STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 99-UD-10 Issued: May 27, 1999 ________________________________ ) LEWISTON FOOD SERVICE MANAGERS ) ASSOCIATION/MEA/NEA, ) ) Petitioner, ) ) and ) UNIT DETERMINATION ) REPORT LEWISTON SCHOOL COMMITTEE, ) ) Public Employer. ) ________________________________) INTRODUCTION This unit determination proceeding was initiated on January 12, 1999, when Ms. Susan Rowe, a representative of the Lewiston Food Service Managers Association/MEA/NEA (hereinafter referred to as the "Union"), filed a petition for unit determination with the Maine Labor Relations Board ("Board" or "MLRB"). That petition sought to create a bargaining unit of certain food service employees of the Lewiston School Committee ("Employer"). The Union's proposed Food Service Managers Unit consists of the following three positions: Food Service Manager, Assistant Food Service Manager, and Administrative Assistant for Food Services. The Employer's response to the petition states that the Managers should be put in the existing Food Service Workers Unit represented by AFSCME. The Employer contends that this is required by the Board's policy against proliferation of small units, that the positions share a community of interest with the AFSCME unit, and that inclusion in the existing unit would be "consistent with prior Board rulings." The Employer also contends that the Administrative Assistant is a confidential employee within the meaning of 26 M.R.S.A. 962(6)(C) who should be excluded from collective bargaining. In its post-hearing brief, the Employer also argues that two of the positions at [-1-] issue are still part of the AFSCME Unit and, therefore, the Union should have filed a unit clarification petition. I have examined the evidence and the arguments of both parties and, for the reasons explained below, conclude that the unit as proposed by the union is an appropriate bargaining unit. JURISDICTION The Lewiston Food Service Managers Association/MEA/NEA is a public employee organization within the meaning of 26 M.R.S.A. 962(2) and the Lewiston School Committee is a public employer within the meaning of 26 M.R.S.A. 962(7). The jurisdiction of the hearing examiner to hear this matter and make a unit determination lies in 26 M.R.S.A. 966(1) and (2). HEARING After due notice an evidentiary hearing was held by the undersigned hearing examiner on March 18, 1999, at the Board's hearing room in Augusta, Maine. Ms. Susan Rowe, Uniserv Director for the Maine Education Association, appeared on behalf of the Union. George S. Isaacson, Esq., appeared on behalf of the Lewiston School Committee. No one requested to intervene. The Union presented as its witnesses Ms. Rina Johnson, Ms. Claire Bailey, and Ms. Joline Lajoie, all Food Service Managers, and Ms. Joanne Lagasse, Administrative Assistant. The Employer presented as its witnesses Mr. Leon Levesque, Superintendent, and Mr. Michael Sanborn, Director of Nutrition Services. The parties were given the opportunity to examine and cross- examine witnesses, and offer evidence at the hearing. In lieu of oral arguments, the parties filed post-hearing briefs, both of which were received on April 6, 1999. -2- EXHIBITS Prior to commencement of the formal hearing, the parties met with the hearing examiner to offer exhibits into evidence and formulate stipulations of fact. No stipulations were suggested and the following exhibits were offered into evidence: Union Exhibit #1 Petition for Appropriate Unit Determination, filed by AFSCME, 10/20/78 Union Exhibit #2 Unit Clarification Report No. 79-UC-03, City of Lewiston and Hot Lunch Workers' Unit, Local 2011, Council 74, American Federation of State, County and Municipal Employees, AFL-CIO (12/19/78) Union Exhibit #3 12/31/86 petition of Managers stating they no longer want to be represented by AFSCME Union Exhibit #4 Selected pages of 1985-1986 Collective Bargaining Agreement between Lewiston School Committee and Food Service Workers' Unit, AFSCME (includes title page, recognition clause, termination clause, signature page) Union Exhibit #5 Selected pages of 1987-1989 Collective Bargaining Agreement between Lewiston School Committee and Food Service Workers' Unit, AFSCME (includes title page, recognition clause, termination clause, signature page) Union Exhibit #6 1996-1998 Agreement between Lewiston School Committee and Food Service Workers' Unit, AFSCME Union Exhibit #7 Job Description, Manager, School Food Service, 6/9/92 Union Exhibit #8 Job Description, Assistant Manager, School Food Service, 6/9/92 Union Exhibit #9 Job Description, Administrative Assistant, 5/95 Union Exhibit #10 Job Description, Director, School Nutrition Program, 2/97 Union Exhibit #11 Job Description, Driver/Maintenance, Nutrition Program, 6/10/92 -3- Union Exhibit #12 Job Description, Food Service Specialist - Cook, 3/90 Union Exhibit #13 Job Description, Food Service Specialist - Baker, 3/90 Union Exhibit #14 Job Description, Food Service Aide, 3/90 Union Exhibit #15 Job Description, Food Service Assistant I and II (Helper), 3/90 Union Exhibit #16 Personnel Policies, School Department, City of Lewiston, September 2, 1998 Union Exhibit #17 Employee Evaluation Form Union Exhibit #18 Lewiston School Department Interview Rating Sheet Union Exhibit #19 Interview Questions, Baker-Lewiston Middle School Union Exhibit #20 Lewiston School Nutrition Request for Leave Union Exhibit #21 Lewiston School Department Notice of Personnel Action Union Exhibit #22 Minor Injury Report Union Exhibit #23 Employers First Report of Occupational Injury or Disease Union Exhibit #24 Lewiston School Department Organization Chart Union Exhibit #25 Lewiston School Nutrition Program Employee Handbook Employer Exhibit #1 Summary of Community of Interest Criteria Employer Exhibit #1-A Job Descriptions: Manager, School Food Service (same as Union Ex. #7); Asst. Manager, School Food Service (same as Union Ex. #8); Food Service Assistant I and II (Helpers) (same as Union Ex. # 5); Food Service Asst. I and II (helper/satellite schools); Food Service Specialist - Cook (same as Union Ex. #12); Food Service Specialist - Baker (same as Union Ex. #13) Employer Exhibit #1-B Lewiston School Department Notice of Personnel Action (same as Union Ex. #21) -4- Employer Exhibit #1-C Lewiston School Nutrition Request for Leave (same as Union Ex. #20) Employer Exhibit #1-D Personnel Policies, School Department, City of Lewiston, September 2, 1998 (same as Union Ex. #16) Employer Exhibit #1-E 1996-1998 Agreement between Lewiston School Committee and Food Service Workers' Unit, AFSCME (same as Union Ex. #6) Employer Exhibit #1-F Unit Determination Report No. 73-UD-16, Lewiston Cafeteria Workers and Lewiston Board of Education, June 4, 1973 Employer Exhibit #1-G Selected pages of Collective Bargaining Agreements between Lewiston School Committee and Food Services Workers' Unit, AFSCME, for 1974-75, 1979-80, 1981-82, 1983-84, 1985-86, 1987-89 Employer Exhibit #1-H Selected pages of current or most recent Collective Bargaining Agreements between the Lewiston School Committee and AFSCME, MSEA, Lewiston Education Association, Lewiston Administrators' Association, and Lewiston Educational Directors Employer Exhibit #1-I Examples of School Districts with Bargaining Units that Include Both Food Service Managers and other Food Service Workers prepared by Nutrition Director Employer Exhibit #1-J Lewiston School Department organizational chart Employer Exhibit #2 Job Description, Administrative Assistant 5/95 (same as Union Ex. #9) Employer Exhibit #3 Memo to Elementary Food Service Managers from Michael Sanborn, Director SNP, Dated November 12, 1998 Employer Exhibit #4 Memo from Michael Sanborn, Director, Re: Job Posting, Dated March 15, 1999 Employer Exhibit #5 Food Service Assistant Interview Questions FINDINGS OF FACT 1. On May 3, 1973, a representative of AFSCME filed a -5- "Petition for Appropriate Unit Determination" seeking the establishment of a cafeteria workers unit at the Lewiston School Department. The petitioned-for unit consisted of 25 employees in the job category of Cafeteria Workers. A hearing was held on May 31, 1973. In a unit determination report dated June 4, 1973 (73-UD-16), the hearing examiner noted that, at the suggestion of the employer, the unit was expanded to include "managers" as well. The parties entered a stipulation stating: The bargaining unit, provided it consists of public employees as defined in 962 of the Public Employees Labor Relations Act, shall include employees of the Lewiston School Department Hot Lunch Program excluding such positions as the Director and the Bookkeeper. 2. On September 12, 1973, AFSCME was certified as the bargaining agent for the unit of "Employees of the Hot Lunch Program excluding the Director and Bookkeeper".[fn]1 3. In 1978, at a managers' meeting attended by the Food Service Director and a school administrator, the Food Service Managers were told that they were supervisors and that the employer would "acknowledge" them leaving the AFSCME unit because of conflicts with the rank and file employees. 4. A unit clarification request was filed by the City of Lewiston on October 25, 1978, seeking to exclude from the Food Service Workers bargaining unit the Managers and Assistant Managers. The petition stated: The managerial personnel in question are, in our judgment, supervisors in that they formulate and administer policy, make effective recommendations with respect to personnel matters, and direct unit personnel in the conduct of their duties. ____________________ 1 The Board files indicate that sometime between 1978 and 1985, the Hot Lunch Workers Unit began to be referred to as the Food Service Workers Unit. For the sake of consistency, I will refer to the unit as the Food Service Workers Unit or the AFSCME Unit. -6- AFSCME objected to the petition on the grounds that there had been no significant changes since the formation of the unit, that the managers were specifically included in the unit and that the managers were not supervisors. 5. In a Unit Clarification Report dated December 19, 1978 (79-UC-03), the hearing examiner dismissed the employer's petition because the circumstances surrounding the formation of the unit had not changed sufficiently to meet the threshold requirement for a unit clarification petition. The hearing examiner noted: The Managers and Assistant Manager are supervisors. They schedule, assign, oversee and review the work of the bakers, cooks and helpers. They also control overtime and administer limited discipline. While these control functions are limited to some extent, they nonetheless transcend a strictly routine nature. They are clearly in charge of the kitchen and fully responsible for its operation. This requires many daily supervisory decisions. They also perform administrative and clerical functions that other Program workers, with rare and minor exceptions, do not. They are out of the kitchen on the average more than half of the time doing this distinct non- production work. . . . . . . The Managers are supervisors now and they were supervisors at the time the unit was formed. City of Lewiston and Hot Lunch Workers' Unit, AFSCME, 79-UC-03, slip op. at 6, 7. 6. The only other items in the Board's Unit file for the cafeteria workers are mediation requests from 1985 and 1997. 7. The Recognition Clause in the Food Service Workers 1985- 1986 Collective Bargaining Agreement between the Lewiston School Committee and AFSCME recognizes AFSCME as the exclusive bargaining agent for all public employees of the School Nutrition Program except for the positions of Director, Bookkeeper, and Driver/ maintenance man. The contract was effective from January of 1985 through December of 1986. -7- 8. On Dec. 31, 1986, seven Food Services Managers signed a petition stating: We no longer want to be represented by the Food Services Workers Unit, Council #93, AFSCME. We under- stand that this is an official withdrawal from the Union and that Council #93 no longer has any respon- sibility to represent our interests according to Title 26, MRSA. 9. In the 1987-89 Food Service Workers Collective Bargaining Agreement, the employer recognized AFSCME as the exclusive bargaining agent for all public employees of the School Nutrition Program except for the positions of Director, Book- keeper, Managers, Assistant Managers and Driver/maintenance man. The contract was effective from January of 1987 through December of 1989. The only change in the recognition clause from the prior agreement was the exclusion of the Manager and Assistant Manager positions. 10. The most recent collective bargaining agreement for the Food Service Workers Unit expired on Dec. 31, 1998. Negotiations are underway for a successor agreement. 11. The Unit Determination and Bargaining Agent Election Petition in the current case was filed on January 12, 1999. The employer's response dated January 27, 1999, set forth its position that the Food Service Managers should be in the same unit as the other Food Service employees. The employer indicated that they were providing a copy of their response to Ms. Beverly Miner Hatheway, the AFSCME representative for the Food Service Workers Unit. 12. An official MLRB Notice regarding the scheduled unit determination hearing in this case was sent to the employer on February 8, 1999, for posting at suitable locations at the School Department. That notice stated, in part: -8- This is a public hearing and any member of the public who wishes to attend may do so. Any person or employee who has a substantial interest in the proceedings and wishes to testify may do so by notifying this office at least ten (10) days in advance of the hearing. Petitions to intervene, accompanied by a 10 percent showing of interest and proof of service on both the employer and original petitioner, must be received by the Board on or before February 23, 1999. No petitions to intervene in this case were received and no one contacted this office with a request to testify. 13. The Food Service Managers have overall responsibility for the food service program at each Manager's assigned school. The job descriptions for the Food Service Manager and the Assistant Food Service Manager positions list the "Distinguishing Feature of Work" as "This is a management staff position requiring varied experience in food service production with progressively responsible positions." The nature of both jobs includes three fairly distinct facets: administrative duties, supervisory duties, and production work. 14. The nature of the work performed by the Assistant Food Service Manager is essentially the same as that of the Food Service Manager. The only difference is that the Assistant Manager is responsible for a satellite school and she does her purchasing of most items through the Food Service Manager rather than directly. 15. The regular administrative responsibilities take the Manager out of her kitchen into her office or into other areas of the school for about three hours a day. These administrative duties involve maintaining meal accountability records, student rosters, production records, inventories, and ordering food and supplies. The Managers typically will start the day by opening up the kitchen, overseeing any deliveries for that day, assigning work stations and duties based on that day's menu, doing account- ability tasks outside of the office such as accounting for -9- students who have been absent or collecting envelopes from the homerooms, and reconciling the amounts received with the records for those receiving free, reduced, or paid meals. The Managers may have to return to classrooms to resolve discrepancies in the forms or the funds received. The Managers count all the money, complete a deposit slip and put it in a deposit bag for delivery to the bank. Food orders are made by the Managers and the Assistant Manager. Some items, such as milk, are ordered on a daily basis while other items are ordered weekly. Ordering involves reviewing the menu and determining need based on inventories and expected consumption. Orders are sent to the Administrative Assistant and the Director at the Nutrition Services Office. The Managers must also compile other reports such as the . la carte report that lists items sold on a daily basis. All of the Food Service Managers use computers on a daily basis for things such as daily record forms showing the number of students receiving meals, daily cash deposits, . la carte reports and for e-mailing each other. 16. The supervisory responsibilities of the Managers and the Assistant Manager include training of personnel, assigning jobs, assigning breaks and meal periods, and reassigning employees in accordance with contract provisions if short staffed. If an employee is sick, the employee calls in to the Manager and the Manager, in turn, must call in a substitute. Sometimes work assignments must be shifted in the middle of the day due to equipment problems or staffing shortages. The starting and quitting times are set by the Managers based on the school's schedule and limited by the total hours available for each employee. This schedule is typically established at the beginning of the year. The items on the menu dictate to some extent the distribution of daily tasks among employees. 17. The Food Service Managers are responsible for the performance of their subordinates and ensure that all employees follow all safety and sanitation rules in performing their jobs. -10- The Cooks and Bakers and other more experienced employees also help new employees learn specific tasks and procedures. 18. The Managers worked together with the former Director of Food Services to create the Lewiston School Nutrition Program Employee Handbook, which is distributed to all food service employees. The Handbook includes information on Safety, Sanitation, Commodity Foods, Food Handling and Preparation and other related subjects of interest to new employees. The prior Director regularly consulted the Managers on the need for updates to this Handbook. 19. The Food Service Managers handle the first stage of the progressive discipline described in Article XIV, Section 1 of the AFSCME contract. They are authorized to give an employee an oral reprimand, in which case a written memorandum is placed in the employee's personnel file and a copy is provided to the employee. If a written reprimand is necessary, it must come from the Director. 20. The Food Service Managers are responsible for trying to resolve grievances at the lowest level through informal discussions with the employee. Formal grievances have been rare or non-existent. The first step of the formal grievance procedure goes to the Director. 21. The Food Service Managers are responsible for doing the payroll, including ensuring that the pay for any employee working temporarily in a higher classification is adjusted according to the AFSCME contract. The Managers are responsible for doing payroll records on a daily basis. When the daily time sheets are completed, the Managers sign them and send them to the Administrative Assistant. The Managers are also responsible for giving initial approval to any requests for leave, initiating personnel action forms, and completing Minor Injury Reports and the Workers' Compensation Board First Report of Injury and Disease Form. -11- 22. The Food Service Managers are responsible for conducting performance evaluations on all of the cafeteria workers on an annual basis. This involves completing the evaluation form, sitting down with the employee in the Manager's office and discussing the employee's performance and the evaluation, signing the form and getting the employee to sign it as well. 23. A number of years ago, the Food Services Managers worked with the prior Director to develop the form used to evaluate the nutrition program employees. The managers have discussed the form at managers' meetings in the past and concluded that it did not need to be changed. 24. The Food Service Managers are active participants in the hiring process but do not have the authority to hire anyone without the approval of the Director and the Superintendent. The Food Service Managers assisted in preparing a list of questions to use in interviewing candidates for positions in the cafeteria. There have been only two openings since the current Director started but two Managers participated in those interviews. The Director and the Managers interviewed the applicants using the written questions as a guide or script. The Managers and the Director agreed on who should be recommended for the jobs based on qualifications and the requirements of the AFSCME contract. 25. The Food Service Managers, the Assistant Food Service Managers, and the Administrative Assistant attend a monthly managers' meeting with the Director. Various issues are discussed at these meetings, such as different methods for preparing items or managing problems, equipment problems, and changes in the menu. 26. The Director holds meetings at each school on a regular basis for the cafeteria staff. These meetings are attended by the staff and Manager assigned to that kitchen. The meetings generally cover issues like changes the Director would like to -12- see, issues that may arise involving the cafeteria, and changes the Director is planning. 27. The Department has five different menus that are prepared on a monthly basis by the Director. The Director sends the menu out to the various Managers for their input. Sometimes they have comments or for some reason must change some aspect of the menu, in which case they notify the Director. The amount of input the Director receives varies. 28. The Food Service Managers also work with Principals for their schools on special food or nutrition events for the children or special events for the families. The Managers coordinate these "public relations" activities such as freshman orientation, a pumpkin festival, parents' week, etc. 29. Food Service Managers spend a part of their day working alongside Food Service Assistants and other classifications in the AFSCME unit, performing food preparation work, serving or clean-up duties as necessary. There have been significant staff shortages this year, requiring a greater number of the Managers' hours devoted to production than normal. On a couple of occa- sions where staffing was particularly short, the Administrative Assistant helped out in the cafeteria. 30. The nature of the Administrative Assistant position (formerly called Bookkeeper) is to coordinate and manage all of the record keeping and accounting functions in the Food Service Department. The Administrative Assistant is responsible for accounts payable and receivable, for compiling various reports for the state that determine subsidies received by the school, for payroll records, for providing financial information for annual audits, for preparing annual report of financial status of the program, and for assisting the Director with the annual budget preparation. Many of the records and reports the Administrative Assistant works with originate from data provided by the Food Service Managers--that is, she prepares compilations -13- or summations of records submitted by them. 31. Although not a supervisor, for about a year and a half the Administrative Assistant had general oversight responsibility for a half-time clerical position in the office. The Adminis- trative Assistant used to assign tasks and oversee the work of the part-time employee for the Director. That half-time position has been vacant since November of 1998. 32. The Administrative Assistant is not involved at all with the collective bargaining process with the AFSCME unit or with respect to any other collective bargaining agreement in the School Department. The Administrative Assistant has never typed collective bargaining proposals or strategies, nor has she ever been asked for input or advice. 33. The Administrative Assistant shares an office with the Director of Nutrition and the Department's Driver/maintenance person, Arthur Allard. There is no partition or wall separating work space in the office. Mr. Allard is not in the office very much at all, but he calls in to the Administrative Assistant regularly to communicate problems or report on his whereabouts. The Director visits the various schools frequently and is out of the office more often than he is in. The Administrative Assistant spends her entire work day in the office. 34. The Administrative Assistant takes phone messages for the Director and for all the Managers in the department. She also retrieves from the fax machine located in the office various fax transmissions including those that are addressed to the Nutrition Director. She opens mail that is directed to the Nutrition Director but does not open mail that is marked "confidential." 35. The Administrative Assistant attends managers' meetings, takes minutes at those meetings, and distributes those minutes. She has attended a meeting with the Director and AFSCME -14- representatives, a so-called open communication meeting, to take minutes. 36. The Administrative Assistant is responsible for maintaining the Department's personnel files. She makes sure all of the personnel-related paperwork is completed properly and is received by the Personnel Secretary at the Superintendent's office. 37. Mr. Michael Sanborn began working at the Lewiston Schools on July 1, 1998, as the Director of School Nutrition. He is not a member of the negotiating team that is bargaining with the AFSCME unit. He was given a draft of some of the areas of concern for the School and was asked to give his input and recommendations in certain areas. This input was provided to the Superintendent, members of the School Committee negotiating team, and the School Committee's legal counsel. He has been involved with meetings and various forms of communication with all of those people. He has also provided documentation regarding labor costs, productivity and food costs. He has conducted research on school nutrition programs at other schools with respect to composition of the bargaining units and wage proposals. 38. The Personnel Policies that apply to the positions in the proposed unit are established by the School Committee and implemented through the Superintendent and the Director of Nutrition Services. The labor relations policy affecting the employees in the AFSCME Unit is established through the collective bargaining process between the School Committee and AFSCME. 39. The pay ranges effective August 15, 1998, for the positions in the petitioned-for unit are as follows: Position Range Min. Range Mid. Range Max. Food Service Mgr.-H.S. $11.02 $12.03 $13.13 Food Service Mgr. $10.35 $11.31 $12.34 -15- Asst. Food Service Mgr. $ 9.68 $10.57 $11.54 Administrative Asst.[fn]2 $11.87 $13.36 $15.04 40. Most of the Food Service Managers are at the top of their respect pay ranges. The Administrative Assistant is at the middle of her range. 41. The School Department Personnel Policies cover permanent full-time employees who are not covered by a collective bargaining agreement. It includes four different salary plans that apply to four distinct groups: School Hourly Employees, Adult Education Employees, School Management Employees, and Nutrition Program Managers. Each plan is a separate appendix to the Personnel Policies, labelled "A," "B," "C," and "D," respectively. All of the ranges are expressed as an hourly rate, with the exception of the School Management Employees' plan, which is stated as a weekly amount. The pay ranges for the Food Service Managers and the Assistant Food Service Managers have seven steps and are all in the salary plan labelled "Nutrition Program Managers." The range for the Administrative Assistant has nine steps and is part of the "School Management Employees" salary plan. 42. The January 1, 1998, pay ranges for the positions in the AFSCME unit are as follows: Food Service Specialist $9.47 and $9.75 after 5 years (Cook or Baker) Food Service Assistant II $8.56 and $8.82 after 5 years Food Service Assistant I $8.03 43. For the positions in the proposed unit, the Superintendent consults with the Director on whether to move an employee to a higher step. The Superintendent makes a ____________________ 2 Shown as an hourly rate based on a 37 hour week for comparative purposes only. The personnel manual expresses it as a weekly amount ranging from $445.24 to $564.03 a week. -16- recommendation to the School Committee. The School Committee also reviews the salary ranges each year in light of cost of living changes, pay for comparable positions in the city or other school systems, and adjustments made for other School Department employees. 44. The employment benefits are the same for the Food Service Managers, the Assistant Food Service Manager, and the Administrative Assistant, except for vacations. They all receive health insurance with 90% of the premium paid for by the employer, whether they elect a single, 2-person, or family plan. They all accrue sick time at a rate of 1 days per month with a maximum accumulation of 130 days. There are 12 paid holidays listed in the Personnel Policies, although one occurs after the school year is over and at least two others coincide with the school vacation weeks. The Managers are also eligible for tuition reimbursement and mileage reimbursement. 45. The Personnel Policies include a specific provision regarding vacation pay for the Food Service Managers. It states: Nutrition Program Managers and Assistant Managers shall receive their regular pay during the Christmas, February and April recess periods. Appendix D employees shall receive regular pay for workshop days and storm days as it is expected that they will work on those days to either preserve food products or enhance their leadership skills. One of the Food Service Managers testified that they also received an additional three vacation days at the end of the school year, although this is not specified in the personnel policies. 46. The Administrative Assistant, like the other employees in the "School Management Employees" salary plan, accrues vacation time on a monthly basis. The rate starts at 1 day per month, after five years of service it is 1 days per month, and after 20 years it is 1-3/4 days per month. She is not required to -17- take her vacation during the school vacation weeks. 47. The employment benefits provided to individuals in the AFSCME unit include health insurance with the employer paying 100% of the premium for the employee's coverage but only 50% of the premium for a 2-person or family plan. They are entitled to sick time accrual at a rate of 1 day per month to a maximum of 105 days. The AFSCME contract provides for nine paid holidays during the school year and has no provision for vacation pay or tuition reimbursement. 48. The Food Service Manager at the High School works from 7:00 a.m. to 3:00 p.m. Her lunch period is supposed to be 45 minutes but is often just 10 or 15 minutes so that she can make sure all of the other employees receive the breaks required under their contract. The Food Service Manager at the Middle School works from 6:30 a.m. to 2:30 p.m. while the Assistant Food Services Manager starts work at 7:00 a.m. The Administrative Assistant works from 7:00 a.m. until 4:30 p.m. with an hour lunch break. 49. The Food Service Manager at the Middle School worked long hours during October and November because a cook was out for a catastrophic illness and a baker quit. She came in at 5:00 a.m. many mornings to do the work of these two classified positions and often stayed working on paperwork until after 4:00 p.m. During normal staffing she would not spend more than an hour in the kitchen doing production work. 50. The Administrative Assistant is on a year-round work schedule. The High School's Food Service Manager works during the summer in the summer feeding program from 7:30 a.m. until 1:30 p.m., but not in a management slot. There is only one Food Service Manager for the summer feeding program. 51. The job description for the Administrative Assistant lists under the heading "Desired Experience and Training" the -18- following: "High School graduate or GED equivalent; Four years of progressively responsible clerical experience, including one year of supervisory or highly specialized activities performed independently; Advanced computer skills and experience necessary." 52. The job description for the Food Service Manager and the Assistant Food Service Manager both list under the heading "Desired Experience and Training" the following: "High school diploma or equivalent, Certificate from State Nutrition Programs, Department of Education offered cooks/bakers course and managers course. Specialized education and training in food handling and safety. State Certificate in Sanitation." 53. The job description for the Food Service Specialist - Cook lists under the heading "Desired Experience and Training" the following: "High school diploma or equivalent or willingness to acquire one. Certificate from State Nutrition Programs, Dept. of Educational & Cultural Services offered cooks course. Specialized training in sanitation, food handling, safety. Progressively responsible positions in School Food Service. Knowledge of basic mathematics." The job description for the Food Service Specialist - Baker lists the same items but refers to a bakers course certificate rather than a cooks course. 54. The job description for the Food Service Assistant I and II (Helper) lists under the heading "Desired Experience and Training" the following: "Training in sanitation, food handling, safety. Ability to follow oral and written instructions. Certificate from State Nutrition Program, Department of Educational and Cultural Services offered course. Knowledge of basic mathematics." 55. All of the Food Service Managers, the Assistant Food Service Manager, and a number of the employees in the AFSCME unit have received the state certificate in sanitation. 56. Food Service Managers, the Assistant Food Service -19- Manager and the Administrative Assistant attend fall and spring conferences related to nutrition programs. The Administrative Assistant attends some of the same workshops and training as the managers. 57. The Food Service Managers are in daily contact with the Administrative Assistant and are in contact with the other Food Service Managers regularly, generally once a week, sometimes 2 or 3 times a week. They keep in contact by telephone and e-mail. The Food Service Managers at the smaller schools tend to interact with School Administrators and teachers more frequently than at the larger schools simply because of the layout of the school. The Food Service Managers have daily contact with the Director while the Administrative Assistant's contact with him is more frequent. 58. The Food Service Managers are each assigned to a specific school in the Lewiston School Department at different geographic locations. The Assistant Food Service Manager is assigned to a satellite school and spends part of her day at that school and part at the High School where her immediate supervisor, the Food Service Manager, is located. All of the schools have an office for the managers located right off the kitchen preparation area. 59. Managers must complete a Personnel Action Form to initiate the process for getting various changes approved, such as promotions, transfers, layoffs or resignations. All Personnel Action Forms must be signed by the Superintendent before they are accepted. Similarly, requests for leave are not granted unless the Superintendent's signature has been obtained, except in emergencies. 60. The Food Service Managers have not been involved in or the subject of any collective bargaining since they were removed from the recognition clause of the AFSCME contract in 1987. -20- 61. The Department's Driver/maintenance person is not in the Food Service Workers' bargaining unit but is in another bargaining unit at the school. 62. The Employer and the Union agree that there are currently six different bargaining units representing employees in the Lewiston School Department: Food Service Workers Unit; General Government Employees Unit; Education Technicians Unit; Teachers Unit; Administrators Unit; and Educational Directors Unit. The Board's files show that AFSCME is the bargaining agent for the Food Service Workers Unit; MSEA is the agent for the General Government Employees; the Lewiston Education Association/ MEA is the bargaining agent for the Educational Technicians Unit and for the Teachers Unit. The excerpts of the collective bargaining agreements submitted as part of Employer's Exhibit #1, tab H, show that the Lewiston Administrators Association, ASFA, is the recognized bargaining agent for the Administrators Unit and that the Lewiston Educational Directors is the recognized bargaining agent for the Educational Directors Unit. The Board's files contain no bargaining agent certifications, voluntary recognition forms, or collective bargaining agreements for either of these last two units. There is no file at all for the Administrators Unit and the Directors Unit only contains a Form 1, Agreement on Appropriate Unit dated May 8, 1984. 63. The smallest bargaining unit at the school is the Educational Directors Unit, which covers seven positions and, according to the employer's organizational chart, has one employee in each of those seven positions. DISCUSSION The first issue I must address is whether the Administrative Assistant should be excluded from collective bargaining as a confidential employee under section 962(6)(C). The second issue is whether the classifications of those public employees in the petitioned-for unit have a community of interest that supports a -21- conclusion that it is an appropriate bargaining unit. I will then consider the Employer's various arguments raised in their response and in their post-hearing brief that the positions should be included in the existing unit of Cafeteria Workers represented by AFSCME. CONFIDENTIAL EXCLUSION The Employer contends that the Administrative Assistant, as the only clerical support person for the Director of School Nutrition, is a confidential employee within the meaning of section 962(6)(C) and therefore may not be included in a bargaining unit. The employer argues that the Director of School Nutrition is directly involved in formulating the School Committee's bargaining positions and strategies and that he needs a confidential assistant to carry out these duties. Before getting into the merits of the employer's argument, it is helpful to step back and remind ourselves of the stated purpose of the MPELRL. Section 961 of the Act states: 961. Purpose It is declared to be the public policy of this State and it is the purpose of this chapter to promote the improvement of the relationship between public employers and their employees by providing a uniform basis for recognizing the right of public employees to join labor organizations of their own choosing and to be represented by such organizations in collective bargaining for terms and conditions of employment. It is clear that the MPELRL is a remedial statute that must be liberally construed to effectuate the purpose of the Act. To that end, it is well-established that exemptions from coverage under the Act, including the confidential employee exclusion in question, must be narrowly construed. State of Maine and MSEA, No. 82-A-02, slip op. at 6, 6 NPER 20-14027 (Me.L.R.B. June 2, 1983) (Interim Order). An employee who fits within one of the exclusions listed in section 962(6) is not granted collective bargaining rights by the -22- Act. Section 966(1) prohibits me from including an excluded position in a bargaining unit. Section 962(6)(C) excludes any person: Whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head, body, department head or division head. The scope of this exclusion includes certain personnel directly involved in formulating labor relations policy as well as certain clerical employees. The parameters of this exclusion have been summarized by the following: Some general principles have been established for determining whether a position is confidential. First, employees who have been permanently assigned to collective bargaining or to render advice on a regularly assigned basis to management personnel on labor relations matters are confidential employees. State of Maine and MSEA, No. 82-A-02, slip op. at 10, 6 NPER 20-14027 (Me.L.R.B. June 2, 1983) (Interim Order). The term "labor relations matters" does not refer to contract administration, but rather contemplates "the strategic and tactical considerations involved in negotiating collective bargaining agreements." Id., slip op. at 7. An information provider is not a confidential employee. State of Maine and MSEA, No. 78-A-09, slip op. at 8 (Me.L.R.B. Mar. 2, 1979). . . . Finally, current duties, not duties projected for the future, must be the basis for a finding of confidentiality. MSAD No. 14 and East Grand Teachers Assoc., No. 83-A-09, slip op. at 10, 6 NPER 20-14036 (Aug. 24, 1983). AFSCME and Town of Sanford, 92-UD-03, slip op. at 37 (Me.L.R.B. Feb. 21, 1992), aff'd., 92-UDA-03 (Me.L.R.B. May 7, 1992). The Board has also held that "[i]n many if not most cases, 'confiden- tial' supervisory employees need access to at least one 'confiden- tial' clerical employee, in order to carry out their 'confiden- tial' duties." State of Maine, No. 82-A-02 (Interim Order), slip op. at 28. (Because Superintendent of the Maine Correctional Center was only marginally involved in the last round of negotiations, confidential status was not appropriate for his -23- secretary). In the present case, the evidence shows that the current Director of Nutrition Services has had some involvement in the collective bargaining process with respect to the AFSCME unit in his first few months on the job. He has provided input and recommendations on certain areas of concern to the School and has attended meetings with various people more directly involved with the collective bargaining process.[fn]3 That evidence alone, however, is not sufficient to support a conclusion that the Director gives advice "on a regularly assigned basis" on "the strategic and tactical considerations involved in negotiating collective bargaining agreements." The evidence is ambiguous, at best, as to whether the Director has merely provided input or has been actively involved in the formulation of policies and strategies. Furthermore, no evidence was presented regarding the level of involvement, if any, of the previous Director of Nutrition Services in the collective bargaining process. Therefore, I am unable to conclude that the Director of Nutrition is a confidential employee. Even if I were to conclude that the Director of Nutrition Services is a confidential employee within the meaning of section 962(6)(C), that does not automatically mean that his Administrative Assistant should be excluded from coverage of the Act. The Board's position that "[i]n many, if not most cases, 'confidential' supervisory employees need access to at least one 'confidential' clerical employee, in order to carry out their 'confidential' duties," State of Maine, 82-A-02, Interim Order, slip op. at 28, is a statement of fact rather than a statement of policy. It is simply a recognition that confidential supervisory employees may need a confidential clerical support person. It ____________________ 3 The employer's statement in its Post-Hearing Brief that "The director attends and participates in all bargaining strategy and proposal formulation meetings with the School Committee" is simply not supported by the record. -24- does not suggest that the confidential supervisory employee has any particular entitlement to a confidential clerical support person. See, e.g., Lincoln Sanitary District and Teamsters Union Local 340, No. 92-UC-02, slip op. at 16 (Me.L.R.B. Nov. 17, 1992) (holding that where Superintendent prepared all of his own confidential documents, there was no current need for confidential clerical support). It is still necessary to show a sufficient collective bargaining nexus for the exclusion of the clerical employee. Decisions on whether to exclude a particular position from a bargaining unit must be based on actual job duties and not on projections of future duties as that would be too speculative to serve as the basis for excluding a position. Auburn Firefighters Association and City of Auburn, No. 83-A-07, slip op. at 7, 6 NPER 20-15003 (Me.L.R.B. Dec. 5, 1983). In MSAD #14 and East Grand Teachers Association, the Board held "employees must actually perform confidential collective bargaining duties before they can be considered to be confidential employees, within the meaning of 962(6)(C)." No. 83-A-09, slip op. at 10. In the present case, the evidence does not support a finding that the Administrative Assistant has access to confidential collective bargaining information that would justify exclusion under 962(6)(C). The Administrative Assistant testified that she has never typed any collective bargaining documents and there was no evidence that she was ever privy to any collective bargaining information. The employer argues that because the Director and the Administrative Assistant are located in the same office without any dividing walls or partitions, the Administrative Assistant would be privy to all conversations the Director has in the office on the telephone or in person regarding collective bargaining matters. There was no evidence, however, that any such meetings ever actually occurred in the Director's office. Similarly, there was no evidence presented that the Director ever had any telephone conversations in his office -25- involving confidential collective bargaining information, let alone any conversations that occurred in the presence of the Administrative Assistant. There was no evidence that the Director ever received faxed documents or telephone messages or mail that contained any confidential collective bargaining infor- mation, let alone any that the Administrative Assistant saw. Indeed, the Administrative Assistant testified that she did not open any mail marked "confidential." A general statement by the Director that he was "involved in various forms of communication" with members of the negotiating committee, the Superintendent and the School's attorney is a far cry from proof that his Assistant was necessarily privy to confidential collective bargaining information. The employer's reliance on the testimony that the Adminis- trative Assistant has access to confidential personnel files and that she attends all meetings between the Director and repre- sentatives of the Food Service Workers' Unit is irrelevant to the confidential exclusion. Neither of those activities involve strategic or tactical considerations in negotiating collective bargaining agreements. See, e.g., Winthrop School Department Food Service Workers, UPIU and Winthrop School Department, No. 97-UD-11 (Me.L.R.B. Aug. 27, 1997), slip op. at 18 (holding that Food Service Supervisors' access to confidential financial and personnel information not sufficient for confidential exclusion). The evidence is insufficient to conclude that the Administrative Assistant currently performs duties that require excluding her from collective bargaining under 962(6)(C). If the assignment of confidential collective bargaining duties becomes necessary, the employer can make such an assignment and then file a petition for unit clarification in accordance with MLRB Rule 1.13.[fn]4 The hearing examiner will, at that stage, ____________________ 4 If the public employer does make such confidential assignments to a unit employee, the employer may certainly admonish the employee that the duties are confidential and may not be discussed with the -26- consider the actual duties of the job and will make an appropriate ruling. In the meantime, the Administrative Assistant will not be excluded as a confidential employee. COMMUNITY OF INTEREST As the Law Court has recognized, there are two fundamental purposes of the MPELRL: to protect employees' right to self- organization and to promote the voluntary adjustment of their terms of employment. Lewiston Firefighters Assoc., Local 785, IAFF v. City of Lewiston, 354 A.2d 154, 160 (Me. 1976). Coherent bargaining units with a clear and identifiable community of interest are essential to both of these objectives. In the Lewiston Firefighters case, one of the earliest cases inter- preting the MPELRL, the Law Court stated "the MPELRL acknowledges and protects the public employee's right to self-organization" and sets forth the methods for implementing that right. 354 A.2d at 160 (Invalidating a parity pay provision of the Lewiston City Charter because it improperly interjected the interests of one group of employees into the unit created to represent another group). When the parties do not voluntarily agree on the make-up of the bargaining unit, it is up to the Executive Director to determine the appropriate unit. Id. It is well-established that the hearing examiner's duty is to "determine whether the unit proposed by the petitioner is an appropriate one, not whether the proposed unit is the most appropriate unit." Town of Yarmouth and Teamsters Local Union No. 48, No. 80-A-04, slip op. at 4 (Me.L.R.B. June 16, 1980); see also, Portland Superintending School Committee v. Portland Administrative Employee Assoc., No. 87-A-03, slip op. at 6 (Me.L.R.B. May 29, 1987). In Yarmouth, the union petitioned for one unit and the employer responded that two units would be more appropriate because two other units in the Town were based on ____________________ Union and that maintaining the confidentiality of the information is a condition of continued employment. -27- divisional lines. Noting that each petition "must be judged on its own merits," the Board stated: Moreover, adoption of the Town's position that all bargaining units of Town employees must follow divisional lines would violate the employees' guaranteed right to full freedom in the exercise of their representational and bargaining rights. Yarmouth, 80-A-04, slip op. at 4, citing 26 M.R.S.A. 963 and 966(2) and Lewiston, 354 A.2d at 160-161. The employees' right to self-organization is best protected when their judgment on the appropriate unit is respected, as long as the positions share the community of interest required by 966(2). See Portland Administrative Employee Assoc. and Portland Superintending School Committee, No. 86-UD-14, slip op. at 28 (Me.L.R.B. Oct. 27, 1986), aff'd., No. 87-A-03 (Examination of the bargaining unit proposed by the employer not proper until the bargaining unit proposed in the Union's petition has been considered and rejected). The requirement that the Hearing Examiner examine the extent of the community of interest was explained by the Board nearly 20 years ago and is still valid today: Title 26 M.R.S.A. 966(2) requires that the hearing examiner consider whether a clear and identifiable community of interest exists between the positions in question so that potential conflicts of interest among bargaining unit members during negotiations will be minimized. Employees with widely different duties, training, supervision, job locations, etc., will in many cases have widely different collective bargaining objectives and expectations. These different objectives and expectations during negotiations can result in conflicts of interest among bargaining unit members. Such conflicts often complicate, delay and frustrate the bargaining process. AFSCME and City of Brewer, No. 79-A-01, slip op. at 4, 1 NPER 20- 10031 (Me.L.R.B. Oct. 17, 1979). In determining whether employees share the requisite -28- "community of interest" in matters subject to collective bargaining, the following factors, at a minimum, must be considered: (1) similarity in the kind of work performed; (2) common supervision and determination of labor relations policy; (3) similarity in the scale and manner of determining earnings; (4) similarity in employment benefits, hours of work and other terms and conditions of employment; (5) similarity in the qualifications, skills and training of employees; (6) frequency of contact or interchange among the employees; (7) geographic proximity; (8) history of collective bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the employer's organizational structure. Board Rule 1.11(F). As explained below, consideration of these eleven factors support a conclusion that the classifications in the petitioned-for unit share a community of interest. 1. Similarity in the kind of work performed. With respect to the first factor, the nature of the work performed by the three positions is similar, although not identical. The nature of their work is to oversee the food service function and perform the associated administrative tasks. The Food Service Managers and the Assistant Food Service Manager perform essentially the same function. They both do a substantial amount of administra- tive work, they have supervisory responsibilities in their respective kitchens, and they do varying amounts of food prepara- tion, serving and cleanup work alongside employees in the AFSCME unit. The work performed by the Administrative Assistant is similar to that of the Managers and Assistant Managers in the scope and nature of the administrative work she does. She compiles the information submitted by the Managers and translates it into reports suitable for the Superintendent's office and various state agencies. Although not a supervisor, she has had general oversight responsibility for a half-time clerical position, that, though vacant now, still remains on the employer's organizational chart. She has pitched in and helped out in the cafeteria at times of extreme shortages in staff. -29- 2. Common supervision and labor relations policy. The second factor also supports a finding that the requisite community of interest exists. The Administrative Assistant and the Food Service Managers all report directly to the Food Service Director. The Assistant Food Service Manager reports indirectly to the Director through the Food Service Managers. All of the positions are subject to the policies described in the Personnel Manual which is established by the School Committee and implemented by the Superintendent and the Director. 3. Wage scale and manner of determining earnings. The wage scale and manner of determining earnings are similar for all three positions in the petitioned-for unit and support a finding of a community of interest. The Administrative Assistant is the highest paid of the group, and her rate is only a few cents above the highest paid Manager and is less than 10% higher than most of them. 4. Benefits, hours, and other terms of employment. This factor supports a finding of a community of interest. The only real difference relates to accrual and use of vacation time, which simply reflects the fact that the Administrative Assistant works for the school on a year-round basis. I do not consider this difference in schedule to be a substantial difference in this case. 5. Qualifications, skills and training. This factor lends support to a finding of a community of interest as there is no major difference in the qualifications or training required of any of the positions, other than differing work experience requirements. The skills needed by the Administrative Assistant are certainly more geared toward bookkeeping and computer skills than the other positions and less toward food production skills. There are not, however, different educational backgrounds, licenses, or certifications required that might contribute to conflicting interests among the employees. -30- 6./7. Frequency of contact/geographic proximity. The frequency of contact or interchange among the employees, the sixth factor, is closely related to the seventh factor, their geographic proximity. As each Manager has her own kitchen at a separate school, their exchanges are mostly on the telephone or via e-mail and occur regularly during the week. As with other unit determinations in the public school context, I do not put much weight on these two factors in this circumstance. See, e.g., Winthrop, 97-UD-11, slip op. at 22; Gorham Maintenance, Bus Drivers, Cooks and Custodians, MTA/MEA and Gorham School Committee, 91-UD-11, slip op. at 19, (Me.L.R.B. May 15, 1991). 8. Collective bargaining history. The eighth factor, history of collective bargaining, provides very strong support for the conclusion that the classifications in the petitioned-for unit share a clear and identifiable community of interest. The Managers and the Assistant Manager were part of the AFSCME Food Service Workers Unit created in 1973. Five years later, the Employer filed a unit clarification petition to remove the Managers from the unit because the Employer felt that as supervisors there was a conflict of interest in being in the same unit as the rank and file employees. The petition was dismissed because the hearing examiner concluded that the Managers had been supervisors since formation of the unit and therefore the employer had failed to show the substantial change necessary for a unit clarification petition. After the Managers submitted a petition to the union in 1986, their positions were removed from coverage of the AFSCME contract by the agreement of the Employer and AFSCME. The Food Services Managers have been excluded from the AFSCME contract since that time and have not been represented by any other union. The history of collective bargaining in this case shows that, based on actual experience bargaining together in the same bargaining unit, all of the parties believed that it was not appropriate to continue to have the Managers included in the Food Service Workers Unit. From the sequence of events following the formation of the unit in 1973, particularly the -31- more recent history, I can infer that the bargaining history was not successful for the Managers. 9. Desires of employees. With respect to the ninth factor, there was no evidence directly reflecting the employees desires regarding unit configuration. 10. Extent of organization. The extent of union organization lends support to a finding that the positions share a community of interest in that the union is seeking to organize all of the unrepresented employees in the Nutrition Services Department, other than the Director. 11. Organizational structure. The eleventh and final factor, the employer's organizational structure, also supports a finding of a sufficient community of interest as all of the positions in the proposed unit are within the same department and essentially at the same level in the organizational hierarchy. In summary, I have examined and considered all of the community of interest factors both individually and together with respect to the positions in the petition-for unit. I conclude that these factors establish that the positions share a clear and identifiable community of interest and therefore constitute an appropriate unit. OTHER ISSUES The Employer presents four different arguments in their post-hearing brief on why the Food Service Managers should be included in the existing Food Service Workers' Unit represented by AFSCME. The Employer contends that the Food Service Managers share a community of interest with the Food Service Workers; the Managers' supervisory responsibilities do not create the con- flicts of interest that are the focus of 966(1); a separate unit for the Managers is contrary to the Board's anti-proliferation policy; and finally, the Managers have never been lawfully removed from the Food Service Workers' Unit and there has been no -32- change justifying their removal. I am unpersuaded by any of these arguments and will address each in turn below. The Employer's argument that the Food Service Managers share a community of interest with the members of the Food Services Workers Unit is not relevant. As noted above, the hearing examiner's duty is to determine whether the petitioned-for unit is an appropriate unit, not whether it is the most appropriate unit. Yarmouth, 80-A-04, slip op. at 4. This approach affords the greatest protection to the employees' right to self- organization. Having already concluded that the positions in the proposed unit do constitute an appropriate unit, no purpose would be served by determining whether the Food Service Managers share a community of interest with the members of the Food Service Workers Unit. The Employer's reliance on Winthrop for their position that the Managers should be placed in the Food Service Workers Unit is misplaced. In that case, the petitioned-for unit included the Food Service Managers in the same unit as the cafeteria workers. The hearing examiner determined that the petitioned-for unit was appropriate, over the objections of the employer. In the present case, the petitioned-for unit does not put the Managers in the same unit as the other cafeteria workers. Contrary to the Employer's assertion (see Employer's Post Hearing Brief fn. 5, p. 18), it does matter whether it is the petitioner or the employer who is advocating a particular unit configuration. The Employer also claims that the Food Service Managers are essentially working supervisors who do not possess the type or scope of supervisory responsibility that create conflicting interests within the meaning of 966(1) that "justify" placement in a separate unit. The Employer suggests that the three-part test regarding supervisory duties contained in 966(1) must be used to determine whether the positions should be excluded from the Food Service Workers Unit. The Employer misconstrues the purpose of 966(1). The purpose of the test in 966(1) is to -33- determine whether a position should be excluded from the proposed bargaining unit, that is, the petitioned-for bargaining unit, not the unit the employer claims is appropriate. The statute is clear in this respect. Section 966(1) states, in part: In determining whether a supervisory position should be excluded from the proposed bargaining unit, the executive director his designee shall consider, . . . (emphasis added) The Employer's approach contends that because the Food Service Managers are not supervisors according to the three-part test in 966(1), their interests do not conflict with those of the Food Service Workers, therefore they should not be excluded from the Food Services Workers Unit. The approach dictated by the statute, however, starts with the proposed unit and then applies the three-part test to determine whether a position should be excluded from that unit. In the present case, the petitioned-for unit contains the Food Service Managers, the Assistant Food Service Manager and the Administrative Assistant. The supervisory relationship of these classifications with the Food Service Workers is irrelevant because none of the Food Service Worker positions are in the proposed unit. The three- part test in 966(1) need not be considered at all because no one is claiming that there are conflicts among the positions in the proposed unit. The Employer's third argument is that creating a separate unit for the Food Service Managers would be contrary to the Board's policy against the proliferation of small bargaining units. The Employer is correct that the Board's long-established non-proliferation policy is based on a concern that the employer, the union, and the State would be required to expend time, energy and money all out of proportion to the number of employees served by the small bargaining unit. MSAD #14 and East Grand Teachers Assoc., No. 83-A-09, slip op. at 13. I am not convinced that the proposed unit of nine employees is such a small bargaining unit that ignoring their statutory right to self-determination is -34- justified in the name of non-proliferation. In upholding the creation of a 10-person unit, the Board has stated, "Ten-person bargaining units are far from small in comparison with other units which we have sanctioned under the Municipal Public Employees Labor Relations Law." Portland, 87-A- 03, slip op. at 6. Indeed, in discussing the creation of separate supervisory units, the Board has clearly indicated that even smaller units can be approved. The Board stated: Except in instances where the resulting one- or two-member supervisory unit would contravene our policy of discouraging the proliferation, through fragmentation, of small bargaining units, we have approved the creation of such supervisory units. Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, AFT, No. 85-A-01, slip op. at 8, 8 NPER ME-16011 (Me.L.R.B. Feb. 6, 1985). The Employer points out that they already have six bargaining units and creation of a seventh would be burdensome. This is the same argument that was made by the employer in Portland and specifically rejected by the Board. No. 87-A-03, slip op. at 5 ("We shall not . . . exalt such savings [realized by avoiding small units] over the statutory right of employees to be included in a unit with other employees with whom they share a clear and identifiable community of interest.") Given the substantial size of the proposed unit and the fact that one of the existing units at the school is even smaller than the proposed Food Services Managers Unit, I will not invoke the Board's non-proliferation policy in this case. The Employer's final argument is that the Managers have never been lawfully removed from the Food Service Workers Unit because an agreement on appropriate unit was never filed with the -35- Board[fn]5. They argue that the Union should have filed a unit clarification petition to modify the Food Services Workers Unit rather than filing a unit determination petition. Even if the Union had filed a unit clarification petition, they argue, the Union would be unable to show that a substantial change has occurred since the formation of the unit. I am unpersuaded by the Employer's argument for a number of reasons. MLRB Rule 1.16(E) states: Modifications of collective bargaining units effected by agreement of the parties shall be filed with the Board. The Executive Director or the Director's designee shall require such agreements to be posted in accordance with Rule 1.01(B). The Employer argues that there was never a valid modification of the unit to exclude the Food Service Managers because nothing was filed with the Board. I am very reluctant to agree with the Employer's position on this point because the Employer is responsible, at least in part, for the fact that an agreement on the modification of the unit was never filed. I cannot, in good conscience, penalize an innocent third party for the Employer's failure to comply with the Board's rule. Furthermore, section 966(3) of the Act contains a preference to resolve unit placement matters by agreement of the parties, a preference that is also reflected in Board Rule 1.16 regarding unit clarification matters. It would be contrary to this preference, not to mention the overall statutory purpose of promoting stability in labor relations matters, if I were to elevate compliance with a rule requiring filing of agreements on units over respect for the agreement between AFSCME and the Employer contained in the recognition clause of their contract.[fn]6 ____________________ 5 The employer raised this issue for the first time in its post- hearing brief. 6 The Board routinely recognizes unit descriptions contained in a recognition clause of a collective bargaining agreement as a valid agreement on unit modification, at least with respect to the parties -36- Even if I were to agree with the Employer that the Union should have filed a unit clarification petition,[fn]7 rather than a unit determination petition, I do not agree with the Employer's suggested disposition of such a unit clarification petition.[fn]8 The Employer argues that the petitioners would be unable to show that the circumstances surrounding the formation of the unit have changed sufficiently to warrant modification of the unit, as required by 966(3) and MLRB Rule 1.16. The Employer supports this argument by pointing to the testimony that the job duties and responsibilities of the Managers have not changed very much since the period when the Managers were covered by the AFSCME contract. Their argument implies that the only way one can show a substantial change for unit clarification purposes is to demonstrate a change in job duties. This is not the case. While substantial changes in job duties are probably the most common basis for a unit clarification, a substantial change in any one of the eleven factors could legitimately be the basis for a unit modification. For example, a change of employer has been viewed as a very significant change. Lewiston Teachers Association and Lewiston Board of Education, No. 80-UC-01, (Me.L.R.B. Sept. 25, 1979)(Change of employer from Board of Health and Welfare and to Board of Education was a significant change for 966(3) purposes even though duties of school nurse had remained the same); Biddeford Teachers Assoc. and Biddeford ____________________ to that agreement. 7 It is also far from clear that the petitioner, the Lewiston Food Service Managers Association/MEA/NEA, has standing to file a unit clarification petition in this case. MLRB Rule 1.16(A) permits only the employer and the incumbent certified or recognized bargaining agent to file unit clarification petitions. Similarly, section 966(3) restricts unit clarification petitions to any public employer or any certified or recognized bargaining agent. At the moment, the petitioner is not a certified or recognized bargaining agent. 8 Assuming no one's rights are violated in the process, the final sentence of Board Rule 1.11(H) stating that "The hearing examiner may also take other appropriate action" authorizes me to consider a unit determination petition to be a unit clarification petition. -37- School Committee, No. 83-UC-03 (Me.L.R.B. Aug. 27, 1982)(change of employer a substantial change). Enactment of new statutory exemption subsequent to the formation of the bargaining unit is also a substantial change. State of Maine, Dept. of Inland Fisheries & Wildlife and MSEA, Nos. 83-UC-43 and 91-UC-11 (Me.L.R.B. May 4, 1993). In another context, the Board has recognized that changes in various factors may occur that could alter the community of interest analysis: With the passage of time, changes may transpire which will affect one or more of the component community of interest factors for the classifications in a given bargaining unit and, therefore, the relationship or affinity among said classifications will also change. Teamsters Local Union No. 48 and State of Maine (Institutional Services)and Council No. 74, AFSCME and MSEA, No. 84-A-02, slip op. at 4-5, 6 NPER 20-15010 (Me.L.R.B. Apr. 2, 1984), affirming No. 83-UD-25, (Me.L.R.B. Apr. 2, 1984). In the present case, while the job duties may not have changed appreciably, I am convinced that changes in other factors support modification of the unit. The most significant change, of course, is in the history of collective bargaining and the extent of union organization. At the time the unit was formed, there was no history of collective bargaining. The history of collective bargaining during the past 26 years demonstrates that the Managers are not appropriately included in the Food Services Workers Unit. In 1986, the Food Service Managers requested that they no longer be represented by AFSCME. Subsequent to signing the 1986 petition, AFSCME and the Employer agreed to remove the Managers from the Food Services Unit. That act can be seen as tacit recognition that the Managers did not share a community of interest with the other workers. Although the Employer argues that there is no evidence on this issue, given the position of the Employer at the 1978 unit clarification hearing and the 1986 -38- petition signed by all of the Managers, I am willing to infer that the Managers wanted out because they felt there was either a conflict of interest with the AFSCME unit members or there was an absence of a community of interest with them. The parties' agreement to remove the Managers from the AFSCME unit followed 13 years of actual experience of having the Managers in that unit. With respect to the extent of union organization, no one seriously contends that the Food Service Managers are still represented by AFSCME.[fn]9 In my view, AFSCME's apparent acceptance of the Manager's 1986 petition[fn]10 can be seen as a tacit disclaimer of interest. At that time, the Board did not have any established rule for disclaimer of interest, such as currently found in MLRB Rule 1.13. The effect of either an official disclaimer or what actually transpired in 1986, at least with respect to the parties involved, is essentially the same. These changes in the representation status (or perceived status) also constitute a substantial change in the circumstances surrounding the formation of the unit warranting the requested modification.[fn]11 ____________________ 9 AFSCME had ample notice of the current petition as well as notice of the employer's response. No request to intervene was received. 10 Manifested by the subsequent modification of the recognition clause in the 1986 contract to exclude the Managers. 11 Even if these factors do not support a finding of the requisite substantial change, I would not dismiss the petition. Where there has not been a sufficient showing of change to justify a unit clarifica- tion to remove certain positions from a unit (and there is no collec- tive bargaining agreement in effect to serve as a bar), the hearing examiner may transform a unit clarification petition into a unit determination petition for severance. See, Orono School Committee and Orono Teachers Assoc., Nos. 89-UD-04 & 89-UC-02 (Me.L.R.B. Dec. 14, 1988). The history of collective bargaining is of particular signifi- cance in severance actions. Teamsters Local 48 and County of Cumberland and Council 74, AFSCME, No. 84-UD-11, at 14 (Mar. 16, 1984), aff'd., Council 74, AFSCME and Teamsters Local 48 and Cumberland County, No. 84-A-04, 6 NPER 20-15013 (Apr. 25, 1984). The history of collective bargaining is a direct reflection on whether a community of interest actually existed. In this case, after the first 13 years of collective bargaining, AFSCME and the Employer agreed to remove the Managers from the Food Service Workers Unit. The Managers -39- In summary, I am unpersuaded by the Employer's various arguments that the Managers should be placed in the existing Food Service Workers Unit. APPROPRIATE UNIT DETERMINATION On the basis of the parties' stipulations, my findings of fact, and the foregoing discussion, and pursuant to the provisions of 26 M.R.S.A. 966, I conclude that the following unit is appropriate for the purposes of collective bargaining: INCLUDED: Food Service Manager, Assistant Food Service Manager, Administrative Assistant EXCLUDED: Director of Nutrition Services and all other employees of the Nutrition Services Department. Dated at Augusta, Maine, this 27th day of May, 1999. MAINE LABOR RELATIONS BOARD /s/________________________ Lisa Copenhaver Attorney Examiner The parties are hereby advised of their right to appeal this report to the Maine Labor Relations Board pursuant to 26 M.R.S.A. 968(4) (Supp. 1998). 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 for requirements. ____________________ have been unrepresented since 1986. This history is strong evidence that continued inclusion of the Managers in the Food Service Workers Unit is not appropriate. -40-