Case No. 09-UD-09
Issued: May 6, 2009







     This unit determination proceeding was initiated on 
February 20, 2009, when Joan M. Morin, MEA UniServ Director,
representing the SAD #49 Educational Technician I Association/
MEA/NEA ("Association"), filed a Petition for Unit Determination
and Bargaining Agent Election with the Maine Labor Relations
Board ("Board").  This Petition requested a determination that a
unit consisting of Educational Technician I's employed by SAD #49
("Employer") constituted an appropriate bargaining unit within
the meaning of 26 MRSA § 966 and Chap. 11, § 22 of the Board
Rules.  The Employer filed a timely response to this Petition on
March 9, 2009, by its attorney, Bruce W. Smith, Esq.  In its
response, the Employer objected to the proposed unit and,
instead, proposed a unit consisting of all Educational Technician
I's, II's, and III's employed by SAD #49 who are public employees
within the meaning of 26 MRSA § 962(6), excluding all other
employees of SAD #49.
     Board staff made initial attempts to find a date for a unit
determination hearing that was mutually convenient for the
parties and their representatives, without success.  By letter to
the parties dated April 7, 2009, the hearing examiner advised the 

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parties that she proposed to resolve the unit determination
matter without hearing (a copy of this letter is attached to this
determination).  She invited the parties to present legal argu-
ment on the dispute no later than April 20, 2009.  The Employer
requested an extension until April 24, 2009, which was granted. 
Both parties submitted an argument in a timely fashion.
                       UNCONTESTED FACTS
     SAD #49 currently employs approximately 54 Educational
Technician I's, 26 Educational Technician II's, and 9 Educational
Technician III's.  If the unit proposed by the Union is approved
and a bargaining agent election held, the Union has petitioned
that the name of the prospective bargaining agent on the ballot
be: "SAD #49 Educational Technician I Association/MEA/NEA."     
A bargaining unit of Educational Technician II's has been
recognized by the Employer since at least since 1991, and still
exists today.  The bargaining unit of Educational Technician II's
was created by agreement.  The initial collective bargaining
agreement for the unit was ratified in 1991 for the period 1991-
1993.  The bargaining agent for the Educational Technician II's
is the "MSAD #49 Educational Technicians/MEA/NEA."  The
Educational Technician III's are currently unrepresented.  
     The jurisdiction of the executive director or his designated
examiner to hear this matter and make a determination lies in 26
MRSA § 966(1) and (2).  The subsequent references in this Report
are all to Title 26, Maine Revised Statutes Annotated, unless
otherwise noted.


     Section 966(1) of the MPELRL provides, in part:

          3.  Bargaining unit standards.  In the event of a

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     dispute between the public employer and the employee or
     employees as to the appropriateness of a unit for
     purposes of collective bargaining . . . the executive
     director or his designee shall make the determination,
     except that anyone excepted from the definition of
     public employee under section 962 may not be included
     in a bargaining unit.

While the MPELRL empowers the executive director to conduct a
hearing in order to make a unit determination, a hearing is not
required to be conducted.  Chap. 11, § 14 of the Board Rules
makes clear that a unit hearing must be conducted only if
necessary to resolve the dispute at issue.  While the Employer
here has presented thorough argument why the unit as proposed by
the Union should be disapproved, the parties appear to be in
agreement that this matter presents a dispute about legal issues
only.  In these unique circumstances, and based on Board
precedent, I conclude that this matter can be resolved based only
on the pleadings and the arguments presented by both parties.
     The primary issue presented by this matter is straight-
forward:  if the bargaining unit petitioned for by the Union
shares a community of interest, should a unit of different
composition as proposed by the Employer be considered, or should
the unit as petitioned for by the Union be approved?  In the
present matter, I conclude that the unit petitioned for by the
Union should be approved without specific consideration of the
alternative merged unit proposed by the Employer.
     As the Law Court has recognized, there are two fundamental
purposes of the MPELRL:  to protect employees' right to self-
organization and to promote the voluntary adjustment of their
terms of employment.  Lewiston Firefighters Ass'n, Local 785,
IAFF v. City of Lewiston, 354 A.2d 154, 160 (Me. 1976).  Coherent
bargaining units with a clear and identifiable community of 

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interest are essential to both these objectives.[fn]1  The
requirement that the hearing examiner examine the extent of the
community of interest was explained by the Board nearly 30 years
ago, and is still valid today:

     Title 26 MRSA § 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 ... Such conflicts often complicate, delay
     and frustrate the bargaining process.

AFSCME and City of Brewer, No. 79-A-01, slip op. at 4 (MLRB  
Oct. 17, 1979).  In determining unit compatibility, the statute
clearly directs the examiner to insure the employees the fullest
freedom in exercising the rights guaranteed by the MPELRL.  §
     The Employer here readily acknowledges that the proposed
unit of Educational Technician I's share a community of interest. 
The Employer argues, however, that the proposed unit is not
appropriate because other positions that share a community of
interest with the Educational Technician I's must be included:
"It is simply not enough to say that the positions included in a
unit determination share a community of interest, and stop there,
without considering whether identical or nearly-identical
positions are being excluded from the unit" (Employer's Argument,
at 5).  This ignores the facts of the present matter as the
Educational Technician II's have not been "excluded" from the
proposed unit; in fact, they have been organized as a separate
unit by agreement of the parties for nearly 20 years.  As to the
Educational Technician III's (who are currently unrepresented),
the Employer did not address what authority would allow the Board
to add a different classification to a proposed unit with no 

     1  The oft-cited community of interest factors developed by the
Board are found at Chap. 11, § 22(3) of the Board Rules.

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showing of interest from the employees involved.[fn]2
          Whether the Educational Technician I's and II's share a
community of interest is simply not a matter that the hearing
examiner should address or consider in this case, based on long-
standing Board precedent.  It is well established that the
hearing examiner's duty is to "determine whether the unit
proposed by the petitioner is an appropriate one, not whether the
proposed unit is the most appropriate unit."  Town of Yarmouth
and Teamsters Local Union No. 48, No. 84-A-04, slip op. at 4
(MLRB June 16, 1980)(emphasis supplied).  In that case, the union
petitioned for one unit and the employer responded that two
units, based on divisional lines, would be more appropriate
because two other units in the town were already based on
divisional lines.  Noting that each petition "must be judged on
its own merits," the Board stated: 

     Moreover, adoption of the Town's position that all
     bargaining units of Town employees must follow
     divisional lines would violate the employees'
     guaranteed right to full freedom in the exercise of
     their representational and bargaining rights.

Town of Yarmouth, supra, at 4.  The employees' right to self-
organization is best protected when their judgment on the
appropriate unit is respected, as long as the positions share the
community of interest required by § 966(2).  See Portland
Administrative Employee Ass'n and Portland Attending School 

     2  Mountain Valley Education Ass'n and MSAD #43, No. 94-UD-13
(MLRB Nov. 3, 1994)(group of employees in existing positions
historically excluded by choice cannot be added to a bargaining unit
without a sufficient showing of interest from the employees to be
added).  It is not clear whether the Employer has abandoned its
position that an appropriate unit must consist of the Educational
Technician I's, II's, and III's; the Employer only referenced
Educational Technician I's and II's in its written argument.  This
highlights an inherent difficulty in the employer's position - where
should the Board "draw the line" in creating an appropriate unit if it
can reject the union's proposed bargaining unit that shares a
community of interest?

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Committee, No. 86-UD-14, aff'd, No. 87-A-03 (MLRB May 29, 1987)
(examination of the bargaining unit proposed by the employer not
proper until the bargaining unit proposed in the Union's petition
has been considered and rejected).
     The Employer has ably attempted to distinguish the numerous
Board and examiner cases that follow the above precepts.  It is
true, for instance, that the Employer here is seeking to merge
the proposed unit of Educational Technician I's with the existing
unit of Education Technician II's; they are not seeking to divide
the proposed bargaining unit into smaller units, perhaps along
divisional or functional lines in the workplace, as was the case
in Town of Yarmouth, supra, and in numerous examiner cases.[fn]3 
However, I do not believe these cases simply stand for the
proposition that the Board favors bigger units because such units
inherently maximize "bargaining power."  Rather, these cases
stand for the proposition that if a community of interest exists
in the unit as proposed (and such factors as desires of the
affected employees and the extent of union organization are some
of the community of interest factors that must be considered),
the employees "guaranteed right to full freedom in the exercise
of their representational and bargaining rights" is best
protected by approving that unit.  Town of Yarmouth, supra, at 4. 
The Board and examiners have also considered cases in which the
employer sought to place the union's proposed unit in an existing
unit or units; the employer's proposed unit placement has only
been considered if the union's proposed unit lacks community of
interest.  Cf., e.g., County of Cumberland and Teamsters Union 

     3  Granite City Employees Ass'n and City of Hallowell, No. 01-UD-04 
(MLRB May 23, 2001)(wall-to-wall municipal unit petitioned for and
approved; employer's argument to create four separate bargaining units
rejected); MSAD No. 48 Teachers Ass'n and MSAD No. 48, No. 97-UD-03
(MLRB Dec. 23, 1996)(wall-to-wall educational support unit petitioned
for and approved; employer's argument to create two separate
bargaining units rejected); East Grand Teachers Ass'n/MTA/NEA and MSAD
No. 14 Board of Directors, No. 92-UD-01 (MLRB Oct. 1, 1991)(same).

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Local 340, No. 07-UDA-01, slip op. at 4 (MLRB Jan. 16, 2007)
(wherein the Board affirmed that the employees' guaranteed right
to full freedom in the exercise of their representational and
bargaining rights is best protected when the Board considers
first the bargaining unit as proposed by the employees, only
rejecting such if no community of interest is established);
Portland Administrative Employee Ass'n, supra (placement of some
employees in existing bargaining units considered only after the
examiner found that a community of interest did not exist amongst
all of employees in the unit proposed by the union).  The issue
here is not whether there has been a Board case that is factually
identical to the present matter; the issue is whether any Board
precedent supports the Employer's position.  It does not.
     The Employer also argues that absurd "gerrymandered"
bargaining units might result if the principle being followed
here were followed too formulaically (for example, approving a
bargaining unit with educational technicians in even-numbered
grades only, etc.).  The hearing examiner agrees that such
examples would present a very different case than the one here,
and would likely be treated differently.  The case here--
approving a bargaining unit with a sizeable number of employees
(50-60 employees) all in the same job classification, and
rejecting the employer's proposed merging of these employees into
a long-standing bargaining unit of fewer employees in a different
job classification--is simply very different from the "absurd"
bargaining units that the Employer has opined might be approved
in the future.
     The examiner will also address some other arguments raised
by the Employer.
     The Employer argues that the proposed bargaining unit will
not "maximize the bargaining power" of the employees in the unit,
perhaps a rather odd argument for an employer to present.  While
it is possible that a larger group of employees would have more 

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bargaining power, it is also possible that the difficulties of
combining a large group of previously-unrepresented employees
with a smaller group of long-represented employees in a different
job classification would create dissension and lessen bargaining
power.  Such considerations are too speculative to rely upon in
an initial unit determination.
     The Employer also argues that the Educational Technician I's
who signed the showing of interest cards did not indicate a
preference to be placed in a separate bargaining unit of
Educational Technician I's.  That is a valid point, and one which
highlights the fact that the MPELRL protects the rights of
individual public employees to "join labor organizations of their
own choosing and to be represented by such organizations in
collective bargaining . . . ."  § 961.  Employees express these
rights both through the signing of showing-of-interest/dues
cards, and through voting in the election process.  The Union
here has represented via its petition that the proposed
bargaining unit consists of Educational Technician I's, and has
supplied the requisite 30 percent or more of showing-of-interest
cards signed by employees employed in that classification only. 
An election can only be conducted after a bargaining unit has
been established.  If the Employer is correct here and the
Educational Technician I's do not wish to be represented in their
own bargaining unit or do not wish to be represented by the "SAD
#49 Educational Technician I Association/MEA/NEA," then the Union
will not prevail in the election.  
     The showing-of-interest cards signed by the Educational
Technician I's also do not specifically support the Employer's
position that these employees wish to be in a bargaining unit
with the currently represented Educational Technician II's. 
Indeed, what the Employer argues for would be best accomplished
by a merger election as contemplated by § 966(4) which would
allow employees in both classifications the freedom to indicate 

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whether they wish to bargain together.  Such a merger petition
could be filed by either the Employer or by the Union, if in
compliance with § 966(4).
     Finally, the Employer argues that creating the bargaining
unit of Educational Technician I's conflicts with the purposes
and goals of the new Maine school consolidation law.  20-A MRSA
§1451, et seq.  The provision of this law regarding the merger of
bargaining units in a regional school unit is not, of course,
specifically implicated here as the student enrollment in SAD #49
is large enough that it has not been required to merge with other
school administrative units.  Even if it were, the law directs
merged units to be structured "primarily on the basis of the
existing pattern of organization, maintaining the grouping of
employee classifications into bargaining units that existed prior
to the creation of the regional school . . . ," a directive that
does not necessarily equate to a "preference for consolidation
into larger bargaining units" that "trumps employee freedom to
choose" as the Employer argues.  Even if "creation of cost-
efficient organizational structures" [20-A MRSA § 1451(6)] were a
criterion I could use in determining the unit here, it is not
necessarily true that it would be more cost efficient to merge
this large group of employees into a  unit of employees in a
different job classification that already has a lengthy
bargaining history with the Employer.  In short, the school
consolidation law is simply not implicated here, and speculation
about cost efficiencies would be inappropriate to this
     In conclusion, the parties are in agreement here that the
Educational Technician I's share a community of interest.  No
compelling reasons were presented to look beyond this fact and to
merge this classification into a larger unit.  In approving the 

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unit as petitioned for by the Union, the hearing examiner relies
particularly on Board precedent that strongly favors the rights
of public employees to organize and to petition for a unit which
they believe will best represent their bargaining needs.

     On the basis of the foregoing facts and discussion and
pursuant to the provisions of 26 MRSA § 966, the following
described unit is held to be appropriate for purposes of
collective bargaining:

     INCLUDED: Educational Technician I's employed by SAD #49.

     EXCLUDED: All other employees of SAD #49.
An election for this unit shall be scheduled as soon as possible.
Dated at Augusta, Maine, this 6th day of May, 2009.

                                MAINE LABOR RELATIONS BOARD

                                Dyan M. Dyttmer
                                Hearing Examiner

The parties are hereby advised of their right, pursuant to 26
MRSA § 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.

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