Affirmed, Case No. 14-UDA-01

STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 14-UD-01
Issued: March 20, 2014

CENTRAL LINCOLN COUNTY
EDUCATIONAL SPECIALISTS
ASSOCIATION/MEA/NEA
Petitioner,

and

AOS #93
Respondent

 

UNIT DETERMINATION REPORT

 

	  
	 PROCEDURAL HISTORY

     This unit determination proceeding was initiated on 
July 17, 2013, when Joan M. Morin, a UniServ Director for the
Maine Education Association/NEA, filed a Petition for Unit
Determination and Bargaining Agent Election with the Maine Labor
Relations Board ("MLRB," or "Board") pursuant to 20-A M.R.S. 
§ 1464-A regarding creation of a unit for specialists, including
the speech therapists, social workers, and occupational
therapists who serve the schools of Bristol, South Bristol,
Jefferson, Nobleboro, and Great Salt Bay, and named Alternative
Organizational Structure #93 ("AOS #93," or "the AOS") as the
public employer.  On July 24, 2013, the AOS #93 Board of
Directors objected to the unit determination request and asked
that the petition be dismissed, asserting that AOS #93 was not
the specialists' employer.  Rather, it asserted, the individual
school committees of Great Salt Bay, Jefferson, Nobleboro,
Bristol, and South Bristol employ the specialists and are,
therefore, the public employers.  Additionally, AOS #93 asserted
that five of the positions the petitioner sought to include were

[end of page 1]

already included in collective bargaining agreements ("CBA")
between one of the member schools and another bargaining agent. 
AOS #93 argued that the petitioner was precluded by the contract
bar rule, Board Rule Chapter 11(6)(1), from filing a petition in
the window period more than 90 days and less than 60 days prior
to the expiration date of the contracts.  
     Hearing notices were issued on September 10, 2013, and
posted for the information of the affected employees.  Revised
notices were issued on September 30, 2013, and November 4, 2013,
due to hearing postponements.  A prehearing conference took place
on October 16, 2013, where both parties presented their proposed
witness lists, exhibits, and stipulations.  
     The hearing was scheduled for November 12, 2013.  The MEA/
NEA was represented by Joan M. Morin, UniServ Director.  AOS #93
was represented by S. Campbell Badger, Esq.  After the parties
made their opening statements on the record, the hearing officer,
taking into account the exhibits and stipulations in the record,
all pertinent statutes and Board Rules, as well as the parties'
written and oral arguments, granted AOS #93's request to dismiss
the petition based on the contract bar rule and the petitioner's
admission that 20-A M.R.S. § 1464-A(2) was not applicable because
the specialists' positions had not been transferred from the
school administrative units to AOS #93.  AOS #93 had first
submitted its request to dismiss the petition in response to the
petition being filed, and renewed its request in an amended form
on November 4, 2013.  

                          JURISDICTION

     Jurisdiction of the executive director or his designee to
hear this matter and make determinations lies in 26 M.R.S. 
§ 966(1). 

[page 2]
 

                          STIPULATIONS
                                
     The following were agreed to by the parties and are adopted
herein:
1.  The Employer asserts that the employees holding the title of
Social Workers, Occupational Therapists and one Speech Therapist
are employed by the Great Salt Bay School Committee. 
2.  The Petitioner asserts that the Educational Specialists are
public employees.
3.  No employees of AOS #93 are currently represented by a
bargaining agent.
4.  AOS #93 includes the school administrative units of
Nobleboro, Jefferson, Great Salt Bay, Bristol and South Bristol.
5.  There are a total of nine bargaining units of teachers and
educational support employees who are represented by bargaining
agents in the school administrative units of Nobleboro,
Jefferson, Great Salt Bay, Bristol and South Bristol.
6.  The Superintendent of AOS #93 participates in collective
bargaining on behalf of the public employers in all bargaining
units in the school administrative units of Nobleboro, Jefferson,
Great Salt Bay, Bristol and South Bristol.
7.  The AOS #93 Superintendent refused to enter into a Memorandum
of Agreement with the five teachers' Association Bargaining units
which outlined the inclusion of the Educational Specialist[s]
into the Damariscotta Teachers' contract, which included an
agreement to negotiate a reduction-in-force provision.
8.  Speech Therapist Patricia Pratt provides speech therapy to
students at Bristol School and South Bristol School and receives
all compensation and benefits through the Bristol collective
bargaining agreement.

                            EXHIBITS
                                
     A-1.  Bristol collective bargaining agreement 2013-2014
     A-2.  South Bristol collective bargaining agreement
2011-2014

[end of page 3]

     A-4.  Nobleboro collective bargaining agreement 2012-2014
     A-5.  Jefferson collective bargaining agreement 2011-2014
     A-7.  2011-2012 teacher seniority list from Great Salt Bay,
Jefferson, Nobleboro, Bristol and South Bristol
     A-8.  2012-2013 teacher seniority list for Great Salt Bay,
Jefferson, Nobleboro, Bristol and South Bristol
     A-9.  April 14, 2010, Jennifer Ribeiro letter to Patty
Pratt, reduction in position
     A-10.  April 16, 2010, e-mail from Patty Pratt to Joan Morin
re:  employment history
     A-11.  April 24, 2011, letter of intent from Patty Pratt to
Peter Gallace
     A-12.  May 19, 2011, letter of position refusal from Peter
Gallace to Patty Pratt
     A-14.  September 2, 2011, Patty Pratt notification of
reduced annual salary rate
     A-15.  September 11, 2011, letter of expectation from Patty
Pratt to Steve Bailey [Objection by Respondent; ruling deferred.] 
     A-16.  April 10, 2013, e-mail reply Steve Bailey to Joan
Morin re:  specialists within the AOS [Objection by Respondent;
ruling deferred.]
     A-18.  Ann Griffin 2009-2013 salary rate notification, pay
stubs, employment contracts
     A-19.  Bethany Hancock 2009-2013 salary rate notification,
pay stubs, employment contracts
     A-20.  Marie Paschke 2009-2013 salary rate notification, pay
stubs, employment contracts
     A-21.  Rebecca Cannon 2009-2013 salary rate information, pay
stubs, employment contracts
     A-22.  Kristen Travers-Whitmore 2009-2013 salary rate
notification, pay stubs, employment contracts     

[end of page 4]

     A-23.  Elaine Tibbetts 2009-2013 salary rate notification,
pay stubs, employment contracts
     A-24.  Susan Buckland 2009-2013 salary rate notification,
pay stubs, employment contracts
     A-25.  Patricia Pratt 2009-2013 salary rate notification,
pay stubs, employment contract
     A-26.  January 13, 2013, Association(s) draft specialist
memorandum of agreement [Objection by Respondent; ruling
deferred.]
     A-27.  Maine Statute Title 20-A, § 1464-A
     E-1.  Alternative organizational structure statute 20-A
M.R.S. §1461-B; Plan to Reorganize as an Alternative
Organiza-tional Structure (AOS); Certificate of Organization of
Alternative Organizational Structure No. 93; Interlocal Agreement
for Alternative Organizational Structure
     E-2. Great Salt Bay Teacher Contract 2010-2013 and 2013-2014
contract extension
     E-12. Board minutes, including:  Bristol School Board,
Wednesday, October 2, 2013; Jefferson Village School Board, 
Tuesday, September 11, 2011; Jefferson Village School Board, May
7, 2012; Jefferson Village School Board, July 19, 2011; Great
Salt Bay Community School Board, August 8, 2012; Great Salt Bay
Community School Board, June 13, 2012
     E-13.  Central Lincoln County School System, AOS #93
2013-2014 Central Office Budget
     E-14.  Excerpts from the Agreement between the Damariscotta
Area Teachers' Association and the Great Salt Bay Community
School District Board of Trustees, 2004-2007
     E-15.  Excerpts from the Agreement between the Damariscotta
Area Teachers' Association and the Great Salt Bay Community
School District Board of Trustees, 2007-2010
     E-16.  Summary of Board Exhibits.

[end of page 5]

                        FINDINGS OF FACT
                                
1.   Administrative Organizational Structure ("AOS") #93 was
     adopted and approved pursuant to 20-A M.R.S. § 1461-B.  
     Its stated purpose is to share among member school units a
     number of functions, including system administration,
     special education administration, administration of trans
     portation, administration of business functions, core
     curriculum and procedures for standardized testing and
     assessment, school policies and calendar, and adoption of a
     plan for consistent collective bargaining agreements.
2.   These functions are carried out by a group of AOS employees,
     including the Superintendent, Special Services Director,
     Curriculum Coordinator, Business Manager, the Transportation
     Director, and their support staff, all of whom are under the
     direction and control of the AOS #93 School Committee and
     who serve all of the member school units, including Bristol,
     Great Salt Bay, Nobleboro, South Bristol, and Jefferson.
3.   The AOS #93 budget is supported by revenue from its
     member school units, including the school committees of
     Bristol, Great Salt Bay, Nobleboro, South Bristol, and
     Jefferson.  For the 2013-14 school year, this revenue
     includes $118,232.00 from Bristol, $167,948.00 from Great
     Salt Bay, $76,230.00 from Nobleboro, $37,295.00 from South
     Bristol, and $120,145.00 from Jefferson.
4.   Section 5 of the Interlocal Agreement for Alternative
     Organizational Structure adopted by AOS #93 sets forth the
     responsibilities of the Member School Units to operate their
     schools, in relevant part, as follows:

        Member School Unit         Grades
     Bremen              Tuition Grades 9-12 (Choice)
     Bristol             Operates Grades K-8; tuitions
                         Grades 9-12 (Choice)
     Damariscotta        Tuitions Grades 9-12
     Jefferson           Operates Grades K-8; tuitions 
                         Grades 9-12 (Choice)
     Newcastle           Tuitions Grades 9-12 (Choice)
     Nobleboro           Operates Grades K-8; tuitions 
                         Grades 9-12 (Choice)
     South Bristol       Operates Grades K-8; tuitions 
                         Grades 9-12 (Choice)
     Great Salt Bay CSD  Operates Grades K-8 for Bremen,
                         Damariscotta, and Newcastle; may 
                         accept other tuition payments

[end of page 6]

        Section 10 of the Interlocal Agreement provides: 

               (i)  To the extent that the AOS receives an
                    allocation for debt service, that allocation
                    shall be  reassigned to the Member School
                    Units responsible for those debt service
                    costs;
               (ii) To the extent that the AOS receives an
                    allocation for gifted and talented
                    expenditures, that allocation shall be
                    reassigned to the Member School Units in
                    proportion to their respective gifted and
                    talented expenditures in the year two years
                    prior to the year of allocation (hereinafter
                    the "base year");
              (iii) To the extent that the AOS receives an
                    allocation for career and technical education
                    expenditures, that allocation shall be
                    reassigned to the Member School Units in
                    proportion to their respective career and
                    technical education expenditures in the base
                    year;
               (iv) To the extent that the AOS receives an
                    allocation for bus purchases, that allocation
                    shall be reassigned to the Member School
                    Units responsible for those bus purchase
                    costs;
               (v)  To the extent that the AOS receives an
                    allocation for special education, that
                    allocation shall be reassigned to the Member
                    School Units in proportion to their
                    respective special education expenditures in
                    the base year;
               (vi) To the extent that the AOS receives an
                    allocation for transportation, that
                    allocation shall be reassigned to the Member
                    School Units in proportion to their
                    respective transportation expenditures in the
                    base year;
              (vii) To the extent that the AOS receives an
                    allocation for an EK-8 small school
                    adjustment or 9-12 small school adjustment,
                    that allocation shall be reassigned to the
                    Member School Units on the basis of the
                    number of small schools eligible for that
                    adjustment located in each Member School Unit
                    in the base year;
             (viii) To the extent that the AOS receives an
                    allocation for EK-8 disadvantaged students,
                    that allocation shall be reassigned to the
                    Member School Units in proportion to their
                    respective number of students eligible for
                    that allocation in the base year;
          	   (ix) To the extent that the AOS receives an
                    allocation for 9-12 disadvantaged students,
                    that allocation shall be reassigned to the
                    Member School Units in proportion to their
                    respective number of students eligible for
                    that allocation in the base year;
               (x)  To the extent that the AOS receives an
                    allocation for K-8 limited English
                    proficiency students, that allocation shall
                    be reassigned to the Member School Units in
                    proportion to their respective number of
                    students eligible for that allocation in the
                    base year;
              (xi)  To the extent that the AOS receives an
                    allocation for 9-12 limited English
                    proficiency students, that allocation shall
                    be reassigned to the Member School Units in
                    proportion to their respective number of
                    students eligible for that allocation in the
                    base year;
              (xii) The remaining balance of the AOS' total
                    allocation, after subtracting the amounts
                    reassigned to Member School Units under
                    subparagraph (i) through (xi), shall be
                    reassigned to the Member School Units in
                    proportion to their respective average number
                    of pupils on April 1 and October 1 of the
                    preceding calendar year;
             (xiii) Any State subsidy received by the AOS which
                    is attributable to a special education
                    adjustment under 20-A M.R.S.A. § 15689(1-A)
                    shall be distributed to the Member School
                    Unit eligible for that adjustment or to the
                    Member School Unit of which the municipality
                    eligible for the adjustment is a member;

[end of page 8]

              (xiv) Any State subsidy received by the AOS which
                    is attributable to a debt service adjustment
                    under 20-A M.R.S.A. § 15689(2) shall be
                    distributed to the Member School Unit
                    eligible for that adjustment or to the Member
                    School Unit of which the municipality
                    eligible for the adjustment is a member;
               (xv) The remaining State subsidy received by the
                    AOS, after any distributions required by
                    subparagraphs (xiii) and (xiv), shall be
                    distributed to the Member School Units in
                    proportion to the amount, if any, by which
                    the total allocation of each Member School
                    Unit as reassigned in accordance with
                    subparagraphs (i) through (xii) exceeds the
                    property fiscal capacity of that Member
                    School Unit multiplied by the full value
                    education mill rate for the year of
                    allocation.
     5.   There is a line item for a Special Services Director in 
          the AOS #93 2013-14 school year budget (Exhibit E-13). 
          However, there is no money allocated for speech
          therapists, social workers, or occupational therapists
          in the AOS #93 2013-14 budget. 
     6.   As of the date the petition was filed (July 17, 2013),
          seven of the eight positions the petitioner sought to
          be included in the proposed bargaining unit were
          already covered by one or more collective bargaining
          agreements with the member school units.[fn]1  
     7.   Susan Buckland, a speech therapist, is covered under
          the Great Salt Bay CBA, which will expire on 8/31/14. 
          She received a salary rate notification pursuant to
          that CBA for the 2013-2014 school year.  She is listed
          on the 2012-2013 Great Salt Bay specialty subject
          seniority list.
     8.   Rebecca Cannon, a social worker, is covered under Great
          Salt Bay CBA that will expire on 8/31/2014.  She
          received a salary rate notification pursuant to that
          CBA for the 2013-2014 school year.  She is listed on
          the 2012-2013 Great Salt Bay specialty subject
          seniority list.

     1 The petitioner does not dispute this fact, and stated in
her petition that "[s]ome of the employees are currently
represented and/or covered under an existing bargaining unit and
contract from one of the AOS towns."

[end of page 9]

     9.   Marie Paschke, a social worker, is covered by a CBA
          with the School Committee of Great Salt Bay that will
          expire on 8/31/14.  She is listed on the 2012-2013
          Great Salt Bay specialty subject seniority list.
     10.  Elaine Tibbets, a speech pathologist, is covered by
          CBAs with the School Committees of Jefferson Village
          School and Nobleboro Central School that will expire on
          8/31/15.  She is listed on the Jefferson 2011-2012 and
          2012-2013 and seniority lists and the Nobleboro
          2012-2013 specialty subject seniority list.
     11.  Kristen Travers-Whitmore, a social worker, is covered
          by CBAs with the School Committees of the Jefferson
          Village School and the Bristol Consolidated School that
          will expire on 8/31/15.  She is listed on the 2011-2012
          and 2012-2013 Jefferson seniority lists.
     12.  Patricia Pratt-Schaible, a speech therapist, is covered
          by a CBA with the School Committee of the Bristol
          Consolidated School that will expire on August 31,
          2014.  She is listed on the 2011-2012 Bristol seniority
          list.
     13.  Ann Griffin-Carey, an occupational therapist, is
          covered by a CBA with the School Committee of Great
          Salt Bay that will expire on August 31, 2014.
     14.  Bethany Hancock, an occupational therapist, is covered
          by a CBA with the School Committee of Great Salt Bay
          that will expire on August 31, 2014. 
 
                           DISCUSSION
                                
     There are two issues that need to be resolved in this case. 
The first is whether AOS #93 is the employer of the specialists
the petitioner seeks to include in the proposed bargaining unit;
and the second is whether the specialists were precluded from
filing a bargaining unit petition pursuant to the contract bar
provisions of 26 M.R.S. § 967(2) and MLRB Rule 11(6)(1) because
they were already included in collective bargaining agreements
between themselves and one or more of the member school units. 
If AOS #93 is found not to be the employer of the specialists, 

[end of page 10]

or if the specialists were precluded from filing a unit
determination/bargaining agent election petition because of the
contract bar rule, the result would be dismissal of the petition
for lack of jurisdiction.
 
  1.   Employment of the specialists pursuant to 20-A M.R.S. 
       § 1464-A. 
   The petitioner bases its contention that AOS #93 is the
employer of the specialists on a portion of the language of 20-A 
M.R.S. § 1464-A(2), which states, in relevant part:

          Teachers and other school employees who are employed by
          the alternative organizational structure to provide
          consolidated services must be removed from the existing
          bargaining units of teachers and other employees who
          are employed by each member school unit and merged into
          units of alternative organizational structure
          employees.  Merger into alternative organizational
          structure-wide bargaining units is not subject to
          approval or disapproval of employees.  
          
However, relying solely on this language ignores the preceding 
paragraph of the law, § 1464-A(1), which states:  

		  On and after the operational date of an alternative 
          organizational structure, teachers and other employees 
          whose positions are transferred from a school administrative 
          unit or school union to the alternative organizational
          structure and were included in a bargaining unit represented 
          by a bargaining agent continue to be included in the same 
          bargaining unit and represented by the same bargaining 
          agent pending completion of the bargaining agent and 
          bargaining unit merger procedures and bargaining for initial 
          alternative structure collective bargaining agreements 
          covering alternative organizational structure employees, 
          as described in this section.  After employees become 
          employees of the alternative organizational structure, 
          the alternative organizational structure has the 
          obligations, duties, liabilities and rights and rights of a
          public employer pursuant to Title 26, chapter 9-A with 
          respect to those employees.  

[end of page 11]

(Emphasis added.)  By overlooking § 1464-A(1), the petitioner has
ignored the prerequisite of the law it is asking the MLRB to
enforce--that the employees' positions must have been transferred
from a school administrative unit or school union to the
alternative organizational structure.  There is no evidence on
the record that such a transfer took place here.  At oral
argument, the petitioner admitted as much in response to AOS
#93's argument that no transfer took place:

     [AOS #93] raised the question about the transferred
     employees under 1464, and that the district didn't transfer
     the employees.  And [AOS #93] is correct about that, and
     [its] comment was that had they transferred the employees
     then 1464(2) would apply.  Well, the only point [MEA] wanted
     to make on that was they didn't transfer the employees
     doesn't mean they shouldn't have transferred the employees,
     that they were AOS employees and they should have been
     transferred, and the interlocal agreement actually says that
     they can amend their agreement should they find such things
     have happened.  Many RSU's--many AOS's have amended their
     agreements because they've realized they didn't do it
     correctly the first time, so the AOS does have the ability
     to amend their agreement should it be necessary to do so. 
     And [AOS #93] is correct that those transferred--it does say
     transferred employees; however, they didn't transfer the
     employees doesn't mean they shouldn't have transferred the
     employees, and the point is they should have.

     An assertion that the positions should have been transferred
does not meet the requirement of § 1464-A(1) that they were, in
fact, transferred.[fn]2   What did occur is that the seven specialists 
entered into CBAs with the individual school administrative units 
rather than becoming employees of the AOS.  The Petitioner does 
not dispute this fact.  Moreover, that is precisely in keeping 
with the AOS #93 Interlocal Agreement, which assigns the

     2 Relying on what should have been done rather than what
actually occurred is similar to considering the speculative
nature of an employee's future duties rather than the employee's
actual duties, which was found to be unacceptable in Lincoln
Sanitary District and Teamsters Local 340, MLRB No. 92-UC-02
(Nov. 17, 1992) and a host of other cases.


[end of page 12]


responsibility of educating students to the member school units,
"within each of their respective jurisdictions."  The AOS #93
Interlocal Agreement also sets out the method by which State
subsidies and other monies received by the AOS are to be
distributed to the member school units.  The petitioner's
argument that AOS #93 is the employer of these specialists
pursuant to § 1464-A, therefore, is not supported by the facts of
the case.  It is apparent from the evidence in the record and the
admission made in the opening argument on behalf of the 
petitioner, and I so find, that the individual school administra- 
tive units are the employers of the specialists.  The petition is 
dismissed because it incorrectly names AOS #93 as the employer. 
   
2.  The contract bar rule and the specialists' contracts.
  The contract bar rule of the Municipal Public Employees Labor   
  Relations Law, 26 M.R.S. § 967(2), states, in relevant part:

               Where there is a valid collective bargaining 
          Agreement in effect, no question concerning unit or
          representation may be raised except during the period 
          not more than 90 nor less than 60 days prior to the
          expiration date of the  agreement. 

As explained in MSAD #16 Support Staff Assoc/MEA/NEA and MSAD #16
Board of Directors, MLRB No. 00-UD-04 at 2 (April 26, 2000), the
contract bar rule

     is based on a balancing of competing objectives at the 
     heart of both the National Labor Relations Act and Maine's
     collective bargaining laws: protecting the employees' 
     right to select their own representatives and protecting  
     the industrial stability maintained through a collective
     bargaining agreement.
  
Citing Appalachian Shale Products Co., 121 NLRB 1160, 1161
(1958).   The first MLRB case interpreting Maine's contract bar
provision was the election appeal case Town of Jay and Teamsters
Local Union No. 48, No. 78-A-11, 1 NPER 20-10015 (MLRB May 1979). 

[end of page 13]

In that case, the Board adopted many of the principles of the
NLRB regarding the NLRB's contract bar doctrine.  The Board
explained the purpose of Maine's contract bar provision as
follows:

     The rationale underlying the "contract bar" rule found 
     in Section 967(2) is that the rule fosters stability by
     preserving as much time as possible during the life of
     an agreement free from the disruption caused by 
     organizational activities, while providing a definite 
     guide to employees and outside unions as to the 
     appropriate time to organize for and seek changes in
     representatives.  See Deluxe Metal Furniture Co., 
     121 NLRB 995, 999-1000 (1958).

Town of Jay at 3.  

     In the present case, seven of the specialists are covered by
contracts that won't expire until August 31, 2014, or August 31,
2015.  Therefore, it is too early for the petitioner to file a
unit determination and bargaining agent election petition because
it is outside the time limits allowed by the contract bar rule. 
For that reason, the petition is untimely and it is dismissed for
lack of jurisdiction. 

[end of page 14]


                             ORDER
                                
     On the basis of the foregoing findings of fact and
discussion, and pursuant to the powers granted by 26 M.R.S. 
§ 966, it is ORDERED:

     The Petition for Unit Determination and Bargaining 
     Agent Election is dismissed because the specialists
     named in the petition are not employees of AOS #93,
     and, if they were, they would be barred from filing
     the petition by the contract bar rule, 26 M.R.S. 
     § 967(2).

Dated at Augusta, Maine, this 20th day of March, 2014.

                                   MAINE LABOR RELATIONS BOARD


                              
                                   ___________________________
                                   Gwendolyn D. Thomas
                                   Hearing Examiner