MSAD #67 Teachers Assn./MTA/NEA and MSAD #67 Board of Directors

STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 91-UD-12
Issued: May 23, 1991

________________________________________
)
MSAD #67 TEACHERS ASSOCIATION/MTA/NEA, )
)
Petitioner, )
)
and ) UNIT DETERMINATION REPORT
)
MSAD #67 BOARD OF DIRECTORS, )
)
Public Employer. )
________________________________________)

This unit determination (merger) proceeding was initiated on January 9,
1991, when the MSAD #67 Teachers Association/MTA/NEA (hereinafter referred
to as "Union") filed a petition for unit determination with the Maine Labor
Relations Board ("Board") pursuant to 26 M.R.S.A. 966(4) (Supp. 1990) and
the Board's Unit Determination Rules. The Union's petition seeks a deter-
mination that, if merged, two existing bargaining units of employees of the
MSAD #67 Board of Directors ("Employer") would conform with the require-
ments of 26 M.R.S.A. 966 (1988 & Supp. 1990). The units at issue are one
consisting of Bus Drivers and one comprised of Teacher Aides, School
Secretaries, Librarian Aides and the School Nurse ("ASAN unit").

The Employer opposes the granting of the Union's petition and bases
its position on three premises: (1) the two units involved are represented
by different bargaining agents, (2) the Union is equitably estopped from
proceeding with the proposed merger, (3) a merger petition may not be
granted unless both bargaining units involved are covered by existing
collective bargaining agreements, and (4) the two units do not share the
requisite community of interest level for their merger to result in an
appropriate bargaining unit. The Union was represented in this matter by
Jonathan Falk, ESP UniServ Director, Maine Teachers Association, and the
Employer was represented by Roger P. Kelley, Labor Relations Consultant.

Prior to convening the formal evidentiary proceeding on February 27,
1991, the parties met with the hearing examiner in an informal conference
whose purpose was to ascertain whether there were any material issues of

-1-
____________________________________________________________________________

relevant fact involved in this matter. Through the diligent effort and
cooperation of the parties, a complete stipulation of the relevant facts
was reached, obviating the need for a formal proceeding. Said stipulation
has been incorporated into the findings of fact herein. Participating in
the conference as resource persons were:

Sally Delano
Chapter I Aide
MSAD #67

Emil P. Genest
Business Manager
MSAD #67

Paul Hurlburt
Maine School Management Association
Consultant for Employer

Dennis Lowell
Bus Driver
MSAD #67

Jack Turcotte
Superintendent of Schools
MSAD #67

Nadia Wotton
Librarian Aide
MSAD #67

The following documents, the only exhibits proposed for admission, were
admitted into the record:

Employer Exhibit No. 1 Letter from Mr. Falk to former MSAD #67
Superintendent Charles Casey, dated June 8,
1990, with Voluntary Recognition Form
attached

Employer Exhibit No. 2 Letter from MTA UniServ Director Brian J.
Kilroy to Superintendent Turcotte, dated
November 29, 1990

Employer Exhibit No. 3 Letter from Superintendent Turcotte to
Mr. Kilroy, dated December 17, 1990

Employer Exhibit No. 4 Letter from Mr. Falk to Superintendent
Turcotte, dated January 2, 1991, with copy
of merger petition attached

Employer Exhibit No. 5 Constitution and By-Laws of MSAD #67
Teachers Association/MTA/NEA, admitted with

-2-
____________________________________________________________________________

the caveat that this document is outdated
and the Union intends to update it

Employer Exhibit No. 6 Documents relating to the bargaining
history of the recognition article of the
Teacher Aides, School Secretaries,
Librarian Aides and School Nurses'
bargaining unit

Note: the handwritten titles on the
bottom of each page were added to the
documents by the hearing examiner at
the conference

Joint Exhibit No. 1 1989-91 collective bargaining agreement
between the MSAD #67 Support Staff
Association/MEA/NEA and MSAD #67 Board
of Directors

Joint Exhibit No. 2 Stipulations of fact, as amended by the
hearing examiner during the course of the
conference, with relevant job descriptions,
organizational charts, work hours comparison
and employment benefits comparison attached

During the course of the conference, the Employer offered the following
documents into evidence. In order not to unduly burden the record, the
hearing examiner suggested that it would be proper to take administrative
notice of such documents, which are included in the Board's non-confidential
records. The Union did not object to, and the hearing examiner has taken,
administrative notice of the following:

1. Agreement on appropriate bargaining unit between MSAD #67
Board of Directors and MSAD #67 Teachers Association, dated
August 15, 1990, and filed with the Board on August 27, 1990,
creating the MSAD #67 Bus Drivers' bargaining unit

2. Petition for bargaining agent election on behalf of the MSAD
#67 Teachers Association/MTA/NEA for the MSAD #67 Bus Drivers'
bargaining unit, dated August 22, 1990, filed with the Board
on August 27, 1990

3. Letter from Board Counsel M. Wayne Jacobs to Mr. Falk and
Superintendent Turcotte, dated August 28, 1990, with notice
of agreement on appropriate bargaining unit for the MSAD #67
Bus Drivers' bargaining unit attached

4. Letter from Board Counsel Jacobs to Mr. Falk and
Superintendent Turcotte, dated September 17, 1990, with
notice of election and sample ballot for the MSAD #67 Bus
Drivers' bargaining unit attached

-3-
____________________________________________________________________________

5. Maine Labor Relations Board Election Report and Certification
for MSAD #67 Bus Drivers' bargaining unit, dated October 17,
1990

6. Letter from Board Attorney Judith A. Dorsey to Mr. Falk and
Superintendent Turcotte, dated January 9, 1991, with notice
of unit determination (merger) hearing attached

7. Letter from Board Attorney Dorsey to Mr. Falk and
Superintendent Turcotte, dated January 25, 1991, with notice
of rescheduled unit determination (merger) hearing attached

8. Maine Labor Relations Board Election Report and Certification
for Teacher Aides, School Secretaries, Librarian Aides and
School Nurses' bargaining unit, dated February 6, 1989

The parties were accorded full opportunity to present proposed stipula-
tions, to introduce evidence, and to make argument. The parties presented
their arguments through post-hearing briefs, the last of which was filed
with the Board on April 26, 1991.

JURISDICTION

The MSAD #67 Teachers Association/MTA/NEA is the certified bargaining
agent for both the MSAD #67 Teacher Aides, School Secretaries, Librarian
Aides and School Nurses' bargaining unit and the MSAD #67 Bus Drivers'
bargaining unit. The MSAD #67 Board of Directors is the public employer of
the employees whose classifications are included in the bargaining units
mentioned in the preceding sentence. The executive director's jurisdiction
to conduct this unit merger proceeding and to issue this report lies
in 26 M.R.S.A. 966 (1988 & Supp. 1990).

FINDINGS OF FACT

Upon review of the entire record, the executive director finds:

1. The MSAD #67 Support Staff Association/MTA/NEA is the recognized
bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), of a
unit of MSAD #67 employees described as follows:

INCLUDED: Employees classified as Teacher Aides, School
Secretaries, Librarian Aides and School Nurses

EXCLUDED: Central office support personnel, persons in the above
classifications employed less than six months, and all
other employees of the MSAD #67 Board of Directors.

-4-
____________________________________________________________________________

2. The MSAD #67 Teachers Association/MTA/NEA is the certified
bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), of a
unit of MSAD #67 employees described as follows:

INCLUDED: Bus Drivers

EXCLUDED: Director of Transportation, Mechanic, Assistant Mechanic,
employees with less than six months' service and all other
employees of the MSAD #67 Board of Directors.

3. By majority vote of their respective memberships, the MSAD #67
Support Staff Association/MTA/NEA and the MSAD #67 Teachers Association/
MTA/NEA have merged into a single employee organization, within the meaning
of 26 M.R.S.A. 962(2) (1988), and that organization is called the MSAD #67
Teachers Association/MTA/NEA.

4. The employee organization that resulted from the merger mentioned
in the preceding paragraph includes members in the MSAD #67 Teachers'
bargaining unit, the MSAD #67 Teacher Aides, School Secretaries, Librarian
Aides and School Nurses' bargaining unit, and the MSAD #67 Bus Drivers'
bargaining unit.

5. The employee organization described in the preceding paragraph:
has a single set of officers, a common treasury, a single constitution and
set of by-laws, a single grievance committee, one executive committee;
holds general meetings, to which all members are invited, and has published
agendas for such meetings. Each member of the organization has equal
voting rights, regardless of the member's job classification.

6. The MSAD #67 Teachers Association/MTA/NEA is the bargaining agent,
within the meaning of 26 M.R.S.A. 962(2) (1988), for the bargaining units
described in paragraphs 1 and 2 hereof, satisfying the requirement con-
tained in 26 M.R.S.A. 966(4) (Supp. 1990).

7. Although the MSAD #67 Teachers Association/MTA/NEA is the
bargaining agent for three separate units of MSAD #67 employees, each such
unit has a different negotiating team for the purpose of negotiating a
collective bargaining agreement for that unit and, once final tentative
agreement is reached on a collective bargaining agreement for one of the
units, only the employees in that unit may vote on whether such tentative

-5-
____________________________________________________________________________

agreement should be ratified.

8. The MSAD #67 Board of Directors is the public employer, within the
meaning of 26 M.R.S.A. 962(7) (1988), of all of the employees whose
classifications are included in one of the bargaining units mentioned in
paragraphs 1 and 2 hereof.

9. During June 1990, the parties were attempting to reach agreement
on an appropriate bargaining unit of Bus Drivers.

10. On or about August 15, 1990, the parties reached agreement on an
appropriate bargaining unit of MSAD #67 Bus Drivers.

11. The unit agreement mentioned in the preceding paragraph was filed
with the Board on August 27, 1990, and, upon satisfaction of the Board's
posting requirement, said agreement was formally accepted by the Board.

12. The Board conducted a bargaining agent election on October 17,
1990, as a result of which the Union was certified as the bargaining agent
for the MSAD #67 Bus Drivers' bargaining unit.

13. On November 29, 1990, MTA UniServ Director Brian Kilroy wrote to
Superintendent of Schools Turcotte, proposing that the Employer voluntarily
agree to the unit merger that is the subject of this action.

14. The MSAD #67 Teacher Aides, School Secretaries, Librarian Aides
and School Nurses' bargaining unit has been represented by a bargaining
agent since February 6, 1989, and a collective bargaining agreement has
been negotiated for said unit since it was first organized.

15. The collective bargaining agreement mentioned in the preceding
paragraph runs from July 1, 1989, through June 30, 1991.

16. Since the Union became certified as the bargaining agent for the
MSAD #67 Bus Drivers' bargaining unit, the parties have not engaged in
collective bargaining for said unit.

17. The primary work responsibilities of the positions in the MSAD #67
Teacher Aides, School Secretaries, Librarian Aides and School Nurses'
bargaining unit are as follows:

Teacher Aides: Reinforce learning introduced by teacher by
instructing students under the direct supervision of the teacher,
supervise pupils and assist in preparing instructional materials

-6-
____________________________________________________________________________

School Secretaries: Prepare materials and correspondence, maintain
student records, sort and route mail, and schedule appointments

Librarian Aides: Selecting, ordering and processing materials;
maintaining records; typing correspondence; performing circulation
tasks; assisting with media production; producing graphics, bulletin
boards and posters; and supervising students in the library

School Nurse: Assists with physical examinations, immunizations and
tests for hearing and vision; reports to parents, school personnel,
physicians and other agencies on student medical matters; main-
tains health records on all students and completes all required
health reports; provides first aid to students and staff members
who are injured or have emergency illness; participates in devel-
oping and implementing school health program; advises on modifica-
tion of the educational program to meet individual student health
needs; authorizes exclusion and readmission of students with
infections and contagious diseases; and attends committee meetings
regarding health services and the health curriculum

18. The primary work duties for the classification in the MSAD #67 Bus
Drivers' bargaining unit are as follows:

Bus Drivers: Operating school buses and promoting safety of, and
maintaining discipline among, pupil/passengers

19. When performing instructional duties, the Teacher Aides
(Educational Technicians) are supervised by the classroom teacher or other
content specialist. When performing non-instructional duties, the Teacher
Aides are supervised by the building administrators, Principals or
Arsistant Principals, or by the Director of Pupil Services. The School
Secretaries are supervised by a building Principal and/or Assistant
Principal. The Librarian Aides are supervised by the building Principals
and Assistant Principals. The School Nurse is supervised by the building
Principals and the Superintendent of Schools. The building Principals and
the Director of Pupil Services report to the Assistant Superintendent of
Schools.

20. The Bus Drivers are supervised by the Transportation Supervisor,
who reports to the Assistant Superintendent, who, in turn, reports to the
Superintendent of Schools.

21. The labor relations policies for all of the classifications at
issue are determined by the MSAD #67 Board of Directors and are implemented
by the Superintendent of Schools, except to the extent that such policies

-7-
____________________________________________________________________________

are inconsistent with the provisions of the collective bargaining agreement
for the Teacher Aides, School Secretaries, Librarian Aides and School
Nurses' bargaining unit.

22. The compensation for all of the classifications at issue is based
on hourly rates. The salary ranges are as follows:

Bus Drivers $ 8.21 - 9.54/hr.
Librarian Aides $ 7.37 - 7.81/hr.
School Secretaries $ 7.51 - 8.05/hr.
Teacher Aides $ 6.64 - 7.10/hr.
School Nurses $12.55 - 13.32/hr.

23. The following table depicts the employment benefits enjoyed by the
employees in the classifications at issue with the Teacher Aides, School
Secretaries, Librarian Aides and School Nurses' unit listed as "ASAN"
therein:

BENEFIT Bus Drivers ASAN Unit

Holidays 8 8

Vacations After 1 year: 6 days After 1 year: 6 days

Sick Leave 11 days, accum. to 110 11 days, accum. to 110
May use for medical appts.

Emergency Leave 1 day 2 days

Family Care
Leave 2 days, from sick leave Unlimited, from sick leave

Bereavement
Leave 3 days for immediate family 3 days for immediate family
1 day for other family 1 day for other family
Must be approved in advance Must be approved in advance

Personal Leave 1 day 1 day, from Emergency Leave

Health Insurance 10 months subscription paid 10 months subscription paid
Single (after 6 months) Single (after 6 months)
Two-person (after 3 years) Two-person (after 3 years)
Full-family (after 7 years) Full-family (after 7 years)
Employee pays 12% Employee Pays 12%

Maine State
Retirement Yes Yes, except School Nurse

FICA Yes Yes, except School Nurse

-8-
____________________________________________________________________________

Retirement Bonus 12 days' unused sick leave, 12 days' unused sick leave,
after 20 years after 20 years

5 days' unused sick leave, 5 days' unused sick leave,
after 10 years after 10 years

Dismissal Pay Full day's pay, if school Full day's pay, if school
dismissed early dismissed early

Snow Day 1/4 day pay (1 hr. min.) 1/4 day pay (1 hr. min.)

Job-Related Course
Reimbursement Yes Yes

Longevity
Differential $ .10/hr., after 5 yrs. $ .10/hr., after 5 yrs.
$ .12/hr., after 7 yrs. $ .12/hr., after 7 yrs.
$ .14/hr., after 10 yrs. $ .14/hr., after 10 yrs.

Workers' Comp Yes Yes

24. The work day and work year for each classification at issue are as
follows:

Bus Drivers 4 or 6 hrs./day, 39 weeks/yr.
Librarian Aides 5-8 hrs./day, 40-43 weeks/yr.
Secretary 8 hrs./day, 43 weeks/yr.
Sp. Ed. Secretary 4 hrs./day, 39 weeks/yr.
Teacher Aides 3-7 hrs./day, 39 weeks/yr.*
School Nurse 6.5 hrs./day, 40 weeks/yr.

*One Teacher Aide works one-half hour/day for 39 weeks/yr.

25. The grievance procedure for the employees in the ASAN unit con-
sists of four steps, culminating in final and binding arbitration. There
is no grievance procedure for the Bus Drivers.

26. The minimum educational and training requirements for the classi-
fications at issue are as follows:

Bus Drivers: Minimum of one year's driving experience and Maine
School Bus Operator License

Librarian Aides: High school diploma

School Secretaries: None

Teacher Aides: High school diploma

School Nurse: RN license, Certification as School Nurse by State
Department of Education

-9-
____________________________________________________________________________

27. Of the 18 Teacher Aides employed in the district, six work at the
elementary level. The six elementary Aides load buses, check bus attend-
ence, assist in stopping traffic and relate students' alternate transporta-
tion arrangements to the Bus Drivers. This is the only professional
contact between members of the ASAN unit and the Bus Drivers.

28. There is frequent--but brief--professional contact or interchange
among the Teacher Aides, School Secretaries, Librarian Aides, and School
Nurse.

29. The MSAD #67 system's four schools each serve as work sites for
the Teacher Aides, School Secretaries, Librarian Aides and School Nurse.
The Bus Drivers are based at the school department garage; however, they
drive from school to school throughout the system.

30. The distribution of employees within the classifications at issue
is as follows:

Bus Drivers: 14

Librarian Aides: 5

School Secretaries: 6

Teacher Aides: 18

School Nurse: 1

31. Including the classifications at issue, most of the MSAD #67
employees are currently organized for purposes of collective bargaining.
Other than the positions involved in this case, the other employee groups
in MSAD #67 are:

Certificated professional staff: represented together by the
MSAD #67 Teachers Association

Administrators: not organized

Central office staff: not organized

Program directors (i.e., Food Service Director, Transportation
Director, Mechanic and Buildings and Grounds Supervisor):
not organized

Janitor/Groundskeepers: unit represented by Teamsters Union
Local 340

-10-
____________________________________________________________________________

Assisstant Mechanic, School Lunch Program Employees: not organized

32. The MSAD #67 organizational structure is represented by the
following diagram:

DISCUSSION

At the prehearing conference, the Employer presented three procedural
objections to the granting of the Union's merger petition. These proce-
dural objections were: (1) the two units involved are represented by dif-
ferent bargaining agents, (2) the Union is equitably estopped from
proceeding with the proposed merger, and (3) a merger petition may not be
granted unless both bargaining units involved are covered by existing
collective bargaining agreements. The Employer did not press its first
procedural objection in its post-hearing brief; nevertheless, 26 M.R.S.A.
966(4) requires, as a prerequisite to considering a unit merger petition,
that the units at issue be comprised of the employees of the same public
employer and be represented by the same certified or recognized bargaining
agent. Although the Board certification for the ASAN unit, dated February 6,
1989, and that for the Bus Drivers' unit, dated October 17, 1990, each name
the MSAD #67 Teachers Association/MTA/NEA as the certified bargaining agent
for the unit covered thereby, the recognition article of the ASAN unit
collective bargaining agreement names the MSAD #67 Support Staff Association/
MTA/NEA as the recognized bargaining agent for that unit. Based on the

-11-
____________________________________________________________________________

facts reported in paragraphs 3, 4, 5 and 7 of the foregoing findings of
fact, the executive director concludes that a single employee organization,
the MSAD #67 Teachers Association/MTA/NEA, is the certified bargaining agent
for both of the units at issue herein.

The Employer's second and third procedural defenses were fully
discussed in Gorham Maintenance, Bus Drivers, Cooks and Custodians
Association/MTA/NEA and Gorham School Committee, No. 91-UD-11, slip op.
(Me.L.R.B. May 15, 1991). The relevant facts in the Gorham case are suf-
ficiently similar to those in the instant case for the rationale of the
former case, contained at pages 12-14 thereof, to be dispositive herein.
Hence, the Employer's second and third procedural defenses are rejected.

When a unit merger election is sought, 26 M.R.S.A. 966(4) requires
the executive director to determine whether the merged unit being proposed
conforms with the requirements set forth in 966. The requirements which
must be met are:

(1) all of the units at issue must consist of employees of the
same public employer, (2) all such units must be represented by
the same bargaining agent, (3) the preference expressed in
966(1) against including supervisory employees in the same unit
with the employees whom they supervise, (4) the 966(2) require-
ment that classifications assigned to the same unit must share a
clear and identifiable community of interest, (5) the 966(2)
requirement that, if professional and non-professional employees
are proposed to be included in the same unit, a majority of all
of the professional employees affected must vote in favor of such
inclusion for it to occur, (6) the 966(4)(B) proviso that, if a
decertification petition has been filed for any of the units
involved in the merger proceeding, the decertification petition
must be resolved prior to consideration of the merger petition,
(7) the 966(4)(C) limitation that only one merger petition may be
filed per year for the same bargaining units, (8) the 966(4)(E)
prohibition against merging a unit composed primarily of super-
visory employees with any other unit, and (9) the 966(4)(F)
proscription against merging a teachers' unit with a unit of non-
professional employees.

Gorham, supra, slip op. at 15, citing, Auburn Education Association/MTA/NEA
and Auburn School Committee, No. 91-UD-03, slip op. at 9 (Me.L.R.B. Feb. 27,
1991), aff'd, Auburn School Committee v. Auburn Education Association/MTA/
NEA, No. 91-UDA-01, slip op. (Me.L.R.B. May 8, 1991). Other than require-
ment number 2, that was discussed and disposed of above, and requirement

-12-
____________________________________________________________________________

number 4, it is uncontested and the executive director concludes that the
proposed unit conforms to the balance of the requirements set forth in
965.

The only substantive issue remaining in the instant case is whether
the classifications in the ASAN unit share a sufficient community of
interest with the position in the Bus Drivers' unit for all of the classi-
fications, together, to comprise a unit which is appropriate for purposes
of collective bargaining. To constitute an appropriate unit, employee
classifications must share a clear and identifiable community of interest.
26 M.R.S.A. 966(2) (1988). The eleven-point test to determine whether
the statutorily-required community of interest level is present in a given
case was developed by the Board in Council 74, AFSCME and City of Brewer,
No. 79-A-01, slip op. at 3-4, 1 NPER 20-10031 (Me.L.R.B. Oct. 17, 1979),
and has been incorporated into Rule 1.11(F)(1) of the Board's Rules. Among
the relevant community of interest criteria are:

(1) similarity in the kind of work performed [17 and 18]; (2)
common supervision and determination of labor relations policy
[19, 20 and 21]; (3) similarity in the scale and manner of deter-
mining earnings [22]; (4) similarity in employment benefits,
hours of work and other terms and conditions of employment [23,
24 and 25]; (5) similarity in qualifications, skills and training
of employees [26]; (6) frequency of contact or interchange among
the employees [27 and 28]; (7) geographic proximity [29]; (8)
history of collective bargaining [9, 10, 11, 12, 14, 15 and 16];
(9) desires of the affected employees; (10) extent of union
organization [1, 2, 6 and 31]; and (11) the employer's organiza-
tional structure [32].

The numbers appearing within the brackets in the foregoing quotation refer
to the paragraph(s) of the findings of fact pertinent to the criterion
immediately preceding each set of brackets.

The following criteria suggest that the ASAN unit classifications
share a clear and identifiable community of interest with the Bus Drivers:
similarity in scale and manner of determining earnings, similarity in
employment benefits, and similarities in qualifications and training
required. All of the positions in the units at issue except for the School
Nurse are compensated on an hourly basis and their wage rates range from
$6.64 to $9.54 per hour. The School Nurse is compensated on an hourly

-13-
____________________________________________________________________________

basis and the salary range for that position is $12.55 to $13.32 per hour.
Most of the employment benefits enjoyed by the employee classifications in
the two units are substantially similar. Among such essentially equivalent
benefits are: same paid holidays; identical vacation policy; similar leave
policy for sickness, emergencies, bereavement, and personal needs; and the
same health insurance, retirement programs (except for the School Nurse),
retirement bonus, wage payment policy if school is dismissed early, snow
day policy, job-related course reimbursement, longevity differential, and
workers' compensation coverage. The only substantial employment benefit
difference between the Bus Drivers and the employees in the ASAN unit is
that the former may use up to two days per year of their sick leave as
family care leave while the family care leave for the latter is limited
only by the amount of each employee's accumulated sick leave.

The qualifications and training required vary widely among the posi-
tions in the ASAN unit. The Secretaries have no minimum education and
training standards and the School Nurse must have graduated from high
school and have " . . . completed a course of not less than 2 years in an
approved professional school of nursing and holds a diploma." 32 M.R.S.A.
2201(2) & (3) (1988). The minimum requirement of one-year's driving
experience for employment as a Bus Driver falls within the range of minimum
education and training required in the ASAN unit.

The following criteria tend to establish that the Bus Drivers do not
share the requisite community of interest level to be included in the same
bargaining unit as the ASAN unit classifications: different kind of work
performed; lack of common supervision and different applicable labor rela-
tions policy; lack of a grievance procedure for the Bus Drivers; and assign-
ment to different divisions of the employer's organizational structure.

The hearing examiner has recently discussed the "kind of work per-
formed" factor as follows:

In comparing the nature of the work being performed by the
various classifications under consideration, the essence or basic
type of the functions being performed is far more important than
the details of each position's work responsibilities. Inherent
in the existence of separate job classifications is a difference
in the specific work assignment of each classification; however,
such differences do not preclude the inclusion of various classi-

-14-
____________________________________________________________________________

fications in the same bargaining unit. In a school department
setting, for example, there may be, and usually are, approximately
a dozen job classifications; however, there are only four basic
types of work being performed. The kinds of work in a typical
school milieu are: (1) administrators supervising professional
and non-professional employees, (2) teachers and other educational
specialists such as counselors or librarians participating
directly in the educational process, (3) educational support per-
sonnel providing direct support to the educational process, and
(4) non-educational support staff performing the manual or mechan-
ical work to keep the department's physical plant in operation.
In the instant case, the Teacher Assistants and Aides are educa-
tional support personnel, directly participating in the educa-
tional process.

Auburn Education Association/MTA/NEA and Auburn School Committee, No.
91-UD-03, slip op. at 11 (Me.L.R.B. Feb. 27, 1991), aff'd, Auburn School
Committee v. Auburn Education Association/MTA/NEA, No. 91-UDA-01 (Me.L.R.B.
May 8, 1991). In the instant case, the fundamental nature of the Bus
Drivers' unit work is provision of non-educational support, while the
essential character of the ASAN employees' function is to provide educa-
tional support.

The lines of supervision for the positions in the two units are
markedly different. The ASAN unit employees are all, at least in part,
supervised by the educational administrators--the building Principals and
the Director of Pupil Services--who in turn report directly to the
Assistant Superintendent and Superintendent of Schools. None of the
Bus Drivers are supervised by the educational administrators; those
employees are supervised by the Transportation Supervisor/Mechanic, who in
turn reports to the Assistant Superintendent and Superintendent of Schools.
While, in the first instance, the labor relations policies for all of the
employees whose positions are involved herein are determined by the MSAD
#67 Board of Directors and are implemented by the Superintendent of
Schools, the policies applicable to the classifications in the ASAN unit
are different from those relating to the other positions at issue because
those of the former unit have been modified by a collective bargaining
agreement, while those of the latter group have not.

The terms and conditions of employment are different for the employees
in the two units at issue. The ASAN unit has a grievance procedure that
culminates in binding arbitration. The Bus Drivers' unit does not have a

-15-
____________________________________________________________________________

grievance procedure at this time.

Finally, the classifications in the two units are in separate divi-
sions of the Employer's organizational structure. The Bus Drivers' unit
position is in an operational division under the direction of the Assistant
Superintendent of Schools. The ASAN unit classifications are all in the
educational division under the direct supervision of the Superintendent of
Schools.

The following criteria do not militate either for or against a holding
of a shared clear and identifiable community of interest among the posi-
tions in the two units: the hours of work within each unit, the degree of
professional contact or interchange between employees in the two units, the
geographic proximity of the employees, the history of collective bargain-
ing, and the extent of union organization among MSAD #67 employees. The
hours worked per day and the length of the work year vary within each of
the current units and, therefore, there is little probative value to this
factor. All but one of the ASAN unit employees work between 3 and 8 hours
per day, with wide variance among the employees, and all of the Bus Drivers
work either 4 or 6 hours per day.

The nature of their employment greatly reduces the weight assigned to
the degree of interchange and geographic proximity factors when evaluating
units of school department employees. In the initial report in Auburn,
supra, slip op. at 13-14, the hearing examiner noted:

Because of the insular nature of employment in a school depart-
ment, the only occasional professional contact [among the classi-
fications at issue] is not particularly significant. Teachers,
unless engaged in team teaching, usually have only occasional
contact with other teachers and employees working in one school
building have only rare professional contact with those in other
buildings. The degree of employee contact is, therefore, far
less helpful a factor in evaluating school units than it is in
most other employment settings. Similarly, the Secretaries in
Auburn work in the same 14 buildings as the other employees at
issue here.

Hence, the two factors have little weight here.

Unit merger proceedings inherently concern two or more separate
bargaining units and separate units almost always have distinct and dif-

-16-
____________________________________________________________________________

ferent bargaining histories. There was no evidence concerning the ASAN
unit bargaining history, other than concerning the genesis of the recogni-
tion article of the unit's collective bargaining agreement. There has been
no bargaining for the Bus Drivers' unit. Little probative value could be
discerned from the history of collective bargaining factor herein.

The extent of union organization criterium can, as was noted in the
Auburn unit report, supra, slip op. at 14, be helpful in constituting new
units or when considering unit status of residual or unique employees.
Neither the Board's non-proliferation policy nor residual employees are at
issue; therefore, this factor is not helpful.

Finally, the Union has argued that the employees affected by the
merger petition support the granting thereof. The Union argued that "[o]ne
must presume that the employees' freely chosen bargaining agent is repre-
senting their desires in seeking a merger." Brief on behalf of the Union
at 6. Section 966(4) establishes the means to measure employee desires--a
Board-supervised election solely on the merger question; therefore, the
executive director declines to engage in the speculation concerning the
employees' desires being urged by the Union.

The community-of-interest factors have been evaluated and reviewed
individually and together. Those factors establishing that the position in
the Bus Drivers' unit does not share a clear and identifiable community of
interest with those in the ASAN unit are qualitatively more significant
than those militating for the opposite result. This is especially true
because most of the former criteria, including nature of work performed,
different supervision, and assignment to different divisions of the
Employer's organizational structure, are inherent in the classifications
themselves. The factors tending to establish the requisite level of com-
munity of interest, other than the similarities in minimum qualifications
and training, flow from the bargaining histories of the two units. The
classification in the Bus Drivers' bargaining unit does not share a clear
and identifiable community of interest with the positions in the Teacher
Aides, School Secretaries, Librarian Aides and School Nurses' unit, within
the meaning of 26 M.R.S.A. 966(2); therefore, a merger of said two units
would result in a unit that does not conform with the requirements set

-17-
____________________________________________________________________________

forth in 26 M.R.S.A. 966.

ORDER

Pursuant to 26 M.R.S.A. 966(4), the petition for unit determination
(merger) filed by the MSAD #67 Teachers Association/MTA/NEA, on January 9,
1991, in Case No. 91-UD-12, is hereby denied.

Dated at Augusta, Maine, this 23rd day of May, 1991.

MAINE LABOR RELATIONS BOARD

/s/____________________________________
Marc P. Ayotte
Executive Director

The parties are advised of their right, pursuant to 26 M.R.S.A. 968(4)
(1988), to appeal this report to the Maine Labor Relations Board. A party
seeking appellate review must file a notice of appeal with the Board within
fifteen (15) days of the date of issuance of this report. See Board Unit
Determination Rule 1.12, Board General Provisions Rule 7.03.

-18-
____________________________________________________________________________

Maine.gov