East Grand Teachers Assn./MTA/NEA and MSAD 14 Board of Directors, No. 92-UD-01

STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 92-UD-01
Issued: October 1, 1991

__________________________________________
)
EAST GRAND TEACHERS ASSOCIATION/MTA/NEA, )
)
Petitioner, )
)
and ) UNIT DETERMINATION REPORT
)
M.S.A.D. No. 14 BOARD OF DIRECTORS, )
)
Respondent. )
__________________________________________)

This unit determination case was initiated on July 8, 1991, when the
East Grand Teachers Association/MTA/NEA (hereinafter referred to as
"Union") filed a petition for unit determination pursuant to 26 M.R.S.A.
966(1) and (2) (1988). An evidentiary hearing was scheduled to be con-
ducted by the undersigned hearing examiner for the Maine Labor Relations
Board ("Board") on August 21, 1991, in the Labor Board Conference Room,
Room 714 of the State Office Building, Augusta, Maine. The Union was
represented by MTA UniServ Director Jonathan Falk. The M.S.A.D. No. 14
Board of Directors appeared through and was represented by Superintendent
of Schools Dean Wells.

The Union's petition seeks to create a bargaining unit described as
follows:

INCLUDED: The following employee classifications of M.S.A.D. No. 14:
Media Center Associate/Monitor, Teacher Aide, School
Secretary, Food Service Director, Food Service Assistant,
Transportation Supervisor, Bus Driver, Maintenance, and
Part-time Custodian.

EXCLUDED: Superintendent's office staff and all other employees of
the M.S.A.D. No. 14 Board of Directors.

The Employer opposes the Union's petition on the grounds that, although all
of the employees in the classifications at issue are public employees
within the meaning of 26 M.R.S.A. 962(6), each classification should
constitute a separate bargaining unit. The Employer's position is based on

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the following three contentions: (1) because of the diversity of skill
levels, responsibilities, hours worked per day, and length of the work year
among the classifications at issue, they do not share the requisite com-
munity of interest level to be included in the same bargaining unit; (2) if
all of the classifications were included in the same unit, the employee(s)
in one classification could "hold the Employer hostage" when negotiating
over the wages, hours, and working conditions for other classifications;
and (3) in a market economy, the labor costs for each classification should
be determined by the laws of supply and demand--while the labor supply for
one of the classifications at issue is limited, driving up the wages there-
for, there is an ample labor pool for the other positions in contention.

Prior to convening the formal evidentiary proceeding, the parties met
with the hearing examiner in an informal conference whose purpose was to
ascertain whether there were any material issues of relevant fact involved
in this matter. Through the diligent effort and cooperation of the par-
ties, a complete stipulation of the relevant facts was reached, obviating
the need for a formal proceeding. Said stipulation has been incorporated
into the ensuing findings of fact. Participating in the conference as
resource persons, in addition to the parties' representatives, were:

Lester Day Transportation Supervisor and Bus Driver,
M.S.A.D. No. 14

Brian J. Kilroy UniServ Director, Maine Teachers Association

Gregory Mailman Custodian, M.S.A.D. No. 14

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

Exhibit No. 1 Job Descriptions for Media Center Associate/Monitor,
Teacher Aide, School Secretary, Food Service
Director, Food Service Assistant, Transportation
Supervisor, Bus Driver, Maintenance, and Part-time
Custodian job classifications. This exhibit was
presented by the Employer and the Union agreed that
they were generally correct; however, the Union did
not agree with the lines of supervision/exercise of
supervisory authority mentioned in some of the job
descriptions.

Exhibit No. 2 SAD No. 14 Support Staff Wage Schedule. This
exhibit was prepared by the Union and it summarizes

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the wage information contained in the job descrip-
tions that constitute Exhibit No. 1. The hand-
written additions on the exhibit were made by the
hearing examiner based on the colloquy at the
conference. Copies of the exhibit, as amended,
were given to the parties at the conference.

Exhibit No. 3 SAD No. 14 Support Staff Benefits. The note
appended in relation to Exhibit No. 2 applies
hereto.

Exhibit No. 4 Letter from Mr. Wells to Mr. Falk, dated August 15,
1991.

The parties were accorded full opportunity to present proposed stipulations,
to introduce evidence, and to make argument.

JURISDICTION

The East Grand Teachers Association/MTA/NEA is a public employee
organization, within the meaning of 26 M.R.S.A. 962(2). The Maine School
Administrative District No. 14 Board of Directors is the public employer,
within the definition of 26 M.R.S.A. 962(7), of all full- and part-time
employees of Maine School Administrative District No. 14. The jurisdiction
of the hearing examiner to hear this matter and to make an appropriate unit
determination herein lies in 26 M.R.S.A. 966.

FINDINGS OF FACT

Upon review of the entire record, consisting of the petition, answer,
the parties' stipulation of relevant facts, and the documents introduced as
exhibits, the hearing examiner finds:

Stipulations

1. The East Grand Teachers Association/MTA/NEA is a public employee
organization, within the meaning of 26 M.R.S.A. 962(2), which is seeking
to become the bargaining agent for a unit of M.S.A.D. No. 14 employees.

2. The Maine School Administrative District No. 14 Board of Directors
is the public employer, within the definition of 26 M.R.S.A. 962(7), of
all full- and part-time employees of Maine School Administrative District
No. 14.

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3. The following classifications, with the number of employees in
each noted in parentheses, are those at issue in this proceeding: Media
Center Associate/Monitor (1), Teacher Aide (3), School Secretary (1), Food
Service Director (1), Food Service Assistant (1), Transportation Supervisor
(1), Bus Driver (3), Maintenance (1), and Part-time Custodian (1).

4. All of the employees in the classifications noted in the preceding
paragraph are public employees, within the definition of 26 M.R.S.A.
962(6).

5. Other than the classifications mentioned in paragraph 3 hereof,
the other employee positions at M.S.A.D. No. 14 are as follows: Superin-
tendent of Schools, Superintendent's Secretary, Bookkeeper, School
Principal, Special Education Coordinator, and Certificated Teachers and
Counselors.

6. Except for recitations concerning the nature and extent of super-
visory duties, the job descriptions prepared by the Employer, as amended at
the conference, accurately reflect the work duties of the classifications
at issue.

7. The classifications at issue are supervised by the following:

Classification Supervisor(s)

Media Center Associate Principal
Teacher Aide Principal
School Secretary Principal
Food Service Director Principal & Superintendent
Food Service Assistant Principal & Superintendent
Transportation Supervisor Superintendent & Principal
Bus Driver Transportation Supervisor,
Superintendent & Principal
Maintenance Superintendent & Principal
Part-time Custodian Maintenance, Superintendent &
Principal

When more than one supervisor is listed for a position, the primary super-
visor is listed first and the secondary supervisor is listed second, etc.

8. The labor relations policies for all of the classifications at
issue are determined by the M.S.A.D. No. 14 Board of Directors and are
implemented by the Superintendent of Schools.

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9. The current wage schedule for each of the classifications is as
follows:

School Media Center P/T Food Bus
Years Secretary Aide Assoc/Monitor Custodian Service* Driver** Maintenance***

0 $5.79 $5.41 $6.30 $4.33 $5.41 $8.65 $13,312
1 5.89 5.56 6.50 4.48 5.51 8.75 13,624
2 5.99 5.71 6.70 4.63 5.61 8.85 13,936
3 6.09 5.86 6.90 4.78 5.71 8.95 14,248
4 6.19 6.01 7.10 4.93 5.81 9.05 14,560
5 6.29 6.16 7.30 5.08 5.91 9.15 14,872
6 6.39 6.31 7.50 5.23 6.01 9.25 15,184
7 6.49 6.41 7.70 5.38 6.11 9.35 15,496
8 6.59 6.51 7.90 5.53 6.21 9.45 15,808
9 6.69 6.61 8.10 5.68 6.31 9.55 16,120
10 6.79 6.71 8.30 5.83 6.41 9.65 16,432
15 6.89 6.81 8.50 5.98 6.51 9.75 16,744
20 6.99 6.91 8.70 6.13 6.61 9.85 17,056
25 7.09 7.01 8.90 6.28 6.71 9.95 17,368

*plus 5% for head cook

**additional 1-1/2 hrs./day for Transportation Director at appropriate step of Drivers' Schedule

***Maintenance salary is based on 40-hour week; if works greater than 40 hrs./week, compensated
at additional 1/2 time

10. The employment benefits for the positions at issue are as follows:

School Media Center Food P/T Main- Bus
Benefit Secretary Aide Assoc/Monitor Service Custodian tenance Driver

Health 5% of single subscriber for each year of experience
Insurance ------ (first 10 years), 75% of single subscriber after -------
20 years.

Sick leave 9/17* 7/13 7/13 7/13 7/20 7/20 7/12

Bereavement
Leave -------------- Three days ---------------------------------------

Personal
Leave --------------- Two days ----------------------------------------

Paid
Holidays 3 2 2 2 6 8 2

Vacations - - - - 3 weeks 2 weeks paid
unpaid 3 weeks after
10 years

*1st figure = # days/yr; 2nd figure = total accrual

11. No formal job performance evaluations are conducted for any of the
classifications at issue and the employees therein do not have access to a
formal grievance procedure.

12. The Bus Drivers are trained by the Transportation Supervisor.

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13. The degrees of professional contact or interchange among the
classifications are defined as follows: high--frequent and extended con-
tact; low--infrequent and casual contact; medium--a degree of contact
between low and high. Using the above terms, the degrees of professional
contact or interchange between particular classifications are as follows:

Transportation Supervisor and Bus Drivers High
Maintenance and Part-time Custodian High
Food Service Director and Food Service Assistant High
Secretary and Teacher Aides Medium
Transportation Supervisor and Secretary Medium
Food service employees and Maintenance Medium
Secretary and Food service employees Medium
Secretary and Media Associate Low
Secretary and Maintenance Low
Bus Drivers and Maintenance Low
Media Associate and all other positions Low

14. The school district has a single K-12 school. There is no separate
bus garage and all of the buses are parked at the school when they are not
in use. The Superintendent's office is located adjacent to the Principal's
in the school building.

15. During the past four years, the salaries and benefits for the
employees, whose positions are in contention herein, have been determined
by the Board of Directors of M.S.A.D. No. 14, after consultation with the
employees in each classification. This past year, employees were asked to
present their wage and benefit requests in writing. During the previous
three years, the employees were invited to attend the Board of Directors'
meeting at which salaries and benefits would be determined.

16. The Board notices, informing the employees of M.S.A.D. No. 14 of
the pendency of the Union's petition, of the generic classifications at
issue, and including the date, time and place of the unit determination
proceeding, were duly posted in satisfaction of the requirement contained
in Board Rule 1.09(B).

17. No employee, whose classification was listed in the Board notice,
appeared at the unit determination proceeding to oppose the Union's peti-
tion.

18. The certificated professional employees of M.S.A.D. No. 14, other
than the Superintendent, the Special Education Coordinator, and the

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Principal, are represented by the East Grand Teachers Association/MTA/NEA.
They are the only M.S.A.D. No. 14 employees who are currently organized and
represented for purposes of collective bargaining.

19. The unit being sought by the Union's petition is composed of all
of the non-professional public employees employed by M.S.A.D. No. 14.

20. The Employer's organizational structure is as follows:

Board of Directors
|
|
Superintendent _ _ _ _ _ _ _ _ _
/ | |/ \
/ | / \
/ Principal /| \
/ | \| _______________\_______________
/ | | | | |
Special Education | | Maintenance Food Service Transportation
Coordinator | | | Director Supervisor
| | | | |
| | P/T Custodian Food Service Bus Drivers
| | | Assistant |
| |_______|_______________|_____________|
|
________________________|_____________________________________
| | | |
| | | |
Teachers Media Center Teacher Aides Secretary
Associate/Monitor

21. The Transportation Supervisor performs the same work as the Bus
Drivers; however, he is compensated for an additional hour and a half per
day for performing the extra duties in the Transportation Supervisor job
description.

22. The Food Service Director performs the same food preparation, food
service and clean-up duties as the Food Service Assistant; however, the
Director is paid an additional 5 percent at the appropriate step of the
Food Service Assistant salary scale for performing the extra duties con-
tained in the Food Service Director job description.

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Findings of Fact

The following findings of fact are based exclusively on the position
descriptions that constitute Exhibit No. 1 in the record.

1. The job duties of the Media Center Associate/Monitor are as
follows:

A. Assists individual students in locating reference
materials and other instructional materials.
B. Assists students in making proper use of center equipment
and materials, including the computer lab.
C. Makes sure that center materials and equipment are kept in
operational order.
D. Oversees the operation of the circulation desk and keeps
the circulation files.
E. Compiles and distributes the schedule of the use of the
media center, its materials, and equipment.
F. May read to small groups of elementary students and
listen to individual students read.
G. Assumes responsibility for ordering, cataloging, and filing
learning materials, periodicals and books.
H. Helps train and supervise student media assistants.
I. Monitors students in their study situation, making sure that
they are supervised and having the assistance they need.
J. Helps students develop study skills through the use of
reference materials.
K. Assists students in becoming familiar with proper library/
study skills.
L. Maintains and updates inventory of all learning materials,
periodicals and books.
M. Assumes responsibility in having all audio-visual media
center equipment operable and maintained.

2. The job duties of the Teacher Aide classification are as follows:

A. Aid the supervising teacher with classroom work as may be
required. Example: copying, filing, one-on-one work with
special needs children, typing masters, helping with parent/
teacher conferences, etc.
B. Assists teachers with monitoring the cafeteria area during
lunch.
C. Up-holds school rules, district policies and has the
authority to enforce these policies.
D. As directed by the Principal, will help with duties in the
classroom.
E. When necessary, will monitor study halls.
F. Provides limited clerical assistance to the Principal(s).

3. The job duties of the School Secretary are as follows:

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A. Maintains strict confidentiality of all office matters.
B. Performs usual office routines and practices associated
with a busy yet productive and smoothly-run office.
C. Assists in upholding and enforcing school rules, admin-
istrative regulations and Board policy.
D. Maintains such student records as shall be required.
E. Accounts for high school and elementary money: processes
coins, prepares checks, maintains ledger, balances
checkbook, keeps all club, class and organization
accounts up to date.
F. Checks purchase orders with items received and deliveries
related to School Department.
G. Types letters, reports, student records, memos, and state-
ments as directed by the Principal.
H. Acts as coordinator for school staff, students, parents,
etc., as related to business with the Principal/School.
I. Maintains a regular and confidential filing system as
required.
J. Processes incoming correspondence as instructed.
K. Assists students as required.
L. Attends meetings & conferences as directed by the Principal.
M. Coordinates daily lunch count and related paperwork.
N. Performs such other functions as may be assigned by the
Principal.

4. The job duties of the Food Service Director, in addition to those
noted in Stipulation No. 22 above, are as follows:

A. Purchases and maintains an inventory of all food, supplies,
and equipment.
B. Plans and checks all menus for school lunch/breakfast
programs.
C. Makes application for government surplus food.
D. Checks all bills and orders for accuracy before presenting
to business office.
E. Prepares Inventory Forms.
F. Inspects school lunch facilities and operations to ensure
that standards of diet, cleanliness, health and safety are
being maintained.
G. Assists principals/teachers in the instructional phase of
the lunch program.
H. Reports to supervisor any repairs or needs.
I. Works with staff to maintain an orderly, efficient cafeteria.
J. Attends workshops/conferences as required.
K. Assumes such other responsibilities that may be required in
direction of the school lunch program.

5. The job duties of the Food Service Assistant as are follows:

A. Follows directions and performs all duties assigned by Food
Service Director.
B. Works as a team member to ensure that standards of diet,

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cleanliness, health and safety are being maintained.
C. Develops communication with students, administrators, and
staff members and is sensitive to requests, complaints, and
suggestions for the betterment of the school lunch program.
D. As designated, will be solely responsible for the running of
the Breakfast Program and handle all papers as required.
E. Attends workshops/conferences as directed.
F. Assumes such other responsibilities that are consistent with
the running of a school cafeteria under the School Nutrition
Program.

6. In addition to performing the duties noted in Stipulation No. 21
above, the duties of the Transportation Supervisor include:

A. Supervises the diagnosing, assigning, and repairing of
district school buses.
B. Maintains a current inventory of supplies and equipment.
C. Establishes an efficient and effective system of routine
automotive maintenance and preventive care.
D. Promotes high standards of safety and good housekeeping
methods in the buses.
E. Conforms with all state laws and regulations regarding
school transportation.
F. Maintains safety standards in conformance with state and
insurance regulations and assists in carrying out program
of preventive safety.
G. Supervises all transportation personnel, and makes
recommendations on their employment, transfer, promotion,
and release.
H. Advises superintendent on road hazards for decision on
school closing during inclement weather.
I. Cooperates with school principal and others responsible
for planning special school trips.
J. Assists in preparing of bus route for East Grand.
K. Attends appropriate committee meetings when needed.
L. Authorizes mechanical work and parts in accordance with
budgetary limitations and district rules.
M. Approves and forwards transportation service invoices to
bookkeeper.
N. Oversees the maintenance of all district-owned school
buses and develops plans for preventive maintenance.
O. Obtains data for all reports required by state and local
authorities and sees that all maintenance records are kept.
P. Arranges for substitute bus drivers, extra-curricular bus
drivers and buses when needed.

7. The job duties of the Bus Driver position are as follows:

A. Reports all instances of other vehicles passing a stopped
bus to the proper authorities.
B. Obeys all traffic laws.
C. Observes all mandatory safety regulations for school buses.

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D. Maintains discipline when students are on bus.
E. Reports undisciplined students to the proper authority.
F. Keeps assigned bus clean.
G. Keeps to assigned schedule.
H. Checks bus before each operation for mechanical defects.
I. Assures that the bus is maintained and serviced as needed--
referring major problems to the transportation director.
J. Notifies the proper authority in case of mechanical failure
or lateness.
K. Discharges students only at authorized stops.
L. Exercises responsible leadership when on out-of-district
school trips.
M. Reports all accidents and completes required reports.
N. Maintains maintenance records as required.
O. Enforces regulations against smoking and eating on the bus.

8. The job duties of the Maintenance classification are as follows:

A. Assumes overall responsibility for proper maintenance,
cleaning, repair of buildings, grounds, vehicles,
machinery and equipment in compliance with the School
Department standards.
B. Responsible for the overall management and supervision
(including scheduling and assignment, instructing, checking
and evaluating) of all Custodial Staff.
C. Possesses ability to use a variety of hand & power tools and
other equipment to complete assigned projects.
D. Able to operate all school department vehicles; i.e., school
buses, lawnmowers, etc.
E. Possesses basic knowledge in activities such as: measuring,
sawing, squaring, drilling, sanding, fitting, fastening,
painting, electrical, plumbing, masonary and carpentry repairs
as needed and appropriate.
F. Responsible for security of all systems, locks and doors &
windows.
G. Maintains a custodial inventory.
H. Receives and stores deliveries.
I. Raises and lowers U.S. and State Flags before 8 a.m. on each
school day and lowers after 3:30 p.m.
J. Will attend Custodial/Maintenance Workshops as instructed by
the Superintendent of Schools.
K. Cold Weather Duties: Shovel snow, keep entrances clear,
check heating throughout building, sand walkways, notify
person contracted to plow/sand drive & parking areas when
needed.
L. Will work a minimum of one-hour per week with other custodians.
M. Will determine what equipment, materials, and supplies are
needed and will order following the established procedures.
N. Will check the school building once each Saturday and Sunday
and holidays during the months of December through March.
O. Performs other duties as may be instructed by the Superin-
tendent of Schools.

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9. The job duties of the Part-time Custodian position are as follows:

A. Assist with overall responsibility for proper maintenance,
cleaning, repair of buildings, grounds, machinery and
equipment in compliance with the School Department Standards
and as directed by the Building Supervisor.
General Schedule of Duties: Check in with Supervisor upon
arriving and begin cleaning duties as instructed.
B. Possess abilities needed to complete assigned project.

10. The length of the work day and work year for each of the positions
in contention is as follows:

Classification Work Day Work Year

Media Associate 7 hours 195 days
Teacher Aide 6.5-7 hours 177-179 days
Secretary 6-8 hours 205 days
Food Director 6.5 hours 179 days
Food Assistant 6.5 hours 179 days
Trans. Supervisor 4.5-5.5 hours 180+ days
Bus Driver 3-4 hours 175 days
Maintenance 8 hours 260 days
Part-time Custodian 6-8 hours 260 days

11. The minimum educational qualification for all of the classifica-
tions at issue, except for the Part-time Custodian, is graduation from high
school or the equivalent.

12. The skills required vary among groups of the classifications in
contention as follows: Media Center Associate and Teacher Aide--
instructional and clerical skills and ability to supervise students; School
Secretary--clerical skills; food service employees--culinary skills;
transportation employees--driving skills and ability to detect mechanical
problems; and building maintenance employees--custodial, mechanical, and
building trades skills.

13. The training required to perform the work of all of the positions
at issue is of the sort usually acquired on the job.

DISCUSSION

At the outset of the proceeding, the Union, in essence, moved that the
Employer's answer be stricken since it was untimely or was unresponsive, in
violation of Board Rule 1.08(A) and (D), respectively. The Union's peti-

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tion was filed on July 8, 1991. Board Rule 1.08(A) requires that the
Respondent's answer must be filed "[w]ithin ten working days of the receipt
of a unit determination petition" by the Board. The Employer's response
was filed on July 18, 1991. In normal circumstances, July 18 would have
been eight working days after July 8; however, due to the shutdown of State
government, the Board's office was closed on July 11, 12, 15 and 16, 1991.
The Respondent's answer was, therefore, filed within four working days of
the filing of the petition herein. Board Rule 7.02(A).

The alternate basis for the Union's motion to strike was that the
Employer's response failed to comply with Board Rule 1.08(D). That Rule
states:

If a respondent disagrees with any proposed unit, it shall in its
response describe with particularity the unit which it considers
to be appropriate. The respondent shall estimate the total
number of employees in that unit, state the classifications of
employees sought to be included in and excluded therefrom, and
estimate the number of employees in each classification.

In the instant case, the petition sought creation of a single bargaining
unit composed of "Ed Techs (4), secretaries (1), food service (3), bus
drivers (4), custodians (3)" and excluding the Superintendent's office
staff. The Employer's response stated, in relevant part, as follows:

The M.S.A.D. #14 School Directors are opposed to all educational
technicians, secretaries, food service personnel, bus drivers and
custodians being considered as one bargaining unit.

The Directors see very little in common amongst these various
positions. The skills and expertise needed for one position
varies greatly from the skills and expertise needed in another.
In addition, the availability of personnel for potential
employment in any one of these positions varies significantly.
Thus, the Directors need to have the flexibility to address each
of the positions separately as it relates to the supply/demand
issue.

The Employer's position was that each of the various job classifications at
issue should constitute a separate bargaining unit. Since the Union was
petitioning to include five classifications in the proposed bargaining
unit, the Employer's averment was that five separate units ought to be
created.

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Often, petitions for unit determination filed by employee organiza-
tions will list the generic names of the various job classifications at
issue, based on the employees' understanding of their own job titles,
rather than naming the formal classification designations assigned by the
employer. Once the conference was convened, it became clear that the Union
was seeking a determination that the following classifications constituted
an appropriate bargaining unit: Media Center Associate/Monitor, Teacher
Aide, School Secretary, Food Service Director, Food Service Assistant,
Transportation Supervisor, Bus Driver, Maintenance, and Part-time
Custodian. Since the Union was in fact proposing that nine separate
classifications be included in the bargaining unit, the Employer's position
was that nine separate bargaining units should be created. The Union has
argued that the Employer's initial position, that five bargaining units
would be appropriate, should estop the Employer from now asserting that
nine bargaining units should be created. The hearing examiner concludes
that the Employer's position has consistently been that, however many
employee classifications the Union sought to include in the proposed
bargaining unit, each such classification should constitute a separate
bargaining unit. In the circumstances, the Employer is not estopped from
urging that nine bargaining units ought to be created.

The lodestar that guides the creation of appropriate bargaining units
under the Municipal Public Employees Labor Relations Law ("Act"), 26
M.R.S.A. ch. 9-A (1988 and Supp. 1990) is fostering an improved relation-
ship between public employees and their employer " . . . by providing a
uniform basis for recognizing the right of public employees to join labor
organizations of their own choosing and to be represented by such organiza-
tions in collective bargaining for terms and conditions of employment.
26 M.R.S.A. 961 (1988). The Supreme Judicial Court has discussed the
importance of the bargaining in fulfilling the purpose of the Act as
follows:

The institutional purpose of the bargaining unit, then, is to
strengthen the bargaining position of the employees as a group.
It does so procedurally by aggregating the employees into a unit
and thus providing the basic mechanism for collective bargaining;
it does so substantively by defining the group whose economic
rights and benefits will be governed by majoritarian processes.

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The bargaining unit is, in short, a fundamental element in the
self-governing relation between the public employee and his
employer. Indeed, under the National Labor Relations Act, the
coherent bargaining unit is perceived as a necessary condition
for effectuating the national labor policy of collective
bargaining. Pittsburg Plate Glass Co. v. NLRB, 313 U.S. 146, 61
S.Ct. 908, 85 L. Ed. 1251 (1941). In light of the role played by
the bargaining unit, we likewise believe that the two fundamental
purposes of the MPELRL--freedom of employee self-organization and
voluntary adjustment of the terms of employment--are best effec-
tuated through the creation of coherent bargaining units composed
of employees who have "an identifiable community of interest" in
the subjects controlled by the collective bargaining agreement.

Lewiston Firefighters Association v. City of Lewiston, 354 A.2d 154, 161
(Me. 1976). Collective bargaining is a response to the inherent inequality
of bargaining power between a single employee and her or his employer.
Collective bargaining attempts to level the playing field and empower indi-
vidual employees in the negotiating process by providing a mechanism
through which an employee can coordinate his or her bargaining proposals
with those of co-workers with whom the employee shares similar terms and
conditions of employment. The Act explicitly recognizes that appropriate
bargaining units are composed of employees who share a "community of
interest" and does not condition employees' unit inclusion on whether they
share identical terms and conditions of employment. 26 M.R.S.A. 966(2)
(1988).

If adopted, the Employer's argument that each classification at issue
should constitute a separate bargaining unit would result in the creation
of nine separate units--seven of which would each contain a single
employee. Single-member units are the antithesis of collective bargaining
and the Board has sanctioned such units only when they are the only means
through which a public employee can exercise tne rights guaranteed by the
Act. Teamsters Local Union No. 48 v. Town of Wells, No. 84-A-03, slip op.
at 9-10, 6 NPER 20-15012 (Me.L.R.B. Apr. 11, 1984), aff'd sub nom.
Inhabitants of Town of Wells v. Teamsters Local Union No. 48, No. CV-84-235
(Me. Super. Ct., York Cty., Feb. 28, 1985). Furthermore, the Board has
held that placing a public employee in a single-member unit " . . . may
well impede the individual, placed therein, from securing the free exercise
of his [or her] collective bargaining rights, in contravention of the

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spirit and intent of Section 963 of the Act." Maine School Administrative
District No. 14 and East Grand Teachers Association, No. 83-A-09, slip op.
at 13, 6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983); Town of Sabattus and
Teamsters Local Union No. 48, No. 82-A-01, slip op. at 4, 4 NPER 20-12041
(Me.L.R.B. Sept. 17, 1981).

The Employer's arguments that, by permitting employees to band
together to negotiate over the terms and conditions of their employment,
the respective bargaining power of the employer and the various employees
will be affected and there will be a shift in the negotiating process away
from the classic supply and demand model for the individual classifications
involved address the very nature of collective bargaining. The Legislative
decision adopting collective bargaining as the means of settling the wages,
hours and working conditions of organized public employees forecloses such
arguments. Since the Employer has stipulated that all of the employees in
the classifications at issue are public employees, within the definition of
Section 962(6) of the Act, the hearing examiner is bound by the Legislative
intent expressed in Section 961 of the Act to reject these arguments.

The third issue presented is whether, because of the diversity in
skills required, responsibilities, hours worked per day, and length of the
work year among the employee classifications at issue, such positions share
the requisite community of interest level to be appropriately included in
the same bargaining unit. In order to constitute an appropriate bargaining
unit, employee classifications must share a clear and identifiable com-
munity of interest. 26 M.R.S.A. 966(2) (1988). In determining whether
the statutorily-required community of interest level is present in a given
case, the Board has developed and consistently applied an eleven-point test
that is now codified in the Board's Rules. 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); Penobscot Valley Hospital and Maine Federation of Nurses and Health
Care Professionals, AFT, AFL-CIO, No. 85-A-01, slip op. at 4, 8 NPER
ME-16011 (Me.L.R.B. Feb. 6, 1985). Among the relevant community of
interest criteria are:

(1) similarity in the kind of work performed; (2) common super-
vision and determination of labor relations policy; (3) simi-
larity in the scale and manner of determining earnings; (4)

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similarity in employment benefits, hours of work and other terms
and conditions of employment; (5) similarity in qualifications,
skills and training of employees; (6) frequency of contact or
interchange among the employees; (7) geographic proximity; (8)
history of collective bargaining; (9) desires of the affected
employees; (10) extent of union organization; and (11) the
employer's organizational structure.

Board Rule 1.11(F).

In a recent decision, the hearing examiner discussed the first com-
munity of interest 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-
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.

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, No. 91-UDA-01,
__ NPER ________ (Me.L.R.B. May 8, 1991). The fourth group in the above
listing might more accurately have been named the operational support
staff. The duties of employee classifications in this group involve per-
forming manual, mechanical, and clerical work to operate and maintain the
school department's physical plant, food service operation, transportation
system, and administrative function. All of the employees are technical
specialists whose primary job functions are not unique to the educational
setting. While this refinement might seem inconsistent with the result
reached in Auburn, the initial decision in that case indicated that the
secretaries' work was difficult to characterize, No. 91-UD-03 at 11, and
there was evidence in the record that the Auburn school secretaries were

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substantially and directly involved in the educational process. Regardless
of what a classification is called, the actual work performed by the
employees therein will determine the nature of work grouping to which each
position will be assigned.

In the instant case, the Media Center Associate/Monitor and the
Teacher Aides are educational support personnel, directly participating in
the educational process. The balance of the classifications at issue are
operational support personnel, within the above description. While some
of these classifications involve some contact with students, the primary
duties of none of these positions directly implicate the educational pro-
cess. Second, the work of all of the classifications, other than Media
Center Associate/Monitor and Teacher Aide, is commonly performed in
employment milieus other than education.

The Media Center Associate/Monitor, Teacher Aide, and School Secretary
positions are all supervised by the building Principal. The Food Service
Director and Food Service Assistant classifications are supervised pri-
marily by the Principal and secondarily by the Superintendent of Schools.
The Transportation Supervisor and Maintenance positions are primarily
supervised by the Superintendent and secondarily by the Principal. The Bus
Drivers are supervised by the Transportation Supervisor, the Superintendent,
and the Principal. The Part-time Custodian is supervised by the Maintenance
person, the Superintendent, and the Principal. Hence, the Superintendent
is, at least, the secondary supervisor for all of the employee classifica-
tions at issue, except for the Media Associate, Teacher Aides, and the
Secretary. The labor relations policies for all of the positions in con-
tention are determined by the M.S.A.D. No. 14 Board of Directors and are
implemented by the Superintendent.

The wages of all of the employees at issue are based on hourly rates
and all of the classifications' wage scales consist of fourteen steps,
based on length of service with the district. The following table demon-
strates the starting and top-of-the-scale hourly rates and the correspond-
ing weekly salaries paid during the school year for each of the positions.

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Classification Starting Rate Starting Weekly Top Rate Top Weekly
Salary Salary

Media Associate 6.30 220.50 8.90 311.50
Chapter I Aide 5.41 189.35 7.01 245.35
School Secretary 5.79 231.60 7.09 283.60
Food Director 5.68 184.62 7.05 228.98
Food Assistant 5.41 175.83 6.71 218.08
Trans. Supervisor 8.65 216.25 9.95 248.75
Bus Driver 8.65 151.38 9.95 174.13
Maintenance 6.66 256.00 8.86 334.00
Part-Time Custodian 4.33 129.90 6.28 188.40

The weekly salaries were calculated by multiplying each classification's
hourly rate by the number of hours each works during the school year.
Since one bus run takes three hours per day and the other takes four hours
per day, the average, three and one-half hours per day, was used in the
calculations.

The Employer health insurance contribution, sick leave, bereavement
leave and personal leave policies are very similar for all of the employees.
The number of paid holidays is contingent upon the length of the work year;
i.e., whether a classification works only during the school year or all
year-round. Only the Maintenance person receives a paid vacation.

The following table depicts the hours of work per day and the length
of the work year for each of the classifications at issue.

Classification Work Day Work Year

The other terms and conditions of employment are identical for all of the
employees. There are no formal performance evaluations and there is no
formal grievance procedure.

The basic educational requirement is essentially the same for all of
the positions; candidates for all but the Part-time Custodian classifica-

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tion must be high school graduates. The skills required vary among the
classifications. The skills necessary for each position are of the sort
usually acquired through on-the-job training and experience rather than
through a specialized course of post-high school instruction.

The relative degrees of professional contact or interchange among the
classifications were defined at the conference as follows: "high" means
frequent and extended contact, "low" means infrequent and casual contact,
and "medium" contact is between the two extremes. The Transportation
Director and the Bus Drivers have a high degree of contact with each other
as do the Food Service Director with the Food Service Assistant and the
Maintenance Person with the Part-time Custodian. The Secretary has:
medium to high contact with the Transportation Supervisor, medium contact
with the Teacher Aides and with the food service staff, and low contact
with the Media Associate and the Maintenance person. The food service
personnel have medium contact with the Maintenance person. The Media
Associate has low contact with the employees in all of the other classi-
fications at issue.

All of the employees work in, around or from the same school building;
therefore, they are all in close geographic proximity with each other.

Evidence was presented that the employees in each classification were
consulted, in differing ways and to varying degrees, each year, prior to
the M.S.A.D. No. 14 Board of Directors' establishing the wages and benefits
for such employees for the ensuing year. These informal discussions never
resulted in a collective bargaining agreement and there was no evidence
that the employees had ever been represented by a bargaing agent, as
defined in Section 962(2) of the Act. Without a bargaining agent there
can be no collective bargaining; therefore, there has been no collective
bargaining history for any of the employee classifications at issue.
Maine Teachers Association and Scarborough School Department, No. 84-UD-16,
slip op. at 10-12 (Me.L.R.B. June 13, 1984).

There was no direct evidence of the desires of the employees affected
concerning the parameters of the bargaining unit(s) that might result from
this proceeding. The Board's notices, indicating that the Union was
seeking creation of a wall-to-wall support staff bargaining unit, were

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posted in conformity with Board Rule 1.09(B). None of the employees whose
positions were in contention appeared at the conference to oppose the
Union's petition.

Other than the classifications at issue herein, the balance of the
positions in the employ of M.S.A.D. No. 14, together with their current
representation status, are as follows: Superintendent of Schools--
unrepresented; Superintendent's office staff, including Superintendent's
Secretary and Bookkeeper--unrepresented; Principal--unrepresented; Special
Education Coordinator--unrepresented; and Teachers, including all certified
professional employees except for the Superintendent--represented by East
Grand Teachers Association/MTA/NEA. Apparently, the Union's petition seeks
inclusion of all of the non-professional public employees employed by
M.S.A.D. No. 14 in the proposed bargaining unit.

The Employer's organizational structure is typical of those in small
school departments. Since the Superintendent's office is located next to
the Principal's in the only school building, it is not unusual for the
lines of authority and supervision to be blurred, with the Superintendent
and the Principal both exercising supervisory authority over most of the
employee classifications. The fact that the Principal is in the "chain of
command" for all of the employee classifications indicates that, unlike
larger departments, there are no divisions in the Employer's organizational
structure.

The following community of interest factors indicate that all of the
positions in contention do not share the requisite community of interest
level to be included in the same bargaining unit: differences in the kind
of work performed, dissimilarity in hours of work and in the length of the
work year, and differences in the skills required. The nature of the Media
Center Associate and Teacher Aides' work is different from that of the
other classifications; the former two positions perform educational support
functions, while the latter group performs operational support work.
Second, the hours of work factor would suggest that the Transportation
Supervisor and the Bus Drivers should be in a different unit from all of
the other classifications under consideration. While all of the other
employees work 6 to 8 hours per day, the transportation employees work only

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3 to 5-1/2 hours per day. The length of the work year of the Maintenance per-
son and Part-time Custodian, as compared with that of all of the other
positions, suggests that the two custodial employees should be assigned to
a separate unit. The work year of all of the other employees approximates
the school year, while the two custodial employees work on a year-round
basis.

Finally, the skills required for the classifications in contention
vary among groups of positions. The Media Center Associate and Teacher
Aides' skills are, in order of priority, instructional, clerical, and the
ability to supervise students. The School Secretary must have clerical
skills. The Food Service Director and Associate positions require culinary
skills. The Transportation Supervisor and Bus Drivers require driving
skills and the ability to detect mechanical defects in the buses. The
Maintenance and Custodian classifications require custodial, mechanical,
and building trades skills.

The following criteria tend to establish that all of the classifica-
tions at issue share a clear and identifiable community of interest: common
supervision and determination of labor relations policy; scale and manner
of determining earnings; similarity in employment benefits and in other
terms and conditions of employment; similarity in minimum educational
qualifications and in the type of training required; a medium level of
contact or interchange among positions who have a high degree of contact
with yet other classifications, resulting in a medium level of contact
throughout the positions at issue; all of the classifications work in close
geographic proximity with each other; none of the positions has a collec-
tive bargaining history; the Union's petition seeks to place all of the
eligible, non-professional employees who are currently unorganized into the
proposed unit; and all of the positions at issue are in the same (the only)
division of the Employer's organizational structure.

The community of interest factors have been examined and weighed
individually and together. In the hearing examiner's view, those factors
that are inherent in the positions themselves are qualitatively more sig-
nificant than are factors which resulted from disparate treatment among
the positions by the public employer, for one reason or another, over the

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years. Auburn, No. 91-UD-03, slip op. at 14. While the "nature of work
performed" factor is important in fashioning coherent bargaining units,
that factor is by no means dispositive. In the instant case, other factors
which relate to traits that are inherent in the positions themselves mili-
tate for a single unit. Among such factors are: common supervision, simi-
larity in the hours of work and in the work year for most of the employees,
similar qualifications and training, geographic proximity, and location
within the Employer's organizational structure. In the circumstances and
considering all of the relevant community of interest criteria, the hearing
examiner concludes that the Media Center Asociate/Monitor, Teacher Aide,
School Secretary, Food Service Director, Food Service Assistant, Transpor-
tation Supervisor, Bus Driver, Maintenance, and Part-time Custodian classi-
fications in the employ of M.S.A.D. No. 14 share a clear and identifiable
community of interest, within the meaning of 26 M.R.S.A. 966(2); there-
fore, together, said positions constitute an appropriate unit for purposes
of collective bargaining.

The final issue presented is whether the Food Service Director, Trans-
portation Supervisor, and Maintenance person are supervisory employees,
within the meaning of 26 M.R.S.A. 966(1), and should be assigned to a
separate bargaining unit. Section 966(1) expresses a preference that
supervisory employees not be included in a bargaining unit with the
employees whom they supervise. Town of Kittery and Teamsters Local
Union No. 48, No. 83-A-02, slip op. at 4, 5 NPER 20-14018 (Me.L.R.B.
Feb. 7, 1983). The relevant portion of Section 966(1) states:

In determining whether a supervisory position should be excluded
from the proposed bargaining unit, the executive director or his
designee shall consider, among other criteria, if the principal
functions of the position are characterized by performing such
management control duties as scheduling, assigning, overseeing
and reviewing the work of subordinate employees, or performing
such duties as are distinct and dissimilar from those performed
by the employees supervised, or exercising judgment in adjusting
grievances, applying other established personnel policies and
procedures and in enforcing a collective bargaining agreement or
establishing or participating in the establishment of perform-
ance standards for subordinate employees and taking corrective
measures to implement those standards.

The record indicates that the Transportation Supervisor is primarily
employed as a bus driver, who assigns work to other drivers and who serves

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as the liaison between the administration and the transportation employees.
The Transportation Supervisor is paid one and one-half hours per day (one
hour according to the position description) to perform the non-driving
duties of the classification. The Food Service Director's primary work is
the preparation and service of food and not the supervision of the other
food service employee. The Food Service Director receives only a 5 percent
pay differential over the Food Service Assistant for performing the record-
keeping duties of the position. The Maintenance person is the de jure
supervisor of the Part-time Custodian; however, the Maintenance person's
primary duties are performance of custodial and building trades work in the
school building. The Maintenance person is only required to work with the
Part-time Custodian one hour per week; therefore, the former has little
opportunity to directly supervise the latter. The three employees are
working foremen who assign work but who spend most of their working time
performing the same work as their subordinate employees.

The second tine of the supervisory employee test requires that, to be
supervisors, employees must perform duties which are distinct and dissimi-
lar from those of their subordinates. This requirement was recently
discussed by another hearing examiner as follows:

. . .[D]uties contemplated by the 'distinct and dissimilar'
criterion include those in connection with hiring (or making
hiring recommendations), transfers, layoffs and recalls, and
promotions--duties that substantially align the interests of
the supervisor with the interests of the employer and cause
conflicts of interest [with the other employees].

State of Maine and Maine State Employees Association, No. 91-UC-04, slip
op. at 15 (Me.L.R.B. Apr. 17, 1991). While all three employees maintain
records and inventory and prepare documents in their respective areas,
only the Transportation Supervisor has duties which are "distinct and
different," within the meaning of the test. The job description for the
Supervisor states that one of the position's duties is to " . . . make [ ]
recommendations on . . . [the] employment, transfer, promotion and release
[of transportation personnel]." There was no evidence that the three
employees performed any of the functions listed in the third prong of the
supervisory employees test.

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At most, application of the supervisory employees test in the instant
case might justify assigning the Transportation Supervisor to a separate
bargaining unit. Creation of such a single-member unit not only would
interfere with the Supervisor's enjoyment of the rights guaranteed by the
Act, as noted above, but would also transgress the Board's policy against
the proliferation of small bargaining units within a public employer.
M.S.A.D. No. 43 and S.A.D. No. 43 Teachers Association, No. 84-A-05, slip
op. at 4-5, 7 NPER 20-15915 (May 30, 1984). In the circumstances, the
Transportation Supervisor classification will be assigned to the wall-to-
wall support staff bargaining unit.

APPROPRIATE UNIT DETERMINATION

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(1) and (2),
the following described unit of employees of the Maine School Administrative
District No. 14 Board of Directors is held to be appropriate for the purpose
of collective bargaining:

INCLUDED: Media Center Associate/Monitor, Teacher Aide,
School Secretary, Food Service Director, Food
Service Assistant, Transportation Supervisor,
Bus Driver, Maintenance, and Part-time Custodian.

EXCLUDED: All other employees of M.S.A.D. No. 14.

Dated at Augusta, Maine, this 1st day of October, 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 Order to the Maine Labor Relations Board. To ini-
tiate such an appeal, the party seeking appellate review must file a notice
of appeal with the Board within fifteen (15) days of the date of the
issuance of this report. See Board Rules 1.12 and 7.03.

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