Board decision affirming unit clarification report no. 05-UC-01.

                                   Case No. 06-UCA-01
                                   Issued:  May 11, 2006    

                    Appellant,     )       
                                   )    DECISION AND ORDER ON  
     and                           )      UNIT CLARIFICATION
                                   )           APPEAL  
MEA/NEA,                           )       
                    Appellee.      )           
     The MSAD No. 29 Board of Directors (the "Employer") filed
this unit clarification appeal on January 9, 2006, pursuant to 
26 M.R.S.A. 968(4) of the Municipal Public Employees Labor
Relations Law (the "Act") and Chapter 11, 30 of the Rules and
Procedures of the Maine Labor Relations Board ("Board").  The
unit clarification report which is the subject of this appeal was
issued on December 23, 2005, following an evidentiary hearing on
the petition filed by the MSAD No. 29 Education Association/ 
MEA/NEA (the "Association") which sought to add the Certified
Occupational Therapy Assistant ("COTA") position to the existing
Educational Technician/School Secretary bargaining unit.  See No.
05-UC-01.  The hearing examiner concluded that the COTA position
shares the requisite community of interest with the positions
currently in the unit and should be added to the unit.  The
employer appeals that decision.  
     On appeal, both parties submitted written briefs, the last
of which was received on April 10, 2006.  The Board met to hear
oral argument on April 25, 2006.  Bruce W. Smith, Esq., repre-
sented MSAD No. 29, and Nancy E. Hudak, MEA UniServ Director,
represented the Association.  The Board deliberated this matter
on April 25, 2006.  After reviewing the decision below and the 


record of evidence before the hearing examiner, and after
considering the arguments presented by the parties, we affirm the
decision of the hearing examiner.

     MSAD No. 29 is an aggrieved party within the meaning of 26
M.R.S.A. 968(4), and the MSAD No. 29 Education Association is
the bargaining agent within the meaning of 26 M.R.S.A. 962(2)
for the Educational Technician/School Secretary bargaining unit
at MSAD No. 29.  The jurisdiction of the Maine Labor Relations
Board to hear this appeal and to render a decision lies in 26
M.R.S.A. 968(4).                    

     The standard of review for bargaining unit determinations by
a hearing examiner is well established:

     We will overturn a hearing examiner's rulings and
     determinations if they are "unlawful, unreasonable, or 
     lacking in any rational factual basis."  Council 74,
     AFSCME and Teamsters Local 48, MLRB No. 84-A-04 at 10 
     (Apr. 25, 1984), quoting Teamsters Local 48 and City of
     Portland, [78-A-10] at 6 (Feb. 20, 1979).  It thus is
     not proper for us to substitute our judgment for the
     hearing examiner's; our function is to review the facts
     to determine whether the hearing examiner's decisions
     are logical and are rationally supported by the

MSAD #43 and SAD #43 Teachers Assoc., No. 84-A-05, at 3 (May 30,
1984), affirming No. 84-UC-05.  See also Topsham and Local S/89
District Lodge #4 IAMAW, No. 02-UCA-01 (Aug. 29, 2002), affirming
No. 02-UC-01; aff'd No. AP-02-68, Ken. Cty. Sup. Ct. (March 20,
     The Employer's primary argument in this appeal is that the
hearing examiner made an error of law by failing to consider
evidence of a clear and substantial conflict of interest between


the COTA and the existing bargaining unit positions.  The
Employer argues that this conflict is so compelling that it
necessitates keeping the COTA out of the bargaining unit even if
all eleven community-of-interest factors favor inclusion in the
unit.  The conflict allegedly arises because of the COTA's
"unique ability to bargain for higher pay" due to her higher
training, skills, and certification and due to the scarcity of
trained Occupational Therapy Assistants in Aroostook County.
     We have reviewed the record and the Unit Clarification
Report and conclude that the hearing examiner gave appropriate
consideration to all of the evidence in the record.  Her
conclusions were based on the evidence and were not unlawful or
unreasonable.  The hearing examiner made no legal error in
rejecting as too speculative the Employer's arguments concerning
how much more money the COTA could demand from other employers.[fn]1
Likewise, her refusal to accept the Employer's dire predictions
of what would occur at the bargaining table was neither unlawful
nor unreasonable.  
     The Employer's argument that if there is a significant
conflict of interest, the "community of interest factors must
take a backseat to an examination of the conflict," is not
supported by the law.  In the Brewer decision quoted by the
Employer, the Board observed that the objective of the community-
of-interest analysis is to minimize conflicts of interests:
     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


     1 She also noted "the COTA has not negotiated for herself any
more advantageous terms than the union has negotiated for positions in
the bargaining unit" and pointed out that it was undisputed that 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." Unit Clarification Report at 20.


AFSCME and City of Brewer, No. 79-A-01, at 4 (Oct. 4, 1979).
This passage does not require that all potential conflicts be
eliminated; it merely identifies and explains the desired outcome
of minimizing potential conflicts of interest.    
     The Employer makes an additional legal claim that because
the only person employed as a COTA does not want to be
represented by the union, her position should not be included in
the bargaining unit.  To support this proposition, the Employer
cites that part of section 966(2) that states:

     The executive director of the board . . . shall decide
     in each case whether, in order to insure to employees
     the fullest freedom in exercising the rights guaranteed
     by this chapter and in order to insure a clear and
     identifiable community of interest among employees
     concerned, the unit appropriate for purposes of
     collective bargaining shall be the public employer unit
     or any subdivision thereof.

Relying on this language, the Employer argues that the wishes of
the incumbent should come within the scope of insuring "the
fullest freedom" to employees.  Section 966, however, deals only
with how bargaining units are determined.  The purpose of the
quoted section of the law is to give direction to the Board's
executive director on whether "the public employer unit" should
be broken down into smaller parts when ruling on a unit determin-
ation petition.  The guiding principles are the community-of-
interest standard and ensuring to employees the "fullest freedom"
in exercising the rights guaranteed by the Act.  If the community
of interest were the only issue to consider, the collective
bargaining strength held by the group might be diminished by
creating excessively small units.  See UPIU and MSAD #33, No. 
77-A-01, at 2 (Dec. 14, 1976) (Putting CETA employees in a
separate unit would create unnecessary fragmentation which would
deprive them "the fullest freedom in exercising the rights
guaranteed" by the Act); and Me. Fed. of Nurses and Health 


Professionals, AFT and Penobscot Valley Hospital, No. 85-UD-08, 5
(Dec. 7, 1984) (Under 966(2), a hearing examiner must establish
units that "both insure employees 'the fullest freedom' in
exercising their organizing and bargaining rights as well as a
'clear and identifiable' community of interest"), aff'd in
relevant part, No. 85-A-01 (Feb. 6, 1985).[fn]2 
     The Employer's final two arguments, that the hearing
examiner disregarded the public interest and that she misapplied
the community-of-interest standard, are unavailing.  We conclude
that the hearing examiner's treatment of the public policy argu-
ment was entirely appropriate.  With respect to the community-
of-interest analysis, we have reviewed the hearing examiner's
findings and conclusions and find no error in law or fact. 
     In sum, we have reviewed the record and the hearing
examiner's decision and conclude that her legal analysis was
sound in all respects.  Furthermore, the hearing examiner's
factual conclusions are logical and are rationally supported by
the evidence.  We conclude that the hearing examiner's determin-
ations were not unlawful, unreasonable, or lacking in any
rational factual basis.  Pursuant to 26 M.R.S.A.  968(4), we
hereby deny the appeal and affirm the unit clarification report
in its entirety.


     On the basis of the foregoing discussion and by virtue of
and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A.  968(4), it is ORDERED:

     2 The concept of insuring to employees the "fullest freedom" also
extends to honoring their choice of bargaining agent.  See Teamsters
and Town of Kittery, No. 83-UD-04 (Nov. 5, 1982), aff'd No.
83-A-02 (Employees' choice of bargaining agent must be honored as
exercising freedom guaranteed by Act regardless of employer's
claim of conflict caused by supervisory unit being represented by
same union that represents rank-and-file unit).


     That the appeal of MSAD #29 Board of Directors filed 
     on January 13, 2006, is denied and that the hearing
     examiner's December 23, 2005, unit clarification 
     report is affirmed in its entirety.
Dated at Augusta, Maine, this 11th day of May, 2006.

                                   MAINE LABOR RELATIONS BOARD

The parties are advised of         Jared S. des Rosiers
their right to week review         Alternate Chair
of this decision and order  
by the Superior Court by
filing a complaint pursuant        /s/___________________________
to 26 M.R.S.A. 968(4) and in      Karl Dornish, Jr.
accordance with Rule 80C of        Employer Representative
the Rules of Civil Procedure
within 15 days of the date of
this decision.                     /s/___________________________
                                   Robert L. Piccone
                                   Alternate Employee