining agent with unfair leverage or advan-
tage over the public employer. Because confiden-
tial information regarding matters other than
collective bargaining or employee relations would
not in most cases provide the bargaining agent with
undue advantage, an employee whose duties involve
such other confidential matters is not subject to
the same potential conflict of loyalty as is the
employee whose duties involve confidential collec-
tive bargaining or employee relations matters.
Consequently, we focus upon whether the employee's
duties involve collective bargaining or employee
relations matters when deciding whether the
employee is a "confidential employee" under 26
M.R.S.A. Sec. 962(6)(C) [(1974)].
Considerations similar to those expressed above lead to the
conclusion that Sewall was a "confidential employee" within the
meaning of 26 M.R.S.A. Sec. 962(6)(C) (1974). The purpose of the statu-
tory exclusion is to avoid subjecting public employers to the risk
that their confidential ideas, policies or positions, relating to
collective bargaining or employee relations, confided to an employee in
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one aspect of his employment, might be revealed to a union that is
attempting to organize, or which has successfully organized, a
bargaining unit in which he might otherwise appropriately be included.
ORDER
On the basis of the foregoing findings of fact and discussion
and by virtue of and pursuant to the powers granted to the Maine Labor
Relations Board by the provisions of 26 M.R.S.A. Sec. 968(5)(C) (1974),
we find that:
1. Anthony D. Sewall was a confidential employee of the
Portland Water District within the meaning of 26 M.R.S.A.
Sec. 962(6)(C) (1974).
2. Anthony D. Sewall was excluded from the definition of the
term "public employee" by operation of the exception con-
tained in 26 M.R.S.A. Sec. 962(6)(D) (1974).
3. The complaint in the instant cause was not filed by any
of the entities authorized to file prohibited practices
in 26 M.R.S.A. Sec. 968(5)(B) (Pamph. 1985).
therefore, it is ORDERED that:
The prohibited practice complaint, filed by Anthony D. Sewall
on March 12, 1986, must be and hereby is DISMISSED for lack
of jurisdiction.
Dated at Augusta, Maine this 19th day of August, 1986.
MAINE LABOR RELATIONS BOARD
/s/________________________________
The parties are advised of Edward S. Godfrey
their right pursuant to 26 Chairman
M.R.S.A Sec. 968(5)(F) (Pamph.
1985) to seek review of
this decision and order by
the Superior Court by filing /s/________________________________
a complaint in accordance Thacher E. Turner
with Rule 80B of the Rules Employer Representative
of Civil Procedure within
15 days of the date of this
decision.
/s/________________________________
George W. Lambertson
Employee Representative
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