STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 17-UD-07
Issued: June 16, 2017

MAINE EDUCATION ASSOCIATION,
Petitioner,

and

MAINE SCHOOL OF SCIENCE AND MATHEMATICS,
Public Employer.

 

UNIT DETERMINATION REPORT

 

	      PROCEDURAL HISTORY

     This unit determination proceeding was initiated on 
February 24, 2017, when Ms. Louella Willey, UniServ Director 
for the Maine Education Association ("MEA"), filed a petition for 
unit determination with the Maine Labor Relations Board
("Board") requesting the creation of a bargaining unit,
consisting of "all full and part- time instructors presently
employed at the Maine School of Science and Math, located at 95 
High Street, Limestone, ME 04750.  Currently there are 18 
employed instructors."  The petition explicitly excluded 
custodians, bus drivers, residential employees, administrative 
assistants, and any administrative positions from the proposed 
bargaining unit.  The petition was filed pursuant to § 966(1) 
and (2) of the Municipal Public Employees Labor Relations Law 
("Act"),[fn]1 26 M.R.S. § 961, et seq.


[fn]1  An earlier representation proceeding involving MSSM was processed by the 
Board pursuant to the Municipal Public Employees Labor Relations Law, 26
M.R.S. § 961, et seq., and the controlling statutory provision was not at 
issue here.  The hearing examiner notes that the proceeding could have been


[end of page 1]


     The Maine School of Science and Mathematics ("MSSM") filed 
a timely response to the petition on March 13, 2017.	MSSM 
objected to the proposed unit on the grounds that, although 
proposing a bargaining unit comprised of "all full and part-time 
instructors," the MEA was, in fact, excluding seven Adjunct 
Instructors from the unit sought through this proceeding.  MSSM 
asserted that all of the non-supervisory faculty at MSSM should 
be included in the bargaining unit.  On March 20, 2017, MEA
filed an amended petition seeking a unit determination of a 
bargaining unit of MSSM employees, including "all full and/or 
half time instructors (12 class contact hours or more)" employed
at MSSM and expressly excluding Adjunct Instructors, among other 
classifications.[fn]2  MSSM filed a response to the amended petition 
on April 3, 2017, essentially renewing and incorporating its
objection to the original petition.

     The hearing examiner convened a telephone conference with 
the party representatives on March 23.	The parties agreed that 
the position of Instructor/Dean of the Faculty will not be 
included in the bargaining unit.  In an effort to narrow 
questions of relevant facts in dispute, the parties were asked 
to file and exchange offers of proof no later than April 21, 
with a focus on establishing whether the Adjunct Instructors 
share a clear and identifiable community of interest with the


brought pursuant to the parallel provision of the State Employees Labor 
Relations Act, 26 M.R.S. §979-E(l) and (2).  The representation process is 
identical under both Acts; therefore, the hearing examiner defers judgment as 
to which Act applies since it was not at issue here.

[fn]2  During the telephone conference with the parties on March 23, MSSM correctly 
pointed out that the Board's Rules do not contemplate an amended petition,
once the response to a petition has been filed.	 Since neither the Act nor
the Rules precludes withdrawing a petition and filing a new one for essen-
tially the same bargaining unit, the amended petition was allowed.  MSSM 
requested the opportunity to file a response and did so.


[end of page 2]


full- and 2/3- time[fn]3 Instructors.  The parties agreed that a 
follow-up telephone conference would be held on April 28 and the 
evidentiary hearing would be held on May 19.  The offers of
proof were timely filed, with MSSM including 9 exhibits with its 
offer and MEA moving for a unit determination based on the 
pleadings.  During the conference call of April 28, the parties' 
submissions were reviewed, including documents relating to the 
2/3-time Instructor's health insurance coverage as a dependent
of a full-time Instructor, and points of consensus as well as 
those in dispute were identified.  The hearing examiner orally 
denied MEA's motion on the grounds that § 966(2) of the Act 
requires the hearing officer to assess whether the requisite 
community of interest exists among the employee classifications 
involved in determining any bargaining unit.  The hearing 
examiner committed to drafting tentative findings of fact for 
review, which would include consideration of additional
documents the parties agreed to submit.	The draft findings were 
sent to the parties on May 12, after which the parties
conferred.  The parties were unable to agree on facts relevant 
to the "desires of affected employees" community-of-interest 
factor, and after discussing the matter with the hearing 
examiner, the parties agreed that the factor would not be 
considered in this unit determination.  The parties reached a 
full stipulation of facts on May 19, 2017, subject to this 
caveat.

     The parties have reviewed the exhibits each intended to 
offer and agreed that the following are admitted into evidence:


[fn]3  Although the petition seeks inclusion of half-time Instructors in the 
bargaining unit, the parties clarified that the only part time position at 
issue, other than the Adjunct Instructors, is a 2/3-time Chemistry 
Instructor.


[end of page 3]


     MEA Exhibit 1,   MSSM Bylaws, Article I

     MEA Exhibit 2,   Current Instructor teaching contact hours, 
                      provided May 1, 2017

     MEA Exhibit 3,   Offer of Employment to 2/3 Chemistry
                      Instructor [redacted], June 6, 2016, with
                      3 Year Probationary Instructor Contract 
                      For Chemistry Instructor (2/3), 
                      08/01/2016-07/31/2017 [redacted], p. 1

     MEA Exhibit 4,   E-Mail message from Dean of Faculty to
                      MSSM Faculty, May 2, 2017, soliciting 
                      Nominations of full-time faculty member 
                      for election as Faculty Representative to 
                      the MSSM Board for School Fiscal Year
                      2017-2018

     MSSM Exhibit 1,  Current MSSM adjunct faculty members with 
                      date of hire and number of classes taught 
                      in 2016-2017 academic year

     MSSM Exhibit 2,  MSSM Faculty Handbook 2016-2017

     MSSM Exhibit 3,  Yearly Instructor Contract, Fiscal Year
                      2016-2017, for Full-Time Chemistry 
                      Instructor/Chemical Hygiene Officer

     MSSM Exhibit 4,  2 Year Probationary Instructor Contract,
                      Fiscal Year 2016-2017, for Full-Time 
                      Mathematics Instructor

     MSSM Exhibit 5,  2 Year Probationary Instructor Contract,
                      Fiscal Year 2016-2017, for Full-Time 
                      Humanities Instructor

     MSSM Exhibit 6,  2 Year Probationary Instructor Contract,
                      Fiscal Year 2016 2017, for Full-Time 
                      Science Instructor

     MSSM Exhibit 7,  Yearly Instructor Contract, Fiscal Year
                      2016-2017, for Part-Time Psychology 
                      Instructor

     MSSM Exhibit 8,  Yearly Instructor Contract, Fiscal Year
                      2016-2017, for Part-Time Chinese 
                      Instructor

     MSSM Exhibit 9,  2 Year Probationary Instructor Contract,
                      Fiscal Year 2016 2017, for Part-Time 
                      Health Instructor


[end of page 4]


     MSSM Exhibit 10,  3 Year Probationary Instructor Contract
                       for Chemistry Instructor (2/3), 
                       08/01/2016 07/31/2017

     MSSM Exhibit 11,  State of Maine, Group Health Insurance
                       Application for full-time Instructor, 
                       opting for dependent coverage for his 
                       spouse who is the 2/3 time Chemistry 
                       Instructor [personal information 
                       redacted]

     MSSM Exhibit 12,  Adjunct Instructor Teaching Schedule,
                       School Fiscal Years 2014 2015, 2015-2016,
                       and 2016-2017

The parties filed simultaneous main briefs on May 26, 2017.
MSSM filed a reply brief on May 30, and MEA opted not to file a 
reply brief.  The parties' briefs have been considered in 
reaching the instant decision.


                          JURISDICTION

     The petitioner, Maine Education Association, is a public 
employee organization within the contemplation of § 962(2) of
the Act.  The employer, Maine School of Science and Mathematics, 
is an agency of the State of Maine created by statute and is a 
public employer within the scope of § 962(7) (B).  The juris-
diction of the executive director to hear this matter and to 
make a determination lies in 26 M.R.S. § 966(1) and (2).


                          STIPULATIONS

     The parties stipulated to the following facts:

1.  The Maine School of Science and Mathematics	("MSSM") was 
chartered by the Legislature as "an instrumentality and agency 
of the State" to provide "certain high-achieving high school 
students with a challenging educational experience."  20-A  
M. R.S. § 8201.


[end of page 5]

 
2.  MSSM is a residential high school located in Limestone.

3.  The non-supervisory instructional faculty of MSSM consists 
of employees in the following classifications:

     Instructor
     Instructor/Department Head - Humanities 
     Instructor/Department Head - Mathematics, 
     Instructor/Department Head - Science      
     Instructor/Instructor - Adjunct 
     Instructor - Adjunct
     Instructor/Resident Instructor

4.  The primary job function of all of the faculty members is to 
teach one or more academic courses, providing day-to-day 
instruction of students within the academic program of MSSM.

5.  The full-time Instructors are required to teach (i) four 
non-lab courses, with each course involving four hours of 
instruction each week, or (ii) three lab courses, with each 
course involving six hours of instruction each week.  The non-
lab courses are in mathematics or humanities and the lab courses 
are in the sciences.

6.  All but one of the Adjunct Instructors currently teach one 
or two courses per semester.  One Adjunct Instructor currently 
teaches only one semester per year.

7.  Full- time Instructors are required to have an advisory group 
of students with whom they meet as a group and one-on-one as the 
circumstances of the individual students may warrant.  Full-time 
Instructors are also required to advise at least one extra-
curricular activity or coach at least one sport.  Historically, 
Adjunct Instructors have advised extracurricular activities or 
coached sports, both for additional compensation; however, they 
are not required to do so as a condition of employment.


[end of page 6]

 
8.  Full-time Instructors are also subject to the following 
requirements as terms of their employment, unless the Instructor 
contracts for different terms.	Absent an express contractual 
agreement to the contrary, each full-time Instructor must:  (i) 
have at least three scheduled office hours per week; (ii) attend 
all faculty, team and department meetings; (iii) attend one-day 
faculty workshops three time per year--before the fall semester, 
at the end of the spring semester, and following graduation;
(iv) attend at least some activities during movein weekend; 
and (v) attend the Parent Conference Weekend in the fall semester 
and Parents' Weekend in the spring semester, both
consisting of Friday afternoon and evening and Saturday day-long 
activities, including scheduled meetings with parents.  Adjunct 
Instructors do not have mandatory office hours and, while
invited to participate in faculty meetings and workshops, they 
are not required to attend.  If particular parents desire to 
meet with an Adjunct Instructor, that Instructor will be 
required to meet with them.

9.  The MSSM Faculty Handbook, at p. 6, provides that "[e]ach 
faculty member reports directly to the Department Chair of the 
respective academic area."  There are three academic depart-
ments:  Humanities, Mathematics, and Science, each headed by a 
department chair, who all report to the Dean of the Faculty.

10.  Full- time Instructors undergo a comprehensive and on-going 
assessment process that includes self-evaluations; creating a 
portfolio of work performed; reviews of instructor benchmarks 
with the Dean of the Faculty; classroom visits by the department 
chair, Dean of the Faculty, and a peer chosen by the instructor; 
evaluations by students through questionnaires; and reports on 
professional development and advising activities.  Following the


[end of page 7]


classroom observation, the portfolio and instructor benchmarks 
are discussed in a post-observation meeting.  Historically, the 
assessment process has been intermittent and not every full-time 
Instructor has been evaluated each year.

11.  Adjunct Instructors are also evaluated by the Department 
Chair or Dean of the Faculty.  Historically, the evaluation 
process has been the same process as was utilized for full-time 
Instructors and, like the full-time Instructors, the use of the 
evaluation process for Adjunct Instructors historically has been 
intermittent.	For the 2016-2017 academic year, MSSM introduced 
a pilot program requiring full-time Instructors to compile a 
course portfolio (which includes course syllabus and plan, 
student evaluation reflection and professional development).
Adjunct Instructors do not have to compile a course portfolio.

12.  The labor relations policies for all members of the faculty 
are determined by the Board of Trustees and are contained in the 
MSSM Faculty Handbook.

13.  The full-time Instructors are compensated pursuant to a 
standardized pay scale which is based on the individual's years 
of experience and level of education.  Full- time faculty can 
earn additional compensation for taking on special or additional 
responsibilities beyond those required as conditions of their
employment.  The salaries of four full-time instructors were 
provided.  Those for three of the instructors range from $45,400 
to $57,850.  The fourth instructor's salary was $73,000.  This
particular Instructor serves as the Chemical Hygiene Officer in 
addition to his instructional duties and MSSM modified his 
contractual duties to relieve him from responsibilities 
regarding a "Student Activity/Club Advisor" and attending the 
annual senior weekend activities.


[end of page 8]


14.  The Adjunct Instructors are compensated on a "per course" 
basis, currently approximately $7,400 per year-long course 
(which is the equivalent of $3,700 per semester).  As with full-
time Instructors, Adjunct Instructors can earn additional 
compensation by taking on additional responsibility.

15.  Full- time Instructors are eligible to participate in the 
school's group health insurance.  Part- time and Adjunct 
Instructors are not eligible to participate.  The premium for
full-time Instructors who opt for individual employee coverage 
is 90% paid by MSSM and 10% paid by the employee, with different
premium splits, depending on the type of dependent coverage 
sought.

16.  Full- time Instructors earn sick leave at the rate of one 
day per month and can accumulate up to 120 days.  Part- time and 
Adjunct Instructors earn sick leave with the rate of accumula-
tion being based on the number of classes each teaches.

17.  All Instructors participate in a retirement plan through 
the Maine Public Employees Retirement System.

18.  The number of hours of classroom instruction per week by 
the Adjunct Instructors in SFY 16-17 range from a high of 7 
hours in the fall semester to a low of 3 hours by another.  The 
numerical average of hours taught by each Adjunct Instructor in 
the fall semester was 5 hours per week for the six Adjunct 
Instructors who taught that semester.	The numerical average of 
hours taught per week by seven Adjunct Instructors who are 
teaching this spring semester is 4.1 hours.

19.  Full-time, part-time, and Adjunct Instructors work under
one-year agreements, which may or may not be renewed.  Full-time 
Instructors serve a three-year probationary period.  Adjunct


[end of page 9]


Instructors are always considered probationary employees.

20.  All the Instructors, Adjunct and full-time, are provided 
notification of reasonable assurances of employment for the next 
school year during the February time frame.

21.  Full- time Instructors who work an entire school year are 
paid through 26 biweekly payments and Adjunct Instructors who 
work an entire school year receive their pay through 21 biweekly 
payments.

22.  All full-time Instructors are eligible for on-campus 
housing and participation in MSSM's meal plan.  In fact, all 
staff are eligible for the MSSM meal plan.  Although Adjunct 
Instructors typically are not eligible for on-campus housing, 
MSSM has afforded this opportunity to Adjunct Instructors in 
certain situations, such as in conjunction with additional 
Residential Life duties.

23.  MSSM's Reduction in Force policy includes the following:

     This policy applies to permanent MSSM employees who have 
     completed their probationary periods (full-time and part-
     time regularly scheduled to work 20 or more hours each 
     work week) and to employees in probationary periods who 
     have completed at least six months of their contract.

     Temporary employees, employees with time-limited 
     appointments, permanent employees scheduled less than 20 
     hours per week, and probationary employees who have 
     completed less than six months of their contract may be 
     separated without following this policy and are not 
     eligible for re-employment preference.

24.  The Chapter of Public Law that established MSSM and 
pursuant to which it operates, 20-A M.R.S. Chapter 312, provides 
that a full-time teacher at the school, elected by the faculty, 
serves as a non-voting member of the school's Board of Trustees.


[end of page 10]

 
Section 8204(1) (F) provides that "[b]oth full-time and part time 
teachers at the school may vote in the election of a faculty 
member to serve on the board of trustees and the election must 
be by secret ballot... ."  Historically, MSSM has interpreted the 
statute's reference to "full-time and part-time teachers" to 
encompass all MSSM faculty (including full-time Instructors and
Adjunct Instructors) and has afforded all of its faculty the 
opportunity to participate in the statutory, secret ballot 
election process.  The faculty member nominated for the position 
must be a full-time Instructor.

25.  The MSSM Faculty Handbook incorporates the school's strong 
preference that faculty members, both full-time Instructors and 
Adjunct Instructors, have at least a master's degree in the area 
they teach, prior teaching experience, "the ability to communi-
cate with high-ability students, and a sincere desire to work 
with and teach high school age students."

26.  The process of instruction is inherently a singular 
activity, where an instructor introduces new learning and 
imparts knowledge through lectures, through the Socratic method 
of questioning students on their comprehension of assigned 
readings, or through practical demonstrations followed by direct 
student participation in science laboratories.	Most profes-
sional contact or interchange among the faculty occurs at 
faculty, team and department meetings and workshops, during
which Instructors recommend modifications to academic policies, 
procedures, programs, and courses.  While Adjunct Instructors 
are invited to attend and participate in these meetings, only a 
few of the Adjunct Instructors attend.

27.  One of the Instructors at MSSM teaches two lab courses and 
is recognized by the school as a 2/3-time Instructor.  The 2/3-


[end of page 11]


time Instructor is required to have an advisory group and is 
expected to have regular office hours, similar to the require-
ments of the full-time Instructors.  Since the 2/3-time 
Instructor teaches two lab courses and the normal full-time load 
is three, the Instructor's compensation is 2/3 of what it would 
be if the Instructor had a full load and considering the 
person's prior teaching experience.  The 2/3 time Instructor is 
not eligible for coverage in the MSSM group health insurance 
plan by virtue of employment; however, that individual is
married to a full-time Instructor and is eligible for inclusion 
in the plan as a dependent.  The unique 2/3-time position was 
created	for the 2016-2017 academic year.

28.  All of the school's non-supervisory faculty members, 
consisting of 17 full-time Instructors, one 2/3-time Instructor, 
and 7 Adjunct Instructors, work at the MSSM campus, located in 
Limestone.

29.  None of the faculty employee classifications previously 
has been involved in collective bargaining.

30.  There is no direct evidence regarding the desires of the 
employees regarding the configuration of a bargaining unit of 
MSSM employees.

31.  Five of the seven Adjunct Instructors have worked as an 
Instructor with MSSM for over 14 years.	The remaining two 
Adjunct Instructors have worked as an Instructor with MSSM for 2 
and 5 years respectively.

32.  Employees of MSSM historically have moved between the 
Adjunct Instructor and full-time Instructor positions, including 
at least one employee moving from Adjunct Instructor to full-
time Instructor and another moving from full-time Instructor to


[end of page 12]


Adjunct Instructor.

33.  All MSSM faculty members have an email address associated 
with MSSM and MSSM regularly uses "all faculty" emails, which 
includes full-time Instructors, the 2/3-time Instructor and 
Adjunct Instructors, to communicate with its faculty members.


                           DISCUSSION

     The Maine School of Science and Mathematics is a 
residential high school that was established by the Legislature, 
with the statutory mission to provide "certain high-achieving 
high school students with a challenging educational experience." 
The non-supervisory instructional faculty of MSSM consists of 
full- and regularly-scheduled part-time educators who all teach 
one or more academic courses within the school's rigorous 
academic program.  The Board has held that regularly-scheduled 
part-time employees are public employees within the meaning of 
the Act and they may be included in the same bargaining unit
with full-time employees, provided they	all share the requisite 
community of interest.  Bargaining units comprised of both types 
of employees are not uncommon.

     When the public employer and the employee organization 
seeking to represent a group of employees are unable to agree on 
the classifications that will constitute an appropriate 
bargaining unit, either party can petition the Maine Labor 
Relations Board to determine the bargaining unit.  In the
instant case, the MEA has petitioned for the creation of a 
bargaining unit consisting of the full- and 2/3-time Instructors 
at MSSM.  MSSM has taken the position that all of the non-
supervisory academic faculty, both full-time Instructors and 
Adjunct Instructors, should be included in the bargaining unit.


[end of page 13]


     A bargaining unit is a group of employee classifications 
which will negotiate together as a group with their employer 
over their wages, hours, working conditions, and contract 
grievance arbitration provisions.  In order to constitute an 
appropriate grouping, the Act seeks to avoid internal conflicts 
of interest that could interfere with collective bargaining and 
requires that the classifications included in the bargaining 
unit share a clear and identifiable community of interest.  In
weighing whether the requisite community of interest exists, the 
hearing officer must consider the following factors:  (1) 
similarity in the kind of work performed; (2) common supervision 
and determination of labor relations policy; (3) similarity in the 
scale and manner of determining earnings; (4) similarity in
employment benefits, hours of work and other terms and conditions 
of employment; (5) similarity in the qualifications, skills and 
training of employees; (6) freqency of contact or interchange 
among the employees; (7) geographic proximity; (8) history of 
collective bargaining; (9) desires of the affected employees; (10) 
extent of union organization; and (11) the employer's organiza-
tional structure.  Chapter 11, § 22(3) of the Board' s Rules.  It is 
not unusual to have some factors weigh one way and some go the
other way, and not all factors carry equal weight in every 
situation.

     The facts relating to the following factors support a 
conclusion that all of the academic Instructors share the 
requisite community of interest.  The labor relations policies 
covering all of them are determined by the MSSM Board of 
Trustees and are memorialized in the Faculty Handbook.
Historically, all faculty members have been supervised by the 
Dean of Faculty and their respective Department Chair, using the 
same evaluation system.  In practice, the assessment process has 
been intermittent and not every full-time Instructor or Adjunct


[end of page 14]


Instructor has been evaluated each year.  All faculty members 
work under one-year agreements, which may or may not be renewed, 
and all are provided notification of reasonable assurances of 
employment for the next school year during the February time 
frame.  All faculty members are eligible for the MSSM meal plan. 
MSSM has the same qualification preference that	all faculty 
members possess at least a master's degree in the academic 
discipline and have prior teaching experience.  They all work in 
the same classrooms on the MSSM campus in Limestone.  None of 
them has had any involvement in collective bargaining as 
employees of MSSM.  Finally, the faculty comprises the core 
element of the employer's organizational structure.

     Statutory benefits, including workers compensation and 
unemployment coverage and participation in a retirement plan 
through the Maine Public Employees Retirement System, are 
required by law; therefore, such benefits do not militate either 
for inclusion in or exclusion from any bargaining unit.	There 
was no direct evidence regarding the desires of MSSM employees
 regarding bargaining unit configuration and, by agreement of the 
parties, that factor was not considered in this determination.

     The factors discussed below support the conclusion that the 
full-time Instructors do not share a clear and identifiable 
community of interest with the Adjunct Instructors.  The primary 
function of each member of the academic faculty is teaching 
students; however, the fundamental nature of the full-time 
Instructors' employment is very different from that of the 
Adjunct Instructors.  In addition to teaching a normal load of 
three lab science courses or four non-lab mathematics or 
humanities courses each semester, each full time Instructor must 
engage in several activities, as a condition of employment and


[end of page 15]

      
unless expressly excused by contract.  These latter responsibil-
ities include:	1) having an advisory group of students, with 
whom they meet as a group or one on-one, as required to meet the 
needs of the individual advisees; 2) holding at least three 
scheduled office hours per week; 3) attending all faculty,
team and department meetings, during which Instructors work 
collegially, recommending modifications to academic policies, 
procedures, programs and courses; 4) attending one-day faculty 
workshops three times per year--before the fall semester, at 
the end of the spring semester, and following graduation; 5) 
attending at least some activities during move-in weekend; 6)
attending the Parent Conference Weekend in the fall semester and 
Parents' Weekend in the spring semester, both of which consist
of Friday afternoon and evening and Saturday day-long 
activities, including scheduled meetings with parents; and 7) 
advising at least one extracurricular activity or coaching at 
least one sport.  The Adjunct Instructors' only responsibility 
as a condition of employment is to teach one or two courses per
semester.  The Adjunct Instructors may take on additional duties 
for additional compensation, but are not required to do so.

     Historically, the Adjunct Instructors have been evaluated 
by the same people using the same process as the full-time 
Instructors; however, for the 2016-2017 academic year, MSSM 
introduced a pilot program requiring full-time Instructors to 
compile a course portfolio, which includes course syllabus and 
plan, student evaluation reflection, and professional develop- 
ment activities.  Adjunct Instructors were not required to 
compile a course portfolio, resulting in a far more comprehen-
sive and time-consuming evaluation process for the full-time 
Instructors.


[end of page 16]

      
     The scale and manner of determining earnings are different 
for the two groups.  The full time Instructors are compensated 
pursuant to a standardized pay scale which is based on the 
individual's years of experience and level of education.  Sample 
annual salaries in the record range from $45,400 to $57,850.
The Adjunct Instructors are compensated on a "per course" basis 
of approximately $7,400 per year long course.	Full-time 
Instructors who work an entire school year are paid through 26 
biweekly payments and Adjunct Instructors who work an entire 
school year receive their pay through 21 biweekly payments.

     The employment benefits, hours of work, and other terms and 
conditions of employment of the two groups are also different.
The most significant employment benefit for most people is 
employer-sponsored group health insurance.  Full-time 
Instructors are eligible to participate in the school's group 
health insurance; part-time and Adjunct Instructors are not 
eligible to participate.  The premium for full- time Instructors
who opt for individual employee coverage is 90% paid by MSSM and 
10% paid by the employee, with different premium splits, 
depending on the type of dependent coverage sought.  All full-
time Instructors are eligible for on-campus housing; Adjunct 
Instructors are not unless they become eligible in certain 
situations, such as in conjunction with additional Residential 
Life duties.  Full-time Instructors earn sick leave at the rate 
of one day per month and can accumulate up to 120 days.  Part-
time and Adjunct Instructors earn sick leave with the rate of 
accumulation pro-rated, based on the number of classes each 
teaches.

     Commensurate with the wider variety and more intensive 
nature of their required professional activities, the full-time


[end of page 17]

      
Instructors work many more hours over the course of a semester 
or school year than do their Adjunct Instructor colleagues.
Full-time mathematics and humanities Instructors teach four 
courses, with each course involving four hours of instruction 
each week, and full-time science Instructors teach three lab 
courses, with each course involving six hours of instruction 
each week.  When mandatory office hours are considered, the
full-time Instructors have a minimum of 19 to 21 scheduled work 
hours each week, not including the time commitment for their 
other required activities.  In contrast, the number of hours of 
classroom instruction hours per week by the Adjunct Instructors 
is well under 10.

     Most professional contact or interchange among the faculty 
occurs at faculty, team and department meetings and workshops, 
during which Instructors recommend modifications to academic 
policies, procedures, programs and courses.  While Adjunct 
Instructors are invited to attend and participate in these 
meetings, only a few of the Adjunct Instructors attend.

     Finally, the petitioning employee organization seeks to 
represent a bargaining unit consisting only of the full-and 
2/3-time Instructors and excluding the Adjunct Instructors.

     In conclusion, the factors establishing that the full-time 
Instructors do not share a clear and identifiable community of 
interest with the Adjunct Instructors are qualitatively more 
significant that those suggesting the alternate conclusion.
While the Adjunct Instructors are important in filling out the 
school's academic curriculum, the full-time Instructors are 
intimately involved in all facets of the MSSM experience.
Serving as a full-time Instructor at MSSM is an immersive 
experience, as evidenced by the extensive list of activities


[end of page 18]


that full-time Instructors are expected to perform.  Not only do 
the Instructors teach a full course load, but they are very 
involved in th8 students' life at MSSM through their advisory 
commitment, their facilitating at least one extracurricular 
activity, and their participation in the several events
involving the students' parents.  MSSM encourages further 
student-faculty interaction by making on-campus housing 
available to the full-time faculty.  The full-time Instructors 
are also involved in peer reviews and have an active role in 
MSSM's continual improvement process.  MSSM recognizes both the 
high quality and commitment of the full-time faculty through a
salary schedule that bases annual compensation on one's level of 
experience and academic achievement.

     There are significant differences between the full-time 
Instructors and the Adjunct Instructors, particularly in the 
nature and scope of their respective professional responsi-
bilities, the minimum time each is expected to work throughout 
the academic year, their respective compensation and benefits 
(especially employer-sponsored group health insurance), and in 
the level of professional contact or interchange between members 
of the two groups.  These differences would reasonably be 
expected to result in each group pursuing different and
competing objectives in the collective bargaining process.

     The final question presented concerns the unit placement of 
the 2/3-time Instructor.  MSSM created this position in June, 
2016, for the 2016-2017 School Fiscal Year.	While the rationale 
for MSSM's treatment of this position is not found in the
record, what is apparent is that they decided to treat this 
position more like their full-time Instructors than the Adjunct 
Instructors.  The duties of the position include teaching two


[end of page 19]


chemistry lab courses, having an advisory group of students, and 
holding regular office hours.  Rather than being remunerated on 
a per-course basis, the salary for the position was based on the 
regular pay scale, considering the individual's prior public 
school and community college teaching experience, pro-rated to 
reflect that the educator would be teaching two lab courses, 
rather than the full load of three such courses.  Just as with 
the full-time Instructors, the 2/3-time Instructor did not 
receive additional compensation for the additional duties; 
performance of such duties being expected aspects of employment 
for full-time Instructors and, consequently, included in the 
normal pay scale.  The 2/3- time Instructor is paid through 26
biweekly pay periods like the full time Instructors.  The 2/3-
time Instructor was offered the opportunity to live on campus 
rent free.  The minimum work time of the 2/3-time Instructor (15 
hours per week during the academic year) is considerably greater 
than that of the Adjunct Instructors.  The individual contract 
of employment for the position is designated as "3-Year 
Probationary Instructor Contract Fiscal Year 2016-2017" and only 
the full-time Instructors serve a probationary period.  Finally, 
the petitioning employee organization seeks to represent the 
position in the bargaining unit.  For all of these reasons, I 
conclude that the 2/3-time Instructor shares the requisite 
community of interest with the full-time Instructors and will be 
included in the bargaining unit.


                            CONCLUSION

     On the basis of the foregoing findings of fact and 
discussion and by virtue of and pursuant to the provisions of 
26 M.R.S. § 966, the hearing examiner ORDERS:

     1.  The petition for unit determination brought by the 
         Maine Education Association as clarified herein is


[end of page 20]


         granted.

     2.  The Instructors employed by the Maine School of 
         Science and Mathematics, including the Instructors,          
         Instructor/Department Head - Humanities, Instructor/ 
         Department Head - Mathematics,	Instructor/Department 
         Head - Science, and 2/3-time Chemistry Instructor, 
         share a clear and identifiable community of interest, 
         as required in 26 M.R.S. § 966(2), and constitute an 
         appropriate bargaining unit within the meaning of 26
         M.R.S. § 966 (1).

     3.  Excluded from the above-described bargaining unit 
         are the Instructor/Dean of the Faculty, the Adjunct 
         Instructors, and all other employees of the Maine 
         School of Science and Mathematics.

     4.  A representation election for the Maine School of 
         Science and Mathematics Instructors bargaining unit 
         should be scheduled in the normal course of the 
         Board's business.

Dated at Augusta, Maine, this 16th day of June 2017


                                   MAINE LABOR RELATIONS BOARD



                                   /s/_________________________
                                   Marc P. Ayotte
                                   Executive Director


The parties are hereby advised of their right, pursuant to 26 M.R.S.
§ 968(4), to appeal this report 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 the issuance of this report.  See Chapter 10 and Chapter
11 § 30 of the Board Rules.


[end of page 21]