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

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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)

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     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.

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                         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

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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-
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     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.

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    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.
    
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     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-
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    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-
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    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-
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    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-
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     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-
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    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).

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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).

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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).

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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).

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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).

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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

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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.

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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.

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