MSAD 16 Library Employees Assn. and MSAD 16, No. 82-A-03, affirming No. 82-UD-27 
       STATE OF MAINE                                   MAINE LABOR RELATIONS BOARD
                                                        CASE NO. 82-A-03
                                                        ISSUED:  [August 12, 1982]
       M.S.A.D. #16 LIBRARY EMPLOYEES   )
       ASSOCIATION                      )
         and                            )         REPORT OF APPELLATE REVIEW
                                        )           OF UNIT DETERMINATION
       M.S.A.D.  #16 BOARD OF DIRECTORS )
            This is an appeal by the M.S.A.D. #16 Library Employees Association
       (Association) of a Unit Determination Report issued on March 17, 1982 by a
       Maine Labor Relations (Board) hearing examiner.  In his Report the hearing
       examiner determined that a bargaining unit composed of all the Teacher Aides,
       Teacher Assistants and Teacher Associates was appropriate for the purposes of
       collective bargaining, rather than a unit consisting solely of the two Teacher
       Assistants who work in the school libraries as requested by the Association.
       The Association contends on appeal that the hearing examiner erred in his find-
       ings of facts and as a matter of law.
            A hearing on the appeal was held on May 5, 1982, Alternate Chairman Donald
       W.  Webber presiding, with Employer Representative Don R. Ziegenbein and Employee
       Representative Harold S. Noddin.  The Association was represented by Stuart G.
       Snyder, Esq., and the M.S.A.D. #16 Board of Directors (Directors) was represented
       by Charles E. Moreshead, Esq.
            Neither party has challenged the jurisdiction of the Maine Labor Relations
       Board in this matter, and we conclude that the Board has jurisdiction to consider
       the appeal and render a decision and order as provided in 26 M.R.S.A. Section 968
                                     FINDINGS OF FACT
            Upon a review of the entire record, the Board adopts as modified the following
       findings of fact made by the hearing examiner:


            1.  Nancy McCabe has been employed as a Teacher Assistant/Library
                Clerk in the Hall-Dale High School Library for over 4-1/2 years.
                She was assigned to the library immediately and in essence was told
                to do what she could with the library.  There was no one available
                to tell her what to do or direct her efforts.  During all of that
                time McCabe was largely unsupervised, and she voluntarily expanded
                her role into that which would proximate that of a fully certified
                librarian.  Although formally hired for a period of 6 hours per day
                the position as developed by McCabe requires more hours as well as
                work at home.  She has had some difficulty with the administration
                in this respect who on occasion have sought to have her concentrate
                on certain basic aspects of the position.  Otherwise her efforts
                have been recognized as exceptional and dedicated.
            2.  McCabe is not a certified teacher or librarian, but has a bachelor's
                degree in English and has taken graduate level courses in Library
                Sciences, has attended library workshops, and requires nine more
                hours for certification.
            3.  Some seven and 1/2 years ago the Board decided to drop the full-time
                librarian position, then held by Mr. McNally a certificated Librar-
                ian.  McNally became a full-time English and Art Teacher.  The deci-
                sion to cut out the Librarian position was based upon declining en-
                rollment and budgetary reasons.  Thereafter McCabe was hired to oper-
                ate the library.  She performed in that role largely unsupervised ex-
                cept for discussions with teachers on such things as English texts
                and the like.  About January 1982 McNally was assigned to spend one
                class period (47 minutes) per day in the library.  This assignment
                was made because of perceived concerns by the administration that a
                certified librarian should be formally involved in selection of books
                for the library.  As a practical matter McNally has exercised little
                if any supervisor.y authority over McCabe and has on occasion referred
                her to the school principal for solutions of problems.
            4.  Jacquelyn S. Krupinsky has been employed as a Teacher Assistant in the
                Hall-Dale primary, middle and junior high school libraries for approxi-
                mately 2 years.  She spends approximately 1-1/2 days per week in each of
                the 3 libraries.  Her duties and responsibilities are the same as
                McCabe's except that Krupinsky has taken on some additional duties such
                as transferring books between the different libraries and preparing
                bibliographies of new books acquired by the libraries.  Krupinsky also 
                trains volunteers who on occasion will staff a school library on a day
                when Krupinsky is at another library.  Krupinsky has a bachelor's degree
                and is not certified as a teacher or a School Librarian.  She has 3
                credit hours of Library Science course instruction and has attended 2
                school librarian workshops.  Her direct supervisors are the 3 building
                principals in the school buildings in which she works.  There is no cer-
                tified School Librarian assigned to any of the libraries for which
                Krupinsky is responsible.
            5.  In addition to McCabe and Krupinsky, the school system presently em-
                ploys 12 other employees in the Teacher Aide, Teacher Assistant and
                Teacher Associate job classifications.  All of these employees are uncer-
                tified personnel who perform support and/or semi-professional duties.

                The other Aides and Assistants work with emotionally disturbed chil-
                dren, with educationally disadvantaged students, or in the Title I
                reading program.  All the Aides and Assistants, including McCabe
                and Krupinsky, are paid according to the same salary and fringe bene-
                fits schedules.  All are classified as "auxiliary personnel" pursuant
                to Department of Educational and Cultural Services guidelines.  The
                other Aides and Assistants are supervised directly by the Teachers
                with whom they work, not, as in the case of McCabe and Krupinsky, by
                the building principals.  The Directors currently bargain with 2
                bargaining units of school employees - one composed of the teachers
                and the other of the principals.
            Essentially the Association contends that the hearing examiner ignored several
       of the criteria typically considered in examining the community of interest between
       these employees and the other Aides and Assistants.  It is further contended that
       the law requires only that a unit be found "appropriate" and that the hearing
       examiner erred in concluding that the only permissible unit was the "more appro-
       priate" one which would include all of the Aides and Assistants employed by the
       District.  We affirm the hearing examiner's determination.
            The hearing examiner did not find the larger unit "more appropriate" but rather
       stated that it was "far more appropriate" than the two person unit sought by the
       Association.  Furthermore, it is clear from the report that the examiner did not
       consider a unit consisting of the two Teacher Assistant/Librarian positions to be
       appropriate at all; he clearly determined that such a unit would be inappropriate
       under the circumstances.  He was correct.  Underlying his determination was an
       awareness that establishment of a two-person unit would create the possibility of
       unwelcome fragmentation of a singular group of employees - the Teacher Aides
       and Teacher Assistants - employed by the District.  As the hearing examiner cor-
       rectly observed, the establishment of such a unit would clearly fly in the face
       of this Board's concern for "discouraging the proliferation of small bargaining
       units."  Town of Yarmouth and Teamsters Local #48, M.L.R.B. No. 80-A-4 (June 11,
       1980).  As was observed by the hearing examiner, it is no doubt true that the
       two Teacher Assistant/Librarian positions are being uniquely filled by two highly
       motivated, skilled and conscientious individuals; however, it is also true that
       neither is a certified librarian and their professional standing is not remarkably
       different from that of the other Aides and Assistants.  Also, it would seem that

       working with handicapped pupils or with remedial reading students may well be as
       taxing on the skills and dedication of Aides or Assistants working in those areas,
       as is required of the Library Assistants.  The fact that the Library Assistants
       perform their chores largely without daily supervision is not of sufficient signi-
       ficance to warrant a different view.
            With respect to the assertion that the hearing examiner failed to properly
       take into account the various criteria commonly utilized in measuring the community
       of interest requirement of the statute, suffice to say that all need not be pre-
       sent in a particular case nor is it a matter of casting the criteria in the air to
       see how many fall on one side or the other.  All that is required is that the vari-
       ous positions share sufficient similarities.  Town of Yarmouth, supra, at p. 4.
       It is clear that sufficient indicia of a strong community of interest are present
       between these two positions and the remainder of the Aides and Assistants to satis-
       fy our inquiry.  As determined by the hearing examiner, among the similarities
       shared by the employees is that all are uncertified personnel who perform supportive
       or semi-professional duties.  The two librarians teach library skills to students,
       prepare reference materials for classes, and in general maintain and manage the
       libraries, and therefore perform a strong support function in the school system.
       All are classified as "auxiliary personnel" for purposes of Department of Educational
       and Cultural Services authorization, and all are paid according to the same salary
       and fringe benefit schedules.  All are supervised by other public employees who nego-
       tiate with the Directors; the fact that the Teacher Assistants in the libraries are
       generally supervised by building principals while the other Aides and Assistants
       are supervised by teachers is a distinction without a difference.  These similari-
       ties establish that all the Aides, Assistants and Associates share a clear and
       identifiable community of interest within the meaning of 26 M.R.S.A. Section 966(2).
       See, e.g., AFSCME, Pine Tree Council No. 74 and City of Brewer, MLRB No. 79-A-01
       (Oct. 13, 1979).  The fact that the two Assistants perform library work while the
       other Aides and Assistants perform other types of work does not suggest that the
       Library Assistants should be included in a unit by themselves. We adopt this ration-
            As we have stated in other cases, we will overturn a hearing examiner's rul-
       ing and determination if they are "unlawful, unreasonable, or lacking in any ra-
       tional factual basis."  Teamsters Local 48 and City of Portland, Report on Appel-
       late Review of Unit Determination Hearing, at 6 (Feb. 20, 1979); Town of Yarmouth, 
       supra, at p. 5.  The hearing examiner's report clearly did not run afoul of these

       boundaries.  Other than a single unit consisting of all the Aides and Assistants,
       the only other rational result would be their incorporation into the teachers or
       professional unit, should their professional credentials and other relevant con-
       siderations warrant such action.  See, e.g., Millinocket Education Association
       and Millinocket School Committee, Unit Clarification Report (May 21, 1980).
            On the basis of the foregoing findings of fact and decision and by virtue of
       and pursuant to the powers granted to the Maine Labor Relations Board by 26
       M.R.S.A. Section 968(A), it is ORDERED:
            1.  The March 17, 1982 unit determination report in this matter
                is affirmed.  The appropriate bargaining unit for M.S.A.D.
                No. 16 auxiliary personnel consists of all Teacher Aides,
                Teacher Assistants, and Teacher Associates employed by the
                M.S.A.D. No. 16 Board of Directors.
            2.  The Appeal of the M.S.A.D. #16 Library Employees Association
                is denied.
       Dated at Augusta, Maine this 12th day of August, 1982.
                                            MAINE LABOR RELATIONS BOARD
                                            Donald W. Webber, Chairman

                                            Don R. Ziegenbein, Employer Representative

                                            Harold S. Noddin, Employee Representative