MSAD 14 and East Grand Teachers Association, No. 83-UC-13, Affirmed in part
and reversed in part, 83-A-09 (MLRB Aub. 24, 1983)

STATE OF MAINE                                 MAINE LABOR RELATIONS BOARD

DISTRICT #14                      )
                                  )               UNIT CLARIFICATION REPORT
  and                             )
     This is a unit clarification proceeding, initiated on April 20, 1983 when
Maine School Administrative District #14 (District) petitioned pursuant to 26
M.R.S.A.  Section 966(3) for a bargaining unit clarification.  A hearing on the
petition was held on May 25, 1983 in Augusta, Maine.  The District was repre-
sented by Superintendent of Schools John L. Fortier and the East Grand Teachers
Association (Association) by UniServ Director Harold B. Dickinson.

     The District seeks by its petition to exclude the high school principal
from an existing bargaining unit composed of all certified professional employees
except for the Superintendent, and, in addition, seeks a ruling that the principal
is a "confidential employee" excluded from the definition of "public employee" by
26 M.R.S.A. Section 962(6)(C).  The Association opposes the petition on the grounds
that circumstances surrounding formation of the existing unit have not changed
sufficiently to warrant modification of the unit, and that the facts do not show
the high school principal to be a Section 962(6) (C) "confidential employee."

     Presented as a witness by the District was Superintendent Fortier.  The Associa-
tion presented UniServ Director Dickinson and former high school principal George
Davis as witnesses.  The following exhibits were admitted into the record.

     Joint Exhibit No. 1                  The current collective bargaining
     District Exhibit No. 1               Newspaper advertisement for the high
                                          school principal position
     District Exhibit No. 2               Job description for the high school
                                          principal position
     Association Exhibit No. 1            A list of the positions included in the
                                          existing bargaining unit.


     The District is a public employer as defined in 26 M.R.S.A. Section 962(7).
The Association is the bargaining agent for the certified professional employees
employed by the District.  The jurisdiction of the hearing examiner to hear this
case and rule on the petition for unit clarification lies in 26 M.R.S.A. Section

                              FINDINGS OF FACT
     The existing bargaining unit was formed on November 12, 1970 when the District
and the Association agreed upon a unit composed of the "Classroom Teachers and Prin-
cipals."  The current description of the unit contained in the collective bargain-
ing agreement is "the entire group of certified professional employees of the Board
[of Directors] excluding the Superintendent."  At present there are approximately
23 employees in the unit.  Nine teachers are employed at the high school.

     George Davis served as the high school principal from August, 1966 to March,
1983, when he resigned to take a position in another school district.  His duties
as principal included interviewing applicants for high school teaching positions,
supervising the high school teachers, evaluating the teachers, and setting up
student schedules.  Under the collective bargaining agreement the high school princi-
pal serves as the first level of the grievance procedure for high school teachers.
Davis testified that he handled 4 or 5 grievances since formation of the unit in 1970.
Davis also carried a teaching load while serving as the high school principal.  Re-
cently he taught a drivers'education course, a duty which limited the amount of time
he had available for his principal's duties.

     The District currently is advertising the vacant high school principal position
and would like to get the position out of the bargaining unit so that it can set
the salary and fringe benefits for the position without bargaining with the Associa-
tion.  The District contemplates that the new high school principal will no longer
do any teaching but will instead concentrate to a greater degree than before on the
administrative and employee relations duties of the position.  To that end, the
Superintendent and George Davis have developed a job description which does not men-
tion teaching as one of the duties of the position.  Most of the duties listed in
the job description, which is the first written job description ever prepared for the


position, were performed by Davis when he was the high school principal, but it is
anticipated that the new principal will devote more time and attention to these
duties.  Among the duties listed are:  participating in the selection of school
personnel and supervising school personnel in assignement, evaluation and in-
service training; interpreting and enforcing district policy; and keeping the Super-
intendent informed of events or activities of an unusual nature. As for collective
bargaining, the District does not intend to have the new principal sit at the bar-
gaining table on behalf of the District, but it does plan to use the principal as
a resource person for District negotiators.

     The District urges that the increased emphasis on administrative and employee
relations duties and the elimination of teaching duties constitutes sufficient
changed circumstances to warrant removal of the high school principal from the bar-
gaining unit.  In addition, the District contends that the principal's involvement
in employee relations matters makes the principal a Section 962(6)(C) "confidential
employee."  The hearing examiner finds that the changes do not constitute sufficient
changes to warrant modification of the unit within the meaning of Section 966(3)[fn]1
and that, in any event, the principal is not a "confidential employee."[fn]2  The unit
clarification petition accordingly will be denied.

1/  Section 966(3) states in pertinent part:

         ". . . where the circumstances surrounding the formation of an
    existing bargaining unit are alleged to have changed sufficiently to
    warrant modification in the composition of that bargaining unit, any
    public employer or any recognized or certified bargaining agent may
    file a petition for unit clarification . . ."

2/  Section 962(6) (C) excludes from the definition of "public employee" any
    employee "whose duties as a deputy, administrative assistant or secretary
    necessarily imply a confidential relationship to the executive head, body,
    department head or division head."  Section 966(1) states that "anyone
    excepted from the definition of public employee under Section 962 may not
    be included in a bargaining unit."

     The changes in the high school principal 's duties are changes of degree rather
than of kind.  George Davis, the former high school principal, testified that he
performed the selecting, supervising, assigning, evaluating and training duties
listed on the recently-enacted job description, and the Superintendent of Schools
stated that the "change" in the new principal's duties was that he/she would give
greater emphasis to these administrative and employee relations duties.  The only
real change in duties is that the new principal will not do any teaching:

     Board hearing examiners have consistently held that increased emphasis on
certain aspects of the employee's job or changes in the degree of responsibility
exercised by an employee are not the type of changes which warrant modification of
a bargaining unit:

          "The Act is silent as to what type of change would warrant unit
          modification . . .  There is no evidence here, however, that the
          content of the Manager's job has changed in any significant way.
          The Managers are supervisors now and they were supervisors at the
          time the unit was formed.  Job changes referred to are very minor
          . . ."
City of Lewiston and Hot Lunch Workers' Unit, Local 2011, Unit Clarification Report
at 7 (Dec. 19, 1978). Or, as stated in City of Saco and Teamsters Local 48, Unit
Clarification Report at 4 (April 21, 1981):

              "Although these changes do increase the amount of the assessor's
          work, they are of the same genre as that work which the assessor was
          performing at the time of formation of the collective bargaining
          unit.  These alleged changes, therefore, are not the qualitative
          change of circumstances contemplated in Section 966(3)."
In the present case the high school principal performed the same supervisory, assign-
ing, and evaluating duties when the unit was formed in 1970 as the new principal will
be performing.  Although there will be increased emphasis on these duties, there
is little if any change in the content of the job.  The fact that the principal will
no longer be teaching a drivers' education course is not a change of such magnitude
as to justify removal of the position from the unit.  The hearing examiner accord-
ingly finds that there have not been sufficient changed circumstances to warrant modi-
fication of the bargaining unit.  Since the "threshold requirement" has not been satis-
fied, the petition must be denied.

     Even if sufficient changed circumstances had occurred, the hearing examiner notes
that the evidence does not show that the high school principal is a confidential

employee.  The Labor Relations Board has ruled, consistent with the ruling of the
United States Supreme Court in NLRB v. Hendricks County Rural Electric Corp., 454
U.S. 170, 70 L.Ed.2d 323, 102 S.Ct. 216 (1981), that the test for determining con-
fidential employee status consists of two elements, both of which must be satisfied:
1)  the employee must be regularly involved in contract negotiations, the disposi-
tion of grievances, and other labor relations matters, and 2) as a result of these
duties the employee must be privy to confidential labor relations information.  See,
e.g., Waterville Police Dept. and Teamsters Local 48, Report of Appellate Review at
3 (Oct. 4, 1978). In the present case the handling of 4 or 5 grievances in a period
of over 12 years does not constitute the regular involvement in the grievance pro-
cess contemplated by the test.  Similarly, the fact that the high school principal
interviews, assigns, oversees, and evaluates the high school teachers, while these
duties clearly make the principal a supervisor as defined in Section 966(1),[fn]3 does
not make the principal privy to confidential labor relations information.  Finally,
the fact that the high school principal may be used as a resource person by District

3/  Section 966(1) defines a supervisor as one who performs such duties as:

         ". . . scheduling, assigning, overseeing and reviewing the
        work of subordinate employees, or performing such duties as are
        distinct and dissimilar from those performed by the employees
        supervised, or exercising judgment in adjusting grievances, ap-
        plying other established personnel policies and procedures and in
        enforcing a collective bargaining agreement or establishing or
        participating in the establishment of performance standards for
        subordinate employees and taking corrective measures to imple-
        ment those standards."                              
    School districts and teacher associations have followed two practices with
    regard to placement of supervising principals in bargaining units.  In the
    large districts which employ a number of supervising principals, these em-
    ployees are usually placed in "administrators" bargaining units which are
    separate from the teachers' unit.  In the smaller district such as M.S.A.D.
    #14 where there are only one or two supervising principals, the principals
    are usually included in the teachers' bargaining unit.  This practice prob-
    ably is based on the concluding sentence in Section 966(1):  "Nothing in
    this chapter is intended to require the exclusion of principals, assistant
    principals, or other supervisory employees from school system bargaining
    units which include teachers and nurses in supervisory positions."

negotiators in the future cannot be relied upon to find that the principal is a
confidential employee at the present time; a hearing examiner "cannot base a find-
ing of confidentiality upon testimony which projects what an employee's duties
may be in the future. " Waterville Police Dept. and Teamsters Local 48 at 4.

     Since the high school principal is not a "confidential employee," he is
entitled to be represented for purposes of collective bargaining.  26 M.R.S.A.
Section 963.  If sufficient changed circumstances to warrant modification of the
unit occurred, the question therefore would be whether the principal should be
removed from the existing unit and placed in a separate unit by himself, or
whether the position should remain in the existing unit.  Since the formation of
a separate, one-person bargaining unit would fly in the face of the Board's policy
of "discouraging the proliferation of small bargaining units in a single depart-
ment," Town of Yarmouth and Teamsters Local 48, MLRB No. 80-A-04 at 4, (June 16,
1980), it appears that the position should remain in the existing bargaining
unit even if sufficient changed circumstances had occurred.

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

          The District's petition for unit clarification is denied.
          The high school principal's position remains in the exist-
          ing bargaining unit composed of all certified professional
          employees except for the Superintendent.
     Dated at Augusta, Maine this 1st day of June, 1983.
                                           MAINE LABOR RELATIONS BOARD
                                           Wayne W. Whitney, Jr.
                                           Hearing Examiner
     The parties are advised of their right, pursuant to 26 M.R.S.A. Section 968
(4), to appeal this report to the full Maine Labor Relations Board by filing a
notice of appeal with the Board, within 15 days of receipt of the report.