Petition dismissed in 78-A-03.

[STATE OF MAINE]                                   [MAINE LABOR RELATIONS BOARD]    
                                                   [Case No. 78-UC-01]
                                                   [Issued:  October 17, 1977]

(Mount Vernon Teachers)     )
                            )                UNIT CLARIFICATION REPORT
  and                       )
     As the result of the filing of a Petition for Unit Clarification dated July 18,
1977, filed by F. Stewart Kinley, UniServ Director for the Maine Teachers Association,
legal representative of the Lakes Teachers Association (Mount Vernon Teachers), here-
inafter referred to as "Association," a hearing was held on September 17, 1977, at
2:30 p.m. at the Mount Vernon Elementary School, Mount Vernon, as provided by Section
966, Chapter 9-A, Title 26 M.R.S.A.
     Present at the hearing for the Association were:
          Sarah C. Bean         Teacher, Mount Vernon Elementary School
                                Member, Mount Vernon Teachers Association                
          Lora Duley            Teacher, Mount Vernon Elementary School     
                                Secretary, Mount Vernon Teachers Association 
          Rebecca Livingston    Teacher, Mount Vernon Elementary School     
                                President, Mount Vernon Teachers Association 
          June Wagner           Teacher, Mount Vernon Elementary School     
                                President, Mount Vernon Teachers Association 
          F. Stewart Kinley     UniServ Director, MTA/NEA, representing Mount
                                Vernon Teachers Association.
     Present at the hearing for the Mount Vernon School Board "hereinafter referred to
as "School Board") were:
          Lynn Lindholm         Chairwoman, Mount Vernon School Board     
          Millard D. Harrison   Superintendent of Schools, School Union #42
     Also present at the hearing was Robert I. Goldman, hearing examiner, so designated
by the Executive Director of the Maine Labor Relations Board.
     This dispute concerns the proposed inclusion in the collective bargaining unit of
certain teachers who devote only part of the teaching day to the Mount Vernon Elemen-
tary School.  The teachers currently in the unit spend the whole of the teaching day
at the said school.  For convenience and coherence purposes, we shall refer to the
disputed positions as "part-time" and the teachers already in the unit as "whole-time."
This will avoid some confusion since the most recent contract encompassed "full-time"
personnel and it is claimed by the Association that some of the "part-time" teachers
qualify as "full-time" since they put in a full teaching day, part of which is in
Mount Vernon and the remainder elsewhere in the School Union or Community School Dis-
     There are currently four whole-time classroom teachers at the Mount Vernon Ele-
mentary School and these four comprise the bargaining unit with which we are concerned.
In addition to these four teachers, there are the following teaching personnel who
serve at that school:


          A Teaching Principal, who is excluded from the unit;
          A C.E.T.A. Teaching Assistant, who is not in the unit and
          is not in dispute;
          A Kindergarten Teacher.  She spends 8 a.m. to 12 noon at
          Mount Vernon and does not teach in any of the other towns.
          This is one of the disputed positions.
          A Learning Disabilities Specialist.  She puts in a full
          teaching day, but devotes approximately 40 percent of it
          to Mount Vernon, the remainder at Wayne and Rome.  This is
          one of the disputed positions.

          A Speech Therapist.  Works 4-1/2 hours per teaching day, but divides
          her teaching time equally between the C.S.D. Senior High
          School and the Mount Vernon and Wayne Elementary Schools.
          This is a disputed position.
          A Music Teacher.  She shares her full teaching day equally
          among the five elementary schools in School Union #42.
          This position is disputed.

          There is another position, a Behavioral Management Specialist,
          with whom we are not concerned in this determination.
     A short review of the school system structure and the collective bargaining
history between the parties would be useful before proceeding to the dispute itself.
The Mount Vernon Elementary School has a student population of approximately 140.
It is joined in School Union #42 in the operation of elementary schools in each of
the towns of Manchester, Readfield, Rome and Wayne.  The Manchester and Readfield
elementary schools have the largest teaching staffs with approximately 12 at each;
Rome and Mount Vernon have 4; Wayne, 4-1/2.  The Union, of course, shares the Super-
intendent with Community School District #10 and provides office and staff assistants
for his office, as well as some instructional people.
     Instructions for students at grades 7 through 12 are handled through Community
School District #10 which includes Manchester, Mount Vernon, Readfield and Wayne.
The School Union shares part of the cost or budget for the School District.
     School District #10 and the Towns of Readfield, Manchester and Mount Vernon en-
gage in collective bargaining under the Public Employees Labor Relations Act with
associations who represent their teaching employees; Wayne and Rome are as yet un-
affected by the collective bargaining process under the Act.  Since School Union #42
employes no teachers directly, it cannot be considered an employer within the mean-
ing of the Act and, consequently, an employee organization could not organize on a
School union-wide basis if it wanted to.  This last fact is at the nub of the prob-
lem in this case.
     Back in 1974 the employer executed a PELR Form 3 thereby recognizing the Lakes
Teachers Association (representing Mount Vernon) as the collective bargaining repre-
sentative for the "Mount Vernon Teachers."  There is some evidence that the interven-
ing collective bargaining agreements contained language providing coverage for only
"full-time professional personnel."  The most recent agreement, which was placed in
evidence, expired on August 31, 1977, extended recognition "for the entire group of
full-time classroom teachers employed by the Board excluding the Superintendent,
Assistant Superintendent and Principal."  In May, 1976, prior to the finalizing of the
1976-77 agreement, the parties executed a PELR Form 1, Agreement On Appropriate


Bargaining Unit, which referred to the appropriate unit simply as "Teachers."*
At least three of the contested positions were in existence in substantially
their same form prior to the execution of the 1976-77 agreement - in one instance
since 1973.  The evidence at the hearing did not reflect any effort prior to June,
1977, to have any of the contested positions included in the unit or covered by any of
the intervening collective bargaining agreements.  Nor does the record indicate any
standing protest of the failure to so include the positions.
    The employer concedes that if the positions were "whole-time" at Mount Vernon,
they would properly belong in the unit.  Indeed there are teachers bearing the same
titles and performing the same functions who are included in the units at the Dis-
trict and in other towns of the Union.  There is no doubt that the content of the
positions provides a clear and identifiable community of interest with the positions
already in the unit.  However, it is claimed that because of the fragmented and
part-time nature of the service of each position at Mount Vernon, the necessary com-
munity of interest required for joinder with the unit people under the Act is lacking.
    The evidence indicates the following facts concerning each of the disputed
    This teacher works a full teaching week.  Her time is shared between Mount
    Vernon, Wayne and Rome.  Mount Vernon (140 children) receives the benefit
    of 40 percent of her time.  Wayne (88 children) and Rome (75 children)
    split the remaining 60 percent.  Prior to the 1976-77 school year all five
    towns in the Union shared her time.  She is paid and hired by vote of the
    Union Board which determines how her services will be used and the pro-rata
    charge to each town; each town however is her direct employer and bears the
    charge for her services at the town's elementary school.
    This position is paid on the scale taken from the Community School District
    collective bargaining agreement, although she spends no time serving the
    District Schools.  The base rate of the Community School District scale was
    $8300. for l976-77**; the rate for a beginning teacher at Mount Vernon was
    $6900.  She receives all the fringe benefits enjoyed by teachers under the
    District agreement, but the cost of these is pro-rated among the beneficiary
    There is one "whole-time" Learning Disabilities Specialist at the Readfield
    Elementary School; one in Manchester; and two employed by the Community
    School District.
    The teacher who occupied this position for many years passed away in August
    of this year.  In past years the position served all the towns, except Rome,
    and the Community School District. 
*The parties should take note that when they agree upon changes in the
 scope or composition of a bargaining unit, which has been defined in a
 Form 1 or Form 3 previously filed with the Board, it is imperative that
 the Board be notified of the change or the Board and Executive Director
 will continue to be guided by the definition reflected in the Board files.
**All the disputed positions are paid at either the School District or Wayne
  scale, which are very similar.

     Beginning with the current school year (in September, 1977) the position
     has been divided into two separate positions.  One Speech Therapist now
     devotes her time exclusively to Manchester, Readfield and Rome; the other,
     with whom we are concerned in this matter, will spend her time equally
     divided at the Community School District Junior High School, Mount
     Vernon and Wayne.  Each is on scale and each political entity will bear
     approximately one-third of the salary of each teacher.
     Whereas the former Speech Therapist put in a full teaching day, the
     current arrangement requires only a total of 4-1/2 hours per day of each
     of the teachers.  Thus, they are in reality regular part-time em-
     ployees who share their instructional time among the communities
     The new positions are paid at scale and receive all the contract
     fringe benefits, except for Blue Cross/Blue Shield, which requires
     a minimum of 30 hours per week for eligibility.  The towns bear
     their pro-rata share of the cost for all benefits.
     There are no Speech Therapists serving elsewhere in the District or
     in the Union.
     This position was initiated in 1973.  The incumbent is in her second
     year and her time is shared among all five towns in the School Union.
     Manchester and Readfield consume about 60 percent of her total time
     and absorb an equal proportion of her salary.  She is paid on scale
     and receives all the benefits of the "whole-timers"; however, the
     towns share the expense of these benefits on a pro-rated basis.
     There is a "whole-time" Music Teacher at the Community School District
     High School, who is in the bargaining unit there.  There is also an
     Instrumental Music Teacher (initiated for this school year) whose serv-
     ices are shared between the Community School District and towns in the
     Union other than Rome.  This person is paid on scale as well.
     This teacher teaches only at Mount Vernon and only four hours per day,
     8 a.m. to 12 noon.  She is paid by the hour and receives pro-rated
     benefits from each town, such as course reimbursement and sick leave,
     but receives no Blue Cross/Blue Shield protection since her total hours
     are less than 30.
     There are other Kindergarten Teachers in the Union, including "whole-time"
     teachers of Kindergarten at Readfield and Manchester, and the teacher in
     Rome teaches 1st and 2nd grade classes as well.  The Kindergarten Teacher
     at Wayne works only four hours per day, same as the Mount Vernon situation.
     The School Board is opposed to the petition for inclusion in the bargaining unit
of the named positions essentially on three grounds, which were ably and articulately
stated by the Superintendent.
     Firstly, it is argued that the Act does not contemplate that every conceivable
arrangement in the public employment spectrum is subject to the jurisdiction of the
Maine Labor Relations Board or the Executive Director; the Board should not feel
bounden to dispose of every matter brought before it.
     Secondly, the placement of these positions in the bargaining unit would put
an unconscionable burden on the towns and the Union, and the complexities imposed
by their inclusion would force small towns to abandon or contract out some of these
services.  Contracting out would put an undue strain on their budgets and adminis-

trative capability, and would be contrary to the purposes of the statutes which
authorize the organization of School Unions.
    Thirdly, the history of the relationship between the parties shows a) that
these positions have existed over a period of years and the Association has not
protested the arrangement nor sought their inclusion in the unit, and b) on the
contrary the most recent bargaining agreement which limited the unit to "full-time
classroom teachers" is clearly a recognition of, and agreement to, exclusion of
these "part-time" positions, and other terms of that agreement lend further credi-
bility to this interpretation.
     The hearing examiner will attempt to answer these concerns in reverse order.
     With respect to the language of the last contract, the Association argues
that "full-time" as used in the Recognition Clause, and in previous contracts be-
tween the parties, was never an issue, and is meant only to differentiate regular,
on-going teaching service from substitute or on-call teaching service.  Further, it
is argued that the terms of the agreement are designed only to spell out the rights
of the employees in the unit, and no language anywhere in the agreement explicitly
excludes regular part-timers.
     A review of the history and the recently expired agreement leaves the matter
decidedly unclear.  The Form 1 executed in May, 1976, defined the unit simply as
"Teachers."  The initial recognition in 1974 referred to "Classroom Teachers."
The Preamble Clause of the 1976-77 agreement harkens back to the language of the
original recognition, referring to "the Mt. Vernon classroom teachers hereinafter
referred to as 'Teachers.'"  With respect to the Recognition Clause contained in
the latest agreement, there was no evidence presented at the hearing to indicate
in any way that the definition therein, "full-time classroom teachers," was speci-
fically intended to negotiate out the positions here in dispute, nor that it was
adopted as a trade-off during negotiations on some other provision in the collective
bargaining agreement of advantage to the Association.  Indeed, the Recognition Clause
of the 1976-77 agreement specified certain exclusions from the agreed unit, yet does not
mention the disputed positions.  Unfortunately, nothing of a conclusive nature has
surfaced from the examination of the collective bargaining history and the previous
agreements negotiated by the parties.
     With respect to the second concern voiced by the Board, although placing these
positions in the bargaining unit at Mount Vernon would undoubtedly lead to various
perceived and unforseeable difficulties for the School Board, from all that appears
the teachers in the unit, the Association, and the employer-employee relationship
have felt the impact of this problem for some time.  If these positions are placed
in the unit, the Association will undoubtedly inherit various complexities of its
     A school board may well throw up its hands at the prospect of dealing with this
situation in light of the fact that it has had the relative comfort of unilateral
decision making with respect to the employment conditions affecting these positions,
and when it becomes frustrated when its fears seem to be turning into reality.

But we should not anticipate the worst; the purpose of the Act is to encourage peace-
ful and intelligent resolution of disputes through the collective bargaining process.
More difficult problems than this have been overcome by intelligent problem solving
engaged in by well-intentioned parties; the needs of the school children should be
motivation enough for that effort.
     And, lastly, addressing the employer's first point, it is clear that part-time
employees are not precluded from coverage under the Act and may be appropriately
placed in units with regular or full-time employees.  This question has been addressed
and disposed of in the past.  See Jay School Employees Association and the Jay School
Department, Unit Determination Report, December 3, 1975 [76-UD-03].  This therefore will dispose
of the stated concern with respect to the Music Teacher and Kindergarten Teacher, since
these part-timers teach only at Mount Vernon and are typical regular part-time employees.
Accordingly, they should be included in the bargaining unit.  SO ORDERED.

     The other two positions - Learning Disabilities Teacher and the Speech Therapist -
are not so typical.  However, nothing in the Public Employees Labor Relations Act and
nothing in the law relating to the establishment of School Unions suggests that posi-
tions structured in this way are to be denied the benefits of the Act, which would be
the consequence of adopting the School Board's reasoning in this regard.  Since labor
representation on a School Union basis is impossible, one can easily conjure up a po-
tential for unwholesome extension of such arrangements should that argument hold sway,
that is, the establishment of positions on a School Union-wide basis whenever practicable
to avoid the impact of collective bargaining, even though the affected employees may
desire such affiliation.
     With the foregoing discussions in mind, it is the opinion of hearing examiner that
the four positions should be handled similarly in this matter.
     This being the, case, it is useful to look at the parameters of this type of pro-
ceeding.  Section 966,  3, the Unit Clarification provisions of the Act, states:

         ". . . where the circumstances surrounding the formation of an
     existing bargaining unit are alleged to have changed sufficiently to
     warrant modification of an existing bargaining unit, any public em-
     ployer 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
     Since 1974, when the Town first recognized the Association as the legal represen-
tative of its classroom teachers, at least three of the disputed positions have come
into being - the Learning Disability Specialist, the new arrangement with respect to
the Speech Therapists, and the part-time Kindergarten position.  These are changes of
some consequence and clearly would warrant modification should these positions be
otherwise eligible, and there be no other impediments.
     Since there is no collective bargaining agreement currently in force and no ques-
tion concerning representation of the unit, the Petition is sound in the procedural

     It is apparent from the record that significant changes have occurred in the
circumstances surrounding the original formation of this existing unit and, since
each of the four disputed positions has a close community of interest with the
teachers already in the unit, all positions should be included in a single unit of
Mount Vernon Elementary School teachers.
     In the opinion of the hearing examiner the positions of Learning Disabilities
Specialist and Speech Therapist at the Mount Vernon Elementary School should be in-
cluded to the extent of their employment by the Town of Mount Vernon in a collective
bargaining unit consisting of all classroom teachers employed by said town.  SO
Dated at Augusta, Maine this 17th day of October, 1977.
                                            Robert I. Goldman, Hearing Examiner
                                            Maine Labor Relations Board