STATE OF MAINE MAINE LABOR RELATION BOARD Case No. 94-UD-13 Issued: November 3, 1994 ________________________________________ ) MOUNTAIN VALLEY EDUCATION ASSOCIATION, ) ) Petitioner, ) ) and ) UNIT DETERMINATION ) REPORT MSAD #43 BOARD OF DIRECTORS, ) ) Respondent. ) ________________________________________) On May 26, 1994, pursuant to section 966 of the Municipal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 966 (1988 & Supp. 1993), and Maine Labor Relations Board ("Board") Unit Determination Rule 1.03, the Mountain Valley Education Association ("MVEA") filed a petition for appropriate unit determination and a request for election, seeking to add four positions to the MSAD #43 clerical bargaining unit and to become the exclusive bargaining agent for that unit. In response to the petition, the MSAD #43 Board of Directors ("MSAD #43 Board") filed a motion to dismiss the petition on the grounds that 1) the unit is already represented by another bargaining agent; 2) the petition is time-barred because it was not filed during the window period of the parties' contract; and 3) the employer and the bargaining agent have agreed to the unit composition in the recognition clause of said contract. The MSAD #43 Board further opposed the petition on the grounds that two of the positions at issue are confidential within the meaning of 26 M.R.S.A. 962(6)(C) (Supp. 1993), and that clerical personnel are more appropriately placed in two separate bargaining units -- one for personnel who work in individual schools, and one for central office personnel. Upon due notice an evidentiary hearing was scheduled for -1- __________________________________________________________________ July 14, 1994, in Augusta, Maine. J. Donald Belleville repre- sented MVEA, and Annalee Z. Rosenblatt represented the MSAD #43 Board. No one requested to intervene in the proceeding. Prior to commencement of the formal evidentiary hearing, the parties met with the hearing examiner in an informal conference in order to present uncontested factual evidence and to determine whether any factual and/or legal stipulations were possible. During the conference, parties were given the opportunity to make oral argument regarding their positions. Stipulations that were reached have been incorporated herein. Participating in the conference, in addition to the parties' representatives, were the following: Madeline Arsenault representative of current barg. agent (SAD No. 43 Secretaries) Matthew J. Kaubris business manager Sue Rand finance sec'y/personnel clerk Sue Rowe MEA Uniserv Director Patricia Volkernick bldg/gds/sec'y/receptionist No formal evidentiary hearing was necessary. The following exhibits were offered by the respondent and admitted without objection: R-1 Agreement Between MSAD No. 43 Board of Directors and the School Secretaries, July 1, 1990 - June 30, 1993 R-2 letter from Jacobs to Prentiss dated 8/29/88 transmitting Form 1 to be signed and filed by parties; executed Form 1 attached R-3 letter from Ayotte to Arsenault and Prentiss dated 9/7/88 re posting of Forms 1 and 3; executed Form 3 attached R-4 notice re executed Forms 1 and 3 R-5 job description - school secretary (adopted 2/24/92) -2- __________________________________________________________________ R-6 job description - secretary/receptionist (adopted 2/8/93) R-7 letter from Rosenblatt to Arsenault dated 2/18/94 re attached 1992-93 addendum to contract R-8 job description - food nutrition secretary (adopted 9/13/93) R-9 job description - finance secretary/personnel clerk (adopted 2/8/93) R-10 job description - accountant/bookkeeper (adopted 8/23/93) R-11 job description - payroll clerk/administrative secretary (adopted 2/8/93) R-12 job description - administrative secretary (adopted 2/8/93) R-13 summary of community-of-interest info for school secretaries, food nutrition secretary and central office clerical employees (including hand-written notations) Briefs were submitted by both parties. Thereafter, the hearing examiner met with representatives of the parties to clarify certain matters. Reply briefs were then filed, the last of which was received on October 12, 1994. JURISDICTION The jurisdiction of the hearing examiner to hear this matter and to make a unit determination lies in 26 M.R.S.A. 966(1) and (2) (1988). STIPULATIONS In prehearing discussion the parties reached the following stipulations: 1. The administrative secretary, who is the secretary to the Superintendent, is excluded from the unit as a section 962(6)(C) confidential employee. 2. The new position of food nutrition secretary is added to the unit. -3- __________________________________________________________________ FINDINGS OF FACT Upon review of the entire record, the hearing examiner makes the following findings: 1. "SAD No. 43 Secretaries" is a local independent public employee organization that, until October 5, 1994, was the bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), for a unit of clerical employees employed by the MSAD #43 Board of Directors. As a result of a decertification/bargaining agent election, MVEA became the bargaining agent for that unit on October 5, 1994. The MSAD #43 Board is a public employer within the meaning of 26 M.R.S.A. 962(7) (Supp. 1993). 2. MVEA, an affiliate of the Maine Education Association, is the bargaining agent for three other bargaining units of employees employed by the MSAD #43 Board: teachers, education technicians and bus drivers and custodians. Cafeteria workers are represented by AFSCME Council 93, and administrators are represented by an independent local organization, the Mountain Valley Administrators' Association. 3. In March of 1994, members of the clerical unit voted among themselves to be represented by MVEA. 4. None of the positions proposed for addition to the clerical unit have previously been the subject of a unit determination. 5. There is neither a contract bar nor an election bar to MVEA's petition. 6. In August of 1988, the MSAD #43 Board agreed to an appropriate unit consisting of "School Secretaries," and -4- __________________________________________________________________ voluntarily recognized "SAD No. 43 Secretaries" as the bargaining agent for that unit. Employees in the unit were led to believe by the superintendent that central office secretaries could not lawfully be included in the unit. In 1988, there were no clerical employees who worked in the central office of MSAD #43 other than the superintendent's secretary, who was excluded. 7. On July 1, 1989, the Rumford school system joined MSAD #43, having previously been a member of School Union #25. At the time of the merger, the building/grounds/secretary/receptionist and the full-time special education secretary, who had both worked in the central office at Rumford, were placed in the MSAD #43 central office. They were added to the clerical unit in the 1990 agreement, the first collective bargaining agreement signed after the merger. The unit did not have the resources to attempt to get other central office personnel included. 8. Article 1 of the 1990 clerical unit contract, which expired on June 30, 1993, states: A. The Board hereby recognizes the Secretaries as an exclusive bargaining representative as defined under 26 M.R.S.A. 962 for the entire group having more than six (6) months service in the District. B. Unless other (sic) indicated, the term SECRETARIES, when used hereinafter in this Agreement, shall refer to school secretaries represented in the negotiating unit as above defined. In addition, the wage provision of that contract contains a list of clerical positions, each accompanied by its starting salary, its salary after 6 months and 12 months of service, and hours per day and days per year to be worked. None of the positions at issue in this unit determination appear in that list. -5- __________________________________________________________________ 9. In February of 1994, the bargaining agent was informed that the position of part-time special education secretary had been added to the unit for 1992-1993. There has never been an agreement to add either the finance secretary/personnel clerk or the payroll clerk/administrative secretary, both of whom originally worked for Rumford, to the unit. The record does not reflect where the position of accountant/bookkeeper originated. There has never been an agreement to place that position in the unit. 10. The written job description for the position of school secretary contains the following: REPORTS TO: Principal SUPERVISES: None NATURE OF WORK This is a responsible and varied secretarial and clerical position requiring knowledge of office practices and procedures. Employee of this class is in frequent contract (sic) with the general public, staff and students and must exercise tact and discernment in those contacts. Work involves various typing, word processing, record keeping and bookkeeping assignments. Work is performed under general supervision following routines and guide- lines. Within the established standards, performance is subject to considerable independence. Work is reviewed through methods and results achieved. EXAMPLES OF WORK (Illustrative Only) 1. Types letters, articles, reports, forms, memoranda and other materials from copy, rough draft or penciled notes. 2. Performs clerical work such as filing, typing and maintaining records, including student records such as attendance and report cards, schedules, and inputting such into computer. -6- __________________________________________________________________ 3. Coordinates daily attendance with appropriate school officials and parents which may include calling absent student homes. 4. Prepares and reports the hot lunch count. 5. Forwards student and other records to the appropriate agencies or offices as directed. 6. Reviews materials being typed for clarity, spelling, and grammar through the use of a standard dictionary and the application of the rules of grammar. 7. Answers telephone and personal inquiries, takes messages, places outgoing calls, sorts mail, makes photocopies of materials and makes appointments as appropriate. 8. Opens, sorts and processes mail. 9. Greets visitors, ascertains nature of business, conducts visitors to appropriate person. 10. Maintains office inventories and orders office supplies. 11. Responds to requests for information and provides appropriate responses. 12. Directs requests for information to the appropriate officials. 13. Enters information into computer as required. 14. Operates and provides for servicing in accordance with existing service contracts for a variety of office equipment. 15. Tyes (sic) building purchase orders and assigns account numbers. 16. Prepares invoices and purchase orders for supplies and services, prepares receipts for all revenues and records student and customer accounts receivable. 17. Handles petty cash, student activity, and other school based funding accounts which shall include collecting, counting, recording, depositing and balancing such accounts. -7- __________________________________________________________________ 18. Receives deliveries and checks items against invoices. 19. Performs other work as assigned by the Principal. REQUIREMENTS OF WORK 1. Working knowledge of modern office practices, procedures and equipment. 2. Considerable knowledge of business English, especially grammar, spelling and the proper layout of business letters. 3. Proficiency in the operation of a standard electronic typewriter at no less than 65 words per minutes (sic) 4. Ability to work independently and to carry out assignments from general oral or written instructions. 5. Ability to perform simple mathematical computa- tions and balance a checkbook. 6. Ability to learn the rules, procedures, and routine operations of the District. 7. Ability to compose routine correspondence and to process inquiries following established rules, procedures and guidelines. 8. Ability to establish and maintain effective and courteous, professional relations with fellow workers, elected officials, students, parents and members of the public at large. 9. Ability to operate computer and word processing programs. 10. Ability to handle confidential information. TRAINING AND EXPERIENCE Graduation from high school including or supple- mented by courses in commercial subjects required. Post secondary vocational or secretarial school training highly desirable. Previous office experience desirable. Any equivalent combination of experience and training will be considered in lieu of the above. -8- __________________________________________________________________ 11. The written job description for the position of building/grounds/secretary/receptionist, adopted on February 8, 1993, contains the following: REPORTS TO: Maintenance/Transportation Supervisor [she also reports to director of curriculum and instruction 20-30% of time] SUPERVISES: None NATURE OF WORK This is a responsible position requiring the performance of clerical work and greeting the public. Employee in this class must exercise tact and discern- ment in frequent public contacts. Work involves various typing, word processing, record keeping and bookkeeping assignments. Work is performed under general supervision following routines and performed within established guidelines. Work is reviewed through methods used and results achieved. EXAMPLES OF WORK (Illustrative Only) 1. Greets and directs all visitors in the Central Administration Office. 2. Answers the telephone, directs calls and inquiries to appropriate office and responds to requests for information. 3. Takes messages and transmits same to appropriate office or person. 4. Assists the supervisor with the scheduling of busses. 5. Monitors and responds [to] base radio for busses. 6. Types letters, articles, reports, forms, memoranda and other materials from copy, rough draft or penciled notes. 7. Proofreads work and verifies accuracy of reports, forms, requisitions and other material as requested. 8. Files all material in prescribed manner. -9- __________________________________________________________________ 9. Maintains and purges files under the direction of the Director. 10. Assists with the inventory, maintainance (sic) and ordering supplies and equipment. 11. Performs job related errands as requested. 12. Performs clerical work such as filing, typing and maintaining records. 13. Utilizes computer in performance of duties. 14. Prepares and maintains records as required. 15. Records, totals, and verifies time cards, sick leave, vacation and other personnel actions. 16. Prepares fuel reports. 17. Updates daily bus schedule. 18. Maintains bus repair records. 19. Performs other work as assigned by the supervisor. REQUIREMENTS OF WORK 1. Knowledge of modern office practices, procedures and equipment. 2. Considerable knowledge of business English, especially grammar, spelling and the proper layout of business letters. 3. Proficiency in the operation of a standard electronic typewriter at no less than 65 words per minute. 4. Ability to work independently and to carry out assignments from general oral or written instructions. 5. Ability to perform simple mathematical computa- tions and balance a checkbook. 6. Ability to learn the rules, procedures, and routine operations of the District and applicable State and Federal laws. -10- __________________________________________________________________ 7. Ability to compose routine correspondence and to process inquiries following established rules, procedures and guidelines. 8. Ability to establish and maintain effective and courteous, professional relations with fellow workers, elected officials, students, parents and members of the public at large. 9. Ability to operate computer and word processing programs proficiently. 10. Ability to handle confidential information. 11. Maintains a neat and clean appearance through proper attire and grooming. EXPERIENCE AND TRAINING Graduation from high school including or supple- mented by courses in commercial subjects required. Post secondary vocational or secretarial school train- ing highly desirable. Previous office experience highly desirable. Any equivalent combination of experience and training will be considered in lieu of the above. 12. The written job description for the position of food nutrition secretary, adopted on September 13, 1993, contains the following: REPORTS TO: Food Services Director SUPERVISES: None NATURE OF WORK This is a responsible position requiring the performance of clerical work and data entry. The employee in this class must exercise tact and discern- ment with frequent public contact. Work involves knowledge of confidential student information, typing, word processing, record keeping, reporting required State claims, and use of various computer software programs. Work is performed under general supervision following routines and performed within established -11- __________________________________________________________________ guidelines. Work is reviewed through methods used and results achieved. EXAMPLES OR WORK (Illustrative Only) 1. Processes applications and prepares paper work involving the free and reduced meals program. 2. Approves applications for free and reduced meals according to established guidelines. 3. Updates and distributes applications for free and reduced meals. 4. Provides applications to State Nutrition Program for verification purposes. 5. Consolidates cash receipts from each school and combines them to make a daily bank deposit. 6. Completes actual/potential income journal for schools each month. 7. Enters all cash receipts onto income journal daily. 8. Files paid invoices on a monthly basis for auditing purposes. 9. Completes and processes monthly claims for reimbursement subsidies and services rendered. 10. Prepares purchase orders and bid sheets for equipment. 11. Maintains records of allocated and bonus commodities received each month along with shipping costs. 12. Creates spread sheets for compilation of data. 13. Maintains journals for monthly USDA and locally purchased inventory. 14. Orders weekly food, produce and paper supplies. 15. Updates and posts employee overtime and special events roster. 16. Prints and distributes breakfast and lunch menus for all schools. -12- __________________________________________________________________ 17. Distributes breakfast and lunch menus to print and broadcast media for publication. 18. Receives telephone calls in absence of Director. 19. Prepares all correspondence as directed. 20. Performs other work as assigned by the Director. REQUIREMENTS OF WORK 1. Ability to use computer technology and sophisticated software including spread sheets. 2. Knowledge of modern office practices, procedures and equipment. 3. Knowledge of business English, especially grammar, spelling and the proper layout of business letter (sic). 4. Ability to work independently and to carry out assignments from general oral or written instructions. 5. Ability to perform mathematical computations and balance an income journal. 6. Knowledge of State and Federal laws that pertain to area of assignment. 7. Ability to establish and maintain effective and courteous, professional relations with co-workers, elected officials, students, parents and members of the public at large. 8. Ability to maintain confidential information. 9. Maintains a neat and clean appearance through proper attire and grooming. EXPERIENCE AND TRAINING Graduation from high school including or supple- mented by courses in commercial subjects and computer technology. Post secondary vocational or secretarial school training highly desirable. Previous office experience is highly desirable. Any equivalent combi- nation of experience and training will be considered in lieu of the above. -13- __________________________________________________________________ 13. The written job description for the position of finance secretary/personnel clerk, adopted on February 8, 1993, contains the following: REPORTS TO: Business manager SUPERVISES: None NATURE OF WORK This is a responsible position requiring the performance of clerical work specializing in the areas of finance and personnel matters of the District. Employee in this class must exercise tact and discern- ment in frequent public contacts. Work involves various telephone, typing, word processing, record keeping and bookkeeping assignments. Work is performed under general supervision following routines and performed within established guidelines. Work is reviewed through methods used and results achieved. EXAMPLES OF WORK (Illustrative Only) 1. Greets and directs all visitors in the Central Administration Office as requested. 2. Answers the telephone, directs calls and inquiries to appropriate office and responds to requests for information as requested. 3. Takes messages and transmits same to appropriate office or person as requested. 4. Maintains all personnel files. 5. Assists in determining employee seniority, formulating and up-dating seniority lists. 6. Types letters, articles, reports, forms, memoranda and other materials from copy, rough draft or penciled notes. 7. Proofreads work and verifies accuracy of reports, forms, requisitions and other material as requested. 8. Files all material in prescribed manner. -14- __________________________________________________________________ 9. Assists in determining credible (sic) years of service of employees for salary purposes and subsequent placement on the appropriate salary scale. 10. Enrolls employees in insurance programs and monitors insurance enrollments, rates, changes in family status, and compliance with applicable Federal and State laws and collective bargaining agreements for both current and former employees. 11. Develops and maintains staff directory. 12. Performs clerical work such as filing, typing and maintaining records. 13. Utilizes computer in the performance of duties. 13. (sic) Prepares and maintains records as required. 14. Develops and maintains substitute employee lists. 15. Collects, develops, maintains, reviews and distributes staff information. 16. Assists in the preparation of quarterly unemployment report. 17. Assists in preparation of purchase orders and bills. 18. Sends reasonable assurance letters as appropriate and files necessary reports to Maine School Management Association. 19. Assembles and maintains weekly absentee reports. 20. Receives checks and prepares bank deposits. 21. Develops and maintains a monthly non-athletic activity calendar. 22. Assists and backs-up other employees in the office as necessary and requested. 23. Maintains supplies and office machines and orders supplies for same. 24. Handles requests for free and reduced student hot lunch, maintains all records and follows-up with parents and school officials as required. -15- __________________________________________________________________ 25. Prepares employee employment and salary agreements. 26. Performs other work as assigned by the Business Manager. REQUIREMENTS OF WORK 1. Knowledge of modern office practices, procedures and equipment. 2. Considerable knowledge of business English, especially grammar, spelling and the proper layout of business letter (sic). 3. Proficiency in the operation of a standard electronic typewriter at no less than 65 words per minute. 4. Ability to work independently and to carry out assignments from general oral or written instructions. 5. Ability to perform simple mathematical computa- tions and balance a checkbook. 6. Ability to learn the rules, procedures, and routine operations of the District and applicable Federal and State laws. 7. Ability to compose routine correspondence and to process inquiries following established rules, procedures and guidelines. 8. Ability to establish and maintain effective and courteous, professional relations with fellow workers, elected officials, students, parents and members of the public at large. 9. Ability to operate computer and word processing programs. 10. Ability to handle confidential information. 11. Maintains a neat a (sic) clean appearance through proper attire and grooming. EXPERIENCE AND TRAINING Graduation from high school includinq or supple- mented by courses in commercial subjects required. Post secondary education highly desireable. Previous -16- __________________________________________________________________ office experience in the human resource or personnel area highly desirable. Any equivalent combination of experience and training will be considered in lieu of the above. 14. The business manager is a member of the management bargaining team for the cafeteria workers' unit and the bus drivers and custodians' unit. He also has attended some bargaining sessions for the education technicians' unit, participates in planning and strategy sessions for that unit, and costs out proposals and counterproposals for that unit. For the teachers' unit and the administrators' unit, he performs the same functions, but never attends bargaining sessions. As the business manager's secretary, the finance secretary/personnel clerk does his typing, opens his mail and takes his phone calls and messages. She also substitutes for the superintendent's secretary when necessary. (The superintendent participates in the bargaining team for the teachers' unit and the administra- tors' unit.) The building/grounds/secretary/receptionist, who is a member of the clerical unit, also substitutes for the superintendent's secretary. 15. The written job description for the position of payroll clerk/administrative secretary, adopted on February 8, 1993, contains the following: REPORTS TO: Business Manager SUPERVISES: None NATURE OF WORK This is a responsible position requiring the performance of all payroll related bookkeeping, accounting, and reporting functions of the District. Employee in this class must exercise tact and discern- ment in frequent public contacts. Work involves performance of all payroll functions and preparation of State and Federal reports. -17- __________________________________________________________________ Work is performed under general supervision following routine and performed within established guidelines. Work is reviewed through methods used and results achieved. EXAMPLES OF WORK (Illustrative Only) 1. Maintains and processes all of Hanover's (sic) educational accounts and reports. 2. Develops Town of Hanover's (sic) school budget and assists in the development of the District budget. 3. Completes necessary tuition reports for the State covering tuition students. 4. Prepares, submits and records tuition bills and payments as required. 5. Processes annuity and disability insurance payments. 6. Prepares all reports related to payroll. 7. Compiles, verifies, transmits, and updates applicable required State census reports to the required agencies. 8. Prepares monthly Maine State Retirement reports and handles inquiries from Maine State Retirement. 9. Provides assistance and back-up to all employees in the central administrative office. 10. Handles employment verification requests. 11. Handles employee questions regarding payroll matters and resolves payroll problems. 12. Handles employee questions regarding payroll matters and resolves payroll problems. [Sic] 13. Assumes responsibility for updating and maintaining LAN computer files and system. 14. Checks time cards and attendance reports and inputs employee attendance information into the permanent record. 15. Transmits payroll withholdings to appropriate agencies. -18- __________________________________________________________________ 16. Transmits payments for mandated and voluntary payroll withholdings and other payments for employee benefits. 17. Prepares and verifies payroll deduction reports. 18. Collects and updates appropriate wage and benefit forms. 19. Performs other work as assigned by the business manager. REQUIREMENTS OF WORK 1. Knowledge of modern office practices, procedures and equipment. 2. Considerable knowledge of business English, especially grammar, spelling and the proper layout of business letters. 3. Proficiency in the operation of micro computer in a network environment. 4. Ability to work independently and to carry out assignments from general oral or written instructions. 5. Ability to perform all payroll functions. 6. Ability to learn the rules, procedures, and routine operations of the District. 7. Ability to compose routine correspondence and to process inquiries following established rules, procedures and guidelines. 8. Ability to establish and maintain effective and courteous, professional relations with co- workers. 9. Ability to handle confidential information. 10. Knowledge of State and Federal laws that pertain to area of assignment. 11. Maintains a neat and clean appearance through proper attire and grooming. 12. Knowledge of basic accounting procedures. -19- __________________________________________________________________ EXPERIENCE AND TRAINING Graduation from high school including or supplemented by courses in commercial subjects with an emphasis in accounting required. Post secondary education highly desirable. Previous office experience in finance or payroll department highly desirable. Any equivalent combination of experience and training will be considered in lieu of the above. 16. The written job description for the position of accountant/bookkeeper, adopted on August 13, 1993, contains the following: REPORTS TO: Business Manager SUPERVISES: None NATURE OF WORK This is a responsible professional position requiring the performance of business financial fund accounting and double entry bookkeeping duties. Employee in this class must exercise tact and discern- ment in frequent public contacts. Work involves various accounting, investment and revenue handling tasks. Work is performed under general supervision following routines and performed within established guidelines. Work is reviewed through methods used and results achieved. EXAMPLES OF WORK (Illustrative Only) 1. Records all income in cash receipt journal. 2. Processes all District revenues and payables and adjusting journal entries. 3. Reviews and analyzes accounts on a monthly basis. 4. Deposits revenues on a timely basis. 5. Maintains District checkbook and monitors investment accounts. 6. Assists in resolving problems associated with bank statement reconciliation. -20- __________________________________________________________________ 7. Assists in the preparation of budget estimates. 8. Assists in preparing tax commitment for each Town assessment in the District. 9. Assists in preparation of State Department EFM 45 and EFM 46 accounting report. 10. Prepares State Department quarterly reports EFU 415 for Federal (sic) funded programs. 11. Processes accounts payable by use of invoice method for general fund and all federal programs [on] a bi-weekly basis. 12. Establishes files for all payables keeping separate files for District and Federal funds. 13. Processes immediate check requests on a timely basis. 14. Process requests for credit applications. 15. Performs audit checks each month to insure financial integrity of all balances. 16. Performs transaction audits to verify accuracy of invoices. 17. Prepares special cost studies as required. 18. Works closely with outside audit firm in preparing for yearly financial audits for all District general and Federal funds. 19. Provides monthly financial reports for all administrators and supervisors of Federal grant monies. 20. Utilizes computerized accounting system to full potential. 21. Serves as back-up to other office personnel. 22. Performs other work as assigned by the Business manager. REQUIREMENTS OF WORK 1. Knowledge of generally accepted accounting principles (GAAP) -21- __________________________________________________________________ 2. Knowledge of modern office practices, procedures and equipment. 3. Considerable knowledge of business fund accounting and payroll accounting. 4. Knowledge of business English, especially grammar, spelling and the proper layout of business letter (sic). 5. Proficiency in the operation of micro computer in a network environment. 6. Ability to work independently and to carry out assignments from general oral or written instructions. 7. Ability to perform high level mathematical computations and balance a checkbook. 8. Ability to perform double entry accounting procedures required of a governmental agency. 9. Knowledge of State and Federal laws that pertain to area of assignment. 10. Ability to establish and maintain effective and courteous, professional relations with co-workers, elected officials, students, parents and members of the public at large. 11. Ability to operate District utilized computer programs. 12. Ability to handle confidential information. 13. Maintains a neat a (sic) clean appearance through proper attire and grooming. EXPERIENCE AND TRAINING Graduation from high school including or supplemented by courses in business accounting required. Post secondary education highly desirable. Previous office experience in a finance and accounting department highly desirable. Any equivalent combination of experience and training will be considered in lieu of the above. 17. All hiring and firing is done by the superintendent, with the approval of the school board. -22- __________________________________________________________________ 18. The wage for the food nutrition secretary is $7.00 per hour. Wages for other unit members with one or more years of service range from $7.47 to $9.15 per hour. Employees in the three positions at issue are salaried, with salaries ranging from $22,131 to $28,226. 19. Other benefits and terms and conditions of employment are as follows: food nutrition other unit three positions secretary members at issue (work week) 30 hrs/wk 37.5-40 hrs/wk 35 hrs/wk (work year) 185 days 260 days (7) 260 days 231 days (1) 206 days (1) 205 days (1) 200 days (1) (sick leave) 10 days/yr; 1.25 days/mo 15 days/yr 3 may be used for up to 150; may family illness be used for family illness (personal leave) none 3 days/yr 3 days/yr (holidays) 5 days full-time - 13 days 13 days school yr - 10 days (bereavement leave) 3 days 3 days 3 days -23- __________________________________________________________________ (retirement other) than that mandated) none 1/2 of accum. sick none leave at $10/day, after 10 yrs' service (vacation) (260-day employees only) none after 1 yr -2wks 3 wks (1) after 5 yrs -3wks 4 wks (1) after 10 yrs -4wks 5 wks (1) after 20 yrs -5wks after 30 yrs -6wks (health insurance) none single 100% 100% 2 person $4141.56/yr family $5034.84/yr (course reimbursement) none avail. upon approval none (lunch period) none 30 min. unpaid 1 hr unpaid (overtime) FLSA 1.5T (comp time) st. time comp for over 40 hrs time for over worked 35 hrs worked 20. Contact among central office personnel and school personnel varies, depending on the central office position; clerical personnel in schools may have as much or more contact with central office personnel than they have with each other. 21. Three unit members and the three positions at issue are located at the central office in Mexico; remaining unit members are located in five schools located in Mexico and Rumford. The longest distance between the central office and any school is three (3) miles. The longest distance between any two schools is 4.2 miles. -24- __________________________________________________________________ DISCUSSION In its unit determination petition, MVEA seeks a determination that the existing MSAD #43 clerical unit appropri- ately includes the finance secretary/personnel clerk, the payroll clerk/administrative secretary, and the accountant/bookkeeper. More specifically, it alleges that these positions are, by definition, already in the unit as it is described in the most recent collective bargaining agreement; or alternatively, that these positions should be placed in the unit because there is a clear and identifiable community of interest between them and the positions already in the unit. MVEA's petition also included a request for an election. In response to the petition, the MSAD #43 Board asserted that two positions are confidential within the meaning of section 962(6)(C) of the MPELRL,[fn]1 and that clerical employees are more appropriately placed in two units -- one for clerical employees who work in the schools and one for central office personnel. The MSAD #43 Board also filed a motion to dismiss, on three grounds: 1) failure of MVEA to file its petition during the window period; 2) the existence of an agreement on unit composition in the parties' expired contract; and 3) represen- tation of the clerical unit by another bargaining agent. At hearing, the hearing examiner raised an additional issue: whether MVEA had met the showing-of-interest requirement for a unit determination, in light of the fact that its showing had come solely from employees already in the unit.[fn]2 ____________________ 1 The parties have stipulated that one of the two positions alleged to be confidential is indeed confidential. In fact, MVEA listed that position as confidential in its petition. 2 Although a unit clarification requires no showing of interest, it does require changed circumstances (creation of a new job classification or a change in duties for an existing one), and therefore cannot be used to add classifications to a unit that have historically been excluded simply by choice. -25- __________________________________________________________________ Preliminary procedural matters In connection with the motion to dismiss, the employer's two "contract bar" defenses (grounds 1 and 2 above) were based on its assumption that the Board's post-expiration status quo require- ment extends the parties' contract. It does not. Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 779 F.2d 497, 500 (9th Cir. 1985), aff'd, 484 U.S. 539 (1988) (after expiration, collective bargaining agreement's terms "survive" only in order to define parameters of employer's obligation to maintain the status quo). Thus, the contract bar does not apply after a contract has expired, and filing of a unit determination petition after expiration is proper. Likewise, the parties are free to seek changes in unit composition agreed to in a contract that has expired. In fact, since unit composition is not a mandatory subject of bargaining, the Board's post-expira- tion status quo requirement does not even apply. That does not mean that either party can make unilateral changes in unit composition after expiration; by statute, it is the Board that determines unit composition if the parties are unable to reach agreement. A unit determination petition is the proper means for bringing that issue before the Board.[fn]3 The employer's third ground for its motion to dismiss -- that the clerical unit is already represented by another bargaining agent -- requires only brief discussion as well. As far as the hearing examiner aware, the Board has never received a petition from a union seeking to modify the composition of a unit that it does not yet represent. Nevertheless, there is little or no difference between this situation and one in which a prospective bargaining agent files a petition to establish and ____________________ 3 After a brief discussion with the hearing examiner regarding these facts, the MSAD #43 Board dropped its contract bar claims. -26- __________________________________________________________________ represent a new unit.[fn]4 Moreover, SAD #43 Secretaries (the incumbent bargaining agent) could have filed the unit determination petition, had MVEA's petition been dismissed at hearing. Alternatively, MVEA could have refiled its own unit determination petition once it became the bargaining agent.[fn]5 In light of these facts, as discussed at the hearing, the MSAD #43 Board agreed to abandon its objection to MVEA as the unit determination petitioner. The showing-of-interest issue raised by the hearing examiner is not so easily resolved, and will be discussed in connection with the merits of MVEA's petition. Merits In connection with MVEA's assertion that the three positions at issue are, by definition, in the clerical unit as it is described in the most recent collective bargaining agreement, the hearing examiner notes first that neither the Board's unit determination rules nor the MPELRL itself specifically authorizes use of the unit determination process for the purpose of inter- pretation of a contractual unit description. Though contract ____________________ 4 Certainly an incumbent bargaining agent may use the unit determination procedure to seek modification of a unit. Section 967(2) of the MPELRL clearly contemplates unit determinations other than those to create a new unit. That section states, in part: Where there is a valid collective bargaining agreement in effect, no question concerning unit or represen- tation may be raised, except during the period not more than 90 nor less than 60 days prior to the expiration date of the agreement. (Emphasis added.) 5 The employer retracted its agreement to sign a Form 3 voluntarily recognizing MVEA as the new bargaining agent, and the parties agreed that a decertification/bargaining agent election would be conducted by the Board. That election has occurred, and MVEA is now the exclusive bargaining agent for the MSAD #43 clerical unit. -27- __________________________________________________________________ interpretation questions might be best left to arbitration,[fn]6 hearing examiners have, on occasion, interpreted recognition clauses, especially where the unit determination petition requests expansion of the unit if the current unit description is found not to include the position(s) at issue. Orono School Committee and Orono Teachers Association, No. 89-UD-04 & 89-UC-02 (Me.L.R.B. Dec. 14, 1988). Since an arbitrator would have no authority to address the latter request, the interests of efficiency and economy are best served in the forum of a unit determination hearing that addresses both requests. In any case, the MSAD #43 Board has not objected to MVEA's request that the hearing examiner interpret the contractual recognition clause. Upon review of the record, the hearing examiner finds that the three positions at issue are not, by definition, already in the clerical unit as described in the most recent contract. Article 1 of that contract states: A. The Board hereby recognizes the Secretaries as an exclusive bargaining representative as defined under 26 M.R.S.A. 962 for the entire group having more than six (6) months service in the District. B. Unless other (sic) indicated, the term SECRETARIES, when used hereinafter in this Agreement, shall refer to school secretaries represented in the negotiating unit as above defined. MVEA suggests that because all of the positions at issue are clerical in nature, they are by definition "school secretaries." The hearing examiner disagrees. This case is not similar to Biddeford Teachers Association and Biddeford School Committee, No. 83-UC-03 (Me.L.R.B. Aug. 27, 1982), where the question ____________________ 6 Kennebec Water District and Teamsters Union Local 340, No. 94-UD-05 (Me.L.R.B. filed Dec. 7, 1993) (unit determination petition held in abeyance pending the outcome of grievance on meaning of recognition clause). -28- __________________________________________________________________ presented was whether a contractual unit description was broad enough to encompass newly created positions. Although there is no definition of "school secretaries" in the recognition clause, the wage provision of the contract contains a list of clerical positions, each accompanied by its starting salary, its salary after six months and 12 months of service, and hours per day and days per year to be worked. There is nothing ambiguous about that list. It contains the clerical positions in each of the MSAD #43 schools, as well as the two central office positions that were placed in the unit after the 1989 MSAD #43/Rumford merger (the building/grounds/receptionist/secretary and the special education secretary).[fn]7 None of the positions at issue in this unit determination appear in that list, even though they existed at the time the contract was negotiated and signed. Moreover, there is nothing in the record to suggest that these three positions were ever treated as if they were in the unit. In these circumstances, there is absolutely no basis for the hearing examiner to find that the positions are in the unit "by definition." Turning to MVEA's assertion that the three positions, if not already in the unit, should be added to it on community-of- interest grounds, several issues have been raised. First, the MSAD #43 Board asserts that one of the three positions -- the finance secretary/personnel clerk -- is confidential. Second, it asserts that central office personnel are more appropriately placed in a separate unit made up of the positions at issue here and central office positions already in the existing unit. Finally, in connection with the showing-of-interest requirement of Board Rule 1.06(A), the following questions must be ____________________ 7 Two other positions have been added to the unit by agreement since the contract expired -- the part-time special education secretary and the food nutrition secretary. -29- __________________________________________________________________ addressed[fn]8: 1) What showing of interest must accompany a petition seeking to expand a unit to include positions that have been historically excluded? (Must the showing of interest come from unrepresented employees, or may it come solely from employees already in the unit as long as those employees comprise at least 30 percent of the combined group?) 2) In what circumstances, if any, is an election required in connection with the expansion of a unit, and among which employees? Since they are dispositive of MVEA's petition, these latter questions will be addressed first. The showing-of-interest requirement for unit determinations is found in Board Rule 1.06(A): (A) Required Evidence - A petition filed by an employee or employee organization shall be accompanied by evidence that 30 percent of the public, Judicial, State or University Act employees in the proposed unit desire to be represented by the petitioner for the purposes of collective bargaining. That requirement is derived from section 967(2) of the MPELRL, which directs an election "upon signed petition of a least 30% of a bargaining unit of public employees that they desire to be ____________________ 8 These questions did not arise in Orono, cited earlier, because it was originally filed as a unit clarification petition and no showing of interest was required. Although the petition was eventually treated as a unit determination petition, by agreement of the parties, the showing-of-interest issue was not raised, presumably because at hearing the employee in the position at issue expressed a desire to be in the unit. -30- __________________________________________________________________ represented by an organization."[fn]9 MVEA argues that by its own terms, this rule permits the showing of interest to come strictly from employees already in the unit, as long as they comprise 30 percent of the newly "proposed" unit (represented plus unrepresented employees), and no election among unrepresented employees is required. The MSAD #43 Board, on the other hand, argues that the employees in the three positions are entitled to a "self-determination" election.[fn]10 While MVEA's interpretation of the showing-of-interest requirement holds some surface appeal, a review of the MPELRL and parallel provisions in other jurisdictions suggests that MVEA's interpretation of the showing-of-interest requirement is overly literal. Section 966(2) of the MPELRL contains two directives for ____________________ 9 Under Board practice, a unit determination and an election may be petitioned for simultaneously or separately, so Board rules specify that a 30 percent showing of interest is required for a unit determination as well as an election. Under NLRB practice, a prospective bargaining agent of a new unit simply requests certification through an RC petition, and a unit determination follows if necessary. There is no separate showing-of-interest requirement for a unit determination, because a unit determination cannot be requested independent of a request for an election. 10 Neither party argues that MVEA's petition should be treated as an accretion, as that term is used in the private sector by the NLRB. Although, according to MVEA, the three positions at issue are clerical and have no distinct existence independent of clericals already in the unit, there is agreement that the positions are not "new." Thus, MVEA does not suggest that no showing of interest is required, as would be the case for a true accretion (unit clarification). The hearing examiner agrees. Although the 1988 merger of Rumford into MSAD #43 set off a series of events that might well have constituted an accretion if the matter had been raised at that time, six years later the situation cannot realistically be characterized as anything but an attempt to add positions to a unit that have historically been excluded. -31- __________________________________________________________________ determining bargaining unit compatibility: The executive director of the board or his designee shall decide in each case whether, in order to insure to employees the fullest freedom in exercising the rights guaranteed by this chapter and in order to insure a clear and identifiable community of interest among employees concerned, the unit appropriate for purposes of collective bargaining shall be the public employer unit or any subdivision thereof. One of the rights guaranteed by the MPELRL is the right "volun- tarily to join, form and participate in the activities of organi- zations of their own choosing for the purposes of representation and collective bargaining." 26 M.R.S.A. 963 (1988) (emphasis added). In the normal unit determination, to establish a new unit, the second directive in section 966(2) -- that employees in a bargaining unit share a clear and identifiable community of interest -- is compatible with the first. In fact, one of the eleven community-of-interest factors established by the Board is "desires of the affected employees" (Board Rule 1.11(F)(9))[fn]11. In the unique situation presented here, however, MVEA has placed the two directives on a collision course. A cursory review of the other ten community-of-interest factors suggests that a community of interest likely exists between positions now in the clerical unit and the three positions at issue here; yet employees in those three positions have expressed no desire, through showing- of-interest cards, to be in the unit.[fn]12 In these circumstances, which statutory directive takes precedence? ____________________ 11 Although the NLRB does not explicitly contain this second directive, the NLRB has developed a similar list of community-of- interest factors that it uses to determine an "appropriate" unit. 29 U.S.C.A. 159(a) (1973). 12 In fact, informal discussion indicated that they have expressed a strong desire not to be added to the unit. -32- __________________________________________________________________ The Board has not, to the hearing examiner's knowledge, spoken on this issue. In connection with the first directive (ensuring fullest freedom to exercise statutory rights) the National Labor Relations Board ("NLRB") has used identical language in section 9(b) of the National Labor Relations Act, 29 U.S.C.A. 159(b) (1973), as a basis for its restrictive policy regarding accretion of employees to an existing unit: since accretion (unit clarification) deprives employees of the right to express a preference regarding union representation, it is permitted only in very limited circumstances. Gitano Group, 308 NLRB 1172, 1174 (1992), citing Melbet Jewelry Co., 180 NLRB 107, 110 (1969). Accretion is not permitted for the purpose of adding historically excluded employees to an existing unit, absent changed circumstances. See Gitano at 1174, and citations therein. See also NLRB v. Mississippi Power and Light Co., 769 F.2d 276 (5th Cir. 1985). Rather, once a determination is made that there is a question concerning representation ("QCR") among historically excluded employees, a self-determination election is held among them. The Zia Co., 108 NLRB 1184 (1954). See, for example, NLRB v. Southern Indiana Gas and Electric Co., 853 F.2d 580 (7th Cir. 1988). An exception is made if there is also a QCR in the historical unit itself; in that instance, the election is held among employees in the combined unit. D.V. Displays Corp., 134 NLRB 568 (1961).[fn]13 For the most part, public sector jurisdictions fall into two camps in connection with unit expansion, depending on whether they place more emphasis on community of interest or employee ____________________ 13 A QCR exists in the historical unit where a bargaining agent that has represented employees under a prehire agreement seeks formal certification. See, for example, D.V. Displays. The size of the unrepresented group relative to the size of the represented group may also raise a QCR in the historical unit. Local 144, Hotel, Hospital, Nursing Home & Allied Services Union v. NLRB, 9 F.3d 218 (2d. Cir. 1993). -33- __________________________________________________________________ choice.[fn]14 Where community of interest is emphasized, unrepre- sented employees will be added, regardless of their desires, if they have a clear community of interest with represented employees. Where employee choice is emphasized, employees can vote not to be added (and represented) even if their community of interest with employees in the historical unit is very clear. The issue of whether the proposed expansion raises a question concerning representation (QCR) in the historical unit is also a factor in some jurisdictions. Connecticut is of particular interest because that state's Municipal Employee Relations Act ("MERA"), in language virtually identical to section 966(2) of the MPELRL, directs that both employee freedom and community of interest shall be used to determine an appropriate unit. C.G.S.A. 7-471(3) (Supp. 1994). The MERA permits petitions alleging that a "substantial number" of employees wish to be represented,[fn]15 and board rules define substantial as "30 percent of the membership of the claimed unit."[fn]16 Yet the Connecticut Board requires the showing of interest to come from, and an election to held among, unrepre- sented employees. Town of Wilmington, 15 NPER CT-23104 (Ct.S.B.L.R. Sept. 14, 1992); City of Stamford, 15 NPER CT-23098 (Ct.S.B.L.R. Sept. 2, 1992); City of Bridgeport, 14 NPER CT-23014 (Ct.S.B.L.R. Nov. 1, 1991); Town of Winchester/Winsted, 11 NPER CT-20083 (Ct.S.B.L.R. May 30, 1989). This rule applies regardless of the relative size of the group to be added. ____________________ 14 In addition to surveying available case law, the hearing examiner contacted several jurisdictions by phone; citations are provided as examples of established practice in those jurisdic- tions, where they were provided or are publicly available. 15 C.G.S.A. 7-471(1) (Supp. 1994). 16 Regulations of Connecticut State Agencies, Title 7, Sec. 7- 471-9(d)(2). -34- __________________________________________________________________ Illinois requires that unit members have an identifiable community of interest, and that unit determinations be made in such a way as to "ensure employees the fullest freedom in exercising the rights guaranteed by this Act." S.H.A. 115 I.L.C.S. 5/7 (Supp. 1994). The board in Illinois has interpreted "evidence that 30 percent or more of the employees in the bargaining unit wish to be represented"[fn]17 to require a 30 percent showing from and an election among unrepresented employees, where a unit expansion is requested. Dupage Area Vocational Educa- tional Authority, 9 NPER IL-18111 (Ill.E.L.R.B. Apr. 30, 1987). (In a pending case, an employee organization is attempting to avoid that requirement by submitting its petition on behalf of employees in the proposed overall unit.) New Jersey's law is particularly interesting for the fact that while it requires the Public Employment Relations Commission ("PERC") to determine the most appropriate unit,[fn]18 it also directs PERC to establish methods for resolving representation questions that are "designed to ascertain the free choice of the employees." N.J.S.A. 34:13A-6(d) (1988). Thus, while PERC rules and regulations require a petition for certification to be accompanied by a 30 percent showing of interest among "employees in the unit alleged to be appropriate," (PERC Rules and Regula- tions, Sec. 19:11-1.2(8)), the showing of interest for expansion of a unit must come from unrepresented employees, and an election is held among those same employees to determine whether they wish to be included in the unit. Easthampton Township Board of Education, 16 NPER NJ-24248 (N.J. P.E.R.C. Rep. Dir. Sept. 15, ____________________ 17 S.H.A. 115 I.L.C.S. 5/7(c)(1) (Supp. 1994). The Board's rules require "a showing of interest of that at least 30 percent of the employees in the petitioned for bargaining unit wish to be represented by the employee organization." 80 Ill. Admin. Code 1110.50(d) (1992). 18 More specifically, PERC must determine "which unit is appropriate." N.J.S.A. 34:13A-6(d) (1988). -35- __________________________________________________________________ 1993); Weymouth Township Board of Education, 9 NPER NJ-18061 (N.J.P.E.R.C. Rep. Dir. Jan. 16, 1987). Only if the positions proposed to be included equal 50 percent or more of those already in the unit, is the election held among all employees rather than among those newly proposed for inclusion. Michigan's statute is somewhat different, in that MERC is directed, in making unit determinations, to "insure employees the full benefit of their right to self-organization, to collective bargaining and otherwise to effectuate the policies of this act." M.C.L.A. 423.213 (1978). Petitions are authorized "alleging that 30% or more of the public employees within a unit claimed to be appropriate" wish to be represented. M.C.L.A. 423.212(a) (1978). If read literally, that language, like the language in section 967(2) and Rule 1.06(A), would permit the showing of interest for a unit expansion petition to come solely from employees already in the unit. Nevertheless, the Michigan Employment Relations Commission requires a 30 percent showing of interest from unrepresented employees. Gogebic Community College, No. R74 D-183 (M.E.R.C. Oct. 31, 1974).[fn]19 This is true even if the bargaining agent takes advantage of its right, under Michigan law, to opt for an election among all employees in the proposed unit rather than among unrepresented employees only. Id. Michigan applies its rule regardless of the relative sizes of the existing unit and the group sought to be added. Florida's statute contains no "employee freedom" directive. It does list "the desires of employees" as one of several community-of-interest factors to be considered in unit determina- tions. F.S.A. 447.307(4)(f)(4) (1992). Florida's statute, ____________________ 19 For recent application of rule, see The University of Michigan, 16 NPER MI-24078 (M.E.R.C. July 16, 1993); City of Saginaw, 15 NPER MI-23086 (M.E.R.C. Oct. 12, 1992); Grand Rapids Community College, 15 NPER MI-23076 and 23077 (M.E.R.C. Sept. 17, 1992). -36- __________________________________________________________________ like others, requires a showing of interest "by at least 30 percent of the employees in the proposed unit." F.S.A. 447.307(2) (1992). Nevertheless, an "opt-in" election is normally held among unrepresented employees only. Orange County, 14 NPER FL-23058 (Fl.P.E.R.C. Jan. 14, 1992).[fn]20 That is not the case where the number of employees sought to be added to an existing unit is large enough to raise a QCR in the overall unit; in that instance, the showing of interest may come from anyone in that group and the election is held among all employees as well. Florida has established no formal percentage cutoff above which a QCR in the overall unit is raised. Minnesota's statute is unique, in that it directs the commissioner to place "particular importance upon the history and extent of organization, and the desires of the petitioning employee representatives" in making unit determinations. Minn.Stat. l79A.09(1) (1992 and Supp. 1993) (emphasis added). Thus, unrepresented employees are not given the right to vote whether to be added to an existing unit; however, PERB rules require a showing of interest of "30 percent or more of the estimated number of employees in the established or proposed appropriate unit," (Minn.R. 5510.0710(2) (1990)), and that requirement has been interpreted by the courts to require a showing from the unrepresented employees sought to be added. County of Scott v. Public Employment Relations Board, 461 N.W.2d 503, 506 (Minn. App. 1990). Of the states surveyed, two -- California and New York -- emphasize community of interest over employee choice. In California, the Public Employment Relations Board has the ____________________ 20 An earlier attempt by PERC to ignore employee choice altogether was struck down by the courts. School Board of Polk County v. Fl.P.E.R.C., 399 So.2d 520 (Fla. 2nd DCA 1981). -37- __________________________________________________________________ discretion, by rule, to require proof of majority support among employees sought to be added to a unit. 8 Cal. Code Reg. 32781(e) (1992). In practice, it does so only if the unrepresented employees constitute 10 percent or more of the combined group. See, for example, California Dept. of Personnel Administration, 12 NPER CA-202l6 (Cal.P.E.R.B. Oct. 6, 1989). Below that cutoff, majority support in the combined group of employees is presumed to continue, and community of interest will determine whether the expansion will occur. Not surprisingly, in none of California's four public sector statutes does the unit determination provision contain the "fullest freedom" directive that appears in section 966(2) of the MPELRL, or any similar language. Rather, specified community-of-interest factors, efficient operations of the employer and the need to serve the public are the statutory focus.[fn]21 In New York, the Public Employment Relations Board is directed to take into account community of interest and the need to serve the public, when making unit determinations. New York Civil Service Law 207(1) (1983). If unrepresented employees share a community of interest with members of a unit, they will be placed in that unit even if the bargaining agent for that unit has not sought to represent them and the petitioning bargaining agent seeks to place them either in a new unit or a unit it already represents. Local 1180, Communication Workers of America, No. C-4073, 27 PERB 3034 (N.Y.P.E.R.B. June 27, ____________________ 21 Cal. Gov. Code 3521 (1980) (covers state employees); 3545 (Supp. 1994) (covers employees in education); 3579 (Supp. 1994) (covers employees in higher education). The statute governing collective bargaining for employees in county and local government is unique, in that it permits employers to make unit determinations through their own rules and regulations. Cal. Gov. Code 3507 (1980). See, for example, San Bernardino County Sheriff's Employees' Benefit Association v. San Bernardino County Board of Supervisors, 8 Cal. Rptr.2d 658 (Cal.App. 4 Dist. 1992). -38- __________________________________________________________________ 1994). No showing of interest of any type is required for a unit expansion if the unrepresented employees constitute less than 30 percent of the combined unit. (Below that cutoff, majority support in the unit is presumed to continue.) Above that 30 percent cutoff, if the bargaining agent is not able to provide evidence of majority support in the combined group an election must be held. Id. While this survey is by no means exhaustive, it is persuasive precedent for interpreting section 966(2) of the MPELRL to prevent employees who have been historically excluded from a bargaining unit from being added to that unit without a meaningful opportunity to vote on whether they wish to be represented.[fn]22 MVEA's suggestion that its showing of interest from employees already in the unit is sufficient, turns the concept of employee choice on its head. The principle of majority rule is applied to bargaining agent elections for new units, since there is no practical alternative that would not wreak havoc on workplace peace and stability. It is quite another matter for employees in an established, represented unit to vote, for all practical purposes, not on whether they wish to be represented (that choice being one they have already made) but on whether other employees, who have never had the oppor- tunity to vote, should be represented. (According to MVEA, when unit members voted to dissolve the local association, they also voted to include other clericals who had been denied access to the unit.) The hearing examiner sees absolutely no basis in the MPELRL for such a radical notion. As was so succinctly pointed out in NLRB v. Stevens Ford, 773 F.2d 468, 474 (2d Cir. 1985), ____________________ 22 Even under California practice MVEA would be required to show majority support among the unrepresented employees at issue here, since they constitute more than 10 percent of the combined group of represented and unrepresented employees (3 out of 15, or 2 out of 14 if one of the employees is a confidential as alleged). -39- __________________________________________________________________ permitting historically excluded positions to be added to a unit without an election would encourage "strategic selection of one group for election purposes;" subsequent unit expansion could then lead to "boot-strapping," where a bargaining agent does not have majority status. "Such bootstrapping violates [the MPELRL's] policies favoring the free choice of employees." Id. MVEA's position is also inconsistent with Board cases regarding the showing of interest needed for unit determination petitions seeking to sever positions from an existing unit. In accordance with the principle of self-determination, the showing of interest comes from employees seeking to have their positions severed, not from other employees in the unit. Teamsters Local Union #48 and Council #74, AFSCME and City of Portland, No. 81-UD-10, slip op. at 12-13 (Me.L.R.B. July 10, 1981). See also Teamsters Local Union No. 48 and State of Maine (Institu- tional Services Unit) and Council No. 74, AFSCME and Maine State Employees Association, No. 83-UD-25, slip op. at 10 (Me.L.R.B. Jan 10, 1984) (petition based on showing of interest from Corrections employees), aff'd, No. 84-A-02 (Me.L.R.B. Apr. 2, 1994). Finally, MVEA suggests that unit members dissolved the unit when they voted in March of 1994 to dissolve the local indepen- dent bargaining agent, and therefore that the unit determination petition on behalf of all clerical employees (with a showing of interest from employees already in the unit) was appropriate. That is simply wrong. Employees have no statutory authority to "dissolve" a bargaining unit. Nor is MVEA's suggestion persuasive that the historical exclusion of these employees was caused by the superintendent's misleading statements in the past that central office staff could not be in the unit. No time frame was provided for the statement; prior to the school merger it was accurate, since the only central office clerical was the superintendent's secretary. More importantly, at the time the -40- __________________________________________________________________ merger occurred two clericals from Rumford were placed in the central office and also placed in the unit, a fact of which other unit members had to be aware. Moreover, according to one unit member the local association simply did not have the resources to pursue the matter. In any case, while the Board by no means condones misleading statements by a superintendent and would take action in appropriate circumstances, such statements should not cause unrepresented employees to lose their right of self- determination. In sum, since MVEA has provided no showing of interest on behalf of the employees it wishes to add to the unit, no QCR has been raised[fn]23 and no election will be held. MVEA's petition will be dismissed for failure to provide the showing of interest required by Board Rule 1.06(A). The other issues raised (community of interest and the section 962(6)(C) exclusion for confidential employees) need not be reached. ORDER On the basis of the foregoing stipulations, supplemental findings and discussion and pursuant to the provisions of ____________________ 23 The result might be different if MVEA were a "rival" union attempting to challenge the right of the incumbent agent to represent the unit, and attempting at the same time to expand the unit. In that instance, a QCR in the historical unit would exist, and in at least some jurisdictions, an election in the combined unit would be in order. (In some, even then an election would be held among each group of employees.) That is not the case here. In March of 1994, unit members voted among themselves to abandon their prior practice of representing themselves at the bargaining table, and to affiliate with MVEA (a word used even by MVEA to describe the relationship). That MVEA's status was never really in question is also supported by the fact that the employer had every intention of signing a Form 3 voluntarily recognizing MVEA as the bargaining agent, until an unrelated dispute on the day of hearing derailed that agreement and a formal decertification/bargaining agent election was subse- quently scheduled. -41- __________________________________________________________________ 26 M.R.S.A. 966 (1988 & Supp. 1993), it is hereby ORDERED: The position of food nutrition secretary has been added to the MSAD #43 clerical unit by stipulation. The remainder of MVEA's unit determination petition, filed on May 26, 1994, and seeking to add the positions of finance secretary/personnel clerk, payroll clerk/administrative secretary and accountant/bookkeeper to the MSAD #43 clerical unit, is dismissed. Dated at Augusta, Maine, this 3rd day of November, 1994. MAINE LABOR RELATIONS BOARD /s/_______________________________ Judith A. Dorsey Designated Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4) (Supp. 1993), to appeal this report to the Maine Labor Relations Board. To initiate 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 issuance of this report. See Board Rules 1.12 and 7.03. -42- __________________________________________________________________