Case No. 05-UC-02
                                      Issued:  October 19, 2005 

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

                       PROCEDURAL HISTORY

     This unit clarification proceeding was initiated on April 4,
2005, when Nancy Hudak, MEA UniServ Director, representing the
Ashland Area Teachers Association/MEA/NEA ("Association"), filed
a Petition for Unit Clarification with the Maine Labor Relations
Board ("Board") for a determination whether part-time certified
personnel should be added to the MSAD No. 32 certified personnel
bargaining unit pursuant to 26 M.R.S.A.  966(3) of the Municipal
Public Employees Labor Relations Law ("MPELRL").  On April 15,
2005, the MSAD No. 32 Board of Directors ("District" or
"employer") filed a timely response to this petition.  A hearing
notice was issued on June 7, 2005, and was posted for the benefit
of affected employees.  The hearing examiner conducted a pre-
hearing conference by telephone in this matter on June 29, 2005.
The hearing was conducted on July 6, 2005.  The Association was
represented by Ms. Hudak.  The District was represented by
S. Campbell Badger, 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, Peter Belskis, teacher and
Association president; for the District, Superintendent Roland


Caron.  The party representatives presented oral closing
arguments at the hearing, and also written closing arguments
following the conclusion of the hearing.  The briefing schedule
was complete on September 7, 2005.
     While the bargaining unit here contains some non-teaching
certified employees (such as librarians), the hearing examiner
will sometimes refer to the positions in the unit as "teachers." 
This is meant to include all certified personnel within the
meaning of the parties' collective bargaining agreement.

     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 Association exhibits were introduced without
objection of the District:

     Exhibit No.    Title/Description

          A-1	    School Board Agenda 5/23/05
          A-4       Beaulier salary agreement 04-05
          A-5       Cyr salary agreement 04-05
          A-7       Haines salary agreement 04-05
          A-8       AATA dues list
          A-9       Carson MEA membership form 8/01
          A-10      MEA roster 02-03
          A-11      MEA roster 03-04
          A-12      Arndt MEA membership form 8/03
          A-13      MEA roster 04-05
          A-14      Seniority list 04-05
          A-15      Note w/librarian contracts

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


          B-1       Form 1 dated 8/22/74
          B-2       Form 1 dated 11/11/71
          B-3       Arndt probationary teacher contract 02-03
          B-4       Arndt employment stipulation 8/04
          B-5       Carson probationary teacher contract 01-02
          B-6       Carson probationary teacher contract 02-03
          B-7       Cyr salary agreement 04-05
          B-8       Cyr probationary teacher contract 93-94
          B-9       Bradbury probationary media specialist
                    contract 01-02
          B-10      Graham administrator's contract 00-01
          B-11      Bushey administrator's contract 92-94
          B-12      Farrin probationary director of media
                    services contract 88-89
          B-13      Seniority list 04-05
          B-14      Seniority list 03-04
          B-15      Seniority list 02-03
          B-16      Seniority list 01-02
          B-17      Seniority list 93-94
          B-18      Seniority list 88-89
          B-19      MEA Governance
          B-20      MEA Constitution

     The following joint exhibits were introduced:

          J-1       Collective Bargaining Agreement 04-06
          J-2       Collective Bargaining Agreement 01-04

     The parties stipulated to the following facts (in these
stipulations, the term "Board" refers to the employer, not to the
1.  The current Collective Bargaining Agreement Recognition
Clause (Article II) reads, "The Board hereby recognizes the
Association as the exclusive bargaining agent as defined in
26 M.R.S.A. section 962(2) for the entire group of full time
certified personnel having more than six (6) months service in
the District, excluding the Superintendent, Principals, Assistant
Principal, and Supervisors.
  Unless otherwise indicated, the term "teacher", when used
hereinafter in this Agreement, shall refer to all professional 


employees represented by the Association in the negotiating unit
as above defined."

2.  MSAD #32 is a public employer.

3.  The first (teachers) Collective Bargaining Agreement went
into effect " of the beginning of the 1973-74 school year."

4.  A Form 1 was filed with the Maine Labor Relations Board on
November 11, 1971, describing the bargaining unit as including
"classroom teachers, guidance counselors, librarians, special
education teachers and vocational education teachers".

5.  On August 22, 1974, the parties filed a second Form 1,
describing the bargaining unit as follows: "The entire group of
full time certified personnel having more than six (6) months'
service in the District, excluding the Superintendent, Assistant
Superintendent, Principals, Assistant Principals, and

6.  During the 2001-02 and 2002-03 school years, the district
employed a half-time Math/Spanish teacher.

7.  The 2004-06 collective bargaining agreement was ratified by
the parties in April, 2005.  Final signatures were affixed on
June 24, 2005.

8.  During the negotiations for the most recent collective
bargaining agreement, the Association proposed changing the
recognition clause to include part-time teaching positions in the
bargaining unit.

9.  Before the parties reached impasse, the Board demanded the
Association remove the proposal to include part-time teachers
from the table as a permissive subject.


10.  In August, 2004, the individual who previously held the
Librarian position was given a contract for a part-time Pre-K
through 12 "Library Consultant" position.  Previously, the
Library/Media Specialist position had been a full time position.

11.  The position's 2004-05 salary agreement provided salary and
benefits similar to, but not the same as, those of full-time

12.  Said individual has since resigned from the district.

13.  On May 17, the Board accepted a tentative 2005-06 school
budget which would have reduced several full-time positions to

14.  The Board ultimately approved a school budget for the 2005-
06 school year that did not result in the reduction of full time
positions to part-time positions.

15.  The 2004-05 CBA contains the following new language in
regards to Reduction in Force: "Whenever it becomes the intention
of the administration of MSAD #32 to recommend the elimination of
a teaching position or a part thereof, ..."

16.  SAD #32 has two buildings in Ashland, less than 1/4 mile
from each other.

     Although for the purposes of this Unit Clarification the
Board declines to categorize part-time positions as being within
the teachers bargaining unit, the parties agree that should part-
time positions be so categorized in the future, like full-time

17.  Part-time teachers would not have an administrative role in
collective bargaining for the Teacher Collective Bargaining


18.  Part-time teachers would make no personal decisions to hire,
promote, discharge or discipline employees or effectively
recommend such personnel actions.

19.  Part-time teachers would have no significant duties in the
observation and evaluation of employees where such observations
and evaluations play a substantial role in reappointment, non-
reappointment, grant of continuing contract status, award of
merit pay or promotion.

20.  Part-time teachers would not exercise independent judgment
in the ranking of subordinates for the purposes of establishing
an order of lay-off or re-call beyond merely ranking by

21.  Part-time teachers would have no significant discretion in
the promulgation or execution of a working budgetary document for
an area of responsibility.

22.  Part-time teachers would have no non-ministerial ability to
grant or deny the use of vacation, sick, bereavement, educational
or other leaves of absence.

23.  Part-time teachers would have no settlement authority in
grievance procedures.

24.  Part-time teachers would be performing professional work
identical to full-time teachers in MSAD #32.

25.  Part-time teachers would be supervised by the school

26.  Part-time teachers would have similar qualifications, skills
and training to full-time teachers in MSAD #32.

27.  Part-time teachers would have frequent contact with full-


time teachers and other SAD #32 staff members.
                        FINDINGS OF FACT
1.   The Association is the certified bargaining agent for the
bargaining unit consisting of the following MSAD No. 32
employees:  the entire group of full-time certified personnel
having more than six (6) months' service in the District,
excluding the Superintendent, Principals, Assistant Principal,
and Supervisors.
2.   On July 3, 1974, during the term of the parties' collective
bargaining agreement, the employer filed a Petition for Unit
Determination, seeking to exclude the position of Assistant
Principal from the bargaining unit.  A unit determination hearing
was scheduled in the matter, but not conducted.
3.   The parties filed an Agreement on Appropriate Bargaining
Unit on August 22, 1974, (further described in Stipulation No. 5)
which, in part, excluded the Assistant Principal position from
the bargaining unit.
4.   Each school year, the District produces a seniority list of
certified personnel.  The list is either posted or passed around,
and employees are asked to make any corrections to the list. 
Article 6 of the parties' collective bargaining agreement ("CBA")
defines "seniority"; the article requires the employer to provide
to the Association and post a seniority list each year no later
than November 30.
5.   The District has rarely employed teachers on a part-time
basis.  Around 1993, one teacher (Linda Caron) was employed for a
year or two at sixth-sevenths or five-sevenths time.  Ms. Caron's
name was on the seniority list dated August 26, 1993, with a hire
date given as August 9, 1993 (B-17).
6.   During the 2001-2002 school year, the District employed a
half-time math teacher (Peg Carson).  Ms. Carson was given a
probationary teacher's employment contract for the year (B-5).  


This was the "standard contract" given to all probationary
teachers, including full-time probationary teachers, during the
first two years of employment.  In the contract, Ms. Carson was
paid one-half of the annual salary rate as provided in the
collective bargaining agreement.
7.   During the 2002-2003 school year, the District employed
Ms. Carson as a half-time math/Spanish teacher.  She was again
given a standard probationary teacher's contract for the year.
8.   When Ms. Carson worked for the District, she also worked
half-time for another school district.  Ms. Carson asked the
Association president whether she could arrange to pay half of
the Association dues during her employment.  The Association
president spoke with personnel from the District's central office
about this, and the employer thereafter deducted half dues from
her salary.
9.   Ms. Carson's name was not on the seniority lists produced in
September, 2001, or in September, 2002.
10.  During the 2002-2003 school year, the District employed a
full-time media specialist (Melissa Arndt).  Media specialist (or
librarian) was a position requiring certification, and was
therefore a bargaining unit position.  Ms. Arndt had
"conditional" certification for this position.  Ms. Arndt was
given the standard probationary teacher's contract, paying the
annual salary rate as provided in the collective bargaining
agreement (B-3).
11.  Ms. Arndt was also employed on a full-time basis in the same
position by the District during the 2003-2004 school year.  She
was again given a standard probationary teacher's contract.
12.  During the 2004-2005 school year, the District offered   
Ms. Arndt only a half-time position.  Ms. Arndt had not fulfilled
all the requirements to maintain her "conditional" certificate. 
However, the primary reason the District offered her only a half-
time position was budget constraints (Tr. at 91).  Under a 


revised state school funding formula ("Essential Programs and
Services"), the District student population was deemed too small
to warrant a full-time media specialist.
13.  Ms. Arndt was given a written "employment stipulation" for
the 2004-2005 school year as a library consultant (B-4).  This
stipulation was not in the form of a standard teacher's contract
in the District.  The stipulation identified the number of days
Ms. Arndt was to work as 90, with a daily rate of remuneration.
14.  Ms. Arndt had Association dues deducted in 2002-2003 and
2003-2004.  She continued to have dues deducted in 2004-2005
after her position was changed to a half-time library consultant. 
However, sometime after the first pay period of the 2004-2005
school year, the District refused to deduct the Association dues
any longer from her salary.
15.  Ms. Arndt's name appeared on the September, 2002, and the
September, 2003, seniority lists.  Her name did not appear on the
September, 2004, seniority list.
16.  Ms. Arndt resigned from her half-time position around
January, 2005.  She no longer works for the District.
17.  The District has employed Janice Cyr since 1993.  She is
currently employed as a speech/language pathologist.  She has a
professional license as a speech/language pathologist.  She does
not currently have a teacher's certification from the state
Department of Education.
18.  Ms. Cyr was initially hired by the District as a teacher of
speech/language.  She was given the standard probationary
teacher's contract for the 1993-1994 school year (B-8).  For the
school year 2004-2005, she was given a "notification of annual
salary rate," which is a standard document given to teachers who
have completed their probation (B-7).  This notification read, in
          You are hereby notified that the salary
          schedule of the collective bargaining
          agreement provides an annual rate of $42,224*


          payable in 26 installments for the school
          year beginning August 19, 2004, and ending
          August 31, 2005...It is understood that the
          salary is for step M-15 of the 2003-2004
          salary schedule.  [*2004-2005 salary to be
          determined by negotiations between the
          parties pursuant of Chapter 9A, Title 26

19.  Ms. Cyr works for the District on a part-time basis (three-
fifths time).  She has worked part-time for at least the last six
years (since the present superintendent has been employed by the
District), possibly during her entire period of employment. 
Ms. Cyr is paid the equivalent of a full-time teacher's salary
under the collective bargaining agreement, based on her years of
employment and education.
20.  Ms. Cyr's name has appeared on all post-1993 seniority lists
submitted into evidence (1993, 2001, 2002, 2003, and 2004).
21.  During many years of her employment, Ms. Cyr elected to have
Association dues deducted from her salary.  Several years ago,
Ms. Cyr advised the Association president that since she belonged
to another professional association that provided insurance to
her, she no longer wished to pay Association dues.  Thereafter,
the District stopped deducting Association dues from her salary.
22.  For over 13 years, the District has employed Susan Beaulier
as a full-time teacher holding two half-time positions
(gifted/talented and art).  In the 2004-2005 school year, she was
given a standard notification of annual salary rate, similar in
form and language to the one given to Ms. Cyr.
23.  At the end of the 2004-2005 school year, the positions of
Ms. Beaulier and several other full-time teachers were threatened
to be reduced to part-time (positions eliminated, and replaced
with a part-time position).  This was due to budget constraints
under the school funding formula.  This generated considerable
attention from parents and citizens, and the school board decided
to add money to the proposed budget in order to maintain the


teachers at a full-time level.  This budget was passed, and the
threatened reductions to part-time teaching positions did not
24.  The superintendent is concerned that due to the school
funding formula and the student population, there will be
increased pressure on the District in the future to either reduce
full-time positions to part-time, or to hire part-time teachers
(Tr. at 89).
25.  Some District employees are given an "administrator's
contract" of employment.  These are for certain positions not in
the bargaining unit, and not held by employees with
certification.  For instance, Kristen Graham was given an
administrator's contract when she was employed as a media
director for the 2000-2001 school year (B-10).  Ms. Graham was
not a certified librarian.  If an employee holds a certification,
they are generally given a standard teacher's contract.
26.  The constitution of the Maine Education Association
provides, in part, that membership is open to all persons
actively engaged in the education profession or to persons
interested in advancing the cause of public education (B-19).


     Section 966(3) of the 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.

Chapter 11,  6(3) of the Board Rules repeats these statutory
requirements and further provides that a unit clarification 


petition may be denied if the petition requests the clarification
of unit placement questions which could have been but were not
raised prior to the conclusion of negotiations which resulted in
an agreement containing a bargaining unit description.  The
parties have stipulated that three of the four requirements of
 966(3) have been met:  the Association is the certified
bargaining agent for the certified personnel bargaining unit, 
the parties have been unable to reach agreement on the issue of
whether part-time certified personnel should be part of the
bargaining unit, and no question exists concerning representa-
tion.  The employer has not argued that the petition should be
dismissed due to failure to preserve the issue during the most
recent collective bargaining negotiations.  In fact, the stipu-
lations entered into by the parties (stips nos. 7-9) describe 
the manner in which this issue was specifically raised by the
Association but removed from the table as a permissive subject by
demand of the employer.  This petition was filed prior to the
ratification of the 2004-2006 collective bargaining agreement.
     The parties do not agree, however, whether the fourth
requirement of  966(3) is present in this matter; that is,
whether the circumstances surrounding the formation of the
bargaining unit have changed sufficiently to warrant modification
of the unit.  The requirement for changed circumstances is a 
"threshold question" in a unit clarification proceeding.  MSAD
No. 14 and East Grand Teachers Association, No. 83-A-09, at 7
(MLRB Aug. 24, 1983).  "The petitioner in unit clarification
proceedings bears the burden of alleging the requisite change
and, further, of establishing the occurrence of said change in
the unit then at issue."  State of Maine and MSEA, No. 82-A-02,
at 16 (MLRB June 2, 1983) (Interim Order).
     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).  Likewise, change of duties in a particular job
classification since the formation of the bargaining unit may
satisfy the changed circumstances threshold, particularly if
those changes in duties result in the employee becoming excluded
from the definition of a "public employee" under the relevant
state labor relations law.  State of Maine and MSEA, No. 91-UC-04, 
at 13-14 (MLRB Apr. 17, 1991).  Such a change in duties may
result in the removal of only one employee from the unit, not an
entire classification, as when one employee begins to perform
confidential duties.  Lincoln Sanitary District and Teamsters
Union Local 340, 92-UC-02, at 11-12 (MLRB Nov. 17, 1992).  The
Board and hearing examiners have found changed circumstances in a
wide variety of unique circumstances, including others discussed
more fully later in this report.  See, e.g.  City of Bath and
Council 74, AFSCME, No. 81-A-01 (MLRB Dec. 15, 1980) (a change in
the employer's organizational structure is sufficient to
establish changed circumstances); Town of Kittery and Teamsters
Local Union 340, No. 91-UC-12 (Feb. 4, 1991) (a change in
bargaining agent through decertification/bargaining agent
election is sufficient to establish changed circumstances).
     Whether or not the Association has established "changed
circumstances" in this matter is, indeed, a central question of
this case.  The Association has presented several arguments on
this question.  In the petition, the Association offered the
following information regarding the changes alleged to have
occurred since the formation of the bargaining unit:

     The parties began negotiations on a successor contract
     in June, 2004.  The Association proposed the deletion
     of the word "full-time" from the Recognition Clause. 
     During the summer of 2004, the full-time Librarian
     position - a part of the bargaining unit - was reduced
     to a part-time, non-bargaining unit position entitled


     "Library Consultant."
     In March, 2005, the parties were in mediation on the
     successor contract when the Board demanded that the
     Association withdraw the issue of "part-time" positions
     being included in the bargaining unit because it was a
     permissive subject of bargaining.

In the oral closing argument presented at the hearing in this
matter, the Association argued that the employer's recent
employment of part-time positions (positions held by Peggy
Carson, Melissa Arndt, and Janice Cyr), and the employer's
announced plans, due to budget constraints, to either reduce
full-time positions to part-time, or to hire part-time positions,
constituted changed circumstances (Tr. at 96-97).  Finally, in
written closing argument, the Association argued as follows:

     Although the typical Unit Clarification revolves around
     an employer's creation of a new position - one kind of
     "change in circumstances" - this case is somewhat
     different.  Here, the changed circumstances was an
     adjustment of the law never memorialized in either the
     CBA's Recognition Clause or a revised MLRB Form 1. 
     When the second Form 1 was written in 1974, part-time
     teachers were not permitted to be "public employees,"
     let alone members of a bargaining unit.  The part-
     timers were excluded by law, not "simply by choice." 
     Even had they not been so excluded, the parties'
     behavior since 1971 and 1974 toward part-time teachers
     has changed.  That the parties have traditionally
     included part-timers on administratively-produced
     seniority lists and AATA Membership rosters - despite
     the contract language to the contrary - is important
     evidence of the mutual acknowledgment of a change, if
     not the formal documentation of one.

(Association Brief at 6, footnotes omitted).

     In short, the Association has made several different
arguments regarding the existence of changed circumstances.  At
least one of those arguments can be rejected without much further
discussion.  As the employer clearly established in its brief,
the original exclusion of part-time employees from the definition 


of "public employees" in the MPELRL was of brief legislative
duration in 1969, and preceded the formation of this bargaining
unit in 1971.[fn]1  Since this unit was created, part-time employees 
could have been included in the bargaining unit (i.e., there was
no statutory basis for excluding such employees).  Therefore,
that statutory change could not support a finding of changed
circumstances since the formation of the unit.  
     The "formation of the unit" here consisted of the filing of
two Agreements on Bargaining Unit, one in 1971 and one in 1974. 
Both parties argued about the significance of the wording of the
1974 Agreement (stating, explicitly, that the unit consisted of
full-time certified personnel), but the hearing examiner cannot
conclude much from this change that would assist in resolving the
issue presented here.  There was simply no evidence that part-
time certified personnel were employed by the employer in 1971. 
Without the proof that part-time personnel were employed or were
an issue to the parties, the lack of the use of the term "full-
time" in the 1971 Agreement cannot be given undue significance
now--it might have been an oversight, or simply a matter of no
importance to the parties at the time.  In addition, the 1974
Agreement was filed by the parties following a Petition for Unit
Determination filed by the employer that was in no way connected
to the issue of part-time personnel; the 1974 Agreement appeared,
from Board records, to be the amicable resolution of that
petition.  For purposes of determining the "circumstances
surrounding" the formation of this unit, the issue of part-time
personnel appeared to have been a non-issue to the parties in the
early years of the bargaining unit.  That has obviously changed
in recent years, however.

     1 Exhibits A and B attached to the employer's brief show that
part-time employees were excluded from the definition of "public
employee" in the MPELRL when it was first enacted in 1969, but the
exclusion was deleted by emergency legislation in that same year.


     The Association also argues that another change of
circumstances since the formation of the unit is the employer's
present use of part-time teachers or other certified personnel
or, at least, increased use of part-time personnel in recent
years.  This argument requires a close factual review of the
record, which establishes the following:

     *    There was one teacher (Ms. Caron, the present
          superintendent's wife) who was employed around
          1993 for a year or two on a slightly less than
          full-time basis (six-sevenths or five-sevenths
     *    There was a teacher (Ms. Carson) employed for two
          years (2001-2002, 2002-2003), on a half-time
     *    There was a media specialist (Ms. Arndt) employed
          for the 2004-2005 school year on a half-time
          basis, until she resigned mid-year;
     *    None of the above employees were employed by the
          District at the time this petition was filed or
     *    There is a speech/language pathologist (Ms. Cyr)
          who has worked for the District for many years,
          who works three days per week but receives a
          salary equivalent to a full-time teacher.

It is important to note that the District argued that both
Ms. Arndt (in her last, part-time year of employment) and Ms. Cyr
(currently, as a part-time employed speech/language pathologist) 

     2 The superintendent also testified that he believed that there
was, prior to his employment, another teacher who was employed to
teach Spanish one period per day.  There was little else presented
upon which to base a finding of fact regarding this teacher. 
Furthermore, it is not clear that the Association is seeking to
include all part-time teachers, even those who only work a few hours
per week.  Despite this paucity of evidence, the District argued that
there has been a "practice" of creating part-time positions and
employing part-time teachers by the employer (employer's brief at 7). 
The hearing examiner is mindful that the Association had the burden
here to establish changed circumstances.  On the other hand, the
employer had full access to its own records of employment and, if
there was any history of hiring part-time teachers, the employer was
in the best position to provide evidence of that - but did not.  If
there was such a "practice," it has only occurred in the last few
years, based on the evidence presented.


were not "certified" personnel in the manner that term is used in
determining what positions are in the bargaining unit.  This is
an important point because non-certified personnel are simply not
in the bargaining unit.  If neither Ms. Arndt nor Ms. Cyr were
certified employees, then the only recently-employed part-time
certified employee was Ms. Carson, who was last employed about
two years before the petition was filed.  While it is possible
that Ms. Cyr was and is a "certified personnel" employed on a
part-time basis, the testimony presented on the point of the
meaning of "certified" was conflicting and confusing.  As the
Association had the burden of showing changed circumstances, and
the Association knew that the only part-time employee employed at
the time this petition was filed and thereafter was Ms. Cyr, the
hearing officer will not wade through this confusion and give the
Association the evidentiary "benefit of the doubt" on this
important point.  Without this, the employment of Ms. Carson on a
part-time basis over two years ago, with no clear evidence that
this will be a recurring event, is simply insufficient to
establish changed circumstances surrounding the formation of the
bargaining unit.  Cf. MSAD No. 14 and East Grand Teachers Ass'n,
No. 83-A-09, at 8-10 (MLRB Aug. 24, 1983) (decisions regarding
bargaining unit configuration can only be based upon present
duties, not a projection of future duties).
     The hearing examiner does, however, find the existence of
changed circumstances in another area:  the employer's recent,
clear and unequivocal position that part-time certified personnel
are not in the bargaining unit (most obviously expressed in the
last contract negotiations).  This is a change because, prior to
the last contract negotiations, the status of part-time certified
employees was far from clear.  The Association assumed that part-
time teachers were in the unit, and the employer's actions in
this regard were inconsistent enough to warrant the Association's 
assumption.  The employer's inconsistent actions fell into three 


     First, part-time certified personnel sometimes appeared on
the seniority list and sometimes did not.  The seniority list
clearly had significance under the collective bargaining
agreement (the agreement provides that the employer is to create
the list yearly; various rights in the agreement are connected to
seniority).  There is no question that the seniority list is to
contain bargaining unit members, and not other District
employees, and therefore signifies the group of employees deemed
to be in the bargaining unit by the employer.  Despite this,
part-time employees were sometimes on the list and sometimes were
not:  Ms. Carson and Ms. Arndt (in her last year of employment,
when she was part-time) were not on seniority lists.  Ms. Caron
and Ms. Cyr were on seniority lists.  
     Second, the District sometimes deducted Association dues
from the salary of part-time certified personnel who indicated a
desire to belong to the Association, and sometimes did not. 
While it is true that, technically, anyone "interested in the
cause of advancing public education" can become a member of MEA
(B-20), the practice in the District was to deduct Association
dues from those bargaining unit employees who elected to join the
Association.  The District deducted dues from Ms. Carson and
Ms. Cyr (until she elected not to pay dues) even though both
employees worked on a part-time basis.  The District then refused
to deduct dues from Ms. Arndt shortly after she began working on
a part-time basis, even though she elected to have dues deducted
throughout her previous two years of full-time employment. 
     Third, the District gave part-time teachers and other
employees the same types of employment contracts and salary
notifications as it gave to full-time employees who were clearly
in the bargaining unit.  For instance, Ms. Carson was given the
same standard probationary teacher's contract for both years of
her part-time employment as full-time teachers were given.  Ms. 


Cyr, a part-time employee who the District maintains is not
certified within the meaning of the CBA, was given the same
notification of annual salary rate as full-time non-probationary
teachers were given.  The language and references in this latter
notification gave the clear impression that Ms. Cyr was in the
bargaining unit and that her salary was established pursuant to
the terms of the CBA.  The employer offered these standard
teacher contracts to Ms. Carson and Ms. Cyr despite the fact that
they offered "administrator's contracts" and "employment
stipulations" to other employees they maintained were not in the
bargaining unit.
     By listing these inconsistencies, the hearing examiner is
making no finding about whether part-time certified personnel
were actually in the bargaining unit, despite the language of the
recognition clause of the CBA.  Under some circumstances,
consistent practice can be evidence of a mutual agreement to
amend a contract.  See Paul Coulombe, et al., and City of South
Portland, No. 86-11, at 16-17 (MLRB Dec. 29, 1986) (actual duties
performed inconsistent with duties article).  But that is not the
issue presented here, nor does the hearing examiner have
jurisdiction to make a finding on this issue.  The inconsistent
actions are simply listed to contrast these ambiguous actions
with the District's present clearly-expressed and unequivocal
position that it does not consider part-time certified personnel
to be in the unit.  The District's position was made completely
clear  during the negotiations for the 2004-2006 collective
bargaining agreement (ratified in April, 2005) that it would not
include or consider part-time certified personnel to be part of
the bargaining unit.  As stipulated by the parties, the
Association proposed during these negotiations a change to the
recognition clause to include part-time employees, and the
employer demanded the removal of the proposal as a permissive
subject.  Through these recent negotiations, through the 


District's response to the Association's petition, and through
the District's arguments here, the Association can no longer be
in any doubt of the District's position on this issue.  It is
this new and clearly-expressed position which constitutes changed
circumstances here.
     While this may not be a "typical" case of changed
circumstances, the hearing examiner finds support for this
determination in MLRB precedent.  First and foremost, the Board
has found a remedy in the unit clarification process where it
appears that the petitioning party may be left with no other
remedy.  For instance, in AFSCME Council 93 and State of Maine,
No. 89-UC-07 (MLRB Aug. 10, 1990), aff'd, No. 91-UCA-02 (MLRB 
Feb. 12, 1991), aff'd sub nom Bureau of Employee Relations and
MLRB, 611 A. 2d 59 (Me. 1992), the hearing examiner considered the
state's growing use of a "floating labor pool" of mental health
workers who were eventually offered permanent employment, but
without credit for time spent in non-permanent employment status,
thus delaying the date on which the employees attained bargaining
unit status.  Because this pool of employees was constantly
changing, but the dispute was a recurring one, a unit determina-
tion (even if timely filed) was found to be impracticable and a
case-by-case determination found to be a "procedural nightmare." 
No. 89-UC-07, at 27.  The hearing examiner found sufficient
changed circumstances to allow the matter to proceed as a unit
clarification, but also stated that the Board is empowered and
required to resolve disputes over unit placement, even if the
matter cannot meet the requirements of a unit determination or a
unit clarification; otherwise, the parties would be left without a
remedy.  No. 89-UC-07 at 31.  In Thomaston and Teamsters Local
Union 340, No. 90-UC-03 (MLRB Aug. 30, 1989), the hearing examiner
addressed whether the employer could petition for the removal of a
position per statutory exclusion, when that position had existed
since the inception of the unit and had remained in the unit by 


agreement of the parties.  Noting that neither a unit clarifica-
tion nor a unit determination were appropriate upon the facts
presented, the hearing examiner nevertheless suggested that where
the employer had voluntarily granted bargaining unit status to a
non-public employee, and the bargaining agent would not agree to
removal, an employer's change of mind might be a change sufficient
to satisfy  966(3), if the issue was raised and preserved in
negotiations; otherwise, the employer would be left with nothing
other than a "self-help remedy."  No. 90-UC-03, at 14.      
     The present case presents a similar dilemma.  While agreement
of the parties is certainly the preferred method of determining
unit composition, the employer cannot be forced to agree to add
part-time positions to the bargaining unit as part of negotiations
(as the District has demonstrated).  How, then, may the Associa-
tion have a determination whether part-time teachers belong in the
same bargaining unit as full-time teachers?  The District has
urged that the Association only be allowed to proceed by filing a
unit determination, with accompanying showing of interest.  This
might be a logical way to proceed, but only if part-time certified
personnel happen to be employed during the window period of the
contract, or after expiration.  Arguably, this has not happened in
recent years despite some employment of part-time teachers, and
may or may not happen in the future.[fn]3  The District has also
argued that even if a part-time certified teacher were to be
employed by the District, this would be a change of "degree" only,
and still not sufficient to support a finding of changed
circumstances, so eliminating the possibility of this matter 

     3 This was another area where the District's inconsistent
treatment of part-time personnel in the past was important.  If the
Association had been aware that the District did not consider
Ms. Carson--an employee both parties agreed was a part-time certified
teacher in the 2001-2002 and 2002-2003 school years--to be in the
bargaining unit, it may have proceeded differently, such as by
attempting to secure a showing of interest from her and filing a unit
determination petition.


proceeding as a unit clarification (employer's brief at 7-8).   
By finding changed circumstances here in the District's declared
stance that part-time certified personnel are not in the unit, 
the Association will have the opportunity to have the issue of
bargaining unit placement addressed in the event that a part-time
teacher is employed in the future and the parties cannot agree to
unit placement.
     AFSCME and State of Maine, supra, provides support for a
finding of changed circumstances here in another way.  In AFSCME,
the hearing examiner found that the state's increased use of the
"floating labor pool" was a changed circumstance, but also found
that the receipt by the union of monthly hire/termination reports
(which alerted the union to the use of the pool) was a separate
factor supporting a finding of changed circumstances.  No. 89-UC-07
at 30.  Similarly here, the District's clear and unequivocal
stance regarding part-time personnel is new information to the
Association.  In AFSCME, it could not be determined when the new
reporting information was first supplied to the union, other than
at some point in time after the bargaining unit was created. 
Here, the District's stance during the most recent CBA negotia-
tions was information that clearly arose since the formation of
the unit.
     In a "typical" unit clarification, after a finding that all
the requirements of  966(3) have been met, the hearing examiner
usually addresses whether the positions at issue share a community
of interest with the positions already in the bargaining unit:

     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 Bangor, No. 79-A-01, at 4 (MLRB Oct. 17, 1979). 
See also Board Rules Chapter 11,  22(3).  Because, as explained
earlier in this report, the hearing examiner is unable to find
that a part-time teacher or other certified employee is currently
employed by the District, it would be premature to evaluate
whether a community of interest exists.  When and if the District
employs a part-time teacher or other part-time certified employee
in the future, the parties shall meet and negotiate whether a
community of interest exists between the part-time position and
those positions currently in the bargaining unit.  Based upon the
stipulations filed by the parties (stips nos. 16- 27), a community
of interest will very likely exist if the position in question is
a part-time teacher.  Cf. Town of Berwick and Teamsters Local
Union 48, No. 80-A-05 (MLRB July 24, 1980) (finding full-time and
part-time police officers share a community of interest). 
Nevertheless, if the parties cannot agree about unit placement,
either party may then petition the Board for a determination about
the existence of a community of interest and unit placement.  The
hearing examiner also assumes that the Association will raise and
preserve this issue in future CBA negotiations, if the matter has
not been resolved at that time.  This procedure is all in keeping
with MLRB precedent that allows parties to return to the Board for
a final determination in cases that are not otherwise procedurally
ripe.  See, e.g., Town of Thomaston and Teamsters Local Union 340,
No. 90-UC-03 (employer may raise the issue of statutory exclusions
in negotiations for next contract and, barring agreement, may
return to the Board for determination); MSEA and State of Maine,
Department of Inland Fisheries and Wildlife, No. 93-UC-05 (MLRB
Sept. 29, 1993) (Interim Order) (by filing earlier unit clarifica-
tion petition--which was dismissed on procedural grounds--the 


union placed the employer on notice of intention to seek inclusion
of position in the bargaining unit, and could pursue petition
again after subsequent contract negotiations where issue

     The Association's petition for unit clarification is granted,
to the extent that the Association has established the elements
found in  966(3).  When and if the District employs a part-time
teacher or other certified employee in the future, the parties
shall meet and negotiate whether a community of interest exists
between the part-time position and those positions currently in
the bargaining unit.  If the parties cannot agree about unit
placement, either party may then petition the Board for a
determination about the existence of a community of interest and
unit placement. 

Dated at Augusta, Maine, this 19th day of October, 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.