83-UD-17

This is a unit determination proceeding, initiated on February 23, 1983, when Christine B. Perry, an agent of the Lubec Education Association, MTA/NEA, filed a petition for appropriate bargaining unit determination, pursuant to Title 26 M.R.S.A. Section 966. A hearing on the petition was held by the undersigned hearing examiner for the Maine Labor Relations Board (Board) on April 1, 1983 in Augusta, Maine. The Lubec Education Association, MTA/NEA ("Union") was represented by Christine B. Perry and the Maine School Administrative District No. 19 Board Of Directors ("Employer") was represented by Paul S. Hurlbert, Assistant Executive Director and Labor Relations Consultant, Maine School Management Association. 

The Union seeks formation of a bargaining unit composed of the Secretaries (excluding the secretary to the Superintendent); Aides; Cooks; Maintenance Personnel/ Plant Operator; Bus Drivers; Custodians; Head Cook; and Head Bus Driver, Custodian job classifications in M.S.A.D. No. 19. The petitioning Union had originally sought to include the Title I Teachers employed by the Employer in the proposed bargaining unit. At the hearing, the Union moved to delete said Title I Teachers from its petition, the Employer had no opposition to said motion, and said job classification was deleted from the petition. The Employer opposes including the Head Cook and the Head Bus Drivers Custodian job classifications in the proposed unit on the grounds that (1) these employees may become confidential employees, if a bargaining agent is selected by the employees in the proposed unit, and (2) these employees are supervisory employees, within the meaning of 26 M.R.S.A. Section 966(1), and should be placed in a separate support staff supervisory employees bargaining unit. 

The Union presented Head Bus Driver, Custodian, Ray A. Rice, and Head Cook, Cindy Chagnon, as witnesses and the Employer presented testimony by the M.S.A.D. No. 19 Superintendent of Schools, Gene MacDonald. The following exhibits were 

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admitted into the record:

Union Exhibit No. 1	Job Description: Head Cook
Union Exhibit No. 2	Job Description: Head Janitor/Bus Driver
Union Exhibit No. 3	Job Description: Plant Operator
Union Exhibit No. 4	Job Description: Bus Driver
Union Exhibit No. 5	Job Description: Janitor
Union Exhibit No. 6	Job Description: High School Secretary
Union Exhibit No. 7	Job Description: Elementary Office Secretary
Union Exhibit No. 8	Salary Scale: Lunch Room Personnel
Union Exhibit No. 9	Wage and Fringe Benefits for Teacher Aides
Union Exhibit No. 10	Employment Policies for Custodians/Bus Drivers
Union Exhibit No. 11	Comparison of Wages and Benefits for Proposed Employees
Union Exhibit No. 12	Bus Driver Evaluation Form, used in 1981-1982
Union Exhibit No. 13	Janitor Evaluation Form, used in 1981-1982
Union Exhibit No. 14	Memo from Dr. Hunter, Superintendent, to Head Bus Driver, Custodian (Early 1981-1982)
Union Exhibit No. 15	Affidavit of Ray A. Rice
Union Exhibit No. 16	Affidavit of Cindy C. Chagnon
Union Exhibit No. 17	Proposed Wages and Benefits for Lunch Room Personnel (1982-1983)

Nota Bene: Union Exhibits No. 6 and 7 have not been approved by the Employer, however, the Employer's representative at the hearing stipulated that said exhibits accurately describe the duties of each position noted thereon. Union Exhibit No. 17 has not been approved by the Employer.

JURISDICTION

The Lubec Education Association, MTA/NEA, is a labor organization engaged in the business of organizing and representing public employees for purposes of collective bargaining under the purview of the Municipal Public Employees Labor Relations Act (“Act”), 26 M.R.S.A. Section 961, et seq. The Maine School Administrative District No. 19 Board of Directors is a public employer as defined in 26 M.R.S.A. Section 962(7). The jurisdiction of the hearing examiner to hear this matter and to make an appropriate unit determination lies in 26 M.R.S.A. Section 966(1). 

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FINDINGS OF FACT 

1. The Lubec Education Association, MTA/NEA, is a labor organization engaged in the business of organizing and representing public employees for purposes of collective bargaining.

2. The Hearing Examiner, pursuant to the provisions of Title 5 M.R.S.A. Section 9058, takes official notice that the Lubec School Committee, mentioned in the petition, is, in reality, the Maine School Administrative District NO. 19 Board of Directors. Said Board is a public employer as defined in 26 M.R.S.A. Section 962(7). 

3. The Secretaries (excluding the secretary to the Superintendent of Schools); Aides (including the Title I Aide); Cooks; Maintenance Personnel "Plant Operator; Bus Drivers; Custodians; Head Cook; and Head Bus Driver, Custodian employed by the Maine School Administrative District No. 19 Board of Directors are all public employees, within the meaning of 26 M.R.S.A. Section 962(6). 

4. Although the Head Cook is the de jure supervisor of the cooks employed by M. S.A.D. No. 19, the incumbent in said position does not, in fact, schedule, over- see or review the work of the subordinate employees. The Head Cook does assign work to her subordinate employees.

5. In addition to performing the same culinary duties as the Cooks, the Head Cook prepares menus, processes State and Federal paperwork associated with the food service operation, and handles monies paid by the students for meals on a daily basis. 

6. The Head Cook has not exercised judgment in adjusting grievances nor has she participated in the establishment of performance standards for subordinate employees nor taken corrective measures to implement any such standards. The Head Cook has attempted to apply established personnel policies and procedures. 

7. The Head Bus Driver, Custodian schedules, assigns oversees, and reviews the work of his subordinate employees on a daily basis. 

8. The Head Bus Driver, Custodian drives a bus route as does each of the other bus drivers. During the school year, the Head Bus Driver, Custodian spends most of his non-driving work time performing the duties noted in paragraph 7 hereof. During school vacations and during the Summer, the Head Bus Driver, Custodian spends 

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most of his time performing the same work as the other Custodians. 

9. In addition to the supervisory functions noted in paragraph 7 hereof and beyond the duties of the Bus Drivers and the Custodians, the Head Bus Driver, Custodian prepares and submits a budget for salaries and supplies to the Superintendent, orders supplies, and participates actively in the hiring of his subordinate employees. 

10. The Head Bus Driver, Custodian has: exercised judgment in adjusting grievances, applied established personnel policies and procedures, participated in the establishment of performance standards for his subordinate employees, together with the former Superintendent and has taken corrective measures to implement those standards. 

11. The labor-relations policies for all of the employees, involved in this proceeding, is determined by the Superintendent of Schools and the Maine School Administrative District No. 19 Board of Directors. 

12. The Head Cook and the Head Bus Driver, Custodian are paid on an hourly basis as are all of the other employees in the proposed bargaining unit. 

13. The Head Cook and the Cooks have the same sick leave, holiday, "other leave and medical insurance benefits. 

14. The Head Bus Driver, Custodian has the same sick leave, paid holiday, "other leave," vacation, and medical insurance benefits as do the Bus Drivers and the Custodians. 

15. Because of the additional responsibilities of menu planning and preparing State and Federal paperwork associated with the food service operation, the Head Cook has substantially more training than do the cooks. 

16. The Head Cook and the Head Bus Driver, Custodian are in constant contact with their respective subordinate employees on a daily basis. 

17. All of the employees, in the bargaining unit proposed by the Union, work in the same building, except the bus drivers who all deliver students to the same school building. 

18. There is no collective bargaining history for the proposed collective bargaining unit at issue herein. 

19. The Employer is organizational structure, as it relates to the employees involved in this proceeding is as follows: The Maine School Administrative District No. 19 Board of Directors has final authority on all matters concerning the employ- 

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-ment relationship of these employees. The Superintendent of Schools is the chief executive officer for the Employer and he directs the operation of the School District. The Head Bus Driver, Custodian reports directly to the Superintendent and the Bus Drivers and the Custodians report to the Head Bus Driver, Custodian. This academic year, the Head Cook reports to the building principal and the Cooks report to the Head Cook. 

DECISION 

Introduction 

At the outset of the hearing, the Employer's representative stipulated that the following positions were appropriately grouped together for purposes of collective bargaining: Secretaries (excluding the secretary to the Superintendent) . Aides (including Title I Aides), Cooks, Maintenance Personnel/Plant Operator, Bus Drivers, and Custodians. Accordingly, said job classifications will be placed in a bargaining unit for purposes of collective bargaining. The Employer opposed including the two remaining positions mentioned in the petition, the Head Cook and the Head Bus Driver, Custodian, on the grounds that: (1) as supervisory employees said classifications should be placed in a separate support staff supervisors bargaining unit and (2) if the support staff employees select a bargaining agent, said two positions might become confidential, as defined in 26 M.R.S.A. Section 962(6)(C) and, therefore, the employees would not be “public employees" afforded collective bargaining rights under the Act. The hearing examiner explained the Board's policy of analyzing employees' present duties, in making bargaining unit determinations and not making said decisions based on possible future duties. The Board has outlined said policy as follows: 

"The City Administrator's testimony that since the subordinate officers in the Detective Division have recently been included in a bargaining unit, the Captain Of the Detective Division will participate in future negotiations on behalf of the City, does not establish that the Captain is a confidential employee within the meaning of Section 962(7). In determining confidential employee status, we consider the duties currently being performed by the alleged confidential employee. we cannot base a finding of confidentiality upon testimony which projects what an employee's duties may be in the future. In the event that a public employee's duties change so as to imply a confidential relationship under Section 962(7), the correct procedure is for the public employer to file a Petition for Unit Clarification pursuant to 26 M.R.S.A. Section 966

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(3) and in accordance with Rule 1.13 Of the Board's Rules and Procedures. At the unit clarification hearing, the employer is afforded the opportunity to show that the employee's changed duties involve collective bargaining functions or employee relations matters.” 

Waterville Police Department and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Hearing, p. 4 (October 4, 1978). Upon hearing the Board 's policy in this regard, the Employer dropped its second objection, noted above, and continued to urge exclusion of the Head Cook and the Head Bus Driver, Custodian on the basis of its first objection. Prior to considering the Employer's objection to the inclusion of the Head Cook and the Head Bus Driver, Custodian into the proposed bargaining unit, the community of interest of said positions with the other classifications in the proposed bargaining unit will be examined. The Board has set forth eleven criteria for evaluating the presence or absence of community of interest. Said factors are: 

“(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) similarities 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 public employer's organizational structure.” 

Council 74, AFSCME and City of Brewer, MLRB No. 79-A-01, pp. 3-4 (October 17, 1979). Paragraphs numbered 5, 8, 11, 12, 13, 14, 16, 17, 18 and 19 of the foregoing Findings of Fact establish that the Head Cook and the Head Bus Driver, Custodian share a community of interest with the other employees in the proposed bargaining unit and the undersigned hearing examiner so holds. Should the Employer's objection, based on the supervisory exclusion found in Section 966(1) of the Act, be held as not applicable to one or both of the classifications in contention, said position(s) would, therefore, be appropriately placed in the proposed bargaining unit. 

Head Cook 

Section 966(1) of the Act sets forth a tri-partite test for determining whether allegedly supervisory employees should be excluded from the same bargaining unit as the employees whom they supervise. This test is stated as follows: 

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

Under the first portion of the above test, the Head Cook does assign work for her subordinate employees, however, she does not set work schedules, nor oversee and review the work of rank-and-file workers. Because of the longevity of the Cooks with the Employer and the relatively short tenure of the Head Cook, the Head Cook has been unable to exert any significant supervisory authority over the Cooks. The uncontroverted testimony was to the effect that the Head Cook's attempts to schedule and assign work to the Cooks had been unsuccessful. 

The Head Cook's duties of preparing menus, processing State and Federal paperwork associated with the food service operation, and handling monies paid by students for meals are distinct from those performed by the employees supervised. The Cooks merely prepare the food, serve it, and clean the kitchen area after meals. In a State and Federally subsidized school food service operation, however, the Head Cook's distinctive duties are not dissimilar from those performed by the Cooks. All of the duties are part of the process of procuring food and serving it to the students. 

Under the third tine of the foregoing test, the Head Cook has not adjusted any grievances, formal or informal, and has not established nor participated in the establishment of performance standards for subordinate employees. The testimony revealed that no such standards presently exist, therefore, the Head Cook has been unable to enforce the same. The Head Cook would like to evaluate her subordinates, however, no job evaluation criteria have ever been promulgated. Furthermore, the Employer has not authorized the Head Cook to perform such evaluation, as was done in the case of the Head Bus Driver, Custodian. There was some testimony that the Head Cook has attempted to discuss work-related problems with her subordinate employees, however, said testimony did not rise to the level of establishing that 

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the Head Cook has ever exercised judgment in adjusting grievances. 

The evidence in this proceeding has failed to establish that the Head Cook is a supervisory employee who should be placed in a separate supervisory employees' bargaining unit. Each prong of the Section 966(1) test has been examined in detail and the Head Cook's job functions are not clearly described therein. The Head Cook will, therefore, not be excluded from the proposed bargaining unit. 

The Head Bus Driver, Custodian 

The Head Bus Driver, Custodian is clearly a supervisory employee, under the Section 966(1) test. The principal functions of the position and those actually performed by the incumbent employee involve scheduling, assigning, overseeing and reviewing the work of subordinate employees on a daily basis. Like the Head Cook, some of the Head Bus Driver, Custodian's job duties are distinct but not dissimilar from the tasks accomplished by his subordinate employees. Among such functions are preparing and submitting a budget for salaries and supplies, and ordering supplies, without special authorization, up to the sum of $500.00 per purchase. These are merely mechanical operations to effect the driving of busses and the maintenance of the school building. One aspect of the Head Bus Driver, Custodian's employment is dissimilar from that of the Bus Drivers and the Custodians. This latter function is the interviewing and participation in the hiring of applicants to fill vacancies. This duty involves the exercise of independent judgment which is characteristic of management control . Furthermore, the Head Bus Driver, Custodian job classification clearly comes within the ambit of the third prong of the Section 966(1) test. 

The Head Bus Driver, Custodian has, in the past, exercised judgment in the adjustment of grievances. He has applied established personnel policies such as effecting employee compliance with the Employer's policy of having bus drivers obey the legal speed limit, while on their bus routes. The Head Bus Driver, Custodian, together with Dr. Hunter, a former Superintendent, formulated job descriptions and performance criteria for the Bus Drivers and the Custodians and he has, on an annual basis, implemented those standards through employee evaluations. 

The above analysis would, if literally followed, mandate the creation of a separate support staff supervisory bargaining unit consisting of only one employee. The creation of such a unit would be contrary to the Board 's policy "of discouraging 

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the proliferation of small bargaining units in a single department. Town of Yarmouth and Teamsters Local Union No. 48, M.L.R.B. Case No. 80-A-04, p. 4 (June 16, 1980). See also, City of Bath and Council 74, AFSCME, MLRB Case No. 81-A-01 (December 15, 1980). The rationale for avoiding such fragmentation is as follows: 

"Small bargaining units must be bargained for and serviced just as do large bargaining units. The State is obligated to provide under 26 M.R.S.A. Section 965 the same mediation and arbitration services for small units as are provided for large units. The formation of small bargaining units among employees in the same department can thus result in the employer, the union, and the State expending an amount of time, energy and money all out of proportion to the number of persons served." 

Teamsters Local Union No. 48 and Bucksport School Department, Unit Determination Report, p. 3 (March 13, 1980). In light of the above Board policy and considering that the Head Bus Driver, Custodian does have a community of interest with the other employees in the proposed bargaining unit, said job classification will be included in the bargaining unit created hereby. Said unit is appropriate for the purpose of collective bargaining. 

ORDER 

On the basis of the foregoing findings of fact and discussion and by virtue Of and pursuant to the provisions of Title 26 M.R.S.A. Section 966, the hearing examiner ORDERS: 

1. That the Petition for Appropriate Unit Determination, filed by the Lubec Education Association on February 23, 1983, and seeking formation of a support staff bargaining unit for Maine School Administrative District No. 19 be and hereby is granted. 

2. That the following job classifications, in the employ of Maine School Administrative District No. 19, together constitute an appropriate unit for collective bargaining purposes: 

Secretaries (Excluding secretary to the Superintendent) 
Aides (Including Title I Aide) 
Cooks 
Maintenance Personnel/Plant Operator 
Bus Drivers 
Custodians 
Head Cook 
Head Bus Driver, Custodian 

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Dated at Augusta, Maine, this 13th day of April, 1983. 

 

MAINE LABOR RELATIONS BOARD

 

/s/                                          
Marc P. Ayotte
Hearing Examiner

 

The parties are advised of their right pursuant to 26 M.R.S.A. Section 968(4) to appeal this report to the full Labor Relations Board by filing a notice of appeal with the Board within 15 days of receipt of the report.

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