Portland Administrative Employee Assoc. (MTA) and Portland Superintending
School Committee, No. 86-UD-14, affirmed No. 87-A-03 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 86-UD-14 Issued: October 27, 1986 ___________________________ ) PORTLAND ADMINISTRATIVE ) EMPLOYEE ASSOCIATION ) ) and ) UNIT DETERMINATION REPORT ) PORTLAND SUPERINTENDING ) SCHOOL COMMITTEE ) ___________________________) This unit determination proceeding was initiated on January 27, 1986, when the Portland Administrative Employee Association ("Union") filed a petition for appropriate unit determination, pursuant to 26 M.R.S.A. 966. Evidentiary proceedings on the petition were con- ducted by the undersigned hearing examiner for the Maine Labor Relations Board ("Board"), on March 5, 6, 7, 10, 12 and 13, 1986, at the University of Maine School of Law, Portland, Maine. The Union was represented at the evidentiary proceedings by Affiliate Service Director Delmont J. Perry of the Maine Teachers Association. The Portland Superintending School Committee ("Employer") appeared through and was represented by Hugh G. E. MacMahon, Esq. The Union's petition seeks formation of a bargaining unit com- posed of all known unorganized full-time public employees employed by the Portland Superintending School Committee. The Employer opposes the granting of the Union's petition on the following grounds: (1) five of the employee classifications at issue are not public employees within the meaning of the Act and, therefore, cannot be included in any bargaining unit; (2) the establishment of the proposed unit would constitute proliferation, through fragmentation, of bargaining units; (3) the classifications in the proposed unit do not share a clear and identifiable community of interest; (4) the unit proposed cannot be justified as a "residual unit"; and (5) other than the allegedly non- public employee classifications, the positions in contention should be placed into existing bargaining units of the Employer's employees. The following persons were presented as witnesses by the Union at [-1-] ______________________________________________________________________ the evidentiary proceeding: Gaille Heseltine Director of Adult Education Solange Kellerman Coordinator of Community Life Programming Kathleen Lee Assistant Director of Adult Education Warren Presley Director of Portland Rehabilitative Educational Program ("P.R.E.P.") David King Coordinator for Vocational and External Programs Elizabeth Day Administrative Assistant for Adult Basic Education Program ("A.B.E.L.") Frank LaTorre Facility Director of the Portland Exposition Building Larry Robinson Manager for Concessions at the Portland Exposition Building James Watkins Coordinator of Evaluation and Data Management Josephine Piampiano Director of Health Education Madeleine Segal Education Employment Coordinator for the Handicapped Sally Clark Videographer for Channel 7 Dr. Michael Kramer School Psychologist Steven Kaulback Cablecaster for Channel 7 Ann Waterhouse Coordinator of Computer Services Cheryl L. Mills Coordinator of Adult Basic Education Program ("A.B.E.L.") The sole witness presented by the employer at the evidentiary pro- ceeding was Polly Ward, personnel Administrator for the portland School Department. The following exhibits were admitted into the record: Union Exhibit No. 1 Summary of benefits for positions proposed for inclusion -2- ______________________________________________________________________ Union Exhibit No. 2 Portland School Department Administrative Bulletin #81A Union Exhibit No. 3 Letter from Gaille R. Heseltine to Richard Whitmore, Dated 9/17/84 Union Exhibit No. 4 Memo: To "All Administrative Bookholders" from Rudolph Naples, Dated 11/6/85, with Administrative Bulletin #81 A, as amended 11/4/85 Union Exhibit No. 5 Part of letter prepared by Gaille Heseltine in 1983 and sent to Superintendent of Schools, Portland Administrators' Association, and employees covered by Administrative Bulletin #81A Union Exhibit No. 6 Memo from Gaille R. Heseltine to Eve Bither, Assistant Superintendent for Secondary Education, Dated 8/16/84 Union Exhibit No. 7 Memo from Jacki potter, Chairperson, to "Central Office Staff," Dated 12/4/84 Union Exhibit No. 8 Letter from Gaille R. Heseltine to Jacqueline Potter, School Committee Chairperson, Dated 10/25/84 Union Exhibit No. 9 Memorandum from Dr. Peter R. Greer, Superintendent, to School Committee Subcommittee for Non-Classified Salaries Union Exhibit No. 14 Employee Position Description Questionnaire for Community Life Coordinator, Dated 10/28/84 Union Exhibit No. 15 Peter R. Greer, Superintendent, to Members of the Portland School Committee, Dated 10/8/82 Union Exhibit No. 16 Employee Position Description Questionnaire for Assistant Director of Adult Education, Dated 10/25/84 Union Exhibit No. 17 Employee Position Description Questionnaire for Director of Portland Rehabilitative Educational Program ("P.R.E.P."), Dated 11/6/84 Union Exhibit No. 18 Employee Position Description Questionnaire for Coordinator for -3- ______________________________________________________________________ Vocational and External Programs, Dated 10/25/84 Union Exhibit No. 19 Memo from David King to Reg MacDonald, Assistant Superintendent for 5econdary Education, Dated 2/11/86 Union Exhibit No. 20 Employee Position Description Questionnaire for Administrative Assistant for Adult Basic Education Program ("A.B.E.L."), Dated 10/26/84 Union Exhibit No. 21 Employee Position Description Questionnaire for Facility Director of the Portland Exposition Building, Dated 10/18/84 Union Exhibit No. 22 Employee Position Description Questionnaire for Manager for Concessions at the Portland Exposition Building, Undated Union Exhibit No. 23 Employee Position Description Questionnaire for Coordinator of Evaluation and Data Management, Dated 10/31/84 Union Exhibit No. 24 Employee Position Description Questionnaire for Director of Health Education, Dated 10/25/85 Union Exhibit No. 25 Employee Position Description Questionnaire for Education Employment Coordinator for the Handicapped, Dated 10/23/84 Union Exhibit No. 26 Tutor Evaluation Form Developed by Education Employment Coordinator for the Handicapped, approximately 11/84, and used since then in evaluating tutors Union Exhibit No. 27 Employee Position Description Questionnaire for Coordinator of Adult Basic Education Program ("A.B.E.L."), Dated 10/24/84 Union Exhibit No. 28 Memo from Polly Ward, Personnel Administrator, to Central Office Non- bargaining Group Members, Dated 10/17/85 Union Exhibit No. 29 Portland School Department Employment Contract for Non-Classified Administrative Personnel -4- ______________________________________________________________________ The following exhibits offered by the Union were not admitted into evidence: Union Exhibit No. 10 Excerpt from 1985-1988 Collective Bargaining Agreement between Old Orchard Beach School Committee and Old Orchard Beach Administrators Association Union Exhibit No. 11 Excerpt from 1979-82 Collective Bargaining Agreement between Biddeford School Board and Biddeford School Administrators' Association Union Exhibit No. 12 Excerpt from 1985-1986 Collective Bargaining Agreement between Lewiston School Committee and Lewiston Educational Directors Union Exhibit No. 13 School Committee Recommendations on Central Office Salaries for 1985-86 The first three of these exhibits were offered for the purpose of showing that, in other communities, the Director of Adult Education has been included in bargaining units. The Employer objected to their admission on the basis that they were not relevant to this proceeding. Since he would have to evaluate the specific merits of the Adult Education Director's employment in this case in order to make an appropriate unit determination, the hearing examiner sustained the Employer's objection and the three prospective exhibits were not admitted into evidence. The Employer objected to the fourth exhibit listed above on the grounds that the Union had failed to establish its authenticity through any witness. The Union was given the opportunity of doing so and did not, therefore, the Employer's objection was sustained. The following exhibits offered by the Employer were admitted into evidence: Employer Exhibit No. 4. Employee Position Description Questionnaire for Director of Adult Education, Dated 10/23/84 Employer Exhibit No. 5 Memo from Gaille Heseltine to Polly Ward, Re: In-Town Learning Center Negotiations, Dated 4/19/83 -5- ______________________________________________________________________ Employer Exhibit No. 6 Job Description for Facilities Manager classification, Developed in 7/85 Employer Exhibit No. 7 Job Description for School Secre- tary IV classification, Developed in 7/76 Employer Exhibit No. 8 Job Description for Administrative Assistant for Adult Basic Education Services ("A.B.E.L."), Dated 8/24/81 Employer Exhibit No. 9 Advertisement for Videographer position, Maine Sunday Telegram, 12/1/85 Employer Exhibit No. 10 Job Description for Audio-Visual Technician I (Repair) classification Employer Exhibit No. 11 Job Description for Manager I classification, Dated 7/85 Employer Exhibit No. 12 Job Description for Manager II classification, Dated 7/85 Employer Exhibit No. 15 Job Description for Director of Mathematics classification The following exhibits offered by the Employer at the evidentiary pro- ceeding were not admitted into evidence: Employer Exhibit No. 1 Petition for Unit Clarification, seeking to modify the composition of Classified Personnel Units I and II bargaining units, Dated 3/4/86 Employer Exhibit No. 2 Petition for Appropriate Unit Determination, seeking to modify the composition of the Portland Administrators' Association bargaining unit, Dated 3/4/86 Employer Exhibit No. 3 Petition for Appropriate Unit Determination, seeking to modify the composition of the Benefits Association of School Employees ("BASE") bargaining unit, Dated 3/4/86 Employer Exhibit No. 13 Constitution and By-Laws of the National Education Association -6- ______________________________________________________________________ Employer Exhibit No. 14 Constitution and By-Laws of the Maine Teachers Association, Pages 11-25 The first three prospective exhibits were given to the hearing officer for the purpose of making it procedurally possible for him to "slot" the positions at issue into existing bargaining units. Since paragraph 7 of the Union's petition prays that the positions at issue either be placed into the proposed unit or that they be assigned to existing units, the hearing examiner opined that, procedurally, he could grant the relief being sought by the Employer's petitions, therefore, said petitions were unnecessary. The Employer then offered the three exhibits as proof of what it was seeking herein and they were marked and excluded from the record as unnecessary. The Employer offered the next-to-last exhibit for the purpose of showing that the National Education Association was a labor organization, a fact readily conceded by the Union. The exhibit was excluded as irrelevant and unnecessary. The Employer offered the last exhibit listed above to establish that the primary purpose of the Maine Teachers Association is to represent public employees in collective negotiations, resulting in inherent conflicts of loyalty between the Association's members and their employers in the bargaining process. On the grounds that the nature of the Maine Teachers Association as a labor organization is defined in 26 M.R.S.A. 962(2) and that the potential for conflict- ing loyalties is recognized in 26 M.R.S.A. 962(6)(C), the proposed Employer's Exhibit No. 14 was excluded as unneccessary and burdensome to the record. The following exhibits were offered jointly by the parties and admitted into evidence: Joint Exhibit No. 1 Collective bargaining agreement between the Portland School Committee and the Portland Teachers Association for Classified Personnel Units I and II, January 1, 1986 to December 31, 1986 Joint Exhibit No. 2 Collective bargaining agreement between the Portland School Committee and the Portland Administrators' Association, December 1, 1982 to August 31, 1985 -7- ______________________________________________________________________ Joint Exhibit No. 3 Collective bargaining agreement between the Portland School Committee and the Benefit Association of School Employees, January 1, 1983 to December 31, 1985 Joint Exhibit No. 4 Collective bargaining agreement between the Portland School Committee and the Portland Teachers Association for the In-town Learning Center Unit, July 1, 1984 to June 30, 1986 Joint Exhibit No. 5 Collective bargaining agreement between the Portland School Committee and the Portland Teachers Association for the Teacher Aides and Assistants bargaining unit, September 1, 1984 to August 31, 1987 Joint Exhibit No. 6 Collective bargaining agreement between the Portland School Committee and the Portland Teachers' Association for the Social Workers and Certificated Employees bargaining unit, September 1, 1984 to August 31, 1987. During the course of the unit determination proceeding, the Union moved to amend its petition by adding the positions of Facilities Manager and School Psychologist and by deleting the classifications of Director for Title VII Projects and Director of Math and Science Education from the list of classifications sought to be included in the proposed bargaining unit. Furthermore, the Master Controller for Channel 7 classification was amended to Cablecaster for Channel 7, the name which the Employer uses for that position. The job classifica- tions which are at issue in this proceeding are as follows: Director of Adult Education Assistant Director of Adult Education Coordinator of Adult Basic Education Coordinator of Vocational and External Programs Administrative Assistant for Adult Basic Education Director of Portland Rehabilitative Educational Program Facility Director of the Portland Exposition Building Assistant Building Manager for Exposition Building -8- ______________________________________________________________________ Manager for Concessions at the Exposition Building Coordinator of Computer Services Assistant Director of Special Services Coordinator of Evaluation and Data Management Administrative Assistant for Evaluation and Data Management Director of Health Education Station Manager for Channel 7 Videographer for Channel 7 Cablecaster for Channel 7 Coordinator of Community Life Programming Substitute Caller Education Employment Coordinator for the Handicapped Facilities Manager School Psychologist During the course of the unit determination proceeding, the par- ties agreed to the following: DATE 1. DATE LATEST COLLECTIVE UNIT NAME CREATED AGREEMENT EXECUTED Portland Administrators' Association 10/69 12/82 Benefit Association of School Employees 1970 6/83 Social Workers and Certificated Employees 1963 8/84 Teacher Aides and Assistants 12/8/70 8/84 Classified Personnel Units 6/20/73 1/86 I & II Intown Learning Center 6/10/80 10/83 2. In the event that a single bargaining unit, containing both non-professional and professional employees, is held to be appropriate in this proceeding, the professional employees' vote, required by 26 M.R.S.A. 966(2), will be conducted contem- poraneous with the bargaining agent election, as was done in the Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, AFT, AFL-CIO, MLRB No. 85-A-01, slip op. at 6-7 (Feb. 6, 1985). The parties were afforded full opportunity to examine and cross- examine witnesses, to present evidence, and to make argument. The parties filed post-hearing briefs, the last of which was received on -9- ______________________________________________________________________ July 1, 1986, which have been considered by the hearing examiner. The Union has attempted to introduce additional factual information by appending certain "observations" by a witness to its post-proceeding brief. The Labor Relations Board has ruled that, since the opposing party's right to cross-examination is circumvented thereby, a party will not be allowed to introduce evidence by appending documents to their post-hearing briefs. Rumford School Department v. Rumford Teachers Association, MLRB No. 79-15, slip op. at 6 (July 30, 1979). Accordingly, Mr. Watson's "observations" are not admitted into evi- dence herein and the statement was neither read by the hearing exam- iner nor considered in the decision-making process. JURISDICTION The Petitioner, the Portland Administrative Employees Association, is a lawful organization which has as its primary purpose the representation of employees in their employment relations with employers, within the meaning of 26 M.R.S.A. 962(2) (1974). The Portland Superintending School Committee of the City of Portland is a public employer, within the definition of 26 M.R.S.A. 962(7) (Pamph. 1985). The jurisdiction of the hearing examiner to hear this matter and to make an appropriate unit determination and/or clarification herein lies in 26 M.R.S.A. 966 (Pamph. 1985). FINDINGS OF FACT AND CONCLUSIONS OF LAW The Employer's initial objection to the creation of the bargaining unit proposed in the Union's petition is that several of the employee classifications at issue may not properly be assigned to any bargaining unit because they are "confidential," within the meaning of the Muncipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. 961, et seq. The allegedly confidential positions are: the Director of Adult Education, the Coordinator of Computer Services, the Coordinator of Evaluation and Data Management, and the Facilities Manager. Section 962(6)(C) (1974) of the Act provides that employees having a significant involvement in collective bargaining or labor -10- ______________________________________________________________________ relations matters on behalf of the public employer, other than contract administration responsibilities, are excluded from the collective bargaining coverage of the Act and may not, under 26 M.R.S.A. 966(1)(Pamph. 1985), be placed in any bargaining unit. Applying its analysis of the parallel provision in the State Employees Labor Relations Act, 26 M.R.S.A. 979-A(6)(C) (Pamph. 1985), the Labor Relations Board has defined 962(6)(C) as follows: Our previously announced standard, defining "confidential" employees under Section 979-A(6)(C) of the Act, continues to have validity and vitality. We believe that our standard is consistent with that enunciated by the United States Supreme Court in [NLRB v.] Hendricks County, [454 U.S. 170, 102 S.Ct. 216, 70 L.Ed. 2d 323 (1981)]. The latter decision, when read within the context of the State Act, serves to further clarify the definition of "confidential" employees. Our standard for the exclusion of "confidential" employees is that those persons affected are employees who are "permanently assigned to collective bargaining or to render advice on a regularly assigned basis to management personnel on labor relations matters." State of Maine and Maine State Employees Association, [Report of Appellate Review of Unit Clarification Report (Mar. 2, 1979)], at 8. As we have noted above, the "labor relations" matters, in the foregoing context, do not include contract administration actions or duties. Applying Hendricks County to this context, those employees who have, as part of their work responsibilities access to the employer's negotiations positions, in advance of said positions being disclosed at the bargaining table, and who, as an integral part of their job duties, assist and act in a confidential capacity with respect to persons who formulate or determine the employer's bargaining positions or bargaining strategy are "confidential" employees, under Section 979-A(6)(C) of the Act. State of Maine and Maine State Employees Association, MLRB No. 82-A-02, Interim Order, slip op. at 10 (June 2, 1983); cited and applied in defining 26 M.R.S.A 962(6)(C) in Maine School Administrative District No. 14 and East Grand Teachers Association, MLRB No. 83-A-09, slip op. at 8 (Aug. 24, 1983). The Board went on to further clarify its interpretation of 962(6)(C) by stating: The State's second argument is that the hearing exa- miner erred by requiring that an employee's involvement in collective bargaining matters be significant as well as necessary to warrant exclusion on "confidential employee" grounds. We hold that the hearing examiner has correctly -11- ______________________________________________________________________ interpreted our long-standing policy in this regard. We have often stated that, to be a "confidential employee," one must be "permanently involved in collective bargaining mat- ters on behalf of the public employer or that the duties performed by the employee involve the formulation, deter- mination and effectuation of the employer's employee rela- tions policies." Waterville Police Department and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Hearing, at 3 (10/4/78). This requirement, that the employee's participation in collective bargaining matters be significant, does not set out a strict empirical formula mandating the inclusion or exclusion of employees from collective bargaining. That determination must be made on an ad hoc basis by the hearing examiner on the facts developed through the unit hearing process. The requirement of significance of an employee participation in collective bargaining matters may be satisfied either when the indivi- dual's involvement is substantial, although it is performed rarely, or when the activity is relatively minor but is undertaken on a regular basis as part of the employee's job functions. The significance of the employee's involvement turns on the nature of his or her access to information which could, if revealed to the bargaining agent, jeopardize the employer's collective bargaining position, Town of Fairfield [and Teamsters Local Union No. 48, Report of Review of Unit Determination Hearing (11/27/78)] at 3, and also on what the employee does with such infor- mation. The employee must use said information in the for- mulation and determination of the employer's labor relations policies or collective bargaining proposals in order to be found to be a confidential employee. Waterville Police Department, supra, at 3. State of Maine, supra, at 18, cited and used in defining 962(6)(C) in East Grand Teachers Association, supra, at 8-9. In reference to the last sentence in the above quotation, the Board has added the following caveat: [W]e have previously stated that clerical employees who do not formulate or determine the employer's labor relations policies may, nevertheless, be found to be confidential employees. This conclusion is in recognition of the fact that "in may if not most cases, 'confidential' supervisory employees need access to at least one 'confidential' clerical employee, in order to carry out their 'confidential' duties." State of Maine, supra, at 28. Penobscot Valley Hospital, supra, at 10. The above test will be applied to each of the allegedly confidential classifications. The Director of Adult Education has been a member of the manage- ment bargaining team for the Intown Learning Center bargaining unit, -12- ______________________________________________________________________ since the creation of that unit and through two rounds of nego- tiations. At the time of the unit determination proceeding, the Director was scheduled to be part of the employer's team to negotiate the successor collective bargaining agreement for the unit. During the course of past negotiations, the Director was the only member of the management team with knowledge of the day-to-day operations at the Intown Learning Center. The Director has been an active bargaining team member on behalf of the Employer, attending all bargaining sessions and participating in all team caucusses. As a team member, the Director has had access to the Employer's bargaining positions and strategy, prior to their being revealed at the table, and was aware of the limits on the team's negotiating authority. The Director evaluated the impact of proposals, suggested language changes in the collective bargaining agreement to alleviate past problems, and helped draft pro- posals and counter-proposals. The Director was also privy to portions of the Employer's overall bargaining strategy for all of its organized units, having knowledge of certain positions which the Employer in- tended to take in all of its negotiations with its employees' bargain- ing agents. The facts cited in this paragraph establish that the Director's involvement in collective bargaining matters on behalf of the Employer has been and will continue to be substantial and that such involvement is an inherent part of the duties of the classifica- tion. The hearing examiner therefore concludes that the Director of Adult Education is a confidential employee, within the definition of 26 M.R.S.A. 962(6)(C). Access to the school department's new Prime computer system is limited through the assignment of specific authorization codes and access levels to the individual users of the system. In this way, each user is limited to being able to secure information and to perform functions on the computer only in areas pertinent to their particular employment responsibilities. The Personnel Administrator, for example, can limit access to confidential collective bargaining infor- mation in the computer, such as draft proposals and counter-proposals or cost break-down information, by entering such information under a confidential access number known only to the confidential employees in -13- ______________________________________________________________________ the school department's personnel office. As the "system administra- tor" for the Prime computer system, the Coordinator of Computer Services not only assigns access codes to the individual users but also is the only person with access to all of the information stored in the computer system. Furthermore, the "system administrator," using the "audit trail" feature of the system, can discern which user has had access to what information and which changes, if any, the user has made in the computer's data base. The Coordinator of Computer Services, therefore, has access to the Employer's confidential collec- tive bargaining information stored in the main frame of the system as well as having access to knowing what portions of the data base have been reviewed by the Employer's bargaining representatives. Although the incumbent employee has never performed any confidential collective bargaining function on behalf of the Employer, the Coordinator of Computer Services, as the "system administrator" for the prime com- puter system, will have access to the Employer's confidential collec- tive bargaining information stored in the system, prior to that information being revealed at the bargaining table, and the disclosure of such information to a bargaining agent could jeopardize the Employer's bargaining position. Second, an integral part of the Coordinator of Computer Services' job function is the implementation of new applications for the system and the training of other employees in the use of such applications. Among the new applications which were expected to be installed during the summer of 1986 is the "Full Office Automation Package." This software includes spread sheet capa- bility. Spread sheets are used in the collective bargaining process to cost out the various proposals and counter-proposals. The Coordinator of Computer Services will implement the package and will train employees in its use. Because the Coordinator of Computer Services has unlimited access to all information in the department's computer system, including access to the Employer's confidential collective bargaining information, the hearing examiner concludes that the Coordinator of Computer Services classification is confidential, within the meaning of 26 M.R.S.A. 962(6)(C). During the last round of negotiations for the Social Workers and Certificated Employees bargaining unit, the Personnel Administrator -14- ______________________________________________________________________ asked the Coordinator of Evaluation and Data Management to develop a spread sheet cost analysis for a range of salary proposals. The Coordinator performed this work on a confidential basis over a period of two to four weeks. The spread sheet analysis assumed salary changes, within a given range from status quo levels, and considered educational experience, step, and scale information for the unit employees. Although the Coordinator was unaware of the limits on the management team's settlement authority when he performed the spread sheet work, the collective bargaining agreement ultimately negotiated by the parties did fall within the range of assumptions on which the work was based. The evidence discussed in this paragraph is the basis for the Employer's averment that the Coordinator should be held to be confidential within the meaning of the Act. While the performance of spread sheet analysis for collective bargaining purposes might, in some circumstances, justify the exclu- sion of an individual as confidential, State of Maine and Maine State Employees Association, MLRB No. 82-A-02, Interim Order, slip op at 13-14 (June 2, 1983), that is not the case in this instance. Here, the disclosure of confidential labor relations information is neither required for the performance of the spread sheet work nor is such work an inherent aspect of the Coordinator of Evaluation ana Data Management's employment. The spread sheet analysis performed by the Coordinator was based exclusively on non-confidential employee infor- mation which was accessible to the the bargaining agent. More impor- tantly, although the Employer asked the Coordinator to only run the spread sheet within the range of the management team's settlement authority thereby revealing the limits of that authority, the range of the variable assumption used in the study could easily be extended well beyond the limits of bargaining authority. The latter course would allow one to perform the work without having access to any con- fidential labor relations information. Second, performance of the spread sheet analysis is not necessarily a part of the Coordinator's job respobsibilities. In the State of Maine case, the excluded indi- vidual was the only source available to the employer for the pro- cessing at confidential collective bargaining data on a computer. -15- ______________________________________________________________________ Here, the Coordinator of Computer Services is available as a confiden- tial employee to perform this work. Furthermore, the level of com- puter experience and expertise required to do the spread sheet work can, as was the case with the Accounting Manager, be acquired with as little as ten hours of training. Such training could be provided to employees who are currently confidential by either the Coordinator of Computer Services or by the Coordinator of Evaluation and Data Management, without exposing the latter individual to any confidential collective bargaining information. The confidential spread sheet work is neither a necessary nor a significant element of the Coordinator's employment, therefore, the Coordinator of Evaluation and Data Management is held not to be a confidential employee, within the defi- nition of 26 M.R.S.A. 962(6)(C). The Facilities Manager is the last of the allegedly confidential classifications. This position was created in July of 1985 and was filled only a short time prior to the unit determination proceeding. The incumbent employee has never been involved in collective bargaining on behalf of the Employer. The Employer's averment of con- fidentiality is based on a sentence in the Facilities Manager's job description and upon the testimony of the Personnel Administrator. The job description states that the "Facilities Manager may be required to be a member of the negotiations team for B.A.S.E. and Classified contract negotiations." The Personnel Administrator testified that, when the School Committee created the position, "[t]here was clear expectation from the Board, and they did review the job description and approve the job description that this person would be responsible for--ultimately responsible --for participating in collective bargaining with both the BASE and Classified." In cases where the public employer has sought the exclusion of a person, based on an intention to use the individual in a confidential capacity in the future, the Board has stated: The City Administrator's testimony that since the subordinate officers in the Detective Division have recently been included in a bargaining unit, the Captain of the Detective Division will participate in future negotiations on behalf of the City, does not establish that the Captain is a confidential employee within the meaning of Section -16- ______________________________________________________________________ 962[6]. In determining confidential employee status, we consider the duties currently being performed by the alleged confidential employee. We cannot base a finding of confiden- tiality upon testimony which projects what an employee's duties may be in the future. In the event that a public employee's duties change so as to imply a confidential rela- tionship under Section 962[6], the correct procedure is for the public employer to file a petition for Unit Clarification pursuant to 26 M.R.S.A. 966(3) and in accor- dance with Rule 1.13 of the Board's Rules and Procedures. At the unit clarification hearing, the employer is afforded the opportunity to show that the employee's changed duties involve collective bargaining functions or employee rela- tions matters. Waterville Police Department and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Hearing, slip op. at 4 (Oct. 4, 1978); East Grand Teachers Association, supra, at 9. Since he has never participated in collective bargaining activities on behalf of the Employer, Board precedent requires that the Facilities Manager be held not to be a confidential employee, within the defini- tion of 26 M.R.S.A. 962(6)(C). The Employer's second major contention is that the Director of Adult Education and the Facilities Manager should be excluded from the coverage qf the Act on the grounds that they are department or divi- sion heads, within the definition of 26 M.R.S.A. 962(6)(D) (1974). That section of the Act excludes from the definition of "public employee" and, hence, from the coverage of the Act, a person "[w]ho is a department head or division head appointed to office pursuant to statute, ordinance or resolution for an unspecified term by the execu- tive head or body of the public employer . . .." The Labor Relations Board has interpreted this section of the Act as follows: Our cases establish that for an employee to be a "department head" within the meaning of Section 962(6)(D), the employee's primary responsibility must be that of managing or directing the affairs of the department, as opposed either to acting as a supervisor or to performing the day-to-day work of the department. For example, in Teamsters Local 48 and City of Portland, Unit Determination Report at 2 (Sept. 13, 1978), the hearing examiner declared 12 employees to be Section 962(6)(D) division heads because they were "responsible for the day-to-day administration" of their divisions, and because their principal duties were those of "formulating and administering division policies -17- ______________________________________________________________________ and practices." On the other hand, in Teamsters Local 48 and Town of Bar Harbor, Unit Determination Report at 3 (Nov. 15, 1979), a Treatment Plant Operator who was responsible for the day-to-day operation of the treatment plant and who performed such administrative duties as setting the work schedules of other employees, arranging for the purchase of equipment and supplies, and submitting a budget to the town manager, was found not to be a department head because, among other things, the employee "spent the major portion of his time performing the same work as other operating employees." See also, Teamsters Local 48 and Boothbay Harbor Water System, Unit Determination Report at 6-8 (May 11, 1982) (Foreman who performed various administrative duties was not an administrator because "on balance the pri- mary function of the Foreman's position is to act as a supervisor"). Our cases thus require hearing examiners, when presented with evidence showing that an employee per- forms both administrative duties and supervisory or rank-and- file duties, to decide whether the primary duties of the position are those of an administrator or those of a super- visor or a rank-and-file employee. Teamsters Local Union No. 48 and Town of Wells, MLRB No. 84-A-03, slip op. at 6-7 (Apr. 11, 1984); aff'd, Town of Wells v. Teamsters Local Union No. 48, No. CV-84-235 (Me. Super. Ct., York Cty., Feb. 28, 1985). Applying the foregoing discussion to the positions at issue, the hearing examiner holds that the Director of Adult Education is a division head, within the meaning of 26 M.R.S.A. 962(6)(D). On the other hand, the evidence in the record does not establish that the Facilities Manager is a division head, within the meaning of the Act, and the hearing examiner so holds. The Director of Adult Education was appointed to her position by resolution of the Portland School Committee for an unspecified term; although the Director has worked under a series of one-year employment contracts. The Director testified that she spends approximately 80% of her work time performing such administrative functions as setting goals for the adult education program and determining whether to maintain, expand, or discontinue existing programs. The Director exercises abso- lute hiring or firing authority over the supplemental employees who constitute approximately 90% of the adult education program's staff. The Director also administers the adult education budget and is respon- sible for the overall operation of the program. The primarily admi- nistrative nature of the position's duties and the level of discretion -18- ______________________________________________________________________ exercised in the performance of those duties persuade the hearing exa- miner to conclude that the Director of Adult Education is a division head, within the definition of 26 M.R.S.A. 962(6)(D). The job duties of the Facilities Manager include administrative, supervisory, and rank-and-file functions. Among the Manager's administrative duties are: developing new work methods, providing long-term direction for the building maintenance program, and pre- paring and administering a 2.7 million dollar budget. The Facilities Manager's functions include training, supervising, and adjusting the grievances of subordinate employees and providing tech- nical expertise in supervising renovation or new construction pro- jects, from bid preparation through completion of the project. Examples of the Manager's rank-and-file type responsibilities are pro- viding technical direction to assure compliance with applicable electrical, plumbing, or other building codes, keeping records, and maintaining an inventory of supplies and equipment. Although the Personnel Administrator expressed an opinion that the position is pri- marily administrative rather than supervisory in nature, there was no direct evidence presented concerning the percentage of the Facilities Manager's work time which is spent performing administrative work. In light of the evidence presented, it is impossible for the hearing exa- miner to determine that the Facilities Manager's work is primarily administrative in nature; therefore, the Facilities Manger is held not to be a department or division head, within the meaning of 26 M.R.S.A 962(6)(D). The last job classification which the Employer seeks to exclude from any bargaining unit is that of Coordinator of Community Life programming. The Employer argues that the individual in this position is not a public employee, within the meaning of the Act, because of two reasons: (1) the position has never been approved by the School Committee and is not paid from public (tax) revenues and (2) the posi- tion is "more appropriately characterized" as an employer under the Act. Neither of these arguments is persuasive and the Coordinator of Community Life Programming is held to be a public employee, within the definition of 26 M.R.S.A. 962(6). -19- ______________________________________________________________________ Although it has never accepted the Coordinator of Community Life Programming position as an official job classification in the school department's organizational structure, the Portland School Committee has approved the inclusion of community life courses as appropriate components of the Portland Adult Education program. The Superintendent of Schools and the school department's personnel and business otfices have been aware of the existence of the Coordinator of Community Life Programming position over the last several years. During the course of preparing the school department budget for the ensuing year, the Superintendent of Schools requests that each of the department's components submit a proposed operating budget for their particular division, including therein not only the cost of maintaining current services but also budget projections for ini- tiating new positions and programs. All such budget requests, including those for new positions or programs, appear on the proposed budget submitted to the School Committee by the superintendent. If the superintendent does not support such items, they appear crossed- out in the proposed budget. In this way, the School Committee is made aware of each division's new position and program requests and the Committee is then free to adopt the same, despite the Superintendent's failure to support such proposals. For several years prior to the submission of the 1986-1987 proposed budget, the Adult Education Director requested that funding for the Coordinator of Community Life Programming position be included in the proposed budget and such line item has appeared as a crossed-out item in several budgets submitted to the School Committee. As was noted above, the School Committee has never voted to fund the Coordinator's position. When the position became vacant prior to the incumbent's being hired in November, 1985, notice of the Coordinator of Community Life Programming vacancy was circulated throughout the school department by the department's personnel office in an effort to recruit an in-house person to fill the position. The Coordinator was hired by the Director of Adult Education, within the scope of the latter position's employment with the school department. The wages paid to the Coordinator are set by the Adult Education Director, who does not need -20- ______________________________________________________________________ School Committee approval to either set the initial salary or to grant pay raises to the Coordinator. The Director of Adult Education, with the approval of the school department business office, has offered to pay a portion of the school department employees' group medical insurance premium for the Coordinator from school department funds. Although the Coordinator's salary is not funded from tax reve- nues, the person occupying that position is compensated from school department funds--albeit from funds in a dedicated revenue account. Attendance fees collected from community life program courses are deposited into a school department account and are then used to defray the operating expenses of the program, including payment of the Coordinator's salary. As is the case for all of the school depart- ment's regular employees, the payroll for the Coordinator is submitted to the school department business office and is then sent to the Portland City Hall where the individual pay checks are generated. Under the regulations of the Maine State Retirement System, employees of municipalities, who participate in the Retirement System as a local district, must be covered by the System's retirement benefits if such employees work in excess of 180 hours per year. Because she is employed in excess of 180 hours per year, the Coordinator is required to and does in fact participate in the Maine State Retirenient System. Because she works on a regularly-scheduled basis, working at least 30 hours per week for 30 weeks per year, the Coordinator is not a temporary, seasonal, or on-call employee, within the meaning of 26 M.R.S.A. 962(6)(G). City of Saco and Teamsters Local Union No. 48, MLRB No. 83-A-08, slip op. at 3 (July 18, 1983); Town of Lebanon and Teamsters Local Union No. 48, MLRB No. 86-A-01, slip op. at 3 (Dec. 5, 1985). All of the facts cited in this and in the three preceding paragraphs persuade the hearing examiner to conclude that, unless the Employer prevails in its alternate contention, the Coordinator of Community Life Programming is a public employee, within the meaning of 26 M.R.S.A. 962(6). The Employer's alternate position is that the Coordinator of Community Life Programming is not a public employee because the classi- fication is "more appropriately characterized" as being an employer, -21- ______________________________________________________________________ within the meaning of the Act. Title 26 M.R.S.A. 962(7) (Pamph. 1985) defines the term "public employer" as follows: "Public employer" means any officer, board, commission, council, committee or other persons or body acting on behalf of any municipality or town or any subdivision thereof, or of any school, water, sewer or other district, or of the Maine Turnpike Authority, or of any county or any sub- divisions thereof. When read broadly, the above definition could encompass all public employees, since it can be said that they are "other persons . . . acting on behalf of" one of the types of public employers listed therein. When an individual, as compared with a board or other body, is alleged to be a public employer, the controlling analysis is an examination of whether the individual in question comes within the definition of "public employee" contained in 962(6) of the Act. If an individual is a public employee, he is eligible to be included in a bargaining unit, 26 M.R.S.A. 966(1) (Pamph. 1985); and is entitled to exercise the employee rights conferred by the Act, 26 M.R.S.A. 963 (1974). A public employee, therefore, cannot, within the context of the employment relationship in which he has that status, also be a public employer. This analytical approach is required by the compre- hensive coverage of the Act embodied in 962(6). That section states that a "public employee" is any employee of a public employer except any person who falls within certain stated exclusions. The exceptions found in 962(6)(A), (B), (C), (D), and (E) encompass individuals who, while employed by a public employer, themselves act as public employers. It has neither been alleged nor established by the evidence in the record, that the Coordinator of Community Life Programming was: elected to office, appointed for a fixed term by the executive head or body of the public employer, a confidential employee, or the superin- tendent or assistant superintendent of schools. The exceptions to the definition of "public employee" found in 962(6)(A), (B), (C), and (E) are, therefore, inapposite in this case. The Employer avers that the Coordinator is a public employer because the Coordinator: hires supplemental employees for the community life program, decides which -22- ______________________________________________________________________ courses will be offered, sets the attendance fees for those courses, and determines whether enough students have enrolled in each course to allow it to be offered without resulting in a financial loss. While some of these are the type of administrative duties which resulted in the holding that the Adult Education Director is a division head within the meaning of the Act, the Coordinator classification does not satisfy the appointment criterion set forth in 962(6)(D). The Coordinator was not appointed to office by the executive head or body of the public employer, the Superintendent of Schools or the School Committee. Even if the appointment condition required in 962(6)(D) had been met, the distinctions between the Director's and the Coordinator's positions illustrate the parameters of the department or division head exception. While the Adult Education Director has ple- nary authority to administer the adult education division within general guidelines established by the School Committee and/or the State of Maine, the Coordinator of Community Life Programming is under the direct supervision and control of the Director. The Director of Adult Education directs, oversees, schedules, reviews, and evaluates the Coordinator's work. The Coordinator's authority in the community life section of the adult education program is, therefore, con- siderably more limited than that exercised by the Director over the entire adult education program. The Coordinator of Communtty Life Programming, the Assistant Director of Adult Education, and the Coordinator for Vocational and External Programs each "hire" supplemental employees to teach in the division of the adult education program which each supervises. The Assistant Director serves as the coordinator for the high school diploma program in the adult education division. The ultimate authority to hire such supplemental employees lies with the Adult Education Director. While the Director may hire supplemental employees on authority conferred directly by the School Committee, the hiring decisions of the Assistant Director and of the two Coordinators are subject to review by the Director and the Director is often con- sulted prior to such hiring decisions being made. Unlike the Director -23- ______________________________________________________________________ who has full authority to determine the wages paid to some of the supplemental employees whom she hires, the wages paid to the indivi- duals hired by the two Coordinators or by the Assistant Director have been predetermined by the School Committee. The Adult Education Director meets regularly with the Assistant Director and the two Coordinators to discuss programming and sche- duling needs. While the Coordinator of Community Life Programming may, either directly or through her recommendation, effectively decide which courses will be offered in the community life program, the ulti- mate authority to determine the program's curriculum rests with the Adult Education Director. The Coordinator of Community Life Programming does set the amount of the attendance fees for community life courses and determines whether enough students have enrolled in each course to make it financially feasible to offer the course. The latter two functions, while involving some discretion, are primarily ministerial in nature. In addition to not meeting the appointment requirement contained in 962(6)(D), the Coordinator of Community Life Programming, like the Assistant Director of Adult Education and the Coordinator for Vocational and External Programs, is primarily an educational staff 5up9,rvisor, working under the direct supervision and control of' the Director of Adult Education. The Coordinator of Community Life Programming is, therefore, held not to be a department or division head, within the meaning of 26 M.R.S.A. 962(6)(D). Since the position does not fall into any of the exceptions listed in 26 M.R.S.A. 962(6), the Coordinator of Community Life Programming is held to be a public employee, within the meaning of that section of the Act. The Employer opposes the formation of the bargaining unit pro- posed by the Union on the grounds that the employee classifications contained therein do not share a clear and identifiable community of interest as is required by 26 M.R.S.A. 966(2) (Pamph. 1985). In evaluating the presence or absence of the requisite community of interest among particular employee positions, the Labor Relations Board has developed and consistently applied a set of eleven criteria. The relevant community of interest factors are: -24- ______________________________________________________________________ (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) simi- larities in the qualifications, skills and training of employees; (6) frequency of contact or interchange among the employees; (7) geographic proximity; (8) history of collec- tive bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the public employer's organizational structure. Council 74, AFSCME and City of Brewer, MLRB No. 79-A-01, slip op. at 3-4 (Oct. 17, 1979); Town of Lebanon, supra, at 5; Penobscot Valley Hospital, supra, at 4. The factors discussed in this paragraph tend to establish some similarities among the employee positions in the bargaining unit pro- posed by the Union. The labor-relations policies for all of the posi- tions, except for the Coordinator of Community Life Programming, are determined unilaterally by the School Committee and are contained in School Department Administrative Bulletin No. 81A, as amended. Most of the classifications at issue are compensated through an annual salary set by the School Committee. The Cablecaster, the Videographer, and the Coordinator of Community Life Programming are paid on an hourly basis which, for the first two positions, was determined by the School Committee while the Coordinator's compensation level is set by the Adult Education Director. Except for the Coordinator of Community Life Programming, the Substitute Caller, and the Psychologist, all of the positions in contention enjoy identical or pro-rated employment benefits in the following areas: sick leave accumulation and use, use of sick leave in the event of illness in an employee's family, paid vacation (none), Employer contribution to medical insurance premium, retirement coverage through the Maine State Retirement System, per- sonal leave, sabbatical leave, bereavement leave, and travel reimbur- sement. Most of the classifications, but for those at Channel 7 and at the Portland Exposition Building, work five days per week, Monday through Friday, and have work years ranging form 180 to 240 days in length. The Psychologist is the only position of those at issue for which there is any collective bargaining history. The affected employees, who expressed an opinion thereon, desired to be included in -25- ______________________________________________________________________ the proposed bargaining unit for purposes of collective bargaining. Having a neutral effect in the instant community of interest ana- lysis are factors numbered 6, 7, and 10 in the quotation from the City of Brewer case. The fact that the employee positions at issue have worksites, located at different locations throughout the school system and that some of the classifications have little to no professional contact or interchange with some of the others in the proposed unit would, in other circumstances, tend to negate a finding of a shared community of interest among the positions in contention. An examina- tion of the other bargaining units in the school department indicates that the positions within most of the units are spread throughout the system, resulting in little professional contact among groups of the constituent classifications in each unit. In the B.A.S.E. unit, for example, the Cooks and Cafeteria Workers in one building may have constant professional contact with each other but they have relatively rare contact with the employees in the same classifications working at a different school. The lack of geographic proximity and of pro- fessional contact among all of the positions in controversy was deemed inherent in a school system the size of the Employer's and was, there- fore, given little weight in the instant analysis. Finally, the fact that all of the Employer's other public employees have apparently already been organized might suggest that the proposed unit is appropriate as a residual employee unit; however, since the existing units were created by agreement of the parties and not through the Board's unit determination process and since most of the positions at issue were created after the formation of the existing units, no such inference will be drawn here. The factors discussed in this paragraph militate against a holding that the classifications in the proposed bargaining unit share a clear and identifiable community of interest. The nature of the work performed by the positions at issue varies widely. Illustrative of the diversity in the types of work performed by the classifications in contention are the following: the Channel 7 employees operate a able television station, the Psychologist provides direct psychologi- cal services to students, and the Manager for Concessions at the -26- ______________________________________________________________________ Exposition Building supervises the preparation and sale of food. While many of the classifications are primarily instructional super- visors, others supervise non-instructional employees, and others pro- vide instruction or assistance directly to students. Second, the employees in the classifications proposed for inclusion in the prospective bargaining unit are not supervised by the same individuals and some of the positions report to others included in the Union's petition. While the latter consideration does not require the assign- ment of supervisory employees to a different unit from that containing the employees whom they supervise, Town of Kittery and Teamsters Local Union No. 48, MLRB No. 83-A-02, slip op. at 4 (Feb. 7, 1983), it does indicate a potential conflict of interest among the positions in the proposed unit. The Superintendent of Schools supervises 2 of the classifications at issue; the Assistant Superintendent for Secondary Education, 3; the Director of Adult Education, 4; the Director of Special Services, 4; the Director of the Exposition Building, 2; the school department Business Manager, 1; the Coordinator of ABEL,1; and 2 of the positions report to Station Manager of Channel 7 and, until that position is filled, to the Assistant Superintendent for Secondary Education. Third, there is a great diversity in the qualifications, skills, and training among the classifications in the proposed bargaining unit. The skills and training required for performance of of the work of the positions at issue range from those of the Substitute Caller, who need only be able to maintain simple records and to use the telephone, to those of the School Psychologist or of the Coordinator of Evaluation and Data Management, who each have a doctorate degree and extensive experience in their respective fields. While most of the employees in the job classifications at issue possess baccalaureate degrees and that level of education is required for the performance of their work functions; two of the employees have no academic degree beyond the high school diploma, one employee has two associate degrees in areas directly relating to his work respon- sibilities, six of the employees have master degrees, and two have doctorate degrees. Each of the community of interest factors has been evaluated separately and together with the other criteria. Those factors -27- ______________________________________________________________________ tending to substantiate a holding that the classifications in the pro- posed bargaining unit do not share the requisite level of community of interest are traits inherent to the positions involved. The factors tending to support the opposite result flow primarily from the fact that the positions in contention have never been represented by a agent; therefore, their wages and benefits have been unila- terally determined by the school committee, without regard to the nature of the classifications themselves. The former community of interest factors are held to be qualitatively more significant than the latter. The positions suggested for inclusion in the proposed bargaining unit are held not to share a clear and identifiable com- munity of interest; therefore, the bargaining unit sought to be created by the Union's petition is not appropriate for purposes of collective bargaining. Having concluded that the bargaining unit proposed in the Union's petition is not appropriate for collective bargaining purposes, the inquiry will now shift to an examination of the bargaining unit assign- ments proposed by the Employer. As an alternative to the creation of a new bargaining unit, the Employer has suggested that the classifica- tions at issue should be assigned to existing units of school depart- ment employees. Such bargaining unit placement would provide the employees with a means of exercising their rights created by the Act while avoiding the costs associated with the creation of an additional bargaining unit. The Labor Relations Board has considered and described the par- ties' duty to bargain over the wages, hours, and working conditions for employee positions added to existing units for which collective bargaining agreements are in effect. In a case where a new classifi- cation was included in a bargaining unit because it fell within the recognition clause of the unit's collective bargaining agreement, the Board stated: Because we agree with the hearing examiner's conclusion that the LTA contract recognition clause as it exists includes these nurses, we conclude that contract terms which apply to them cannot be opened up for renegotiation during the life of the contract by one party alone. Said another -28- ______________________________________________________________________ way, both parties are bound by the contract to those terms which apply to the nurses. In contrast, if a hearing exa- miner were to determine that an existing unit description that was contained in a contract did not apply to a group of employees then we would assume that the remainder of the contract would also not apply even if the group of employees were nonetheless added to the unit in the clarification pro- ceeding. Thus, inclusion in a unit does not automatically mean coverage by an existing contract. As always, a party is bound to bargain over mandatory subjects of bargaining whenever demanded unless waived or agreed to in wtiting for a period of not greater than three years. See 26 M.R.S.A. 965(1)(D). One type of agreement is, of course, a provision in the collective bargaining agreement. Thus, in this case, the [parties to the agree- ment] have already agreed by contract to a grievance proce- dure, a just cause for discipline provision, insurance protection, etc., which it appears are general provisions sensibly and reasonably applicable to the new classification of school nurse. It follows that these subject areas have been settled, that the provisions must be applied, and that they cannot be reopened except by agreernent.7 Lewiston Teachers Association v. Lewiston School Committee, MLRB No. 80-45, slip op. at 5-6 (Aug. 11, 1980). Footnote 7 to the above quotation states: We would be prone to rule that any provision which could reasonably and sensibly be applied would constitute an agreement in advance with respect to new job classifications and thus the duty to bargain would be satisfied. Of course, unique circumstances for such employee classifications might make it not reasonable to apply certain provisions. Ibid., at 6. Although the recognition clauses of the relevant collec- tive bargaining agreements do not include the positions in contention and, therefore, all of the terms of such agreements do not automati- cally apply to positions added to such units; the Board's policy is that those collective bargaining agreement terms which can "reasonably and sensibly" be applied to such added classifications should so apply. Such applicable contract terms include, among others, the grievance procedure and employee benefit articles providing for health insurance coverage, paid vacations, holidays, sick leave, and travel expenses. In light of the Board's policy, those community of interest factors, determined by the various collective bargaining agreements which can reasonably be applied to any position placed in the various -29- ______________________________________________________________________ units, will not be considered in evaluating the propriety of such unit assignments. The instant community of interest analysis will focus on those factors which are inherent in the positions at issue, especially the nature of the work each performs and the qualifications, skills, and training of the employees involved. The first bargaining unit in which the assignment of some of the employee classifications will be considered is the Benefit Association of School Employees ("BASE") unit. This unit is composed of skilled or semi-skilled tradesmen or technical employees as well as some unskilled positions. Among the classifications currently included in the BASE unit are painters, carpenters, plumbers, electricians, cafe- teria workers, food service managers, audio-visual technicians, bus drivers, and various grades of secretaries. The Employer has suggested that the Videographer, the Cablecaster, the Manager for Concessions at the Exposition Building, and the Substitute Caller job classifications should be included in the BASE unit. The job duties of the Videographer and of the Cablecaster are primarily technical in nature, involving the operation of complex electronic equipment in recording and broadcasting voices and images on cable television. One of Audio-Visual Technician job classifica- tions is also technical in nature, involving the repair of electronic equipment, albeit not the same equipment as that used in the televi- sion studio. The Electrician job classifications in the current BASE unit also involve work which is primarily technical in nature. Second, the qualifications and training of the Videographer and of the Cablecaster are similar to those of the skilled tradespersons in the BASE unit. Tradespersons such as carpenters, plumbers, and electri- cians gain instruction and expertise in their craft either through a traditional on-the-job apprenticeship program or through completion of a post-secondary technical course. The Cablecaster is a high school graduate who acquired the skills necessary for the performance of his job through on-the-job training. Although the Videographer has a bac- calaureate degree in broadcasting, there is no specific educational requirement for the classification and, when advertising to fill a vacancy in the position, the only reference made to the training or -30- ______________________________________________________________________ skills necessary to fill the vacancy was the statement "[p]revious experience helpful." Third, the Videographer and the Cablecaster work in the same building as, and have occasional professional contact with, the Audio-Visual Technicians. Among the employee classifications contained in the BASE unit are those of Manager I and Manager II. The employees in those positions and the Manager for Concessions at the Exposition Building have the following work duties in common: supervising the preparation of food, monitoring the food inventory, ordering food, and supervising the maintenance and repair of kitchen equipment. The Concessions Manager is authorized to hire his subordinate part-time employees and the food service managers do not have that authority. Second, the qualifica- tions, skills and training of the Concessions Manager are similar to those, of the food service Managers. The former employee has an asso- ciate degree in culinary arts while the minimum educational and work experience requirements for the Manager II classification are: "[e]xperience in large scale commercial or institutional cooking; gra- duation from a standard high school or trade school, including or supplemented by courses in cooking; or any equivalent combination of experience and training." The final position, which the Employer has suggested should be assigned to the BASE bargaining unit, is that of the Substitute Caller. This is an unskilled position, whose duties and responsibilities are limited to telephoning substitute teachers to fill-in for teachers who are absent that day and keeping simple records of such calls. Although the call-in function is unique to this position within the school department organization, the maintenance of simple records is a work responsibility of the Utility Clerk classification. The Substitute Caller is an unskilled position and, of the existing school department employee bargaining units, the BASE unit is the only one which includes other unskilled classifications such as the Laborers and the Driver Assistants. The similarities in the work performed and in the qualifications, skills, and training of the videographer, the Cablecaster, the Manager for Concessions at the Exposition Building, and of the Substitute Caller with those of employees currently -31- ______________________________________________________________________ included in the BASE bargaining unit establish that said positions share a clear and identifiable community of interest with classifica- tions in the BASE unit and warrant the assignment of said classifica- tions to said unit. Section 966(3) of the Act requires that the circumstances surrounding the formation of a bargaining unit must have changed signi- ficantly to justify altering the composition of that unit. The record shows that Videographer, Cablecaster, and Manager for Concessions at the Exposition Building classifications were all created subsequent to the formation of the BASE unit in 1970. The creation of new positions is the sort of change sufficient to warrant modification in the com- position of a bargaining unit. Despite their origins as separate units, the Portland School Department employee Classified Personnel I and Classified Personnel II bargaining units bargain jointly with the Employer, are covered by a single collective bargaining agreement, and, for all intents and pur- poses, are a single bargaining unit. The job classifications which currently comprise the Classified Personnel bargaining unit are: Supervisor of Building Services, Accounting Manager, Night Supervisor, Director of Food Services, Transportation Supervisor, and Secretary IV. All of these positions are similar in that each supervises non- academic support staff in the school department. The Employer has argued that the the following classifications should be assigned to the Classified Personnel bargaining unit: Facility Director of the Portland Exposition Building, Assistant Building Manager for the Exposition Building, Administrative Assistant for Evaluation and Data Management, Education Employment Coordinator for the Handicapped, and Administrative Assistant for Adult Basic Education. The Facilities Manager and the Station Manager of Channel 7 positions will also be considered for inclusion in the Classified Personnel bargaining unit because of the nature of the work which each performs. The Facilities Manager, the Facility Director of the Portland Exposition Building, and the Assistant Building Manager for the Exposition Building each supervise non-academic support personnel, exclusively. Like the Supervisor of Building Services, the Director of -32- Food Services, and the Transportation Supervisor, the three classifi- cations mentioned in the preceding sentence are each responsible for the operation of part of the school department's physical plant infrastructure. The Facilities Manager, among other job functions, has assumed the combined duties and responsibilities of the two former Supervisors of Building Services. The Facilities Manager and the Building Manager have similar training and experience since the minimum qualifications for the former position include graduation from a four year college with a major related to facilities management in such areas as mechanical or electrical engineering, while the incumbent employee in the latter classification has a baccalaureate degree in arena management. The three classifications have substan- tial professional contact with each other since the Facilities Manager is responsible for the physical maintenance of the Exposition Building and the Expo Director and his Assistant are in charge of promoting and directing the various events which are held at the facility. The three classifications work together in securing the staff necessary to operate the building, especially in circumstances when several events are held at the facility during a relatively short period of time and the regular building staff is not adequate to perform all of the work required. The Station Manager at Channel 7, like the Facilities Manager, supervises non-instructional, primarily technical, employees. The Station Manager supervises the Videographer and the Cablecaster, technical employees assigned to the BASE unit; while the Facilities Manager supervises electricians, plumbers, carpenters, and other technical employees in the BASE unit. Since the position was vacant at the time of the unit determination proceeding, little evidence was received concerning the Station Manager classification. The nature of the position would, however, require that the Station Manager's educa- tion and training be in the same sort of technical fields as that required for the Facilities Manager classification. Many of the duties and responsibilities of the Administrative Assistant for Adult Basic Education are similar to those of the Secretary IV job classification. The employees in both positions -33- ______________________________________________________________________ supervise and schedule the work of non-instructional clerical employees and both are ultimately responsible for the performance of all of the record keeping and clerical functions at the school building to which each is assigned. In addition to performing these functions, the Administrative Assistant is also involved in student intake, including orienting students to the ABEL program, admi- nistering tests, and counselling students on their available course options. Although the job description for the Administrative Assistant states that a bachelor's degree is a necessary qualification for the position, the incumbent employee in the classification does not have an academic degree beyond the high school diploma. The mini- mum educational qualifications contained in the job description for the Secretary IV position are "[g]raduation from a standard high school, supplemented by completion of college level courses in busi- ness administration, or any equivalent combination of experience and training." Finally, the employees in both the Administrative Assistant and the Secretary IV classifications are supervised by per- sons who are school principals or who occupy positions that are func- tionally equuivalent to that of school principal within the Employer's organizational structure. Neither the Administrative Assistant for Evaluation and Data Management nor the Education Employment Coordinator for the Handicapped supervises non-academic support staff personnel. The Administrative Assistant has no supervisory responsibility whatsoever and the Employment Coordinator supervises tutors, individuals directly engaged in the educational process. Second, the highest educational level, required of any employee either currently included in the Classified Personnel bargaining unit or assigned thereto herein, is a baccalaureate degree. Both the Administrative Assistant and the Employment Coordinator have masters degrees and that educational level is necessary for the successful performance of their work duties. The work performed by the Facilities Manager, the Facility Director of the Portland Exposition Building, the Assistant Building Manager for the Exposition Building, the Station Manager of Channel 7, and of the Administrative Assistant for Adult Basic Education as well -34- ______________________________________________________________________ as the qualifications, skills, and training of said positions are similar to those of some of the classifications currently included in the Classified Personnel unit. These factors, as well as those men- tioned in the above paragraphs discussing said classifications, establish that these five positions share a clear and identifiable community of interest with the classifications in the Classified Personnel unit and warrant the assignment of said five positions to said bargaining unit All of these five positions were created after the inception of the Classified Personnel bargaining unit in 1973. The creation of new classifications after the inception of a bargaining unit is a suf- ficient change in the circumstances surrounding the formation of the unit to permit modification of the unit's composition, under 26 M.R.S.A. 966(3). The dissimilarities between the work performed by and in the qualifications, skills, and training of the Administrative Assistant for Evaluation and Data Management and of the Education Employment Coordinator for the Handicapped and those same factors relating to the positions in the Classified Personnel unit establish that these two classifications do not share the requisite level of community of interest with the latter classifications. The Administrative Assistant and the Employment Coordinator cannot, therefore, be appropriately assigned to the Classified Personnel bargaining unit. According to its latest collective bargaining agreement with the Employer, the Portland Administrators' Association bargaining unit consists of the school department employees in the following job classifications: "[a] full-time building-level Principal or full-time Assistant Principal of an Elementary, Middle or High School, and including the Director and Assistant Director of the Portland Regional Vocational Technical Center." This is the most homogenous of the school department bargaining units which we have examined. All of the employees in this unit: (1) have simultaneous building and super- visory responsibilities, (2) supervise employees who provide direct instruction to students, (3) supervise employees whose classifications are included in the Social Workers and Certificated Employees -35- ______________________________________________________________________ bargaining unit, (4) report directly to a member of the school depart- ment's top management team ("Bix Six")--either the Assistant Superintendent for Primary Education or the Assistant Superintendent for Secondary Education, and (5) their work is performed primarily during daytime hours. The high school level administrators issue high school diplomas as part of their work responsibilities. The following are the public employee classifications at issue which have not, as yet, been assigned to any bargaining unit: Assistant Director of Adult Education, Coordinator of Adult Basic Education, Coordinator of Vocational and External Programs, Coordinatcr of Community Life Programming, Director of Portland Rehabilative Educational Program, Coordinator of Evaluation and Data Management, Administrative Assistant for Evaluation and Data Management, School Psychologist, Assistant Director of Special Services, Education Employment Coordinator for the Handicapped, and Director of Health Education. Of these positions, the Coordinator of Evaluation and Data Management, Administrative Assistant for Evaluation and Data Management, and the School Psychologist clearly do not share the requisite level of community of interest with the classifications in the Portland Administrators' Association unit. These three positions neither have building responsibilities nor do they supervise employees who provde direct instruction to students. Since these classifications do not involve the direct instruction of students, it is equally clear that they cannot be assigned to either of the remaining school department employee units which have yet to be considered: the Social Workers and Certificated Employees unit or the Teacher Aides and Assistants unit. A new bargaining unit will, there- fore, have to be created to allow these employees to enjoy the rights conferred by the Act. The Assistant Director of Special Services, the Education Employment Coordinator for the Handicapped, and the Director of Health Education do not have building responsibilities. Although each of these positions supervises instructional staff, the instructors which each supervises are spread throughout the school system. Since their shared community of interest with the Portland Administrators' -36- ______________________________________________________________________ Association unit is tenuous at best and since these three classifica- tions do share the requisite level of community of interest with those in the new unit mentioned in the preceding paragraph, these three positions will not be assigned to the Portland Administrators' Association unit. The Assistant Director of Adult Education, the Coordinator of Vocational and External Programs, and the Coordinator of Community Life Progamming have simultaneous building and educational supervisory responsibilities. Unlike the principals whose building respon- sibilities are each limited to a single structure, the adult education staff members' building responsibilities each extend to the use of several buildings throughout the school system. Although the employees supervised by the adult education positions provide direct instruction to students, those instructors are explicitly excluded from the Social Workers and Certificated Employees bargaining unit by the recognition clause in that unit's current collective bargaining agreement. These three positions report to the Director of Adult Education, who is not a member of the Employer's top management team, and, inherent in their job reaponsibilities, these classifications often perform their work during the evening hours. Despite some simi- larities between the two groups; on balance, these three classifica- tions do not share a clear and identifiable community of interest with the positions currently in the Portland Administrators' Association bargaining unit. The two remaining positions, the Coordinator of Adult Basic Education and the Director of the Portland Rehabilitative' Education Program ("PREP"), both appear at first blush to share the requisite level of community of interest with classifications in the Portland Administrators' Association unit. Each of the positions has simulta- neous building and educational supervisory responsibilities. The Coordinator is not only responsible for the operation of a single school but also manages six satellite programs at other schools and at such diverse locations as the Maine Medical Center and the Cumberland County Jail. In addition to building responsibility for the PREP facility, the Director also operates a tutorial center located at the -37- ______________________________________________________________________ Portland Exposition Building. While the teachers employed at PREP are included in the Social Workers and Certificated Employees bargaining unit, those at the Adult Basic Education program are included in a separate bargaining unit, by agreement between the Employer and their bargaining agent. In addition to having educational supervisory responsibilities, the Director teaches students at PREP. The Director of PREP reports to the Director of Special Services, a member of the school department's "Big Six" management team, while the Coordinator of Adult Basic Education is supervised by the Director of Adult Education who is not a member of the department's top management team. Both the PREP and the Adult Basic Education programs issue high school diplomas or their equivalent. The Director works primarily during daytime hours, while the Coordinator performs her work during the evening as well as during the normal school day. The nature of the Coordinator's building responsibilities, the unit placement of the employees super- vised by the position, the supervision of the classification by the Adult Education Director, and the evening work hours inherent in the position together establish that the Coordinator of Adult Basic Education does not share the requisite level of community of interest with the classifications in the Portland Administrators' Association unit. Despite the Director's multi-building responsibilities and the fact that he also teaches students; the similarities between the Director's duties and responsibilities, his place in the Employer's organizational structure, and his normal work day with those of the classifications in the Portland Administrators' Association unit establish that the Director shares a clear and identifiable community of interest with those positions. The Director's position was created subsequent to the formation of the Portland Administrators' Association unit in 1969, thereby constituting a change in the cir- cumstances surrounding the formation of that unit sufficient to warrant modification of that unit's composition. The Director of the Portland Rehabilitative Educational Program will, therefore, be assigned to the Portland Administrators' Association bargaining unit. Within the strictures of the Act, the following positions could not appropriately be assigned to any of the existing school department -38- ______________________________________________________________________ employee bargaining units: Assistant Director of Adult Education, Coordinator of Adult Basic Education, Coordinator of Vocational and External Programs, Coordinator of Community Life Programming, Assistant Director of Special Services, Coordinator of Evaluation and Data Management, Administrative Assistant for Evaluation and Data Management, Education Employment Coordinator for the Handicapped, Director of Health Education, and School Psychologist. The community of interest factors discussed in the following six paragraphs tend to establish that, together, these classifications constitute an appropriate bargaining unit. The work performed by all of the above classifications is similar in that they all provide system-wide academic support services. These "central office" services include supervision of the adult education program, computerization of student testing and records information, coordination of instruction for special education students, super- vision of student health education, and provision of psychological testing and counseling. While distinct from the direct instruction of students, each of these services facilitates student instruction. The labor relations policies for all of these positions are determined unilaterally by the School Committee and are codified in School Department Administrative Bulletin #81A, as amended. The scale and manner of determining the earnings for all but one of the positions is similar. All of the classifications, except for the Coordinator of Community Life Programming, are compensated through annual salaries, ranging from $17,313 to $30,943, and those earning levels were all determined unilaterally by the School Committee. Except for the Coordinator of Community Life Programming, all of the positions enjoy identical employment benefits in the following areas: paid sick leave, insurance benefits, retirement benefits, per- sonal leave, sabbatical leave, and travel reimbursement. The work year for all of the classifications, except the Coordinator of Community Life Programming, the Education Employment Coordinator for the Handicapped, and the School Psychologist, range from 218 to 229 days. The qualifications and training for all of the positions are similar since all of the incumbent employees have baccalaureat degrees -39- ______________________________________________________________________ and all, but the Coordinator of Community Life Programming and the Coordinator of Vocational and External Programs, have masters degrees. Although each position has different skills, such skills are similar in that all of the positions are professional employees, within the meaning of 26 M.R.S.A. 962(5) (1974). The adult education supervisors are in frequent professional con- tact with each other, working as a team in selecting courses, securing staff and course locations, scheduling courses, and promoting the adult education program. The Assistant Director of Special Services has professional contact with the School Psychologist and with the Education Employment Coordinator for the Handicapped. The Coordinator of Evaluation and Data Management and the Administrative Assistant for Evaluation and Data Management work closely together on a day-to-day basis and the Coordinator has professional contact with the Assistant Director of Adult Education and with the Assistant Director of Special Services. The Director of Health Education has professional contact with the Assistant Director of Adult Education Although the adult education supervisors are headquartered at the Portland Regional Vocational Technical Center and all of the other classifications have their offices at the school department's central office on Veranda Street, all of the classifications, with the possible exception of the Administrative Assistant for Evaluation and Data Management, have duties which require them to work in the various schools throughout the school system. With the exception of the School Psychologist position which was formerly included in the Social Workers and Certificated Employees bargaining unit and whose exclusion therefrom was negotiated by that unit's bargaining agent and the Employer, there is no collective bargaining history for any of the classifications. All of the incum- bent emplqyees in the classifications under consideration, who appeared at the unit determination proceeding, expressed a desire to be included in the same bargaining unit with the other positions at issue, among others. All of the Employer's other public employees are currently orga- nized into bargaining units and, as was seen above, these classifica- -40- ______________________________________________________________________ tions do not share the requisite community of interest level with positions in any of those units to permit the assignment of these classifications thereto. There are no formal divisions or departments in the Employer's organizational structure; however, these classifica- tions are functionally analogous to the middle management positions for both the department's schools and for the department's physical plant infrastructure. These other middle management groups are orga- nized into separate bargaining units: the former constitute the Portland Administrators' Association unit and the latter comprise the Classified Personnel unit. The positions presently under con- sideration, like the two other middle management groups, are situated between the department's top level management and rank-and-file employees in the Employer's chain of command. The community of interest factors discussed in this paragraph suggest that the classifications under consideration do not share a sufficient community of interest level to be included together in the same bargaining unit. The positions do not share common supervision. The adult education supervisors report to the Director of Adult Education; the Assistant Director of Special Services, the Education Employment Coordinator for the Handicapped, and the School Psychologist are supervised by the Director of Special Services; the Coordinator of Evaluation and Data Management and the Director of Health Education report directly to the Superintendent of Schools; and the Administrative Assistant for Evaluation and Data Management is supervised by the Coordinator of Evaluation and Data Management. Second, while most of the central office positions work during normal business hours, Monday through Friday; the School Psychologist is on- call 24 hours per day for crisis counseling and the adult education supervisors work some evenings, in addition to working during normal business hours. The wage and benefit factors for the Coordinator of Community Life Programming position are quite different form those for the other classifications because, to date, the Employer has not considered this position to be a school department classification. Consequently, the Coordinator's wages have been unilaterally determined by the Director -41- ______________________________________________________________________ of Adult Education. The following factors relating to the Coordinator of Community Life Programming are very similar to the same factors for the other adult education supervisors: work performed; common super- vision; hours of work; qualifications, skills, and training; constant professional contact with each other; geographic proximity of head- quarters office; desire to be represented together; extent of union organization and common incompatibility with positions in existing units; and relative standing in the public employer's organizational structure. The Coordinator of Community Life Programming shares a clear and identifiable community of interest with the other adult education snpervisors and, therefore, should be included in the same bargaining unit together with those classifications. The community of interest factors for all of the classifications under consideration have been examined and weighed individually and together and those factors tending to establish that all of these positions share the requisite community of interest level are qualita- tively more significant than those militating for the opposite result. The Assistant Director of Adult Education, Coordinator of Adult Basic Education, Coordinator of Vocational and External Programs, Coordinator of Community Life Programming, Assistant Director of Special Services, Coordinatqr of Evaluation and Data Management, Administrative Assistant for Evaluation and Data Management, Education Employment Coordinator for the Handicapped, Director of Health Education, and School Psychologist positions share a clear and identifiable community of interest, within the meaning of 26 M.R.S.A. 966(2) (Pamph. 1985), and, therefore, said classifications, together, constitute an appro- priate unit for purposes of collective bargaining. The Employer's final argument is that the creation of a separate bargaining unit in this proceeding would violate the Board's policy of discouraging the proliferation, through fragmentation, of small bargaininq units within the same public employer department. While the interests served by the Board's policy--the economy of time, money, and energy for the parties and for the State--are important, East Grand Teachers Association, supra, at 13; the policy must be sub- servient to the protection of employee rights afforded by the Act. In -42- ______________________________________________________________________ this instance, several public employees share the requisite community of interest level but cannot appropriately be assigned to any of the existing school department employee bargaining units. Since inclusion in a bargaining unit is essential to the enjoyment of the rights guaranteed by the Act, the creation of an application of the Board's non-proliferation policy. Second, the Board has stated that "[e]xcept in instances where the resulting one-or two-member supervisory unit would contravene our policy of discouraging the proliferation, through fragmentation, of small bargaining units, we have approved of the creation of such separate supervisory units." Penobscot Valley Hospital, supra, at 8. ORDER 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.A. 966 (Pamph. 1985), the hearing examiner ORDERS: 1. The petition for appropriate unit determination, filed by the Portland Administrative Employees Association on January 27, 1986, is hereby granted, in part, and denied, in part. 2. The Director of Adult Education employed by the Portland Superintending School Committee is a confidential employee, within in the definition of 26 M.R.S.A. 962 (6)(C) (1974), and is division head, within the meaning of 26 M.R.S.A. 962(6)(D) (1974). The Director of Adult Education is statutorily barred from being included in any bargaining unit. 3. The Coordinator of Computer Services employed by the Portland Superintending School Committee is a confiden- tial employee, within the definition of 26 M.R.S.A. 962(6)(C) (1974), and is, therefore, statutorily barred from being included in any bargaining unit. 4. The Manager for Concessions at the Exposition Building, Videographer for Channel 7, Cablecaster for Channel 7, and Substitute Caller job classifications in the employ of the Portland Superintending School Committee are assigned to the Benefit Association of School Employees bargaining unit. 5. The Administrative Assistant for Adult Basic Education, Facility Director of the Portland Exposition Building, -43- ______________________________________________________________________ Assistant Building Manager for the Exposition Building, Station Manager for Channel 7, and Facilities Manager job classifications in the employ of the Portland Superintending School Committee are assigned to the Classified Personnel Units I and II bargaining unit. 6. The Director of Portland Rehabilitative Educational Program job classification in the employ of the Portland Superintending School Committee is assigned to the Portland Administrators' Association bargaining unit. 7. The Portland Administrative Employees bargaining unit is composed of the followinq job classifications in the employ of the Portland Superintending School Committee: Assistant Director of Adult Education, Coordinator of Adult Basic Education, Coordinator of Vocational and External Programs, Coordinator of Community Life Programming, Assistant Director of Special Services, Coordinator of Evaluation and Data Management, Administrative Assistant for Evaluation and Data Management, Director of Health Education, Education Employment Coordinator for the Handicapped, and School Psychologist. 8. A representation election for the Portland Administrative Employees bargaining unit should be held as soon as practicable. Dated at Augusta, Maine, this 27th day of October, 1986. MAINE LABOR RELATIONS BOARD /s/_________________________________ Marc P. Ayotte Hearing Examiner The parties are advised of their right, pursuant to 26 M.R.S.A. 968(4) (Pamph. 1985), to appeal this report to the full Labor Relations Board by filing a notice of appeal with the Board within 15 days of the date of this report. -44- ______________________________________________________________________