AFSCME and State of Maine, 89-UC-07 (Aug. 10, 1990), aff'd State of Maine v. AFSCME Council 93, MLRB No. 91-UCA-02, (Feb. 12, 1991), aff'd No. CV-91-143 (Me. Super. Ct., Ken. Cty., Aug. 6, 1991), aff'd sub nom Bureau of Employee Relations v. Maine Labor Relations Board, 611 A.2d 59 (Me. 1992) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 89-UC-07 Issued: August 10, 1990 ___________________________________ ) AFSCME COUNCIL #93, ) ) Petitioner, ) ) and ) UNIT CLARIFICATION ) REPORT STATE OF MAINE, ) ) Public Employer. ) ) ___________________________________) On May 12, 1989, pursuant to section 979-E of the State Employees Labor Relations Act ("SELRA"), 26 M.R.S.A. 979-E (1988), and Maine Labor Relations Board (Board) Rule 1.13, Council #93, American Federation of State, County and Municipal Employees, AFL-CIO ("AFSCME") filed a petition for unit clarification with the Board, seeking a clarification of the rights under SELRA of persons hired by the State of Maine ("State") into "so-called acting capacity positions, so-called temporary positions and so-called project positions" for extended periods of time. More particularly, as elicited at hearing, AFSCME seeks a clarification of the section 979-A(6)(F) exclusion in SELRA in relation to the State's use of acting capacity, intermittent and project employees. Section 979-A(6)(F) excludes temporary, on-call and seasonal employees from the defini- tion of State employee; thus, those categories of employees are not entitled to the rights and protections provided by the statute. Upon due notice a public evidentiary hearing was scheduled for 9:00 a.m. on Wednesday, August 23, 1989, in Augusta, Maine. The hearing examiner and the parties held preliminary discussions regarding the nature of AFSCME's concerns; hearings were then held to elicit the facts upon which AFSCME's petition was based on September 29, October 16 and December 15, 1989, and on February 15, 1990. On April 10, 1990, the parties met with the hearing examiner to finalize stipulations. Stephen P. Sunenblick, Esquire, represented AFSCME, and Sandra Carraher, Esquire, represented the State. No one requested to intervene in the proceeding or otherwise requested participation as an interested party. -1- Through the diligent effort and cooperation of the parties, a complete stipulation of relevant facts was reached, along with some legal stipulations, obviating the need for formal testimony. Those stipulations have been incor- porated herein. Participating in or attending the proceeding, in addition to the representatives of record for each party, were: AFSCME Charles W. Sherburne State of Maine Coordinator John Basso Field Representative Donald S. Cannon Field Representative State Donald Williams Director, Division of Personnel and Employee Relations, DMHMR Thomas Meiser Chief, Personnel Division, Dept. of Corrections Debra Davis Personnel Officer, Dept. of Corrections Philip Schlegel Personnel Officer, DMHMR John Andrews Personnel Officer, BMHI Warren D. Maxim Personnel Officer, AMHI Albert L. Wrenn Personnel Officer, Pineland Alicia Kellogg Hanson Employee Relations Specialist, Bureau of Employee Relations (Dept. of Admin.) Employees Robin Jackson BMHI - Recreation Therapy Aide Douglas Nash BMHI - Assistant Team Leader Lynn Rollins BMHI - Ward Clerk Dorothy Glidden AMHI - Food Service Worker Patricia Ridley AMHI - Food Service Worker Medora St. Claire AMHI - Mental Health Worker I Michael Dugas Pineland - Mental Health Worker I Terrie Foss Pineland - Mental Health Worker I The following exhibits were admitted into evidence by stipulation of the parties: 1. OER Distribution By Range Class and Step (ISU) ----- 4 pp. (as corrected by agreement of the parties) 2. GOER Fund Costing -- Nonstandard Salaries 11/17/88 5 pp. 3. Termination/hire memos -- Pineland Center 1/6/88 24 pp. (1st page) -2- 4. State of Maine Civil Service Rules 3/89 bound 5. ISU collective bargaining agreement 1987-1989 bound 5a. " " " " 1986-1987 bound 5b. " " " " 1985-1986 bound 5c. " " " " 1984-1985 bound 5d. " " " " 1989-1992 bound 6. Personnel actions -- Robin Jackson (Rogerson) 7/15/86 34 pp. (first page) 7. Memo to Robin Jackson (Rogerson) from Phil 9/10/87 1 page Schlegel 8. Personnel actions -- Lynne Rollins ----- 22 pp. 9. Personnel actions -- Paula Jean Boober ----- 17 pp. 10. Personnel actions -- Shirley Payer ----- 14 pp. 11. BMHI Monthly Statistical Reports 1/88 24 pp. (first page) 12. AMHI assignment summary (St. Claire, Ferris, ----- 2 pp. Ridley, Glidden) -- handwritten (as corrected by agreement of the parties) 13. Pineland assignment summary (Foss, Webster, ----- 2 pp. Ross, Dugas) 14. Interdepartmental Memorandum from St. Claire 11/l/84 1 page to Maxim (agreement re project assignment) 15. Personnel actions -- Medora St. Claire ----- 6 pp. 16. Personnel actions -- Dorothy B. Glidden ----- 2 pp. 17. Interdepartmental Memorandum from Glidden to 11/6/87 1 page Maxim (agreement re acting capacity assignment) 18. Interdepartmental Memorandum from Ridley to 9/26/87 1 page Maxim (agreement re acting capacity assignment) 19. Personnel actions -- Patricia A. Ridley ----- 2 pp. 20. Personnel actions -- Judith E. Ferris ----- 5 pp. 21. Interdepartmental Memorandum from Ferris to 2/25/86 1 page Maxim (agreement re acting capacity assignment) -3- 22. Personnel actions -- Joyce Bragg and Robin 11/7/86 19 pp. Jackson (Rogerson) (first page) 23. Time cards -- Robin Jackson (Rogerson) 1987 6 pp. 24. Time cards -- Robin Jackson (Rogerson) 1988 3 pp. 25. Time cards -- Robin Jackson (Rogerson) 1986 7 pp. 26. Report from Wegner to Concannon re Governor's 9/10/85 6 pp. Management Task Force study of food services facilities 27. Addendum to 9/10/85 report to Governor's Manage- ----- 4 pp. ment Task Force 28. Letter from Kenniston to Webb re benefits 2/26/88 1 page eligibility for employees in acting capacity assignments 29. Interdepartmental Memorandum from Mullaney 10/17/84 3 pp. to Martel re Willow Crest intervention 30. Partial Part I budget, 112th Legislature ----- 1 page 31. Partial supplemental budget, 112th Legislature ----- 2 pp. 32. Award of the Arbitrator, grievance of 7/25/83 41 pp. Deborah Deane 33. Personnel actions -- Dorothy B. Glidden ----- 15 pp. 34. Personnel actions -- Patricia A. Ridley ----- 14 pp. 35. Personnel actions -- Judith E. Ferris ----- 22 pp. 36. Personnel actions -- Medora St. Claire ----- 24 pp. 37a. BHR computer sheet - p. 18 10/27/89 1 page 37b. BMHI Monthly Statistical Reports -- June 1984 through January 1990 ----- 83 pp. 38. Memorandum of Agreement between AFSCME and ----- 1 page DMHMR 39. Letter from Spofford to Cannon 2/18/88 1 page 40. Letter from Spofford to Cannon 11/2/87 1 page 41. Letter from Spofford to Cannon and attachments 9/8/87 5 pp. -4- 42. Letter from Morin-Scribner to Cannon 7/31/87 1 page 43. Memorandum of Agreement between AFSCME and 11/20/87 1 page DMHMR 44. DMHMR memo re AMHI Dietary 11/10/87 2 pp. 45. Interdepartmental Memorandum from Spofford 10/6/87 1 page to Davis 46. Interdepartmental Memorandum from Spofford 7/7/87 1 page to Maxim 47. Interdepartmental Memorandum from Spofford 6/17/87 1 page to Martel 48. Interdepartmental Memorandum from Martel to 11/4/87 1 page Buker 49. Interdepartmental Memorandum from Spofford 11/16/87 1 page to Morin-Scribner 50. Letter from Spofford to Sherburne 7/9/87 1 page 51. Interdepartmental Memorandum from Corbin to 7/30/87 1 page Maxim 52. Interdepartmental Memorandum from Corbin to 7/28/87 1 page Maxim 53. AMHI Dietary Staffing Proposal and attachments 8/14/87 10 pp. 54. Interdepartmental Memorandum from Corbin to 7/31/87 1 page dietary staff 55. Letter from Morin-Scribner to Cannon 7/31/87 1 page (NOTE: This is a duplicate of # 42.) 56. Interdepartmental Memorandum from Spofford 7/21/87 4 pp. to Morin-Scribner and attachments 57. Letter from Martel to Sherburne 11/6/85 1 page 58. Chart - comparison of former appts. and acting ---- 2 pp. capacity policy 59. Workers' compensation claim and expense report 7/1/89 -- 15 pp. 6/30/90 60. Comparison of benefits 2/19/80 6 pp. _ 61. Letter from Sherburne to Mosher ) attached 5/23/80 1 page Letter from O'Brien to Sherburne _) 5/20/80 1 page -5- 62. Dept. of Personnel policy for filling vacancies Jan. 80 3 pp. 63. Interdepartmental Memorandum from Buker to 8/7/89 1 page all depts. and agencies 64. Interdepartmental Memorandum from Spofford 6/15/87 1 page to Martel 65. Interdepartmental Memorandum from Spofford 7/8/87 2 pp. to Martel 66. Interdepartmental Memorandum from Spofford 7/30/87 2 pp. to Martel 67. Interdepartmental Memorandum from Spofford 9/18/87 2 pp. to Martel 68. Interdepartmental Memorandum from Henry to 6/26/86 1 page Concannon 69. Interdepartmental Memorandum from Martel to 7/21/86 5 pp. Henry 70. Letter from DeVane to Brennan 2/7/86 2 pp. 71. Letter from Wegner to Concannon and attached 9/10/85 6 pp. report (NOTE: This is a duplicate of #26.) 72. Letter from DeVane to Brennan 10/1/85 1 page 73. Letter from Concannon to Sherburne 5/28/85 1 page 74. Letter from Sherburne to Concannon 5/23/85 1 page 75. Interdepartmental Memorandum from Martel to 11/6/85 1 page distribution list 76. Position Action Request (new position) 8/13/86 1 page (Director of Food and Nutrition Services) 77. Admin. Report of Work Content (Director of 8/13/86 5 pp. Food and Nutrition Services) 78. Position Request and Authorization 8/13/86 2 pp. (Director of Food and Nutrition Services) 79. Position Action Request (deletion) 8/13/86 1 pp. (Director, Division of Data and Research) 80. Interdepartmental Memorandum from Schlegel 2/27/87 1 page to Longtin -6- 81. Interdepartmental Memorandum from Spofford 6/2/87 4 pp. to personnel and attachments 82. Interdepartmental Memorandum from Spofford 7/27/87 2 pp. to Longtin and Puri 83. Interdepartmental Memorandum from Spofford 12/7/87 2 pp. to Taylor 84. Interdepartmental Memorandum from Spofford 3/3/88 2 pp. to Longtin 85. Interdepartmental Memorandum from Eddy to 3/9/88 1 page Spofford 86. Interdepartmental Memorandum from Spofford 3/2/88 1 page to Andrews 87. Interdepartmental Memorandum from Martel to 3/28/88 1 page Buker 88. Interdepartmental Memorandum from Martel to 3/28/88 2 pp. Buker 89. Interdepartmental Memorandum from Martel to 3/9/88 2 pp. Buker 90. Interdepartmental Memorandum from Martel to 2/22/88 2 pp. Buker 91. Interdepartmental Memorandum from Martel to 2/22/88 3 pp. Buker 92. Interdepartmental Memorandum from Spofford 2/8/88 1 page to Martel 93. Interdepartmental Memorandum from Spofford 1/29/88 1 page to Andrews 94. Interdepartmental Memorandum from Spofford 1/25/88 1 page to Meredith 95. Interdepartmental Memorandum from Johnson 1/13/88 1 page to Andrews 96. Interdepartmental Memorandum from Spofford 12/16/87 3 pp. to Parker and Meredith 97. Interdepartmental Memorandum from Johnson 9/22/87 1 page to Schlegel 98. Interdepartmental Memorandum from Spofford 7/29/87 1 page to Martel -7- 99. Interdepartmental Memorandum from Martel to 8/6/87 1 page Buker 100. Note - For Your Information, from Spofford 8/3/87 1 page to Taylor (receipt date) 101. Interdepartmental Memorandum from Taylor to 7/30/87 1 page management committee 102. Interdepartmental Memorandum from Williams 5/21/86 1 page to Wood 103. Interdepartmental Memorandum from Spofford 4/26/88 1 page to Andrews 104. Interdepartmental Memorandum from Spofford 8/9/88 1 page to Martel and Conrad 105. Interdepartmental Memorandum from Spofford 6/22/88 2 pp. to Conrad 106. Interdepartmental Memorandum from Spofford 12/30/87 2 pp. to Corbin 107. Agenda - AMHI Personnel/Dietary Interface 12/29/87 1 page 108. Interdepartmental Memorandum from Spofford 12/4/87 1 page to Maxim 109. Interdepartmental Memorandum from Martel to 3/28/88 1 page Kenniston 110. Interdepartmental Memorandum from Spofford 2/19/88 1 page to Morin-Scribner 111. Memo from Spofford to Longtin and Allen ---- 2 pp. (re Aug. 1 & 2, 1988 site visit) 112. Letter from Spofford to Cannon 11/2/87 1 page (NOTE:This is a duplicate of #40.) 113. Interdepartmental Memorandum from Spofford 10/20/87 1 page to Martel 114. Memorandum of Agreement between AFSCME and 9/23/87 3 pp. DMHMR and attachments 115. Interdepartmental Memorandum from Williams 7/21/83 1 page to Viles _ 116. Interdepartmental Memorandum from ) 10/12/83 1 page Besson to Maxim ) attached Memo from Morin-Scribner to Williams_) 10/13/83 1 page -8- 117. Memo from Maxim to Williams 6/16/83 1 page 118. Memo from Maxim to Williams (justification 7/18/83 1 page of same date from Besson to Maxim attached) 119. Interdepartmental Memorandum from Maxim to 10/17/84 3 pp. Buker (salary savings request) 120. Salary savings accrued as of 11/30/85 ---- 2 pp. 121. Memo re classifications of employees (includes ---- 1 page date hired and comments) 122. Interdepartmental Memorandum from Mullaney to 10/11/84 1 page distribution list 123. Interdepartmental Memorandum from Mullaney to 10/17/84 3 pp. Martel (NOTE: This is a duplicate of #29.) 124. Interdepartmental Memorandum from Mullaney to 10/?/? 1 page assessment teams 125. Interdepartmental Memorandum from Mayo to 10/18/84 3 pp. Mullaney (re Middle Greenlaw) 126. Interdepartmental Memorandum from Mayo to 10/18/84 2 pp. Mullaney (re U.G.W.) 127. Interdepartmental Memorandum from Concannon 10/18/84 1 page to Redmond 128. Interdepartmental Memorandum from Mullaney 11/15/84 1 page to Martel 129. Interdepartmental Memorandum from Mullaney 12/10/84 1 page to Martel 130. Interdepartmental Memorandum from Martel to 8/22/85 1 page Buker 131. Interdepartmental Memorandum from Martel to 3/12/86 4 pp. Buker _ 132. Interdepartmental Memorandum from ) 4/13/87 1 page Corbin to Martel ) attached Interdepartmental Memorandum from ) Martel to Corbin _) 4/14/87 1 page 133. Interdepartmental Memorandum from Martel to 6/16/87 1 page Buker -9- 134. Interdepartmental Memorandum from Martel to 6/5/87 1 page Buker 135. Interdepartmental Memorandum from Martel to 11/4/87 1 page Buker (NOTE: This is a duplicate of #48.) 136. Letter from Martel to Connolly and attachments 6/10/85 4 pp. 137. Authorized expenditures AMHI ---- 1 page 138. DMHMR workers' compensation expenditures - revised 2/2/90 1 page 139. Pages from unidentified budget document (refers ---- 2 pp. to modernization of institutional laundries) 140. Interdepartmental Memorandum from Morin-Scribner 11/28/84 1 page to distribution list 141. Interdepartmental Memorandum from Maxim to 2/4/85 1 page distribution list 142. Personnel Memorandum 23-74 12/31/74 8 pp. 143. Personnel Laws and Rules 1975 32 pp. (numbered to page 24) 144. Personnel Bulletin 2.1 7/5/78 69 pp. (numbered to page 84) 145. Personnel Memorandum 8-79 3/2/79 15 pp. 146. Personnel Rules Jan. 1979 44 pp. (numbered to page 80) 147. Termination memos - Pineland 1985-88 129 pp. 148. Hiring memos - Pineland Aug. 86 166 pp. -1989 Upon completion of the series of meetings in which stipulations were reached, the parties filed written briefs, the last of which was received on July 9, 1990. -10- STIPULATIONS The parties reached the following factual and legal stipulations: General 1. The jurisdiction of the hearing examiner to hear this matter and to make a unit clarification decision lies in 26 M.R.S.A. 979-E(3) (1988). 2. Council #93, American Federation of State, County and Municipal Employees, AFL-CIO ("AFSCME"), is the certified bargaining agent, within the meaning of 26 M.R.S.A. 979-A(1) (1988), for the State employees Institutional Services Unit ("ISU"). The bargaining unit was created by a Board unit determi- nation (report dated 9/22/76), and it includes employee classifications at the Augusta Mental Health Institute ("AMHI"), the Bangor Mental Health Institute ("BMHI"), and Pineland Center ("Pineland"). 3. The job classifications of Mental Health Worker I ("MHWI"), food service worker ("FSW"), recreation therapy aide ("RTA"), assistant team leader, ward clerk and MR trainer are included in the ISU. The MR trainer classifica- tion is in the competitive service. The classification of switchboard operator is included in the State employees Administrative Services Bargaining Unit. 4. The State of Maine ("State") is the public employer, within the meaning of 26 M.R.S.A. 979-A(5) (1988), of all individuals employed at AMHI, BMHI and Pineland. 5. There is no question concerning representation within the meaning of 26 M.R.S.A. 979-E(3) (1988). 6. No employee proposed for inclusion in the ISU is appropriately excluded on the basis of the supervisory exclusion contained in 26 M.R.S.A. 979-E(1) (1988). 7. No employee proposed for inclusion in the ISU is a confidential employee within the meaning of 26 M.R.S.A. 979-A(6)(C) (1988). 8. No employee proposed for inclusion in the ISU is a seasonal employee within the meaning of 26 M.R.S.A. 979-A(6)(F) (1988). 9. With the exception of definitions Z and AA, the State of Maine Civil Service Rules with a print date of March 1989 are the civil service rules currently in effect for the State, and have been in existence since Septem- -11- ber 19, 1981, unless specifically otherwise noted. 10. Termination of employment with the State for a period of one working day or longer constitutes a break in service. For the purpose of determining collective bargaining rights, employees returning to employment after a break in service are considered first-time employees. 11. Once an employee begins his/her probationary period for a permanent position, it is the State's policy that bargaining unit status is attained after the employee has worked for six months. 12. Permanent positions in State government can be created only by legisla- tive authorization. When such an authorized, permanent position is not filled for a period of time, the money saved is called "salary savings." If a position is temporarily vacant because the employee who holds that position is on a leave of absence, the position can be filled on a temporary basis and only through the use of salary savings. 13. When positions are created by the State, they are classified by the Bureau of Human Resources. 14. Each employee who is the subject of this petition was originally hired as an "acting capacity," "intermittent" or "project" employee, into a noncom- petitive, classified position from outside of State service. 15. AFSCME began receiving monthly hire/termination reports on a regular basis from BMHI in June of 1984; it has been receiving them from AMHI since at least 1984, and from Pineland since at least 1985. Acting Capacity Employees 16. During their tenure as acting capacity employees, the State considers employees of AMHI, BMHI and Pineland as temporary employees, excluded from the definition of State employee within the meaning of 26 M.R.S.A. 979-A(6) (1988). 17. The State uses acting capacity employees to fill temporary leaves of absence; on two occasions (for a food services study and for a study of laundry facilities), it has also used them to temporarily fill permanent vacancies when a program is being studied or reorganized, and long-term personnel needs are unknown. Authority to use acting capacity employees to fill permanent vacancies -12- must be obtained from the Bureau of Human Resources. Acting capacity employees receive the same pay, work the same hours, perform the same tasks, work in the same locations, are supervised by the same supervisors, and have similar quali- fications, skills and training as persons hired as permanent, probationary employees into the same job classifications. 18. The acting capacity designation was created by the State in 1980; its use is specified for temporary/emergency employment needs and for replacing employees on leave of absence. Prior to 1980, leaves of absence were filled through the use of "substitute" appointments. 19. Most acting capacity MHWI's in the three institutions are eventually hired as permanent, probationary MHWI'S. 20. As a practical matter, newly hired MHWI's are never hired by Pineland as permanent, probationary employees. Due to the continuing need to fill leaves of absence with acting capacity appointments, the State is able to maintain a list of acting capacity employees from which it fills vacancies. The list con- tains the names of employees in the order in which they were first hired. 21. At AMHI a larger percentage of permanent MHWI's are initially hired as acting capacity employees than in the past. 22. Newly hired employees in acting capacity assignments are eligible for health and dental insurance benefits (and a percentage of those benefits for family members) immediately upon hire; employees who work less than 40 hours per week are eligible for benefits on a prorated basis, with the employee paying the insurance premium differential if he/she chooses to participate in either insurance program. If an employee fails to elect health insurance coverage during the first 60 days of employment, that employee must provide evidence of insurability in order to participate at a later date. 23. After three months of continuous service in an acting capacity assign- ment, an employee begins to earn vacation leave, sick leave and holiday pay. Those benefits are prorated for employees who work less than 40 hours per week. Acting capacity employees are not entitled to bereavement leave or any other contractually negotiated benefit, regardless of the length of service. 24. Since February 26, 1988, completion of three months of employment with the Department of Mental Health and Mental Retardation ("Department") as an acting -13- capacity employee, without a break in service, has entitled employees to earn vacation leave, sick leave and holiday pay, even if the employment consists of two or more separate, acting capacity assignments. Prior to that date, these benefits were available only after employment for three months in a single acting capacity assignment; a change in assignment before the three-month period erased the time the employee had accumulated toward his/her three months. A change in assignment after the three-month period resulted in the loss of eligi- bility for benefits until the employee had served another three months in the new assignment. (Any previously accumulated, unused benefits were carried over.) 25. At all three institutions, applicants for employment on an acting capa- city basis, to fill in for leaves of absence, are informed that the assignment will terminate when the person on leave returns; they are also told that they may be able to move on to other acting capacity assignments and that they may apply for a permanent position should one become available. Some applicants have declined to be interviewed for acting capacity assignments, after being informed that the job would not be permanent. For those who accept employment, normally the State does not specify a termination date where the employee on leave is out on workers' compensation or otherwise has an extended illness or injury. Acting capacity employees are informed of the benefits to which they are entitled, either prior to or at the time of hire. 26. The State's Policy Review Board has not yet conducted the study of acting capacity positions required by 5 M.R.S.A. 7042(7) (1989) (enacted in 1986). Intermittent Employees 27. The State sometimes uses intermittent employees to cover work shifts for employees who are on short-term or sporadic authorized leaves of absence, rather than treating the positions as vacancies and filling them temporarily with acting capacity employees. Intermittent positions may be created either through the use of salary savings or through specific funding authorization by the Legislature. 28. Intermittent employees are considered by the State to be on-call employees, excluded from the definition of public employee by statute. Thus, no time worked as an intermittent employee can be credited toward achieving -14- bargaining unit status in a non-intermittent position. However, in its collec- tive bargaining agreements with both AFSCME and the Maine State Employees Association, the State has agreed to include intermittents in appropriate bargaining units who work in excess of 500 hours in any consecutive 12-month period beginning with the date of hire or anniversary date of hire, and who work more than 1040 regularly scheduled hours as an intermittent. By statute, an intermittent employee who has worked for more than 1,040 hours is eligible for state-paid health and dental insurance on a prorated basis, and begins earning prorated vacation leave, sick leave, holiday pay, and a variety of other benefits available to permanent employees. Project Employees 29. When an increase in staff is needed to meet an institution's require- ments, the Bureau of the Budget (Dept. of Finance) may permit the institutions in the Department to create and fill new positions before funding is authorized by the Legislature. People hired to fill those positions are hired as project employees, and final authorization to create them comes from the Governor's office. 30. The State considers project employees to be temporary employees excluded from the the definition of public employee within the meaning of 26 M.R.S.A. 979-A(6) (1988), and no time employed as a project employee can be credited for the purpose of becoming a permanent employee or a bargaining unit member. Project employees are eligible for health and dental insurance on a prorated basis. According to the civil service rules, Chapter 5, section 3, subsection A.6., employees in project positions are not entitled to vacation leave, sick leave, holiday pay or other benefits. Individual employees Jackson 31. Robin Jackson (Rogerson) was originally hired by BMHI on June 30, 1986, as a full-time, acting capacity MHWI to replace an employee who was on an authorized leave of absence ("LOA"). 32. That assignment was terminated after three weeks, on July 20, 1986; on July 21, 1986, Ms. Jackson was given a second acting capacity assignment, to replace another employee on LOA. This assignment also lasted three weeks, until -15- August 10, 1986. 33. On September 23, 1986, after a break in service of six weeks, Ms. Jackson returned to BMHI as a MHWI, this time as an intermittent employee (working 16 hours per week), in part to cover the shift of an employee on a part-time educational LOA. She remained in her intermittent position for almost nine months, until June 14, 1987. (At this time intermittent employees were not permitted by law to work more than 19 hours per week or 475 hours per year.) Meanwhile, on November 17, 1986, almost two months after starting the part-time intermittent position, she began also working part-time (20 hours per week) as a recreational therapy aide ("RTA"), as an acting capacity employee for someone on a half-time medical LOA. 34. On August 3, 1987, after approximately 8 1/2 months in the part-time RTA assignment (and 1 1/2 months after the termination of the intermittent assignment), Ms. Jackson began working full-time as an RTA, since the employee whom she had replaced on a part-time basis was no longer able to work her half of the job share. Ms. Jackson continued to work as an acting capacity employee in that job, since the employee now out on full-time LOA had applied for disa- bility retirement. nce her retirement was approved, the vacancy was posted and a bargaining unit employee took the job on a permanent basis. Ms. Jackson's assignment in that job lasted until October 3, 1987. 35. On October 6, 1987, Ms. Jackson was appointed as an acting capacity, full-time MHWI to fill in for another employee on LOA; that assignment lasted for 53 days, until November 27, 1987. On December 1, 1987, she was appointed, again as an acting capacity, full-time MHWI, to fill in for an LOA, which assignment lasted for 33 days, until January 2, 1988. 36. At this point in her tenure with BMHI, Ms. Jackson interviewed for and was hired for a permanent, half-time MHWI position, in which she remained for approximately seven months, until August 1, 1988. For over four months at the beginning of that seven-month period, Ms. Jackson also worked as a half-time acting capacity employee, first as a MHWI and then as an RTA. She refused to work in any acting capacity position for the last 2 1/2 months, because she was not being paid overtime for working more than her regularly scheduled hours; by contract, bargaining unit members are entitled to overtime pay in those cir- cumstances. -16- 37. On or about July 1, 1988, two years after her initial hire date, Ms. Jackson became a bargaining unit member, having worked six months as a per- manent, probationary, part-time MHWI. On August 1, 1988, Ms. Jackson started working as an RTA on a permanent, full-time basis. 38. Ms. Jackson was eligible for State-paid health and dental insurance when she began working for the State in 1986. However, because she did not pay the insurance premiums during her 6-week break in service from August 10 to September 23, 1986, her insurance was cancelled. Upon her return to work as a half-time intermittent, she was not entitled to State-paid insurance until she began also working part-time as an acting capacity (and then only on a prorated basis). The State began paying her full insurance premiums in late 1987, when she was once again a full-time acting capacity employee and had provided evi- dence of insurability. 39. During Ms. Jackson's tenure with BMHI as an acting capacity employee, the institution was using a scoring system to evaluate candidates for permanent vacancies. A candidate's score consisted of points gained in four categories -- education, experience, written exam and job interview. 40. While Ms. Jackson was an acting capacity employee, a full-time per- manent MHWI vacancy occurred in which she was interested. She was not considered for the position, because the "experience" portion of her score had been low at the time she first began working for BMHI as an acting capacity employee, and the institution had no mechanism set up to update scores based on experience as an acting capacity employee. 41. In response to employee complaints, BMHI eventually set up a procedure whereby supervisors seeking to fill permanent vacancies could request the files of and interview acting capacity employees who had performed well, in addition to receiving the normal list of applicants. More recently, the institution has begun to conduct two-month performance appraisals of acting capacity employees, so that their scores can be kept current. Rollins 42. Lynne Rollins was first hired by BMHI on August 25, 1986, as a full- time, acting capacity MHWI to replace someone on an LOA. That appointment lasted just over two months, until November 2, 1986. -17- 43. On November 10, after a one-week break in service, she was rehired as a full-time MHWI, again in acting capacity to replace an employee on leave. Her second assignment lasted almost 10 months, until September 4, 1987. 44. After a break in service of about three weeks, Ms. Rollins was for a third time hired as a full-time, acting capacity MHWI on September 29, 1987, to fill in for an absent employee, until October 29, 1987. 45. Because she desired to become a permanent employee, Ms. Rollins applied for and was appointed to a permanent, part-time switchboard operator position. This 24-hour-per-week appointment began on November 9, 1987, after a one-week break in service. 46. Ms. Rollins became a member of the Administrative Services Bargaining Unit six months later, in May of 1988, over 20 months after her first appoint- ment with the State. 47. On July 25, 1988, a full-time switchboard operator vacancy became available; Ms. Rollins was appointed to that position and remained in it until September 19, 1988, when she was promoted to a full-time ward clerk posi- tion on the basis of a competitive exam. She became a member of the ISU immedi- ately upon being promoted, since she had worked six months as a permanent, probationary employee during her tenure as a switchboard operator and had become a member of the Administrative Services Bargaining Unit at that time. 48. During her first three assignments, each of which was full-time, Ms. Rollins received health and dental insurance coverage. However, when she was hired into the permanent, part-time switchboard operator position, she was unable to afford her prorated share of insurance premiums; consequently, she declined the insurance. Thereafter, when she began working as a permanent, full-time employee, she was entitled to fully paid insurance coverage, but was required to show evidence of insurability because more than 60 days had passed since her most recent hire date. Because Ms. Rollins was on daily medication at the time, insurance coverage was denied. Though she is now off medication, she is still waiting for insurance coverage. 49. During her second appointment as an acting capacity employee, Ms. Rollins' grandmother died. Because she was not entitled to bereavement leave, she did not receive pay for any of the four days of work she missed as a result -18- of the death. Boober 50. Paula Boober began working for BMHI as a full-time, acting capacity MHWI on March 26, 1985, to replace an employee on LOA. That assignment lasted for five months, until August 25, 1985. 51. On June 9, 1986, after a break in service of over nine months, Ms. Boober was rehired as a MHWI, on a full-time, acting capacity basis. Her second assignment lasted for 40 days, until July 18, 1986. 52. After a one-week break in service, Ms. Boober was hired on July 28, 1986, for a third time as a full-time acting capacity MHWI; this time the assignment lasted for almost 15 months. That assignment terminated on Octo- ber 24, 1987, whereupon Ms. Boober was appointed to a permanent, full-time MHWI position. 53. Ms. Boober's probationary period ended four months later, on Febru- ary 25, 1988 (although probation is normally six months for a full-time employee). She became a bargaining unit member at the end of April, 37 months after her first appointment. 54. On April 27, 1988, Ms. Boober was assigned to fill a temporary assistant team leader vacancy. On March 5, 1989, she was promoted to assistant team leader. Payer 55. After a substantial break in service, Shirley Payer was hired by BMHI on June 25, 1986, as an intermittent MHWI. After working in that position for five months, until November 26, 1986, she was appointed as a full-time acting capacity MHWI, to replace someone on leave; that appointment also lasted for five months, until April 30, 1987. 56. On May 11, 1987, after a break in service of one week, Ms. Payer was assigned to the first in a series of three additional intermittent positions. The first lasted for over three months, the second just under three months, and the third for three weeks. On December 12, 1987, Ms. Payer's intermittent sta- tus was terminated, since she had reached the limit of 500 hours in a con- secutive 12-month period. -19- 57. On May 23, 1988, after a break in service of over five months, BMHI once again hired Ms. Payer, this time as a full-time, acting capacity MHWI. This assignment lasted until December 18, 1988, when she was transferred to a permanent, full-time MHWI position. Ms. Payer became a member of the bargaining unit in June of 1989, two years after her June 1986 hire date. St. Claire 58. Medora St. Claire began working for AMHI as a full-time food service worker on November 5, 1984. She was hired as a project employee and not as a permanent employee, to fill a newly created position, because the institution had just assumed responsibility for 18 patients from an 80-person boarding/nursing home (Willow Crest) being shut down by the State. Additional staff were needed to care for these patients until they could be placed elsewhere. Fifteen pro- ject positions (including 11 MHWIs and one FSW) were created and funded for 31 weeks through the use of salary savings; a portion of the savings was from six permanent MHWI positions that were vacant for various periods of time. 59. By January of 1985, AMHI officials realized that most of the 18 patients transferred from Willow Crest would be at AMHI on a long-term basis. Consequently, in its 1985 Part II budget request to the Legislature, DMHMR requested authorization for 15 new positions, so that the 15 project positions could be converted to permanent positions. However, because resources were tight, DMHMR requested permanent funding to begin in the second year of the upcoming biennium instead of the first, meanwhile continuing to fund the project positions through salary savings. As a result, the positions were project posi- tions for almost 1 1/2 years. 60. On November 1, 1984, when Ms. St. Claire was hired, she signed an acknowledgment of her project position status and of the benefits to which she was entitled. The acknowledgment stated that the position was to end on June 8, 1985 "or at any time in the future so designated by [her] supervisor." Ms. St. Claire was told orally that at the end of six months, she would either be made permanent or terminated. She was led to believe that permanent status was likely. 61. After performing food service work for a period of time, Ms. St. Claire requested a job change; consequently, she was terminated as a FSW on March 23, -20- 1985, and on March 25th, she was appointed to a MHWI position. Again she was designated as a project employee, caring for the nursing home patients that had arrived at AMHI. Ms. St. Claire was given no estimation of how long this assignment would last. 62. Ms. St. Claire's project MHWI assignment was extended four times, and was finally terminated on June 7, 1986. She was hired into a permanent, full- time MHWI position on June 9, 1986. On or about December 9, 1986, she became a bargaining unit member, after working for the State for 25 months. 63. During her 19-month tenure as a project employee, Ms. St. Claire received only health and dental insurance benefits. During that time, her sister died. Since she was not entitled to bereavement leave, she received no pay for the work days she missed as a result of her sister's death. Foss 64. Terrie Foss was hired by Pineland as a full-time, acting capacity MHWI on September 28, 1987, to replace a MHWI who was filling in for a MHWII on a leave of absence. That appointment ended on or about October 11, 1987, when those employees returned to their permanent positions. 65. On October 12, 1987, Ms. Foss was appointed as an acting capacity MHWI to replace an MR trainer who was an LOA. That appointment terminated on or about February 28, 1988. 66. On February 29, 1988, she was appointed to a permanent vacancy as a MHWI. She became a bargaining unit member six months later, 11 months after her first State appointment. Dugas 67. Pineland hired Michael Dugas on April 10, 1989, as a full-time, acting capacity MHWI to replace an employee who was in turn filling in for someone on an LOA. 68. On June 18, 1989, he was appointed to another acting capacity position, as a MHWI, once again to replace another employee (an MR trainer) who was temporarily serving in an acting capacity position. 69. Mr. Dugas was appointed to a permanent vacancy on September 3, 1989. He became a member of the bargaining unit six months later, after approxi- -21- mately 11 months of employment. Webster 70. Mark Webster was hired by Pineland on March 7, 1988, as a full-time, acting capacity MHWI, to replace an employee on an LOA. 71. On June 20, 1988, he was appointed to a vacant MR trainer position, once again on an acting capacity basis. 72. Vacant MR trainer positions at Pineland are filled by the use of acting capacity appointments when no one has the training necessary to fill the posi- tion on a permanent basis. 73. On September 19, 1988, Mr. Webster was appointed to fill a permanent, full-time MHWI vacancy. He became a member of the bargaining unit six months later, after over a year of employment with the State. Ross 74. On August 22, 1988, Pineland hired Paula Ross as an acting capacity employee to fill a vacant MR trainer position. 75. On February 6, 1988, 5 1/2 months later, she was transferred to fill a permanent, full-time MHWI vacancy. She became a bargaining unit member in August of 1988, after almost a year of employment with the State. Food Services Study 76. Sometime prior to May of 1985, the Governor's Management Task Force, through the Institutional Food Services Review Team, began an examination of the food service facilities at AMHI, BMHI and Pineland. On September 10, 1985, the review team submitted it report, including recommendations, to the Commissioner of DMHMR. Shortly thereafter, it submitted an addendum to the report, which included additional recommendations for study and/or change. 77. In May of 1986, DMHMR requested, for a period of six months, authoriza- tion to fill any vacant FSW positions with temporary appointments, pending final analysis of staffing needs at each of the institutions. Thereafter, acting capacity employees filled FSW vacancies. At Pineland, conversion of acting capacity employees to permanent status occurred between June and November of 1987. At BMHI, it occurred between September and October of 1987, and at AMHI, -22- in February of 1988. 78. AFSCME was aware that the State was filling vacant FSW positions with acting capacity employees during the food services study. In 1982-83, laundry worker vacancies were filled on an acting capacity basis, due to a similar study of laundry facilities initiated by the Governor's Management Task Force. AFSCME was also aware of that study and the fact that vacancies were being filled with acting capacity employees for that period of time. Glidden 79. Dorothy Glidden was hired by AMHI as a half-time food service worker on November 2, 1987. She was hired as an acting capacity employee to fill a per- manent vacancy, due to the food services study. 80. On November 6, 1987, Ms. Glidden signed an acknowledgment of her acting capacity status and of the benefits to which she was entitled. The acknowledg- ment contained no end date for the appointment. Ms. Glidden was told orally that at the end of six months, she would be made permanent or terminated. 81. On February 6, 1988, after approximately three months, Ms. Glidden's acting capacity assignment ended, and on February 7th, she was hired into a per- manent, half-time FSW position. On August 1, 1988, her hours increased to 23 per week, and on April 2, 1989, to 40 hours per week. She became a member of the bargaining unit on or about August 8, 1988, nine months after she began working for the State. Ridley 82. Patricia Ridley was hired by AMHI as a half-time food service worker on September 28, 1987. She was hired as an acting capacity employee to fill a per- manent vacancy, again because of the ongoing food services study. 83. Ms. Ridley signed an acknowledgment of her acting capacity status and of the benefits to which she was entitled. The acknowledgment contained no end date for her appointment. 84. On February 6, 1988, approximately four months after Ms. Ridley was first hired, her acting capacity appointment was terminated and she was appointed to a permanent, half-time FSW position. She became full-time on December 5, 1988. She became a member of the bargaining unit on or about -23- August 7, 1988, after over ten months of employment with the State. Ferris 85. Judith Ferris was hired by AMHI as a half-time food service worker on March 3, 1986. She was hired as an acting capacity employee to fill a per- manent, half-time vacancy, once again due to the ongoing food services review. 86. On February 25, 1986, Ms. Ferris signed an acknowledgment of her acting capacity status and the benefits to which she was entitled. The acknowledgment contained no end date for her appointment. 87. Ms. Ferris' first acting capacity assignment ended on April 5, 1986. On April 6, 1986, she was appointed as an acting capacity employee to fill another half-time FSW vacancy. That assignment ended a year later, on March 28, 1987. 88. On March 30, 1987, Ms. Ferris was rehired as a full-time, probationary "limited period" FSW, which position she held until June 20th of that year. 89. On June 20, 1987, Ms. Ferris was transferred to a permanent, half-time FSW position. Eight days later, she was temporarily promoted, in an acting capacity, to a full-time MHWI position, to replace an employee who was filling in for someone on a leave of absence. That assignment lasted until Septem- ber 19, 1987. 90. On September 20th, Ms. Ferris was promoted to a full-time, permanent MHWI position. She became a bargaining unit member on or about September 30, 1987, six months after being hired into the limited period position and after 19 months of employment with the State. BMHI Trayline 91. Sometime in 1987, as part of the institutional food services study, BMHI initiated plans for a "trayline" food service system, to individualize patient feeding and to centralize tray and warewashing. The purpose of the new plan was to increase efficiency, decrease costs and increase control over and knowledge of patient food consumption. The plan was scheduled for implemen- tation on June 28, 1987; it was actually implemented on July 27th. During this time, BMHI filled vacancies of existing FSW positions with acting capacity employees, as part of the overall food services study at the three institutions. -24- 92. On August 6, 1987, Ronald Martel, Associate Commissioner of Adminis- tration for the Department, made a funding request to the State Budget Officer for four project FSW's -- two full-time and two part-time (three full-time equivalents, FTE's). Justification for the short-term project positions was the need to get the trayline system implemented and functioning efficiently. The request was approved on August 26th, and the employees hired to fill the posi- tions began work in mid-September. 93. In December of 1987, BMHI made a request to the Commissioner of the Department that the project positions be converted to permanent ones instead of terminating them as originally intended. The justification accompanying the request indicated that dietary staffing at BMHI was already at minimal levels, and that the trayline system would not be able to continue functioning properly without these positions. The Department decided to request two FTE's rather than three, which request was made on February 22, 1988. The request was approved shortly thereafter. DISCUSSION Threshold Issues This proceeding was conducted pursuant to 26 M.R.S.A. 979-E(3) (1988) and Unit Determination Rule 1.13. Section 979-E(3) of SELRA states: Unit clarification. Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the formation of an existing bar- gaining 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 represen- tation. Rule 1.13(A), in addition to reiterating the statutory requirements, provides: Unit clarification petitions may be denied if (a) the de- scription of the job categories contained in the bargaining unit is clear and unequivocal, (b) the question raised should properly be settled through the election process, or (c) the petition attempts to modify the composition of the bargaining unit as negotiated by the parties and the alleged changes therein have been made prior to negotiations on the collective -25- bargaining agreement presently in force.[fn]1 There is no dispute that two of the four statutory requirements for filing a unit clarification petition have been met -- AFSCME is the currently recognized bargaining agent, and there is no question concerning representation. The State does not agree that there has been sufficient change to warrant unit modifica- tion, and the State further asserts that with respect to 10 of the 12 employees who testified at the hearings, there is no dispute between the parties regarding their unit status, since they had become bargaining unit members by the time AFSCME filed its petition.[fn]2 Stated another way by the State, the hearing exa- miner has no authority to decide retroactively when those employees should have become members of the unit. The State's allegation that there is no dispute concerning 10 of the 12 employees can be disposed of quickly. While in AFSCME's post-hearing brief it requested retroactive relief, the thrust of the original petition was a request for clarification of the section 979-A(6)(F) exclusion in SELRA in relation to the State's use of acting capacity, project and intermittent employees. The State suggested on the first day of hearings that AFSCME's petition was in essence a request for a declaratory judgment on the meaning of "temporary," and that AFSCME should bring to the hearing the facts for specific positions that it was concerned about. The hearing examiner agreed that supplying specific examples that AFSCME felt were improper would provide a context within which the hearing examiner could make such a clarification. The fact that 10 of the employees who were used as examples had become unit members by the time the petition was filed is irrelevant since, as the State correctly points out, the hearing examiner has no authority to order retroactive relief. The dispute be- _________________________ 1 Since the filing of the petition, the Board's Rules and Procedures have been amended, effective July 23, 1990. While old Rule 1.13(A) has been applied in this matter, the hearing examiner does not believe the rule change would affect the outcome. 2 0nly 7 employees actually testified; documentary evidence was provided for the other 5. Although in several cases the stipulated dates for attain- ment of bargaining unit status were misstated, it is true that all but 2 of the 12 employees attained that status before the petition was filed. -26- tween AFSCME and the State is not about those employees -- it is about the fact that the State considers anyone in an acting capacity, project or intermittent appointment to be a temporary or on-call employee,[fn]3 regardless of the specific circumstances of their employment. The hearing examiner finds that there is indeed a dispute regarding similarly situated employees; the employment his- tories of all 12 employees are relevant to resolution of that dispute, even though the hearing examiner can grant them no relief as individuals. The dispute will recur without guidance from the Board, and attempting to resolve it on a case-by-case basis would be a procedural nightmare. The requirement for changed circumstances, like the other three statutory requirements, "is a threshold question on which the petitioner, in a unit clari- fication proceeding, 'bears the burden of alleging the requisite change and, further, of establishing the occurrence of said change in the unit then at issue.'" MSAD No. 14 and East Grand Teachers Assoc., No. 83-A-09, slip op. at 7, 6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983), quoting from State of Maine and MSEA, No. 82-A-02, slip op. at 16, 6 NPER 20-14035 (Me.L.R.B. June 2, 1983) (Interim Order). According to AFSCME's petition, the change that prompted the petition was the State's increasing use of these positions over extended periods of time and the concomitant denial of collective bargaining rights for employees hired into them. In its post-hearing brief, AFSCME cites two changes. The first, similar to the change cited in its petition, is the evolution of a floating labor pool -- a pool of employees who are hired as acting capacity employees, and from which permanent vacancies are filled. AFSCME particularly points to Pineland, where all MHWI vacancies are filled from the pool of acting capacity employees. The second change cited by AFSCME is the change in 1986[fn]4 regarding temporary appointments under the civil service laws. Prior to 1986, temporary appointment to a vacant, competitive position was limited to three months in duration. In _________________________ 3 Since it was clarified during the hearings that the State considers intermit- tents to be on-call rather than temporary employees, the on-call exclusion is addressed in this decision as well. 4 The change appears in the 1985 Public Laws, as indicated by AFSCME, but became effective July 1, 1986. -27- 1986, the three-month limitation was removed, and the director of the Bureau of Human Resources was directed to establish a policy to protect persons in tem- porary positions from remaining in them longer than one year.[fn]5 AFSCME's argument regarding the second change is not persuasive. In addi- tion to the fact that the old and the new provisions both apply only to the filling of vacancies (not leaves of absence) in the competitive service (not to non-competitive positions that are at issue here), no evidence was provided at the hearings to show that the statutory change affected the State's use of tem- porary appointments. The State counters AFSCME's floating labor pool argument by stating that 1) not all acting capacity employees become permanent; 2) there has been no change in the use of intermittents and project employees since formation of the unit; 3) there has been no change in the fact that the State makes acting capa- city, project and intermittent appointments of longer than six months' duration; and 4) since there has been no decrease in the number of employees in the bargaining unit, any changes in State practice that have occurred are not suf- ficient to warrant unit modification. The hearing examiner finds that AFSCME has met its burden regarding changed circumstances. The State has admitted that for one classification of employee at Pineland (MHWI's), leaves of absence have reached the point where all persons hired into permanent vacancies must first serve in the pool of acting capacity employees who fill those leaves of absence. At AMHI, the situation is not as bad, but more permanent MHWI's are initially hired as acting capacity employees than in the past. Most acting capacity MHWI's eventually become permanent employees; the fact that not all of them do is irrelevant to the issue of changed circumstances. Likewise, the fact that AFSCME alleges no change in the size of the bargaining unit is irrelevant. It would not be expected to change -- AFSCME has not alleged that the State is syphoning off bargaining unit mem- bers by permanently appointing them to temporary positions (as in the Bangor _________________________ 5Civil service law in effect prior to 1986 (5 M.R.S.A. 677 (1979)): Temporary and provisional appointments. Whenever it is impossible to certify eligible persons for appointment to a vacancy in the classified service, the appointing authority may nominate a person to the commissioner [of -28- case cited by the State[fn]6); it is alleging that by treating as temporary their service in a series of temporary positions prior to appointment to permanent positions, the State is unreasonably delaying the date on which they attain bargaining unit status. (Permanent employees on leave of absence retain their unit status, and thus the number of unit members remains approximately equal to the number of permanent positions.) Nor is it relevant that the State has always made some of its acting capa- city, project and intermittent appointments longer than six months in duration; SELRA requires something to change sufficiently to warrant modification; it doesn't require that everything change. _________________________ Personnel]. If such nominee is found by the commissioner to have had experience and training which appear to qualify him for the position, he may be temporarily appointed to fill such vacancy but only until an appropriate eligible register can be established and an appointment made therefrom. . . . In no event shall a temporary appointment be continued for more than 3 months. Successive tempo- rary appointment of the same person shall not be made. Not more than one temporary appointment shall be made to any position within any 12-month period. . . . Current law (5 M.R.S.A. 7051(6)(1989)) (effective July 1, 1986): Temporary and provisional appointments. Whenever it is impossible to certify eligible persons for appointment to a vacancy in the classified service, the appointing authority may nominate a person to [ ] the director [of Human Resources]. If the nominee is found by the director to have had experience and training which appear to qualify him for the position, he may be temporarily appointed to fill the vacancy in accordance with policies and procedures developed by the director and the Policy Review Board. . . . . B. The director and the Policy Review Board shall establish a policy to protect persons in temporary positions from remaining in them for an unreasonable period of time, not to exceed one year. _________________________ 6 AFSCME and City of Bangor, No. 79-A-02, 1 NPER 20-10032 (Me.L.R.B. Oct. 17, 1979). -29- Were AFSCME's floating labor pool argument not persuasive, as the State suggests, the hearing examiner would find sufficient changed circumstances in another occurrence that took place after formation of the unit -- the receipt by AFSCME of monthly hire/termination reports from the three institutions. It was these reports that AFSCME initially presented to the hearing examiner to substan- tiate its claim regarding the State's practices, particularly in the use of acting capacity appointments. Those reports constitute a change in the infor- mation available to AFSCME. Although the exact dates on which AFSCME began receiving the reports from the three institutions could not be determined at hearing (see Stipulation 15), the earliest it could have received them was when it became the bargaining agent for the ISU in May of 1977, almost a year after the unit was created. Thus, at the time the unit was created in 1976, AFSCME had no way of knowing how the State was using acting capacity (or the equivalent thereof), project and intermittent employees, and could not have raised the issue.[fn]7 That fact in itself, in the hearing examiner's estimation, constitutes sufficient change to warrant a reassessment of the bargaining unit.[fn]8 In addition to its arguments regarding the statutory requirements for a unit clarification petition, the State argues that dismissal of AFSCME's petition is warranted under Rule 1.13(A)(c), because AFSCME had knowledge of the State's practices with respect to acting capacity, project and intermittent employment and yet, beginning with the 1985-86 agreement (entered into on November 27, 1985), negotiated agreements that excluded these categories of employees from the unit. Because AFSCME requested retroactive relief in its brief, the State views the petition as a request for retroactive modification of the unit, and therefore an attempt to modify the unit as negotiated by the parties. In related arguments, the State asserts that AFSCME's delay in filing its petition constitutes a waiver of its right to request unit modification, and also that AFSCME is estopped from seeking modification due to the State's reliance on AFSCME's failure to act -- AFSCME cannot let harm occur and then seek back pay and benefits for employees who were harmed, the State argues. The contract language to which the State refers (which appears in the recognition clause of _________________________ 7 Thus, the fact that AFSCME showed no change by the State in its use of pro- ject and intermittent appointments is irrelevant. 8 As AFSCME points out in its brief, it is questionable whether the require- -30- the 1985-86 agreement and in each agreement thereafter) is as follows: Temporary and on-call employees excluded by law from the bargaining unit include project employees, persons acting from outside State service who are in acting capacity assign- ments, and intermittent employees. Project employees are employees appointed to a project position which is restricted to a planned work program to be completed within a specified period of time and which is not regularly recurring. Inter- mittent employees are employees who are appointed for a period of time on a sporadic basis and who work not more than five hundred (500) hours in any consecutive twelve (12) month period beginning with the date of hire or anniversary of date of hire. An employee designated as intermittent who works in excess of the limits set out above, and who works more than one thousand forty (1,040) regularly scheduled hours during the period since appointment as an intermittent employee, without a break in service due to resignation or dismissal, shall be covered by the terms of this Agreement. The sporadic _________________________ ment for changed circumstances should be applicable to this case, since the unit determination in 1976 did not resolve the question upon which clarification is now sought. The Board has no procedure specifically designed to resolve disputes involving the interpretation or application of existing unit descriptions, as opposed to modification of them, although the unit clarification procedure has been used for that purpose when changed circumstances existed. See AFSCME and City of Bangor, No. 79-A-02, 1 NPER 20-10032 (Me.L.R.B. Oct. 17, 1979). (The National Labor Relations Board regularly utilizes its unit clarification procedure to resolve such conflicts because there is no requirement for changed circumstances either in the National Labor Relations Act or in the NLRB's rules and procedures.) AFSCME's petition cannot be treated as a unit determination petition, since it was filed twelve days after expiration of the window period, and in any case it would be virtually impossible for AFSCME to meet the showing of interest requirement of Rule 1.05; the pool of employees appointed to suc- cessive acting capacity positions (at various institutions and in various job classifications) is constantly changing as those employees are appointed to per- manent positions and new employees take their place. (The hearing examiner is not at all sure that the State's citation to City of Banqor and Local 1599, IAFF, No. 80-A-03, 2 NPER 20-11034 (Me.L.R.B. July 18, 1980), is apposite. In that case, the petition was filed by the employer, not by the union. A "claim for recognition" is inherent in any petition filed by an employee representative and accompanied by the requisite showing of interest.) Section 979-E(1) of SELRA provides that a hearing examiner will resolve disputes over unit placement; yet, if neither the unit determination nor unit clarification requirements can be met, a party may be left without a remedy. See Town of Thomaston and Teamsters Local Union No. 340, No. 90-UC-03, slip op. at 13-14 (Me.L.R.B. Feb. 22, 1990). -31- periods such an employee is not in pay status because of the sporadic nature of the position shall not be considered to be a break in service. Where a legislative position count permits, such employees shall be placed in a permanent or limited period full time or part-time position as appropri- ate provided that he/she is eligible for appointment. If necessary, the employee may reopen the appropriate register to establish eligibility. Nothing in this Article shall be interpreted as removing any rights or benefits of temporary, intermittent, project or seasonal employees provided under Title 5 MRSA, 553(A) and 559, Public Law 667, 1979, or any other provision of law or rules. (Emphasis added.) There is no question that the hearing examiner does not have the authority to order retroactive relief for the 12 employees whose job histories were presen- ted; consequently, there is no need to address the State's concerns regarding either retroactive modification of the unit or estoppel. To support its waiver argument, the State cites Augusta Uniformed Firefighters Assoc., Local 1650, IAFF and City of Augusta, No. 85-A-02, 8 NPER ME-16012 (Me.L.R.B. Feb. 21, 1985). That case is distinguishable from the present one. In Augusta, the inquiry involved the unit placement of employees whose job classification had been created to replace two other classifications -- one which had been in the unit and one which had not. The Board found that the union had waived its right to request unit modification to include the new classification in the unit, because the union had been aware that the pay rate for the new position was being set independently of the bargaining agreement, and that the new position was not subject to certain other provisions of that agreement, and yet failed to raise the issue of unit inclusion in the nego- tiations for at least two agreements after the position was created. No statu- tory exclusion was at issue in the Augusta matter; the union was free to pursue formation of a separate bargaining unit for the employee classification at issue, or to seek to add it to the existing unit by filing for a unit deter- mination/election during the next window period. Thus a finding of waiver by the Board did not have the effect of permanently taking away anyone's collective bargaining rights. In the present case, AFSCME is not seeking to add new classifications to the unit; rather, it seeks clarification of whether and under what circumstances -32- acting capacity, intermittent and project employees in ISU job classifications are in fact temporary or on-call employees under SELRA, and thus are properly not entitled to bargain collectively. Since it is the evolution of a labor pool of acting capacity employees that was the major trigger for filing of the peti- tion, it would be difficult, if not impossible, for the hearing examiner to determine at what point AFSCME had waived its right to seek relief from the Board. (How big was the pool when waiver occurred?) More important, a finding of waiver would mean that future employees otherwise entitled to bargain as acting capacity, project or intermittent employees could never have those rights established by the Board. It is not at all clear that a bargaining agent can waive, for all time, the collective bargaining rights of future employees. In any case, such a result would be in direct conflict with SELRA, which recognizes the "right of state employees to join labor organizations of their own choosing and to be represented by such organizations in collective bargaining for terms and conditions of employment." 26 M.R.S.A. 979 (1988). It should also be pointed out that by their own terms, current and prior agreements between the State and AFSCME only exclude from the unit those tem- porary and on-call employees excluded by law. (See recognition clause at p. 31.) AFSCME wishes to know who fits that description. Truly temporary and on-call employees would continue to be excluded, even if the hearing examiner determined that under certain circumstances acting capacity, project and/or intermittent employees have collective bargaining rights. It is also worth noting that the AFSCME/State collective bargaining agreements all include the following statement: "In the event of a dispute between the parties as to future inclusions or exclusions from the unit, either party to this Agreement may apply to the Maine Labor Relations Board for resolution of the dispute." Thus the State may have waived its right to object to AFSCME's petition. Finally, the hearing examiner finds it somewhat disingenuous for the State to argue, on the one hand, that not enough changes have occurred since unit for- mation for AFSCME to meet the requirement for changed circumstances, and on the other hand, that AFSCME has waived its right to file the petition because it didn't come to the Board soon enough. AFSCME filed its petition on May 12, 1989, 1 1/2 months before the 1987-89 agreement expired and well before the 1989-92 agreement was signed on Septem- -33- ber 5, 1989. Its filing put the State on notice that it intended to pursue the matter of the exclusion of certain acting capacity, project and intermittent employees from the unit. Dismissal of the petition under Rule 1.13(A)(c) is discretionary and is not warranted in the circumstances of this case. Merits AFSCME's position In support of its position that acting capacity, project and intermittent employees should be included in the bargaining unit, AFSCME argues that 1) "temporary" under the civil service system is not synonymous with "temporary" under SELRA, as evidenced by the reference to collective bargaining rights for certain intermittents in 5 M.R.S.A. 7053(3) (1989); 2) section 7053 should be read to cover acting capacity and project employees as well; 3) Board cases have held that seasonal employees are covered by the labor statutes if they work more than six months in a year, and seasonal employment is temporary in nature; 4) the State is not using acting capacity, project and intermittent employees as temporaries, but rather as a "permanent, on-going labor and/or hiring pool from which to meet their day-to-day obligations consistent with their mission of running direct care service"; 5) budget control devices should not control the definition of public employee under SELRA; 6) all three categories of employees have a strong community of interest with bargaining unit employees, and 5 M.R.S.A. 7053, which provides certain intermittents with a range of benefits and entitlements, is one acknowledgment of this community of interest; and 6) those employees who are in the so-called labor pool have a reasonable expec- tation of continued employment. AFSCME offers no support for its position that section 7053 of the civil service laws applies to acting capacity and project employees, and the hearing examiner knows of none. In addition, the Board's prior rulings regarding the connection between the six-month requirement and the exclusion of temporary and seasonal employees in the labor statutes have been overruled recently. See Council 93, AFSCME, et. al. v. Town of Sanford, et al., No. 90-07, slip op. at 14-15 (Me.L.R.B. June 15, 1990). Thus, working for six months does not automa- tically remove an employee from "temporary" status. Finally, since the Legis- lature has mandated that temporary and on-call employees are not entitled to bargain collectively, regardless of whether they otherwise share a community of -34- interest with bargaining unit employees, AFSCME's community of interest argument need not be addressed. The remainder of AFSCME's arguments have some merit, for some employees, and are addressed later where appropriate. The State's position The State's reasoning for considering all acting capacity and project employees as temporary employees goes as follows:[fn]9 1) Since SELRA excludes tem- porary employees from the definition of "State employee," time spent in a tem- porary position cannot be counted toward satisfaction of the six-month requirement of the statute; 2) the hearing examiner has no authority to declare acting capacity and project positions permanent -- only the Legislature can establish permanent positions, and it has not made acting capacity and project positions permanent; 3) the opposite of permanent is temporary; 4) therefore, if these positions aren't permanent, they must be temporary. The State attempts to bolster its argument by pointing out that only permanent employees may serve the six-month probationary period required by the State to attain permanent status, and suggests that the "six-month requirement [in SELRA] is no doubt because of the Civil Service requirement that an employee serves a probationary period of a minimum of six months during which time he may be discharged for any reason." It also points to 5 M.R.S.A 7042, which among other things directs the State's Policy Review Board to recommend changes in civil services rules and law to pro- vide status for acting capacity employees, acknowledging thereby that currently they do not have status. Finally, the State asserts that making acting capa- city and project employees permanent would contravene the merit principles of the civil service system. There are three major problems with the State's reasoning. First, there is absolutely no basis for the State's assertion that time spent in a temporary position cannot be counted to meet the six-month requirement in SELRA. As the State points out in its brief (to refute AFSCME's argument that working for six months automatically removes an employee from temporary status), the six-month _________________________ 9 Even though the State considers intermittents to be on-call rather than tem- porary employees, it sometimes includes intermittents in its arguments regarding temporary employment. For the sake of clarity, reference to intermittents is omitted here. -35- and the temporary/seasonal/on-call exclusions are separate, independent exclu- sions. Inexplicably, the State then ties the two exclusions together and concludes that a person is included in a bargaining unit only if that person is in a non-temporary position and is employed in that position for more than six months. By the State's logic, employees serving in any of the excluded categories under section 979-A(6), who then transfer to a job that is not excluded, must wait for six months after the transfer to become bargaining unit members, even if they have worked for the State for twenty years. Why must a long-time con- fidential employee (excluded under section 979-A(6)(C)) wait for six months for bargaining rights after his/her confidential duties are transferred to another employee? Why should a long-time department or division head (excluded under section 979-A(6)(D)) who is demoted to a unit position because of a reorgani- zation wait for an additional six months for bargaining rights?[fn]10 The legislative history of the six-month exclusion is instructive. Both the six-month and the temporary/seasonal/on-call exclusions are contained in the Municipal Public Employees Labor Relations Law (MPELRL), 26 M.R.S.A. ch. 9-A, which was the first of the four labor statutes to be passed. In the first ver- sion of the MPELRL, effective October 1, 1969, section 962(6)(F) excluded any person "on a probationary or provisional status, or who is a temporary, season- al, on-call or part-time employee." In a special session of the Legislature shortly thereafter, an amendment was proposed: section 962(6)(F) would be amended to exclude any person "who has served less than 6 months on a proba- tionary or provisional status"; and new (G) would exclude anyone "who is a tem- porary, seasonal, on-call or part-time employee." Prior to passage, (F) was further amended to exclude simply anyone "who has been employed less than 6 months."[fn]11 _________________________ 1O In fact, if taken to its truly logical conclusion, the State's position means that no one is ever covered by SELRA. In essence its position is that the six months must be served as a non-excluded employee, and yet one cannot be a non-excluded employee until he/she has worked for six months. 11 Also, the exclusion of part-time employees was dropped from (G). -36- That history refutes the State's argument that only time spent in a per- manent position, on probation, can be counted to meet the six-month requirement. In fact, it is very likely that one of the reasons for the 1970 amendment was the fact that probationary periods for employees are not uniformly six months. Had the probationary language remained, teachers, who serve up to two years of probation, would have no bargaining rights for that two-year period. The six-month exclusion, in both the MPELRL and SELRA, states simply that any person is excluded "who has been employed for less than 6 months." For the State, that time period coincides with its probationary requirement, during which time employees can be fired at will. While temporary employees serve no probationary period, they too can be fired at will, at any time while they are temporary and not simply for the first six months of their employment. Thus the State is at no disadvantage with respect to these employees if the words of the six-month exclusion are given their plain meaning.[fn]12 The second problem with the State's reasoning is that even if it were true that the six-month requirement could not be met while an employee was in a tem- porary position, that fact would not be relevant to a determination of whether or not an employee is temporary in the first instance. While the State points out that the real question is whether or not an employee is in fact temporary, it then asserts that all acting capacity and project employees are by definition temporary. The third problem is that the hearing examiner need not find that employees are permanent for them to be non-temporary, and has no intention of doing so. _________________________ 12 0ne other aspect of the six-month requirement should be addressed at this juncture. As the Board has stated previously, there is "nothing in Section [979-A(6)(E)] or any other provision of the Act which requires an employee to work 6 consecutive months before being entitled to the rights and protections provided by the statute." Council 74, AFSCME v. City of Bangor, et al., No. 80-41, slip op. at 7, 2 NPER 2O-11042 (Me.L.R.B. Sept. 24, 1980). Had the Legislature meant to require the employment to be consecutive, it could have said so. Consequently, the State's break-in-service policy notwithstanding, where breaks in service are not due to resignation or dismissal of the employee, but are due, for example, to the need to schedule successive assignments to coincide with the end of one leave of absence and the beginning of another, the six months need not be consecutive to meet the statutory requirement. -37- Therefore a finding that certain employees are non-temporary would not contra- vene the merit principles of the civil service system. Since the job classifi- cations at issue here are entry-level, noncompetitive classifications filled by employees with qualifications, skills and training similar to those of persons hired as permanent, probationary employees, the merit system argument is not persuasive in any case. Employees who are the subject of this petition, and those similarly situated, currently may work for the State as long as two years without receiving the benefits of satisfactory State employment. Such a system itself appears to the hearing examiner to contravene merit system principles. How employees are classified for the purposes of salary funding, probation or other internal purposes is irrelevant to a determination of their status under SELRA. Designating everyone who is not in a legislatively authorized, permanent position as temporary simply begs the question that is at the heart of AFSCME's petition. Hearing examiner's decision SELRA contains no definition of "temporary." Thus, it has been left to the Board to determine, on a case-by-case basis, whether a particular employee is temporary. "The purpose of the State Employees Labor Relations Act, stated in section 979, is to provide state employees the right to join labor organizations and to be represented in collective bargaining. . . . The statute 'must be held to mean what it declares plainly.'" Maine Office of Employee Relations v. M.L.R.B., et al., No. CV-77-135 (Me. Super. Ct., Ken. Cty., Oct. 10, 1980), quoting Reggep v. Linder Shoe Products Co., Me. 241 A.2d 802, 805 (1968). Thus, exceptions to the definition of "State employee" should be narrowly construed. As already pointed out, in its early cases the Board made little or no distinction between the "temporary" exclusion and the "six-month" exclusion in the labor statutes. In a recent case, however, that distinction has been made clear: "By use of the disjunctive conjunction 'or' the MPELRL separately and distinctly excludes from statutory coverage each of the status groups mentioned in 26 M.R.S.A. 962 (G)(1988), in addition to employees who have achieved less than six months of employment." Council 93, AFSCME, et al. v. Town of Sanford, et al., No. 90-07, slip op. at 14-15 (Me.L.R.B. June 15, 1990). SELRA contains -38- identical, separate exclusions at sections 979-A(6)(E) and (F). Accordingly, working for six months does not automatically remove an employee from "tempo- rary" status. In Sanford, the Board goes on to establish a standard for assessing whether the "temporary" exclusion is applicable to a particular employee -- that stan- dard being a determination, "in the totality of the circumstances, [of] whether the employee involved may be said to have had a reasonable expectation of con- tinued employment." Id. at 14. Factors relevant to such a determination will vary with the individual case, but generally might include: 1) the degree of control the employer has over events surrounding the hiring of the employee in question; 2) the existence of a definite termination date or an event that will trigger termination; 3) the employer's past experience with hiring similarly situated employees into permanent positions (that is, the employer's hiring preference policy); 4) what employees are told regarding future employment when they are hired; 5) the stability of the employer's labor requirements and the extent to which the employer is dependent on the employees at issue on a con- tinuing basis; and 6) the duration of the fixed-term appointment[fn]13 and/or whether employees are hired for successive, fixed-term appointments.[fn]14 _________________________ 13 While the Board has indicated that meeting the six-month requirement does not automatically remove an employee from temporary status, the duration of a fixed-term appointment should be considered in a determination of temporary status for several reasons: 1) Maine civil service law directs the director of Human Resources and the Policy Review Board to establish a policy to protect persons appointed to temporarily fill vacancies from remaining in those positions for an unreasonable period, not to exceed one year; (5 M.R.S.A. 7051(6)(B) (1989)); 2) Maine's civil service rules limit acting capacity assignment to one year, except where unusual circumstances warrant an extension by the Director of Human Resources (civil service rules, Chapter 8, section 3, subsection A.3); 3) by contract, the State is authorized to terminate permanent employees on leave of absence who are unable to return to work for one year, obviating the need, in most circumstances, to make acting capacity appointments to fill workers' compensation leaves for longer than one year; 4) by contract, employees are allowed to be absent from duty without pay for a maximum of twelve months in a fourteen-month period, again obviating the need to make acting capa- city appointments longer than a year. Thus, employment for longer than a year would weigh heavily in the determination of temporary/non-temporary status. 14 Successive appointments would indicate satisfactory performance and an intention by the employer to keep the employee in the labor pool until a per- manent vacancy is available. -39- 1. Acting Capacity Employees Included in the examples AFSCME presented at hearing were two types of acting capacity appointments. The first and more common situation involved hiring of persons into a series of positions on an acting capacity basis, to fill in for employees on leave of absence, with the eventual hiring of those acting capacity employees into permanent vacancies as they became available. The second involved appointment on an acting capacity basis to fill permanent vacancies that occurred during the study of food services in the three institu- tions. The "reasonable expectation" test will be applied to each. a. Fillinq leaves of absence The State does not have control over the fact that many of its ISU employees need to take extended leaves of absence at some time during their tenure with the State. Work-related injuries are a common cause for LOAs, a fact that is not surprising in an institutional setting that involves direct service and care for a large number of long-term patients. Although the State is normally unable to provide a "date certain" for termination of persons hired to fill in for these LOAs (there is no way to predict the precise date upon which the injured or ill person will be able to return to work), there is an "event cer- tain" that triggers termination of the assignment -- the permanent employee's return once he/she has recovered. These two factors, without more, require a finding that acting capacity employees hired to fill in for LOAs are temporary employees under section 979-A(6)(F) of SELRA, even if the assignment lasts longer than six months. However, for the MHWI job classification in the ISU, additional "reasonable expectation" factors are relevant. While job applicants at all three insti- tutions are told that acting capacity assignments end when the person on leave returns, they are also told that they may be able to move on to other acting capacity assignments and that they may apply for a permanent position should one become available. More important, for the MHWI job classification, the rate of extended absence and the turnover in permanent employees are both so high that most acting capacity MHWI's are eventually hired into permanent vacancies. They must simply continue to perform their duties satisfactorily in their successive acting capacity assignments and be patient. At Pineland, conditions have reach- ed the point where that institution hires no permanent MHWI's off the street. -40- Al] permanent vacancies are filled from the pool of acting capacity employees. In addition, 7 of the 12 employees whose histories were presented at hearing served in acting capacity appointments to fill in for LOAs,[fn]15 and prior to receiving permanent appointments, all but one served in multiple acting capacity assignments: 3 served in two such assignments, 2 served in three, and 1 served in five. Finally, total time served as an acting capacity MHWI was as long as twenty-one months, which is hard to view as temporary by any standard. Looking at these additional factors, it is difficult to imagine conditions that would give rise to a more reasonable expectation of continued employment. Thus, the hearing examiner finds that persons hired by AMHI, BMHI and Pineland as acting capacity MHWI's to fill in for leaves of absence are not temporary employees at the time they are hired. Once they have worked for a total of six months (in order to satisfy the separate requirement of section 979-A(6)(E)), they become members of the ISU. Those provisions of the existing collective bargaining agreement that can reasonably be applied should be; the remainder must be negotiated. Lewiston Teachers Assoc. v. Lewiston School Comm., No. 80-45, slip op. at 12, 2 NPER 20-11038 (Me.L.R.B. Aug. 11, 1980). b. Filling permanent vacancies Five of the employees whose job histories were presented were hired on an acting capacity basis to fill permanent vacancies. In two cases, they were hired to fill MR trainer vacancies, because no one with the training necessary to fill them on a permanent basis was available.[fn]16 Since the MR trainer job classification is in the competitive service, filling of these vacancies on an acting capacity basis seems to be the precise circumstance anticipated by one of Maine's civil service laws, 5 M.R.S.A. 7051(6) (1989). See footnote 5. Since the employees appointed to fill these vacancies have no reasonable expec- tation of continued employment, the hearing examiner finds that such employees are temporary employees under SELRA, not entitled to bargain collectively. How- _________________________ 15 Boober, Dugas, Foss, Jackson, Payer, Rollins and Webster. 16Ross and Webster -41- ever, time spent in such a position counts toward satisfaction of the six-month requirement, which would become relevant if the acting capacity employee is subsequently hired into a non-temporary position. The other three acting capacity employees who were appointed to fill vacan- cies were hired by AMHI as food service workers;[fn]17 they were hired as acting capa- cities not because they weren't qualified to fill FSW positions on a permanent basis, but simply because of a decision by the State to study food services in the three institutions.[fn]18 They performed the same work as other food service workers, and eventually all three became permanent employees. One was acting capacity for three months, one for four months, and one for over a year (the difference being the point during the study at which vacancies occurred that needed to be filled). Some such appointments may have lasted as long as two years, since they were being made at AMHI as early as March of 1986,[fn]19 and con- version to permanent status took place at AMHI in February of 1988. Applying the "reasonable expectation" test, the hearing examiner finds that these three employees were not temporary employees during their acting capacity tenure. The degree of control over events surrounding their hiring most strongly supports this finding -- the State itself initiated the study, and was under no obligation, under its civil service rules or otherwise, to fill vacan- cies that occurred during the study with acting capacity appointments. In fact, it is not at all clear to the hearing examiner that these appointments were legal under the civil service rules, but compliance with those rules is outside _________________________ 17 Ferris, Glidden and Ridley 18 In one other instance, for a study of laundry facilities, the State filled vacancies with acting capacity employees for a period of time. 19 Ferris was appointed on March 3, 1986. -42- of the Board's jurisdiction.[fn]20 Since the State has a layoff provision in its contract with AFSCME, there is no reason the State couldn't have filled those vacancies in the normal manner, and resorted to the layoff provisions if the results of the study showed that a reduction in force was appropriate. (If the study showed that a greater reduction was needed than could be accomplished by terminating acting capacity employees, that very provision would have kicked in for permanent employees.) Each of the three employees signed an acknowledgment of acting capacity sta- tus; however, none contained a fixed termination date or referred to an event that would trigger termination. In one case (for the employee whose acting capacity appointment lasted three months because she filled a vacancy that occurred near the end of the study), the employee was told orally that at the end of six months she would either be made permanent or terminated. That statement in itself creates some expectation. No evidence was presented to show that the likely result of the study would be to reduce staff size rather than increase it, and, in fact, at BMHI, new positions had to be created to implement the recommended changes. The other "reasonable expectation" factors are less helpful. The stability of the employer's workforce and the extent of the employer's dependence on these employees is difficult to assess, since that is what the study would eventually determine -- for permanent as well as acting capacity food service workers. Nor is the employer's past experience with converting acting capacity employees to permanent ones helpful -- for the prior laundry facilities study, no evidence was presented regarding what percentage of acting capacity employees were con- verted to permanent when the study was completed, and that information would not be relevant to a totally different study in any case. About all that can be said is that if a reduction in force became necessary at any of the three insti- _________________________ 2O Chapter 8, section 3, of the civil service rules states: "Temporary/ emergency employment needs and the replacement of employees on authorized leave of absence shall be accomplished by means of acting capacity assignments . . . ." The acting capacity appointments in question appear to fit into neither category. In addition, Chapter 8, section 3, subsection A.3., states: "Acting capacity assignment shall not exceed one (1) year; except that individual exten- sions may be granted by the Director [of Human Services] when unusual cir- cumstances warrant an extension." Ms. Ferris served in two acting capacity FSW assignments totalling over a year, from March 3, 1986, through March 30, 1987. -43- tutions, presumably the acting capacity employees would be the first to go. The "successive appointment" factor is not relevant in this situation, since these employees were filling permanent vacancies, not leaves of absence. One of the three employees did serve in two acting capacity appointments before be- coming a permanent employee, but the hearing examiner assumes that it was for a reason unconnected to the study itself. The "duration" aspect of this factor is relevant; one of the three employees served as an acting capacity employee for over a year, and the hiring policy for filling vacancies was in effect at one institution for almost two years. 2. Project Employees One of the employees who testified at the hearings began her service with the State as a project employee (Medora St. Claire). AMHI had just assumed responsibility for 18 new patients from a boarding/nursing home shut down by the State, and needed additional staff to care for them. Consequently, it created 15 project positions, with funding for thirty-one weeks, to care for these patients until they could be permanently placed elsewhere. At the time she was hired as a project food service worker, Ms. St. Claire signed an acknowledgment of her project status. It stated that her position would end on June 8, 1985 (that is, at the end of thirty-one weeks) "or at any time in the future so designated by [her] immediate supervisor." Orally, she was told that at the end of six months she would either be made permanent or terminated, but was led to believe that permanent status was likely. Applying the "reasonable expectation" factors to Ms. St. Claire's hiring, on balance the hearing examiner believes she was a temporary employee when she began her employment with the State. The employer did not have control over the sudden need for new staff to care for the 18 additional patients at AMHI -- it could not reasonably avoid its duty to take action against a substandard nursing/boarding home. The acknowledgment that Ms. St. Claire signed contained a fixed termination date, although she did received mixed messages regarding her prospects for future employment. (The mixed message may have been due to a hiring preference policy -- the State may have intended to hire her into an a permanent vacancy when one became available, should her work prove to be satis- factory, even if the 18 new patients were transferred elsewhere.) The employ- -44- er's labor requirements were not stable -- as far as anyone knew at the time the new patients arrived, the need for an increased work force would be temporary. Successive temporary appointments were not at issue here -- Ms. St. Claire served in two project positions, but at her own request. In addition, at the outset it was expected that these project positions would only last for thirty- one weeks (that is, less than a year). Two months after the new patients arrived at AMHI, circumstances changed; the State realized that they would be remaining at that institution on a long- term basis. Consequently, it requested legislative authorization for 15 new permanent positions, so that the project positions could be converted to per- manent ones. This permanent funding was requested to begin in the second year of the upcoming biennium rather than the first. As a result, the project posi- tions lasted for 1 1/2 years. Since two months after the patients arrived, it was no longer the employer's intent to terminate the 15 project employees, but to keep them in project posi- tions for 1 1/2 years and then to make them permanent (that is to depend on them on a continuing basis), the hearing examiner finds that they should have been treated as non-temporary employees at the point at which the change in plans occurred.[fn]21 Once they had worked a total of six months from their dates of hire as project employees, they should have become bargaining unit members. In Ms. St. Claire's case, there was an additional reason for a change in her status. Nearly four months after she began working at AMHI, Ms. St. Claire requested a change from food service work. She was terminated as a project FSW and assigned to a MHWI position, again on a project basis to care for the nursing/boarding home patients. This time she was given no estimation of how _________________________ 21 The hearing examiner finds it particularly troubling in these circumstances that project employees are not entitled even to vacation leave, sick leave or holiday pay. In addition, it is not clear that categorizing these employees as project employees was legal under the civil service rules, once plans changed. A project position is defined as one that is "restricted to a planned work program to be completed within a specified limited period of time and which is not of a seasonal or regularly recurring nature." Chapter 1, section 3, subsec- tion U. -45- long her project assignment would last. This omission may have occurred because of the employer's intention to convert these positions to permanent ones, which significantly increased the likelihood that she would oecome a permanent employee. On the other hand, it may have occurred because with her assignment to a MHWI position, Ms. St. Claire had become a member of the "MHWI pool" from which permanent MHWI appointments would be made, again substantially increasing her chances of becoming a permanent employee even if the 18 new patients were moved as originally planned. Thus, once again, when she had worked for the State for a total of six months, she would have become a bargaining unit member. 3. Intermittent Employees According to the civil service rules, "intermittent employee" means an employee "who is hired from time to time to work irregular hours or weeks." Chapter 1, section 3, subsection L. An intermittent position is "one which is used from time to time to support and supplement a regularly scheduled work force." Chapter 2, section 1, subsection A. "Establishment of an inter- mittent position shall require individual agency justification that work to be done is not sufficient in amount or duration to warrant regularly scheduled hours and/or weeks." Chapter 2, section 2. Individual intermittent employees are limited to not more than 500 hours of work in any 12-month period. Chapter 2, section 3. Use of an intermittent position is also limited to not more than 500 hours in any consecutive 12-month period. 5 M.R.S.A. 7053(1) (1989). The State considers intermittent employees to be excluded from SELRA coverage as "on-call" employees under section 979-A(6)(F). Given the provisions of the preceding paragraph defining intermittent employment, the State's posi- tion does not appear to be an unreasonable one. However, effective in 1978, the Maine Legislature granted a broad range of benefits and entitlements to all intermittents who complete 1,040 hours of work, including eligibility for step increases, participation in retirement and treatment as a classified employee for such purposes as probation, promotion, and competitive registers. See 5 M.R.S.A. 7053 (1989).[fn]22 Subsection 3 of section 7053 states: "This section _________________________ 22 0riginally promulgated in slightly different form at 5 M.R.S.A. 559, which was repealed in 1986. -46- shall not apply if provided pursuant to Title 26, chapter 9-B." (Title 26, chapter 9-B is SELRA.) At a minimum, subsection 3 establishes or assumes the existence of collective bargaining rights for intermittents who have worked 1,040 hours.[fn]23 If read more liberally, it assumes collective bargaining rights for all intermittents, and guarantees the benefits of section 7053 to all inter- mittents with 1,040 hours, even if they are not covered by a collective bargain- ing agreement. Two employees whose work histories were presented at hearing served as intermittents for some period of time. For both, their intermittent appoint- ments were as MHWI'S. Ms. Jackson served in a single intermittent position for a period of almost nine months. Ms. Payer served in four different intermittent positions, ranging from three weeks to five months in duration. Ms. Jackson worked a regular schedule of sixteen hours per week during her nine-month stint as an intermittent employee, in part to cover for an employee on a part-time educational leave, and in part to cover work shifts for other employees out on short-term or sporadic leaves of absence. Daily time sheets for Ms. Jackson show that she always worked two 8-hour shifts per week, and that on those few occasions when she did not work one of the two shifts, her time sheet was marked "absent," indicating that she had not worked her regularly scheduled shift. Thus, Ms. Jackson was not hired "from time to time to work irregular hours or weeks," under the civil service rules. Her service certainly was not sporadic or irregular in nature, as the word "intermittent" itself suggests, and as the Board has described truly on-call employees. See Town of Berwick and Teamsters Local Union No. 48, No. 80-A-05, 2 NPER 20-11035 (Me.L.R.B. July 24, 1980); Council #74, AFSCME and County of Knox, No. 82-UD-17 (Me.L.R.B. Jan. 18, 1982); Town of Lebanon and Teamsters Local Union No. 48, No. 86-A-01, 8 NPER ME-17005 (Me.L.R.B. Dec. 5, 1985). In fact, it is difficult to see any difference between Ms. Jackson's service as an intermittent MHWI and her service as an acting capacity MHWI. Thus, the hearing examiner finds that Ms. Jackson was not an on-call employee during her service as an intermittent employee, but rather was a member of the floating labor pool of MHWI's; she simply had a _________________________ 23 Also, the collective bargaining agreement between the parties specifies that all intermittents who have worked the requisite 1,040 hours are in the bargain- ing unit. -47- different title on paper. The facts surrounding Ms. Payer's intermittent employment are less clear. Although she too worked in a series of both intermittent and acting capacity MHWI positions, no evidence was provided regarding whether she worked a regular, predetermined schedule of hours and/or weeks during her stints as an intermit- tent, or whether she worked on a truly on-call basis. Consequently, the hearing examiner makes no finding with respect to this employee. If she worked a pre- determined, regular schedule, as Ms. Jackson did, she would have been member of the MHWI labor pool; otherwise, at a minimum she would have been entitled to bargain collectively after 1,040 hours of intermittent work. ORDER On the basis of the foregoing stipulations and discussion and pursuant to the provisions of 26 M.R.S.A. 979-E(3) (1988), it is hereby ORDERED: 1. That time spent in temporary State employment as an acting capacity, project or intermittent employee in job classifications in the ISU shall be counted toward satisfaction of the six-month requirement of section 979-A(6)(E) of SELRA. 2. That time spent either in temporary or non-temporary State employment as an acting capacity, project or intermittent employee need not be consecutive time to satisfy the six-month requirement of section 979-A(6)(E) of SELRA, where the break(s) in service are not due to resignation or dismissal of the employee. 3. That acting capacity MHWI's hired by AMHI, BMHI and Pineland to fill leaves of absence are not temporary employees under section 979-A(6)(F) of SELRA. 4. That acting capacity employees hired by AMHI, BMHI and Pineland to temporarily fill vacancies in the competitive service, for which they do not have the necessary qualifications, are temporary employees under section 979-A(6)(F) of SELRA. 5. That acting capacity employees in the ISU job classi- fications who are hired to fill vacancies for which they do have the necessary qualifications are not temporary employees under section 979-A(6)(F) of SELRA. 6. That project employees in ISU job classifications who are hired to meet an unexpected need for additional -48- staff, which need will cease to exist on a predetermined date or upon the occurrence of a predetermined event, are temporary employees under section 979-A(6)(F) of SELRA. 7. That project employees in ISU job classifications who are hired to meet increased staffing needs, which needs will not cease to exist on a predetermined date or upon the occurrence of a predetermined event, are not temporary employees under section 979-A(6)(F) of SELRA. 8. That intermittent employees in ISU job classifications who are hired to work regularly scheduled hours and/or weeks to fill leaves of absence are not temporary employees under section 979-A(6)(F) of SELRA. Dated at Augusta, Maine, this 10th day of August, 1990. MAINE LABOR RELATIONS BOARD /s/__________________________ JUDITH A. DORSEY Designated Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 979-G(2) (1988), to appeal this Order to the Maine Labor Relations Board. To initiate such an appeal, the party seeking appellate review must file a notice of appeal with the Board within fifteen (15) days of the date of issuance of this report. See Rules 1.12 and 7.03 of the Board's amended Rules and Procedures, effective July 23, 1990. -49-