MSAD 43 and SAD 43 Teachers Assoc., No. 84-A-05, affirming 84-UC-05. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 84-A-05 Issued: May 30, 1984 _______________________________ ) MAINE SCHOOL ADMINISTRATIVE ) DISTRICT NO. 43 BOARD OF ) DIRECTORS, ) ) Petitioner, ) ) REPORT OF APPELLATE REVIEW and ) OF UNIT CLARIFICATION REPORT ) SCHOOL ADMINISTRATIVE DISTRICT ) NO. 43 TEACHERS ASSOCIATION, ) ) Bargaining Agent. ) _______________________________) The question presented in this appeal of a unit clarification report is whether the hearing examiner erred by dismissing the Maine School Administrative District No. 43 Board of Directors' (School District) petition to remove the position of Athletic Director from a bargaining unit consisting of full-time certified teachers. Finding no error in the hearing examiner's decision, we deny the appeal and affirm the unit clarification report. The School District filed its timely appeal pursuant to 26 M.R.S.A. 968(4)(Supp. 1983-84) on May 9, 1984, seeking review of a unit clarification report issued on April 23, 1984. The hearing examiner found, inter alia, that the Athletic Director was not a "confidential employee" as defined in 26 M.R.S.A. 962(6)(C)(1974); that the position continued to share a clear and identifiable com- munity of interest with the other positions in the bargaining unit; and that although the Athletic Director is a supervisor, the position should remain in the rank-and-file unit because no bargaining unit of supervisory employees exists in M.S.A.D. No. 43. The School District accepts the first two determinations but takes issue with the third determination regarding placement of the Athletic Director position. [-1-] _____________________________________________________________________ A hearing on the appeal was held in Augusta, Maine on May 16, 1984, Chairman Sidney W. Wernick presiding, with Employer Repre- sentative Thacher E. Turner and Employee Representative Harold S. Noddin. The School District was represented by Annalee Z. Rosenblatt and the School Administrative District No. 43 Teachers Association (Union) by J. Donald Belleville. JURISDICTION The School District is an "aggrieved party" within the meaning of 26 M.R.S.A. 968(4)(Supp. 1983-84). The Union is the bargaining agent for a bargaining unit of full-time certified teachers employed by the School District. The jurisdiction of the Maine Labor Relations Board to hear this appeal and render a decision and order lies in Section 968(4). FINDINGS OF FACT None of the thirty-two findings of fact made by the hearing examiner at pages 3-7 of his report are disputed. We find that the relevant facts in this case were fully and adequately found by the hearing examiner, and therefore incorporate those findings of fact herein by reference, as if they were fully set forth in this decision. DECISION The School District contends the hearing examiner failed to recognize that the position at issue in this case is that of "Assistant Principal/Athletic Director" and that he also failed to consider a 1975 unit determination report which excluded the M.S.A.D. No. 43 Assistant Principals from the teachers' bargaining unit on the ground that the Assistant Principals are supervisors. Had the hearing examiner properly taken these two matters into consideration, the School District urges, he would have excluded the Athletic Director position from the teachers' unit since that position also is a supervisory position. -2- _____________________________________________________________________ The standard of review for bargaining unit rulings by hearing examiners has been stated in many cases: "We will overturn a hearing examiner's rulings and determinations if they are 'unlawful, unreason- able, or lacking in any rational factual basis.'" Council 74, AFSCME and Teamsters Local 48, MLRB No. 84-A-04 at 10 (Apr. 25, 1984), quoting Teamsters Local 48 and City of Portland, MLRB Report of Appellate Review at 6 (Feb. 20, 1979). It thus is not proper for us to substitute our judgment for the hearing examiner's; our function is to review the facts to determine whether the hearing examiner's decisions are logical and are rationally supported by the evidence. We find that the hearing examiner's decision that the Athletic Director position should remain in the teachers' bargaining unit is entirely logical and rational. The evidence shows that the Athletic Director position became vacant in the spring of 1983. The vacant position was posted throughout the summer of 1983, but no bargaining unit employee applied for the position. Accordingly, in the fall of 1983 the Superintendent of Schools appointed the high school Assistant Principal to serve as acting Athletic Director for a one- year term, with the new job title of "Assistant Principal/Athletic Director." The Athletic Director position has been included in the teachers' bargaining unit and the stipend and release time for the position have been negotiated for at least the past 10 years. On the other hand, the Assistant Principal position has been excluded from the unit as the result of the 1975 unit determination report. In November 1983 the School District adopted a new job description for the Athletic Director position, imposing the requirement that the Athletic Director hold "administrative certification" and expanding the duties of the position. The School District's petition seeking to remove the position from the unit followed. The hearing examiner clearly understood that an Assistant Principal now holds the Athletic Director's position and that administrative certification now is required for the position; these facts are included in the findings of fact and are discussed in the hearing examiner's report. We also are satisfied that the -3- _____________________________________________________________________ hearing examiner gave proper weight to these facts when making his determinations. The hearing examiner's focus on the Athletic Director position was of course entirely appropriate because that was the position the School District was seeking to remove. In short, we disagree with the School District's contentions that the hearing examiner failed to note that an Assistant Principal holds the Athletic Director position and that this alleged oversight resulted in error. We also disagree with the School District's argument that the 1975 unit determination report requires that the position be removed from the bargaining unit. The hearing examiner in the 1975 report found that the two Assistant Principals in M.S.A.D. No. 43 were supervisors and ordered that they be excluded from the teachers' bargaining unit. The examiner noted that the Assistant Principals could petition for a supervisory employees bargaining unit if they so desired. The record shows that such a unit has not been formed, however. The present case differs from the 1975 case for several reasons. For one thing, the present case deals with a different position which has been included in the teachers' bargaining unit for at least 10 years and which continues to share a clear and identifiable community of interest with the unit. For another, our policy regard- ing the placement of supervisory positions in rank-and-file units has changed substantially since 1975. As the hearing examiner correctly stated in the present case, our policy for a number of years has been to include supervisory positions in rank-and-file units rather than establish small, separate supervisory bargaining units. See, e.g., Maine School Administrative District No. 14 and East Grand Teachers Association, MLRB No. 83-A-09 (Aug. 24, 1983). The rationale for our policy "of discouraging the proliferation of small bargaining units in a single department" was accurately noted by the hearing examiner at page 13 of his report: "Small bargaining units must be bargained for and serviced just as do large bargaining units. The State -4- _____________________________________________________________________ is obligated to provide under 26 M.R.S.A. Section 965 the same mediation and arbitration services for small units as are provided for large units. The formation of small bargaining units among employees in the same department can thus result in the employer, the union, and the State expending an amount of time, energy and money all out of proportion to the number of persons served." The School District fails to recognize that our present policy super- cedes anything said to the contrary in the 1975 unit report. The hearing examiner found in the present case that the Athletic Director is a supervisor. He then reasoned that since no supervisory bargaining unit existed, our non-proliferation policy dictated that the Athletic Director position remain in the teachers' bargaining unit. This analysis was entirely in accord with our policy and the law: "An employee holding two positions with the same employer may be included in a bargaining unit for purposes of one of the positions even though the second position is excluded from the unit." Lewiston Teachers Association v. Lewiston School Committee, MLRB No. 83-08 at 6 n. 1 (Jan. 14, 1983). The School District's argument that the 1975 unit report requires a result contrary to that ordered by the hearing examiner simply is unpersuasive. Since the School District has not shown any error on the part of the hearing examiner, the unit clarification report must be affirmed. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 968(4)(Supp. 1983-84), it is ORDERED: 1. The Maine School Administrative District No. 43 Board of Directors' appeal of the April 23, 1984 unit clarification report is denied. 2. The April 23, 1984 unit clarification report is affirmed. The Athletic Director position shall remain in the teachers' bargaining unit. -5- _____________________________________________________________________ Dated at Augusta, Maine, this 30th day of May, 1984. MAINE LABOR RELATIONS BOARD /s/_________________________________ The parties are advised Sidney W. Wernick of their right to seek Chairman review of this decision and order by the Superior Court by filing a complaint pursuant to 26 M.R.S.A. /s/_________________________________ 968(4)(Supp. 1983-84) and Thacher E. Turner 972(1974) and in accordance Employer Representative with Rule 80B of the Rules of Civil Procedure within 30 days of the date of this decision. /s/_________________________________ Harold S. Noddin Employee Representative -6- _____________________________________________________________________