STATE OF MAINE                                    MAINE LABOR RELATIONS BOARD
                                                  Case No. 83-08
                                                  Issued:  January 14, 1983

                 Complainant,  )
   v.                          )
                               )                  DECISION AND ORDER
                 Respondent.   )

     This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
Section 968(5)(B) on September 27, 1982 by the Lewiston Teachers Association
(Association).  The Association alleges in its complaint that the Lewiston
School Committee (School Committee) violated 26 M.R.S.A. Section 964(1)(E) by
refusing to bargain about the wages of the Supervisor of the Saturday
detention program at Lewiston Junior High School.  The School Committee filed
a response on September 28, 1982, denying that it had violated any provision
of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section
961, et seq. (Act), and raising several affirmative defenses.

     A pre-hearing conference on the case was held on November 4, 1982,
Alternate Chairman Donald W. Webber presiding.  Alternate Chairman Webber
issued on November 8, 1982 a Pre-Hearing Conference Memorandum and Order, the
contents of which are incorporated herein by reference.

     A hearing was held on December 22, 1982, Chairman Edward H. Keith
presiding, with Employer Representative Don R. Ziegenbein and Employee
Representative Harold S. Noddin.  The Association was represented by UniServ
Director Keith C. Harvie and the School Committee by Bryan M. Dench, Esq.
The parties were given full opportunity to examine and cross-examine witnesses,
introduce evidence, and make argument.  At the conclusion of the hearing the
parties presented oral argument.


     The Association is the bargaining agent within the meaning of 26 M.R.S.A.
Section 968(5)(B) for all certified professional employees of the School


except for certain administrators.  The School Committee is a public employer
as defined in 26 M.R.S.A. Section 962(7).  The jurisdiction of the Maine Labor
Relations Board to hear this case and render a decision and order lies in
26 M.R.S.A. Section 968(5).
                              FINDINGS OF FACT

     Upon review of the entire record, the Labor Relations Board finds:

     1.  The Association and School Committee currently have in effect a
collective bargaining agreement with a term of September 1, 1981 to August 31,
1983.  Paragraph A of the recognition clause of this agreement provides that
the Association is the sole and exclusive bargaining agent "for the entire
group of certified professional employees, including school nurses, of the
Committee excluding the Superintendent, Assistant Superintendent, Principals,
Assistant Principals, and other administrative officers."  Paragraph B of the
recognition clause states in pertinent part:

          "Unless otherwise indicated, the following definitions and rules
           shall be applied in construing the provisions of this Agreement:

             "1.  Employees:  full-time professional employees, includ-
                  ing teachers and public school nurses, represented
                  by the Association in the above-defined collective
                  bargaining unit.  However, the word 'employees' shall
                  not include . . .  (3) Personnel employed in a capacity
                  or in a program not usually or typically associated
                  with the regular school year programs or after school
                  'extracurricular' programs, while acting as such;
                  . . ."

     2.  In February, 1982, the Assistant Principal at Lewiston Junior High
School proposed that the School Committee institute a Saturday detention
program at the Junior High School.  Such a program, to take place during a
four hour detention period on Saturday mornings, would serve as an alternative
to suspending students, according to the Assistant Principal's report.  Other
advantages of the program noted in the report are that students would be
discouraged from repeating their offenses, that students would be kept in a
regular school environment and would not miss class time, and that academic
tutoring and counseling would be provided.  The Assistant Principal proposed
that a Saturday Detention Supervisor be hired to work Saturday mornings at a
salary of $8.00 per hour, with duties such as supervising


students as they complete school assignments, maintaining a quiet study
environment, and providing academic tutoring assistance and individual
counseling.  The School Committee voted at its February 9, 1982 meeting to
implement the Saturday detention proposal for the remainder of the 1981-'82
school year, pending a report by the Assistant Principal on the effectiveness
of the program after the close of school in June.

     3.  Shortly after the School Committee's February 9th meeting a job
announcement for the Saturday Detention Supervisor's position was posted in
all City of Lewiston departments by the Assistant Superintendent of Schools.
The school administrators preferred hiring a teacher for the position, but
would have hired any person familiar with junior high school students who
could maintain discipline during Saturday detention.  Two Lewiston Junior High
School teachers applied for the position and one of them, David Shea, a
history, math and reading teacher, was hired.  Shea held the first Saturday
detention on March 6, 1982.  Among his duties as Saturday Detention Supervisor
are maintaining discipline, checking homework assignments done during deten-
tion, and showing students how to find answers to their questions in reference
books and textbooks.  He is paid a salary of $8.00 per hour for five hours of
work every Saturday.

     4.  On March 8, 1982 the Association's Chief Negotiator had an informal
discussion with the Superintendent of Schools about the Saturday detention
position.  On March 30th, the Chief Negotiator wrote to the Superintendent
requesting a meeting to negotiate the wages, hours and working conditions of
the Saturday Detention Supervisor.  A meeting was held on April 5th, but no
bargaining occurred.  The Chief Negotiator again requested negotiations in a
letter dated April 28th, and another meeting was held on May 10th.  The
Association proposed at this meeting to add the following language to the
collective bargaining agreement:

         "The stipend for a Saturday detention supervisor shall be $8.00
     per hour.  The supervisor will be paid for each hour spent with
     students plus one hour for outside work."

The Superintendent stated that the School Committee was not obligated at that
time to negotiate about the proposal, and in a letter dated May 26th to the
Association the School Committee's attorney set forth the reasons why the
School Committee believed it was not required to bargain about the position,
citing various contract provisions which purportedly relieve the School
Committee from the duty to bargain during the life of the agreement.  The
Association again requested bar-

gaining in a letter dated June 1st, and the School Committee's counsel
reiterated his position in a June 2nd letter.

     5.  The Assistant Principal at Lewiston Junior High School submitted his
review of the Saturday detention program to the School Committee in July, 1982.
His report recommended that the program be continued with several administra-
tive changes.  At its July 20, 1982 meeting the School Committee voted to make
the recommended changes and to continue the program until December, 1982,
pending another review by the Assistant Principal at that time.

     6.  On September 2, 1982 the Association's UniServ Director wrote to the
School Committee's attorney, noting that the School Committee had voted to
continue the program and demanding that negotiations begin immediately on the
Saturday detention position.  The attorney responded on September 8th,
reiterating the School Committee's position that it was not obligated to enter
into mid-term bargaining, but stating that the School Committee would bargain
about the position during negotiations for a successor collective bargaining

     7.  The Association and the School Committee recently began negotiating
for a collective bargaining agreement to succeed the agreement due to expire
on August 31, 1983.  Among the proposals presented by Association is the

         "Saturday Detention:  This position at Lewiston Junior High
     School shall be paid at a rate of $10.00 per hour.  The position
     will include four (4) hours of classroom time and one (1) hour
     of preparation time.  Payment will be paid bi-weekly in a separate

The School Committee is negotiating about this proposal.
     At issue is the question whether the School Committee is required to
engage in mid-term bargaining over the wages and conditions of employment of
the Saturday Detention Supervisor.  Since it is not clear whether the Saturday
Detention Supervisor position is included in the bargaining unit represented
by the Association, we find that the School Committee was not obligated to
bargain about the position with the Association.  We will dismiss the
Association's complaint.

     A fundamental question in determining the School Committee's duty to bar-
gain about the Saturday Detention Supervisor position is whether that position
is included in the bargaining unit represented by the Association.  If the po-
sition is included in the unit then it is likely that the School Committee was
obligated to engage in mid-term bargaining about the wages, hours and working
conditions of the Supervisor when it created the position.  See, eg., City of
Bangor v. AFSCME, Council 74, 449 A.2d 1129, 1134-1135 (Me. 1982); MSEA v.
State of Maine, MLRB No. 82-05 at 5 - 14 (Dec. 22, 1982); Lewiston Teachers
Association v. Lewiston School Committee, MLRB No. 80-45 at 5 - 8 (Aug. 11,
1980).  If, on the other hand, the position is not included in the bargaining
unit, then the School Committee is under no obligation to bargain with the
Association about the position.  See, e.g., Reynolds Metals Co., 219 NLRB 624,
625 (1975); Young and Hay Transportation Co., 214 NLRB 252, 253 (1974),
affirmed, 522 F.2d 562, 566 (8th Cir. 1975).

     The Association urges that the position is included in the unit because a
certified professional employee holds the position, because the position
performs such academic functions as tutoring and counseling students, and
because discipline is a necessary and integral part of teaching.  The School
Committee insists on the other hand that the position is not included in the
bargaining unit because the Supervisor's position is not a professional
position and because the Saturday detention program is not part of the regular
school year program, pointing in particular to Paragraph B(1)(3) of the
parties' recognition clause, which excludes from the unit employees "employed
in a capacity or in a program not usually or typically associated with the
regular school year programs or after school 'extra-curricular' programs,
while acting as such."  In short, this case boils down to a typical bargaining
unit dispute which the Act clearly contemplates will be decided in the first
instance by a Labor Relations Board hearing examiner, not by the full Board
itself.  26 M.R.S.A. Section 966(1) ("In the event of a dispute . . . as to
whether a supervisory or other position is included in the bargaining unit,
the executive director or his designee shall make the determination").

     While we are of course authorized to review hearing examiner unit rulings,
the extent of our authority is only to "either affirm or modify the ruling or
determination," not to make the ruling ourselves in the absence of a hearing
examiner's determination.  26 M.R.S.A. Section 968(4).  We would act contrary

these clear statutory directives by making a bargaining unit determination in
this prohibited practices proceeding.  Since, in the absence of a ruling by a
hearing examiner, it is not clear whether the Supervisor position is included
in the bargaining unit, we cannot find that the School Committee is obligated
to bargain about the Supervisor's position.[fn]1  The Association's complaint
therefore must be dismissed.

     Our decision of course does not preclude the Association from seeking
pursuant to 26 M.R.S.A. Section 966(3) to have the position included in the
professional employees bargaining unit if the parties are unable to resolve
the matter in their current negotiations.  As we have noted, if the position
is properly included in the bargaining unit then the School Committee is of
course required by 26 M.R.S.A. Section 965(1) to bargain about the wages,
hours and working conditions for the position.
     On the basis of the foregoing findings of fact and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. Section 968(5)(C), it is ORDERED:

          That the Lewiston Teachers Association's prohibited
          practice complaint filed in this proceeding on Sep-
          tember 27, 1982 is dismissed.

1/  There is no question that David Shea, the Saturday Detention Supervisor,
    is included in the bargaining unit as a certified professional teacher,
    but this does not mean that his position as Saturday Detention Supervisor
    is automatically included in the unit.  An employee holding two positions
    with the same employer may be included in a bargaining unit for purposes
    of one of the positions even though the second position is excluded from
    the unit.  See, e.g., NLRB v. Georgia, Florida, Alabama Transportation
    Co., 566 F.2d 520 (5th Cir. 1978).  The fact that Shea is a unit
    employee therefore would be relevant but not conclusive in determining
    whether the Supervisor position should be included in the certified
    professional employees unit.

Dated at Augusta, Maine this 14th day of January, 1983.

                                       MAINE LABOR RELATIONS BOARD

                                       Edward H. Keith

                                       Don R. Ziegenbein
                                       Employer Representative

                                       Harold S. Noddin
                                       Employee Representative

     The parties are advised of their right, pursuant to 26 M.R.S.A. Section
968(5)(F), to seek a review by the Superior Court of this decision by filing a
complaint in accordance with Rule 80-B of the Rules of Civil Procedure within
15 days after receipt of this decision.