Affirmed by Board in case number 06-UCA-01.

                                      Case No. 05-UC-01
                                      Issued:  December 23, 2005 

MEA/NEA,                            )
                      Petitioner,   )   
                                    )     UNIT CLARIFICATION     
     and                            )           REPORT
                 Public Employer.   )

                       PROCEDURAL HISTORY

     This unit clarification proceeding was initiated on
August 18, 2004, when Nancy Hudak, MEA UniServ Director,
representing the MSAD No. 29 Education Association/MEA/NEA
("Association" or "union"), filed a Petition for Unit
Clarification with the Maine Labor Relations Board ("Board") for
a determination whether the position of Occupational Therapy
Assistant ("COTA")[fn]1 should be added to the MSAD No. 29 educational 
technician/secretary bargaining unit pursuant to 26 M.R.S.A.
 966(3) of the Municipal Public Employees Labor Relations Law
("MPELRL").  On September 1, 2004, the MSAD No. 29 Board of
Directors ("District" or "employer") filed a timely response to
this petition.  The parties agreed that the matter should be held 

     1 The incumbent who now holds this position is a "certified
occupational therapy assistant," based on her successful completion of
a national certification exam.  In the exhibits, she is sometimes
referred to as a "COTA."  The position title contained in the
employment agreement entered into by the incumbent and the employer is
"Assistant Occupational Therapist" (Exhs. J-1, J-2); the Department of
Professional and Financial Regulation rules utilized by the employer 
in lieu of a job description identifies the job as an Occupational 
Therapy Assistant.  For ease of reference in this report, the position 
will be called a "COTA" even though it is not clear that certification 
is required to hold this position.


in abeyance during the remainder of the 2004-2005 school year,
but that either party could request that the proceeding be
resumed.  On July 18, 2005, Ms. Hudak requested in writing that
the proceeding be resumed.  On August 31, 2005, the hearing
examiner conducted a prehearing conference by telephone in this
matter.  At this prehearing, the party representatives advised
the hearing examiner that they believed they could develop a
complete stipulated record; however, they were unable to do so. 
A hearing notice was issued on October 4, 2005, and posted for
the information of affected employees.  The hearing was conducted
on October 17, 2005.  The Association was represented by Ms.
Hudak.  The District was represented by Bruce W. Smith, Esq.  The
parties were afforded full opportunity to examine and cross-
examine witnesses, and to present evidence.  The following
witnesses were presented at the hearing:  for the Association,
Susan Clifford, Educational Technician and Association co-
president; for the District, Marion Gartley, Special Education
Director; Ana Ritchie, Certified Occupational Therapy Assistant;
and Superintendent Stephen Fitzpatrick.  The party
representatives submitted written closing arguments following the
conclusion of the hearing.  The briefing schedule was complete on
November 22, 2005.

     The jurisdiction of the executive director or his designated
hearing examiner to hear this matter and make a determination
lies in 26 M.R.S.A.  966(1) and (3).  The subsequent references
in this Report are all to Title 26, Maine Revised Statutes
The following joint exhibits were introduced:


     Exhibit No.    Title/Description

          J-1       2004-2005 Employment Agreement between Ana
                    Ritchie and MSAD No. 29
          J-2       2005-2006 Employment Agreement between Ana
                    Ritchie and MSAD No. 29
          J-3       Maine Rule 02-477, Chapter 5 on the role of
                    the occupational therapy assistant
          J-4       Job description for Educational Technician I
          J-5       Job description for Educational Technician II
          J-6       Job description for Educational Technician
          J-7       Job description for Title 1A Ed Tech I
          J-8       Job description for Title 1A Ed Tech II
          J-9       Job description for Title 1A Ed Tech III

     The following Association exhibits were introduced without
objection of the District:

          A-1	      MSAD No. 29 Educational Technician CBA, 2002-
                    04 (11 pages)
          A-2	      MSAD No. 29 Educational Technician/School
                    Secretary CBA, 2004-06 (12 pages)
          A-3	      MLRB Form 1, Educational Technicians, 2001
          A-4	      MLRB Form 1, addition of School Secretaries,
          A-5	      MSAD No. 29 Teacher CBA, 2005-07 (17 pages)
          A-6	      MSAD No. 29 "Nurse's Aide" position
          A-7	      MSAD No. 29, Eileen McLaughlin 2004-05
                    Employment and Work Schedule, 7/1/04
          A-8	      Seniority List, 03-04 - Nurse Assistant
                    (Eileen McLaughlin) (2 pages)
          A-9	      Seniority List, 04-05 - Nurse Assistant
                    (Eileen McLaughlin) (3 pages)
          A-10	     COTA Position advertisement, July 12, 2004
                    (Houlton Pioneer Times)
          A-13      U.S. Department of Labor Occupational Outlook
                    Handbook 2004-05 - OTA Description (4 pages)
          A-18      Statement, Pamela Cowperthwaite, Special
                    Education Teacher, Houlton High School
                    (2 pages)
          A-19      Statement, Laurine Wilson, Grade 1 Teacher,
                    Houlton Elementary School
          A-20      Kennebec Valley Community College, OTA
                    program, 5 pages (website)
          A-21      York County Community College, Educational
                    Technician program, 3 pages (website)


          A-22      Kittery EA (Support Unit) CBA, first two
                    pages, Recognition Clause, "Health Aide"
          A-23      Wells-Ogunquit Support Staff CBA, first two
                    pages, Recognition Clause, "Assistant Nurse"
          A-24      Education Association of Poland (Support
                    Staff), CBA, first three pages, Recognition
                    Clause, "Nurse Assistant"

     The following District exhibits were introduced without
objection of the Association:

          ER-3      Ana Ritchie's r,sum,
          ER-4      Letter from Ana Ritchie to Steve Fitzpatrick
                    - August 27, 2004
          ER-6      Agreement between Anne Cottle, Occupational
                    Therapist, and MSAD No. 29
          ER-7      Anne Cottle's Occupational Therapist License
          ER-8      Anne Cottle's description of the duties of
                    the Certified Occupational Therapist
          ER-9      Number of ed techs and secretaries assigned
                    to MSAD No. 29 schools
          ER-13     Job description for Educational Technician
          ER-17     Job description for Secretary - Houlton
                    Elementary School
          ER-18     Job description for Secretary - Houlton
                    Southside School
          ER-19     Ana Ritchie's degree and certifications 
                    (5 documents)
     The parties stipulated to the following facts, although not
necessarily to their relevance:
     1.  MSAD #29 Education Association/MEA/NEA is the bargaining
agent for the Educational Technicians/School Secretaries in MSAD
#29 (Houlton).
     2.  MSAD #29 is a public employer.
     3.  MSAD #29 employs over fifty (50) educational technicians
and secretaries.
     4.  The unit was organized in 2001 by election.  The unit's
composition by agreement was "... all Educational Technicians I, 


II, III employed by the Board for at least six months and
otherwise meeting the definition of "Public employee" in
26 M.R.S.A. Section 962(6)(G), excluding the violin strings
instructor and the on call job coach position."
     5.  The first Collective Bargaining Agreement for the
Educational Technician unit was ratified in 2002.
     6.  The 2002-04 CBA Recognition Clause reads:  "... all
Educational Technicians I, II, III employed by the Board for at
least six months and otherwise meeting the definition of "public
employee" in 26 M.R.S.A. Section 962(6)(G), excluding the violin
strings instructor and the on-call job coach position."
     7.  Through an election and by subsequent agreement, School
Secretaries were added to the Educational Technician Unit in
2004.  The unit composition by agreement became "... all
Educational Technicians I, II, III and School Secretaries
employed by the Board for at least six months and otherwise
meeting the definition of "Public employee" in 26 M.R.S.A.
Section 962(6)(G), excluding the violin strings instructor, and
the on-call job coach position and secretarial & bookkeeper
positions in the Central Office."
     8.  The 2004-07 CBA recognition language changed to include
the School Secretaries as above.
     9.  The 2004-07 CBA was settled for the purposes of
permitting a ratification vote on July 14, 2004.
     10.  The creation of the "Certified Occupational Therapy
Assistant (COTA)" position is a change of circumstances
sufficient to permit consideration of the merits of the petition
for unit clarification.
     11.  There is no question regarding representation.
     12.  The parties are unable to agree on a unit modification.
     13.  The "Certified Occupational Therapy Assistant (COTA)"
position was posted for advertisement on July 12, 2004.  The
Association President was sent a letter with the advertisement on 


that same date.
     14.  The current COTA position holder ("Assistant
Occupational Therapist") signed an Employment Agreement on
August 3, 2004, and another on August 1, 2005.
     15.  A COTA generally requires an Associate's Degree of
Applied Science in Occupational Therapy and must also meet
continuing educational requirements to meet state and national
licensure requirements.
     16.  The role of the COTA is described in 02-477 Maine
Rules, Chapter 5.  There is currently no MSAD #29 OTA job
     18.  A certified occupational therapy assistant must work
under the supervision of a certified Occupational Therapist. 
In M.S.A.D. No. 29, Occupational Therapist services are provided
by an independent contractor, Anne Cottle, who provides services
to the District at the rate of $62 per hour.  Ana Ritchie works
under the supervision of Anne Cottle.
     19.  The COTA was hired by the Superintendent of Schools
with the approval of the Board of Directors.  She is evaluated by
the Director of Special Education (or designee) and the
contracted Occupational Therapist.  Decisions concerning contract
renewal, employee discipline and termination are made by the
Superintendent of Schools or his designee.
     20.  Education technicians generally provide student
programming under the direction of certified classroom teachers
employed by the District.
     21.  Responsibility for evaluation, discipline and other
decisions concerning employment of Educational Technicians is
assigned to the Building Principal, the Special Education
Director, or the NCLB Coordinator and the Superintendent,
depending upon the position occupied by the educational
     22.  The role and authorization requirements for educational 


technicians are set out in 20-A MRSA  13023 and Maine Rules 02-
071, Chapter 115.
     23.  An Educational Technician II authorization requires 60
credit hours or more of post-graduate education, and must meet
continuing education requirements by state law.
     24.  An Educational Technician III authorization requires 90
credit hours or more of post-graduate education, and must meet
continuing educational requirements by state law.
     25.  School Secretaries are supervised for employment
purposes by Building Principals.
     26.  The pay and benefits of the Certified Occupational
Therapy Assistant are set forth in her individual Employment
Agreement.  The pay and benefits of members of the bargaining
unit are set forth in the collective bargaining agreement.
     27.  A support staff position in MSAD #29 involving medical
skills was that of "Nurse Assistant" and was a part of the
bargaining unit under the designation of Educational Technician
III.  The two previous "Nurse Assistants" were members of the
MSAD #29 EA.
     28.  The most recent "Nurse Assistant" position holder was a
registered nurse, with a Bachelor of Science Degree in Nursing.
     29.  The 2004-05 "Nurse Assistant" has become part of the
Teachers' bargaining unit in the 2005-06 school year as a "School
Nurse" although it is listed on the district's website as an
administrative position.  The 2004-05 School Nurse is a member of
the SAD #29 Education Association.
     30.  On September 28, 2004, a third bargaining unit
consisting of MSAD #29 Bus Drivers and Custodians was formed as
the result of an election.
     31.  The COTA is not a bus driver or custodian.
     32.  On January 31, 2005, a fourth bargaining unit
consisting of MSAD #29 Cafeteria employees was formed as the
result of an election.


     33.  The COTA is not a cafeteria employee.
     34.  The Current COTA position holder does not wish to join
the SAD #29 Education Association.
     35.  The Certified Occupational Therapy Assistant does not
have a role in administration or collective bargaining for the Ed
Tech/School Secretary, Bus Driver/Custodian, Cafeteria Employee
or Teacher collective bargaining agreements.
     36.  The Certified Occupational Therapy Assistant performs
direct student services work.
     37.  Educational Technicians perform direct student services
     38.  The Certified Occupational Therapy Assistant works five
days a week, seven hours a day.
     39.  Educational Technicians and School Secretaries have
similar work hours and work days to the COTA.
     40.  The District has four schools in Houlton and one in
Monticello.  Members of the bargaining unit work in each school
in the District.
     41.  The Certified Occupational Therapy Assistant has
contact with those staff members who work in the Houlton
Elementary and the Wellington (Monticello) Schools.
                        FINDINGS OF FACT
     1.  Educational Technicians are "authorized" (not certified)
by the Maine Department of Education based upon statute and rule. 
The level at which an Educational Technician is authorized (I,
II, or III) depends upon the level of education obtained by the
employee.  Pursuant to Department of Education Rules 05-071,
Chapter 115, Section 10, an Educational Technician I must have a
high school degree, an Educational Technician II must have a
minimum of 60 credits of approved study in an educationally-
related field, and an Educational Technician III must have a
minimum of 90 credits of approved study in an educationally-


related field.
     2.  Some colleges offer a specific course of study for an
Associate's Degree in Para-Education (Exh. A-21).  However,
authorization for Educational Technician II or III does not
require taking such a prescribed course of study.
     3.  Educational Technicians are supervised at different
levels and given different responsibility for planning depending
on whether they are an Educational Technician I, II, or III. 
Educational Technician I's are supervised directly by teachers in
the classroom.  Educational Technician II's are supervised
indirectly by teachers in the classroom.  Educational Technician
III's can work with students anywhere, including off school
grounds, and are only indirectly supervised by teachers.    
     4.  In the District, Educational Technicians are paid on a
scale set in the collective bargaining agreement based on the
type of position they perform, not necessarily based on the
educational level that they have achieved.
     5.  The on-call job coach and the Suzuki violin instructor
were excluded from the unit because their hours of employment are
infrequent and not regularly-scheduled.
     6.  Educational Technicians often work with special student
populations, such as students with special needs, students
requiring extra reading or math instruction (Title 1A), or Native
American students.
     7.  Educational Technicians are sometimes called upon to
perform functions that are more medical than strictly educational
in nature, such as giving students medications or assisting them
with needle sticks for diabetes.
     8.  Educational Technicians are sometimes called upon to
perform "carry over" activities in the classroom as instructed by
the Occupational Therapist, Registered (OTR) or by the COTA. 
These activities might include reinforcing or practicing skills
or exercises with a student (such as range of motion), prompting 


or modeling for students, or using "experience stories" with
     9.  Most of the Secretaries and the Educational Technicians
work during the school year only (i.e., they are not employed or
paid during school breaks), although a few work year-round.
     10.  Most Educational Technicians and Secretaries work 30 to
36 hours per week.
     11.  The District pays for the services of an OTR as an
independent contractor.  Pursuant to a contract, the OTR is paid
$62 per hour, with a maximum payment per year of $49,000 (Exh.
ER-6).  This therapist generally provides services to students
about three days per week.
     12.  The COTA is supervised by the OTR; this supervision is
a requirement of the COTA's license.  The employee presently
holding the COTA position (Ana Ritchie) requires a "general"
level of supervision, based on her experience.  This is the
lowest level of required supervision, requiring supervisory
contact for about one hour out of every 40 hours of services that
the COTA provides.  This level of supervision is described as
follows in Section 2 of the rules of the Board of Occupational
Therapy Practice:  
          General Supervision - Initial direction and
          periodic review of the following:  service
          delivery, update of treatment plans, and
          treatment outcomes.  The supervisor need not
          at all times be present at the premises where
          the occupational therapy assistant is
          performing the professional services. 
          However, not less than monthly direct contact
          must be provided, with supervision available
          as needed by other methods.  This supervision
          is appropriate for an intermediate to
          advanced occupational therapy assistant.

     13.   Occupational therapy (OT) in a school setting is the
use of purposeful activities to increase the student's ability to
participate in school and other activities, including activities 


relating to fine motor skills, gross motor skills, visual motor
skills, visual perception, sensory integration, and self-help
     14.  Students with special needs are identified through a
meeting of the Pupil Evaluation Team (PET), a team made up of the
Special Education Director, the student's teachers and parents,
and others who will work with the student.  As a result of a PET,
an Individual Educational Plan (IEP) is developed for the
     15.  Some students with special needs require OT services, a
need identified in their IEP.  A student needing OT services is
first assessed by the OTR, who recommends OT services if needed
and who develops a therapy plan for the student.  Only the OTR is
qualified to perform this initial assessment and planning.  
     16.  After the initial assessment and planning, OT services
to students in the District are either provided by the OTR or by
the COTA.  Only the OTR or the COTA are qualified to provide OT
services.  Students may see either the OTR or the COTA, as both
are qualified to provide the on-going OT services.
     17.  If the COTA provides services to a student, the COTA
then may attend future PET meetings in order to report on the
student's progress or to recommend changes to the student's OT
     18.  Some students with special needs require adaptive
equipment (slant board, weighted pencils, etc.).  Only the PET
can require the use of such equipment.  Part of the job of the
OTR and the COTA is to recommend and use such equipment with the
student.  The COTA has sometimes fabricated adaptive equipment as
necessary, based on her expertise.  Educational Technicians and
other staff members might work with a student utilizing the
adaptive equipment, as instructed by the OTR or the COTA.
     19.  Ms. Ritchie has been employed by the District as a COTA
in the 2004-2005 and 2005-2006 school years.  She has negotiated 


individual contracts of employment with the Superintendent for
each of the school years (Exhs. J-1, J-2).  She is the first COTA
employed by this District.
     20.  Ms. Ritchie graduated from St. Philip's College (San
Antonio, Texas) with an Associate of Applied Science Degree
(Occupational Therapy Assistant) in 1999.  Ms. Ritchie's course
of study included two school years of classes in such areas as
anatomy, kinesiology, and summer clinical work.  In 1999, she
passed a national board exam which allows her to be called a
"certified" occupational therapy assistant.  She is licensed as a
COTA in Texas, Louisiana, and Maine.  
     21.  Ms. Ritchie works in the two elementary schools
maintained in the District.  For most of her workday, she sees
students on a one-to-one basis, providing OT services as
established in the program created by the OTR.  This therapy
might consist of working on gross motor skills, sensory
integration, tactile activities, or working on specific goals
like handwriting and typing.  She usually sees students in one-
half hour sessions, two times each week.
     22.  Ms. Ritchie works five days per week, seven hours per
day, during the school year only.
     23.  Ms. Ritchie usually works with students in a separate
room designated for that purpose in each school or, sometimes, in
the student's classroom or other areas of the school.  She has
frequent contact with the Special Education Director and other
staff members (Teachers, Educational Technicians) who work with
the students with whom she works.
     24.  Both Ms. Ritchie and the OTR train Educational
Technicians, other staff, and parents to perform "carryover
activities" to build on the progress made in OT sessions.
     25.  Ms. Ritchie advised the Superintendent recently that
she was offered a full-time job by an area home health agency
that paid $20 per hour.  However, for a variety of reasons 


(including the schedule and client population), Ms. Ritchie
preferred to remain in the employ of the District.  She has
agreed to work for the home health agency during school breaks.
     26.  The District feels fortunate to be able to employ
Ms. Ritchie as there is a shortage of all therapists
(occupational, speech, etc.) available to provide services to
students with special needs.  The District is the only school
district in Aroostook County known to the Special Education
Director to have a COTA as an employee.  If the District did not
employ Ms. Ritchie or a comparable COTA, the OT services needed
by students (after the initial assessment and treatment plan)
would have to be provided by an OTR, if one was available.  If
the District did not provide OT services required by students'
IEP's, they might be "out of compliance" with the laws relating
to the provision of services to students with special needs.
     27.  The 2004-2007 CBA for the Educational Technicians
bargaining unit has two wage scales--one for Educational
Technicians (I, II, and III) and one for Secretaries.  If the
COTA was made part of this bargaining unit, the District might
consider negotiating a separate (third) wage scale.
     28.  The District and the Association have agreed that
certain employees are in this bargaining unit and covered by the
CBA even though not specifically employed as an Educational
Technician or as a Secretary.  Such employees have included non-
certified Librarians, Nurse Assistants, Librarian/Secretaries,
and Study Room Monitors.  Such employees have generally been
placed on the Educational Technician wage scale, depending on
their education and experience.
     29.  The District has, at times, employed a Nurse Assistant
(also called a Nurse's Aide).  This employee generally is a LPN,
or holds an equivalent educational degree.  This employee is
supervised by the District Head Nurse and the school Principal. 
Several years ago, the District employed a Nurse Assistant.  She 


was first placed on the Educational Technician II wage scale and
then, when she earned additional credits, was placed on the
Educational Technician III wage scale.  
     30.  After the employee who most recently held the Nurse
Assistant position left employment, another employee was hired. 
She had a Bachelor's of Science degree.  She petitioned the
Superintendent to have her position reclassified.  The
Superintendent denied the petition, but the School Board
eventually made the employee the Head Nurse.  After this, the
employee was considered part of the Teachers' bargaining unit,
which includes all certified classroom Teachers, Teaching
Principals, Acting Principals, and "educational specialists" such
as Librarians, Guidance Counselors, School Nurses, and the 21st
Century Liaison.
     31.  A Speech Therapist employed by the District is also
considered part of the Teacher's bargaining unit.
     32.  There are approximately 58 Educational Technicians and
five Secretaries employed by the District.

     Section 966(3) of the Municipal Public Employees Labor
Relations Law (MPELRL) provides:
          3.  Unit clarification.  Where there is a
     certified or currently recognized bargaining
     representative and where the circumstances surrounding
     the formation of an existing unit are alleged to have
     changed sufficiently to warrant modification in the
     composition of that bargaining unit, any public
     employer or any recognized or certified bargaining
     agent may file a petition for a unit clarification
     provided that the parties are unable to agree on
     appropriate modifications and there is no question
     concerning representation.

The parties have agreed that all four requirements of  966(3)
are present here; namely, that the Association is the certified
bargaining agent for the Educational Technician and Secretary 


bargaining unit, that no question exists concerning
representation, that the parties have been unable to reach
agreement on the issue of whether the COTA should be part of the
bargaining unit, and that the circumstances surrounding the
formation of the bargaining unit have changed sufficiently to
warrant modification of the unit.  The creation of a new job
classification normally meets the requirement of changed
circumstances, as it is impossible to consider the bargaining
unit status of a position before it exists.  MSEA and State of
Maine Department of Inland Fisheries and Wildlife, Nos. 83-UC-43
and 91-UC-11, at 8 (MLRB May 4, 1993).  Further, the employer has
not argued that the COTA is excluded from the definition of
"public employee" under  962(6).  Therefore, the only issue
presented here is whether the COTA position has a "community of
interest" with the other positions currently in the bargaining
     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, at 4, 1 NPER 20-10031
(MLRB Oct. 17, 1979).
     In determining whether employees share the requisite
"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 among the 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. 
See Chapter 11, Sec. 22(3) of the Board Rules.  The hearing
examiner will address each factor, in turn, below.
     (1) Similarity in the kind of work performed.  Both parties
submitted testimony and argument on the issue of whether
Educational Technicians ever perform functions like a COTA, or
whether the "carry-over" therapy activities sometimes performed
by Educational Technicians are like the activities performed by
the COTA.  While this information is not irrelevant, it is
entirely too narrow in focus.  The Board has never required that
positions in a bargaining unit be identical or perform identical
functions.  As the executive director noted in a previous
decision, Auburn Education Ass'n/MTA/NEA and Auburn School
Committee, No. 91-UD-03, at 11, aff'd, No. 91-UDA-01 (MLRB May 8,
     In comparing the nature of the work being performed by
     the various classifications under consideration, the
     essence or basic type of the functions being performed
     is far more important than the details of each
     position's work responsibilities.  Inherent in the
     existence of separate job classifications is a
     difference in the specific work assignment of each
     classification; however, such differences do not
     preclude the inclusion of various classifications in
     the same bargaining unit.          

Many school "support staff" bargaining units contain a variety of
positions, with the similarity of the work performed by the
positions being that the positions work in some direct contact
with students in order to improve learning outcomes for those
students, and to support the educational mission of the school.  


See, e.g., East Grand Teachers Ass'n/MTA/NEA and MSAD No. 14
Board of Directors, No. 92-UD-01 (MLRB Oct. 1, 1991) (approving
unit consisting of teachers' aides, school secretaries, food
service director, bus drivers and custodians); Lubec Education
Ass'n/MTA/NEA and MSAD No. 19 Board of Directors, No. 83-UD-17
(MLRB Apr. 13, 1983) (approving unit consisting of teachers'
aides, secretaries, cooks, plant operator, bus drivers and
custodians).  Likewise here, the COTA works with individual
students with special needs in order to enhance their ability to
participate in school functions, an essential job function not
unlike that of the other positions currently in the bargaining
unit.  The job of the COTA is the most similar to that of the
Educational Technicians, as both positions work directly with
students (often with special needs), work closely with other
staff to improve outcomes for students, and attend PET's.
     The fact that the COTA performs more "health" or "therapy"
related functions than the Educational Technicians or the
Secretaries does not place her in a unique position, when
compared to the placement of similar positions in school
bargaining units.  For example, school nurses are routinely
included in teacher bargaining units.  See, e.g., Lewiston
Teachers Ass'n and Lewiston Board of Education, No. 80-UC-01, at
5 (MLRB Sept. 25, 1979) (finding that school nurses, teachers and
guidance counselors work in a similar capacity with respect to
the students, must cooperate in their health, education and
guidance, and belong in the same bargaining unit).[fn]2  The 

     2 See also the following cases all approving the placement of
Nurses in Teacher bargaining units:  Union 29 Teachers Ass'n and
Mechanic Falls School Committee, Nos. 92-UC-03 (MLRB Nov. 17, 1992);
Orono School Committee and Orono Teachers Ass'n, Nos. 89-UD-04 and 
89-UC-02 (MLRB Dec. 14, 1988); and Tri-Town Teachers Ass'n and MSAD
No. 52, No. 84-UC-06 (MLRB Aug. 27, 1984).  As noted in Union 29,
supra, if nurses were not included in units with educational
professionals, one-person nurse units would "proliferate" in school
systems.  Id. at 16.


functions performed by the COTA do not make her any more
dissimilar from Educational Technicians than Nurses are from
Teachers.  Indeed, in this District, both the Head Nurse and the
Physical Therapist are in the Teacher bargaining unit, while the
Nurse Assistant (when one was employed) was in the Educational
Technician bargaining unit.  This strongly suggests that the
COTA's position is sufficiently similar to the positions of the
Educational Technicians and Secretaries to be placed in that
     (2) Common supervision and determination of labor relations
policy.  Several positions supervise the Educational Technicians
and the Secretaries.  The Educational Technicians are supervised
by either the Special Education Director, the School Principals,
or by the NCLB Coordinator, depending on the exact nature of
their duties.  The Secretaries are supervised by the School
Principals.  All of these positions are ultimately supervised by
the Superintendent.  The COTA is supervised on a day-to-day basis
by the Special Education Director, as the students with whom she
works are identified as having special needs.  The Superintendent
also determines "labor relations policy" regarding the COTA.  It
was he who bargained the individual contracts of employment with
the COTA.  There exists, therefore, a significant similarity in
the supervision of these positions.
     The COTA is also supervised by an OTR.  This supervision is
a requirement of the COTA's professional license and will be
required (presumably) no matter where the COTA works, as long as
she remains an occupational therapy assistant.  The hearing
examiner does not believe that this places the COTA in a
significantly different position from the Educational Technicians
and Secretaries for several reasons.  First and foremost, this
community of interest factor refers to supervision relating to
the terms and conditions of employment; that is, the matters that
will be the subject of collective bargaining.  The OTR, who is 


herself only an independent contractor of the employer, has no
control over the terms and conditions of the COTA's employment--
the hours of working, the pay and benefits, discipline, and
contract renewal are all strictly controlled by employees of the
District (the Special Education Director or the Superintendent). 
Even if, giving a hypothetical example, the OTR reported to the
employer that the COTA was doing a poor job professionally, it
would be strictly up to the employer what to do with that
information as it related to the COTA's job.  Second, the
Educational Technicians must also be supervised by Teachers in
either a direct or indirect fashion, depending on whether they
are an Educational Technician I, II, or III.  Yet, the Teachers
are not considered the "supervisors" of the Educational
Technicians within the chain-of-command of the District, which is
a similar supervisory arrangement to the manner in which the OTR
oversees some aspects of the work of the COTA.  Finally, the
amount of supervision that the OTR provides to the COTA is
relatively minimal.  The COTA meets with the OTR no more than
once per week, and is only required to meet for supervision "not
less than monthly" pursuant to Board of Occupational Therapy
Practice regulations.
     The supervision of the COTA is sufficiently similar to the
supervision of the positions of the Educational Technicians and
Secretaries to be placed in that unit.
     (3) Similarity in the scale and manner of determining
earnings.  This is the second school year that the District has
employed the COTA, with the hourly rate of pay negotiated
individually between the COTA and the Superintendent.  During the
first year of employment, the COTA was paid $15.43 per hour. 
During the present school year, the COTA is paid $15.89 per hour
(repre-senting a 3 percent pay increase).  During the 2004-2005
school year, the wage scale for Educational Technician II's was
$11.11 to $12.13 and for Educational Technician III's was $14.94 


to $15.96.  During the 2005-2006 school year, the wage scale for
Educational Technician II's was $11.44 to $12.49 and for
Educational Technician III's was $15.39 to $16.44.[fn]3  Arguably, 
with the COTA's clinical education and experience, she should be
compared to the wage scale of the Educational Technician III's. 
The hourly pay that the COTA individually negotiated falls
squarely within the wage scale for this position.  The
Association and the District also negotiated a 3 percent wage
increase for employees in the bargaining unit for the 2005-2006
school year.
     There was testimony that the COTA could earn considerably
more ($20 per hour) from other employers.  This may be, but this
is entirely too speculative a consideration for purposes of the
issue here.  Just as the hearing examiner cannot exclude a
position from a unit based upon projected future duties, she
cannot exclude a position because the employee might be able in
the future to negotiate wages higher than the present scale.  Cf. 
Auburn Firefighters Ass'n and City of Auburn, No. 83-A-07, at 7
(MLRB Dec. 5, 1983).  In any event, as the employer agreed, the
parties could negotiate a separate wage scale for the COTA, just
as the parties have negotiated separate wage scales for the
Educational Technicians and the Secretaries, if her position was
determined to require such a separate scale.  
     The COTA is paid on an hourly basis for employment during
the traditional school year.  She is paid on a bi-weekly basis. 
Therefore, the COTA's scale and manner of determining earnings is
almost identical to that of all positions in the present
bargaining unit (with the exception of a few Educational
Technicians and Secretaries who are employed on a year-round 

     3 The wage scale for the Secretaries in the 2005-2006 school year
was $10.42 to $11.24.  However, with the COTA's educational back-
ground, she is more properly compared to the educational technician
II's or III's.


     (4) Similarity in employment benefits, hours of work and
other terms and conditions of employment.  The benefits that the
COTA has negotiated in her individual employment agreements
(health insurance, holidays, sick days, course reimbursement) are
virtually identical to the benefits negotiated for the unit
members in the collective bargaining agreement.  In her 2005-2006
employment agreement, the COTA negotiated for three bereavement
days and two personal days, which was the same already provided
to unit members in the collective bargaining agreement.  In both
employment agreements, the COTA negotiated five professional days
per year for "activities relating to licensure" (Exhs. J-1, J-2). 
This appears to be a similar benefit to that provided to
Educational Technicians in Article XVII of the collective
bargaining agreement ("The Board will provide each educational
technician with district in-service days for authorization or re-
authorization credits").  Even if these benefits are not
equivalent, this is the only difference in benefits provided, and
it is not significant when the entire benefit package is
considered as a whole.  The COTA's hours of work are similar to
the hours of work for the other positions in the unit.  The terms
and conditions of employment are similar, except for obvious
differences related to the fact that the COTA has negotiated an
individual employment agreement on a yearly basis which does not
contain the usual protections of a collective bargaining
agreement (just cause provision, grievances, etc.).  All of these
factors strongly suggest a similarity between the COTA's position
and the positions in the unit.
     (5) Similarity in the qualifications, skills and training
among the employees.  The positions in the present unit require
various qualifications, skills and training.  The positions
require a range of education, from a high school degree (for
Secretaries, Educational Technician I's) to 90 credits or more of 


post-secondary credits in an educationally-related field (for
Educational Technician III's).  The unit does not contain
positions typically considered professional, or requiring a four-
year degree or a higher level of education.  In this regard, the
COTA position has a significant level of similarity with the
positions in the unit.  The two-year degree (plus clinical
training) required of the COTA position falls between the
educational level required of Educational Technician II and III. 
The employer argued that the two-year degree required of the COTA
is a more specific course of study than that required of
Educational Technicians.  That may be true, but state regulations
still require that post-secondary credits for Educational
Technician II's and III's must be approved study in an
educationally-related field.  Specific two-year degrees are also
available with a focused course of study for para-educational
employees that may be used to satisfy the educational
requirements for authorization (Exh. A-21).  In addition, both
COTA's and Educational Technicians must meet continuing
educational requirements to maintain their licensure (in the case
of the COTA) or authorization (in the case of the Educational
Technician).  Levels of experience and training differ within the
unit, and are reflected in the wage scale.
     As more fully described in the discussion regarding the
first community of interest factor (similarity of kind of work
performed), the qualifications, skills and training required of
various positions in the same bargaining unit do not need to be
identical.  The parties need to look no further for proof of this
than the fact that, when a Nurse Assistant (an LPN) was employed
by the District, the position was placed in this bargaining unit,
on the Educational Technician wage scale.  A position with that
level of education and focused type of medical education was
determined to "fit" within this bargaining unit, much as nursing
and guidance positions with four-year degrees "fit" within the 


Teachers' bargaining unit.  There is certainly sufficient
similarity between the qualifications, skills and training of the
COTA for her to be placed in the Educational Technician and
Secretaries bargaining unit. 
     (6) Frequency of contact or interchange among the employees
and (7) Geographic proximity.  The COTA works regularly in two of
the five schools maintained by the district, and has contact and
interchange with employees in those two schools.  Her work with
students is relatively "private," yet she may have extensive
interchange with certain Educational Technicians and other
District employees who work with students who need OT services. 
Many unit employees work at only one school, limiting the amount
of contact and interchange to other employees within that school;
that is a common circumstance in many school units.  Considering
this fact, the COTA's work situation allows sufficient contact to
allow the interchange of ideas among employees in the unit.
     (8) Collective bargaining history.  The COTA position is new
in the District and has never been organized in a bargaining
unit.  As described previously, other positions employed by the
District with medical qualifications (Nurse Assistant, School
Nurse) have been placed in bargaining units.
     (9) Desires of employees.  The employee who holds the COTA
position does not wish her position to be in the bargaining unit. 
She apparently believes that the union does not understand the
true nature of what she does and will not adequately represent
her.  The hearing examiner gives this factor full weight, just as
she gives weight to the employer's articulated desire to retain
this particular person in their employ as a uniquely-qualified
individual.  At the same time, the hearing examiner cannot give
this factor more weight than all of the other factors, when most
of those factors clearly support a finding that this position
shares a community of interest with the other positions in the
unit.  The hearing examiner must evaluate the community of 


interest factors as they relate to the position, not only
information relating to a particular employee holding that
     (10) Extent of organization.  The union has organized and
been certified the representative of four bargaining units in the
district, a significant level of organization.  As the executive
director has noted in a previous decision, there is generally no
"mystery" to the different types of job classifications in a
school setting and how they are typically grouped:
     The kinds of work in a typical school milieu are: (1)
     administrators supervising professional and non-
     professional employees, (2) teachers and other
     educational specialists such as counselors or
     librarians participating directly in the educational
     process, (3) educational support personnel providing
     direct support to the educational process, and (4) non-
     educational support staff performing the manual or
     mechanical work to keep the department's physical plant
     in operation.

Auburn Education Ass'n/MTA/MEA and Auburn School Committee,
No. 91-UD-03, at 11, aff'd, No. 91-UDA-01 (MLRB May 8, 1991). 
In this District, the Teachers, educational support personnel,
and non-educational support staff are all organized.  Therefore,
unless a new position is a supervising administrator or some
other position excluded by law from engaging in collective
bargaining, that position very likely shares a community of
interest with those in one of the organized units.  The COTA
position is not a supervising administrator or other statutorily-
excluded position.  An evaluation of the community of interest
factors suggests strongly that the position belongs in a
bargaining unit with direct educational support personnel.  
     (11) Employer's organizational structure.  As the District
is not "departmentalized" in the usual sense of this word, this
factor is not useful in making the present determination.
     Finally, the employer argued that, in addition to
considering the traditional community of interest factors, the 


hearing examiner consider its "public policy" argument.  The
employer argued that the scarcity of employees with
qualifications like the COTA make her unique--and far less
fungible than, for example, Educational Technicians.  The
employer further argued that the union will be unlikely to
advocate for her (in terms of pay, apparently), will treat her
like an Educational Technician, and the employer will lose a very
valuable employee.  The hearing examiner accepts, because these
facts were not refuted by the union, that employees like the COTA
are a scarce and valuable resource for the District, particularly
considering its legal obligation to serve students with special
needs.  At the same time, the COTA has not negotiated for herself
any more advantageous terms than the union has negotiated for
positions in the bargaining unit.  The Superintendent practically
testified that he wants to give the COTA a higher rate of pay but
still negotiated with her only the same pay increase that the
organized employees received.  The hearing examiner cannot assume
that the dire predictions of the employer will occur, nor can she
base her decision on such assumptions.  Rather, the hearing
examiner assumes that the union will uphold its legal duty to
fairly represent the COTA, and that both parties will negotiate
in good faith an agreement that fairly compensates all positions
in the unit.  To assume anything different would be the
contravention of the "public policy" as expressed in the
     For all of these reasons, the hearing examiner concludes
that the majority of factors strongly supports a finding that the 

     4 AFSCME, Council 74 and City of Brewer, No. 79-A-01 (MLRB
Oct. 17, 1979), the case cited by the employer for the proposition
that public policy should be considered, involved a unique situation
wherein emergency dispatchers had a history of neglecting calls from
fire and ambulance, and favoring police calls.  Including the
dispatchers in the police unit raised a serious continuing public
safety issue.  The argument the employer advances here is, in
actuality, not unique:  the employer simply wishes to be free to
negotiate individually with the employee in question.


COTA position shares a community of interest with the Educational
Technicians and Secretaries currently in the bargaining unit, and
that this new position should be included in that unit.
     On the basis of the foregoing facts and discussion, and
pursuant to 26 M.R.S.A.  966(3), the union's Petition for Unit
Clarification, seeking to add the COTA position to the
Educational Technician/Secretary bargaining unit, is granted.

Dated at Augusta, Maine, this 23rd day of December, 2005.

                                MAINE LABOR RELATIONS BOARD

                                Dyan M. Dyttmer
                                Hearing Examiner

The parties are hereby advised of their right, pursuant to
26 M.R.S.A.  968(4), to appeal this report to the Maine Labor
Relations Board.  To initiate such an appeal, the party seeking
appellate review must file a notice of appeal with the Board
within fifteen (15) days of the date of issuance of this report. 
See Chapter 10 and Chap. 11  30 of the Board Rules.