Decision on appeal, 10-UDA-01, April 23, 2010

 

						PROCEDURAL HISTORY


     This unit determination proceeding was initiated on October 23,
2009, when Maygan Hardison, a representative of the Maine State
Employees Association-SEIU Local 1989 ("MSEA" or "Union"), filed a
petition for unit determination and bargaining agent election with
the Maine Labor Relations Board ("Board").  The petition sought a
determination whether a unit consisting of "all adjunct faculty
members of the Maine Community College System who teach credit
courses or credit equivalent courses" should be created.[fn]1  The
Maine Community College System ("MCCS" or "System" or "Employer")
filed a timely response to the petition on November 10, 2009,
disputing that the adjuncts were regular employees covered by the
University of Maine System Labor Relations Act or that the Act
permitted the creation of a separate bargaining unit for adjuncts. 
The Employer also challenged the sufficiency of the showing of
interest, pro-viding a list of adjuncts employed in the fall
semester of 2009.  
By letter dated November 17, 2009, the hearing examiner advised the
parties that a confidential review of the showing of interest had 

     1  The Union has now agreed that the petitioned-for unit consists
only of adjunct faculty who teach credit courses.

[end of page 1]

been completed and that the showing was sufficient within the
meaning of 26 M.R.S.A.  1025(2).                 
     On November 30, 2009, the Union filed a Motion for Immediate
Election, with argument.  The Employer requested the opportunity
to respond to the motion, and did so on December 2, 2009.  
On December 3, 2009, the executive director issued a decision
denying the motion.  On that same date, a unit determination
hearing notice was issued for a hearing scheduled for 
December 15, 2009.  The parties agreed that the Employer could
electronically transmit the notice to the adjuncts then teaching
in the fall semester and that this would constitute sufficient
notice.                                 
     An evidentiary hearing on the unit determination petition
was conducted by the undersigned hearing examiner on December 15,
2009, with two additional days of hearing on December 17 and 18,
2009, at the Board's hearing room in Augusta, Maine.  The Union
was represented by Roberta L. deAraujo, Esq., and Alison Mann,
Esq.  The MCCS was represented by Linda D. McGill, Esq.  The MCCS
presented as its witnesses:  Kim Ehrlich, Director of Human
Resources for the MCCS; Tina Erskine, Washington County Community
College Human Resources Manager and Assistant to the President;
and Janet Sortor, Southern Maine Community College Vice President
and Dean of Academic Affairs.  The Union presented as its
witnesses:  Mark Dion, Mary-Beth Taylor, Iris Selig, Richard
Snodgrass, and Lauritz Dyhrberg, all adjunct instructors for the
MCCS.  The parties were afforded full opportunity to examine and
cross-examine witnesses, to present evidence and to make
argument.  The parties agreed and adhered to a briefing schedule: 
briefs for both parties were filed electronically on January 20,
2010.  Reply briefs for both parties were filed electronically on
January 22, 2010.

[end of page 2]

                          JURISDICTION
                                
     The jurisdiction of the hearing examiner to hear this matter
and to make an appropriate unit determination lies in 26 M.R.S.A.
 1024-A.  The subsequent references in this report are all to
the University of Maine System Labor Relations Act ("University
Act" or "UMSLRA"), Title 26, Maine Revised Statutes Annotated.

                          STIPULATIONS
                                
     1.  The Maine Community College System adjunct faculty are
not and have never been members of the faculty bargaining unit
represented by the Maine Education Association.
     2.  Certain faculty, as described in a Form 1 on file with
the Maine Labor Relations Board October 9, 1986, in the
University of Maine System are represented for purposes of
collective bargaining in a bargaining unit separate from the
regular, full-time faculty.

                            EXHIBITS
                                
     The following exhibits were offered by the MCCS without
objection by the Union, and were admitted into the record at the
hearing:

     Exhibit No.         Title/Description

     MCCS Exh. No. 1     History of the Community College System

     MCCS Exh. No. 2     Collective bargaining agreement between
                         MCCS and MEA, 2007-2009

     MCCS Exh. No. 3     Standard adjunct faculty contract

     The following exhibits were offered by the Union without
objection by the Employer, and were admitted into the record at
the hearing:

     Union Exh. No. 1    Adjunct pay scale for SMCC

     Union Exh. No. 2    Adjunct pay scale for EMCC
     

[end of page 3]

     Union Exh. No. 3    Adjunct pay scale for KVCC

     Union Exh. No. 4    Adjunct pay scale for WCCC

     Union Exh. No. 5    Collective bargaining agreement between
                         University of Maine System and Part-time
                         Faculty Association

     Union Exh. No. 6    Adjunct pay scale for NMCC

     The Union submitted the following exhibits after the hearing
was concluded but while the record remained open.  They were also
admitted:

     Union Exh. No. 7    Matrix of courses taught by adjuncts by
                         college and by department in fall 2009
                         and spring 2010, with summary

     Union Exh. No. 8    Summary of percentage of adjuncts
                         teaching in both spring 2009 and fall
                         2009 by college
                                
                                
                        FINDINGS OF FACT
                                
1.   The MCCS is a covered public employer within the meaning of
      1022(1-C) of the University Act.
2.   The MSEA is an employee organization within the meaning of 
      1022(1-B) of the University Act.
3.   The MCCS is the state's public sector two-year college
     system.  The mission of the System is to create an educated,
     skilled and adaptable labor force which is responsive to the
     changing needs of the economy of the state and to promote
     local, regional and statewide economic development (20-A
     M.R.S.A.  12703).
4.   The MCCS began in 1946.  At that time it was called the
     Maine Vocational Technical Institute, under the umbrella of
     the Maine Department of Education.  Additional VTI campuses
     were added in the 1960's.  In 1986, the six VTI's were
     separated from state government and given their own
     independent structure.  In 1989, the name of the VTI's was 

[end of page 4]

     changed to Technical Colleges to more accurately reflect
     their role as institutes of higher learning.  A seventh
     campus was added in 1995.  In 1999, the Technical College
     System began offering the Associate of Arts degree.  In
     2003, the System was renamed the Maine Community College
     System.
5.   The System currently has seven campuses, with varying
     degrees of enrollment:  Southern Maine Community College
     (SMCC), Central Maine Community College (CMCC), Kennebec
     Valley Community College (KVCC), Eastern Maine Community
     College (EMCC), York County Community College (YCCC),
     Northern Maine Community College (NMCC), and Washington
     County Community College (WCCC).  The SMCC is by far the
     largest campus in the System, with an enrollment of 6,240,
     or about half the enrollment in the System.  Each college in
     the System has a president, a dean of finance and a vice
     president or academic dean.  Other administration and
     management differ from college to college.
6.   The System confers both Associate of Arts and Associate of
     Science degrees in the technical trades and liberal arts, as
     well as various one-year certificates.
7.   The student enrollment has grown substantially in recent
     years, and especially since the System began offering the
     Associate of Arts degree.  Enrollment grew 78 percent from
     1989 to 2001.  Since 2002, degree enrollment has grown by an
     additional 47 percent.  In 2002, there were 7,518
     matriculated students in the System.  In 2009, there were
     13,746 matriculated students in the System.  Despite the
     recent increase in enrollment, the number of regular faculty
     has remained relatively static; required additional course
     offerings are taught by adjuncts.
8.   The System employs approximately 1650 people.  Of this
     number, approximately 750 800 people serve as adjunct 

[end of page 5]

     instructors.  Of the remaining employees, approximately 781 
     employees (about 92 percent) are represented for purposes of
     collective bargaining in five system-wide bargaining units. 
     The faculty bargaining unit is represented by the Maine
     Education Association (MEA).  The administrative staff
     bargaining unit is represented by the MEA.  The support
     staff bargaining unit and the supervisory staff bargaining
     unit are both represented by the MSEA.  Security personnel
     are included in the support staff bargaining unit.  The
     institutional services staff bargaining unit is represented
     by AFSCME, Council 93.  Approximately 71 full-time employees
     (not adjunct instructors) are excluded from collective
     bargaining due to the nature of their work (confidential,
     etc.).
9.   The System employs approximately 341 regular faculty
     members, most of whom work full time.  The faculty
     bargaining unit was created in 1977 by agreement of the
     parties after the initial passage of the University Act. 
     The current collective bargaining agreement for this unit
     recognizes the MEA as representing all "faculty and
     instructors in the Community College pursuant to 26 M.R.S.A.
      1022."  This agreement also covers part-time faculty
     (employed in established bargaining unit positions with a
     workload that is less than the established full load range
     for the department).
10.  Adjunct instructors ("adjuncts") were employed in the VTI
     system when the University Act was enacted in 1975.  Their
     numbers have grown substantially since that time, and
     particularly since the transition to the community college
     system in 2003.  Adjuncts are used to teach a wide variety
     of credit and non-credit courses in the System.  Their use
     varies widely from campus to campus and from department to
     department.  The courses offered by some departments are 

[end of page 6]

     rarely if ever taught by adjuncts; the courses offered by
     some departments are taught exclusively by adjuncts.   The
     use of adjuncts is particularly heavy in the teaching of
     general education courses (English, math, etc.) required for
     the completion of the Associate of Arts degree.  
11.  In the fall of 2009, adjuncts taught an average of 39.2
     percent of the courses offered across the System.  In the
     spring of 2010, it is estimated that adjuncts will teach an
     average of 45.1 percent of the courses offered across the
     System.  At the largest two colleges, the percentage is
     higher.  At SMCC (which offers twice the courses of any
     other college in the System), 56.4 percent of the courses
     were taught by adjuncts in the fall of 2009 and it is
     estimated that adjuncts will teach 53.4 percent of the
     courses in the spring of 2010.  At CMCC, 53.1 percent of the
     courses were taught by adjuncts in the fall of 2009 and it
     is estimated that adjuncts will teach 60.7 percent of the
     courses in the spring of 2010. 
12.  At SMCC, administrators tracked the usage of adjuncts at
     that college.[fn]2  The number of adjuncts employed and the
     number of courses they have taught have remained relatively
     stable in the recent past.  The following is the number of
     adjuncts and the percentage of courses taught by adjuncts
     for the past five semesters:  fall, 2007 - 273 adjuncts,
     57.7 percent of courses taught by adjuncts; spring, 2008  
     256 adjuncts, 54.1 percent of courses taught by adjuncts;
     fall, 2008   273 adjuncts, 54.4 percent of courses taught by
     adjuncts; spring, 2009   263 adjuncts, 48.3 percent of 

     2  Personnel files are not kept regarding adjuncts and adjunct
contracts are often not maintained or inconsistently maintained from
college to college.  Some of the findings of fact were therefore based
upon Union compilations which were, in turn, based upon course
catalogs and recent lists of adjuncts employed in the system.  The
information regarding the use of adjuncts at SMCC was compiled by 
Dr. Sortor.  

[end of page 7]

     courses taught by adjuncts; fall, 2009 - 287 adjuncts, 57
     percent of courses taught by adjuncts.  The number of
     regular faculty has remained steady during this time period,
     at about 110.
13.  Before a course is offered to be taught by an adjunct, the
     regular faculty have the right of "first refusal" on
     teaching the course.  Faculty teaching a full-time course
     load or even other full-time employees of the System may
     elect to teach a course for the extra income, or other
     reasons.
14.  When an adjunct accepts employment, he or she signs a
     contract that is uniformly used by the colleges in the
     System.  Usually a separate contract is signed for each
     course taught, even if an adjunct is teaching more than one
     course in a semester.  The contract states that employment
     is "at will" and that the contract "creates no substantive
     or procedural rights arising from the termination" of
     employment.  The employment is contingent on "adequate
     enrollment and funding and upon educational, personnel and
     programmatic judgments as determined by the college in its
     sole discretion" (Emp. Exh. 3).  It is possible that, based
     upon lack of enrollment, an adjunct may not in fact teach a
     course although he or she may have signed a contract to
     teach it.  It is the experience of some adjuncts that if a
     course is cancelled, they are offered another course to
     teach by the college.
15.  The frequency that any given adjunct works for the System
     varies greatly.  Some individuals teach a single course as
     an adjunct and never teach again as an adjunct.  Some teach
     several courses every semester over many academic years. 
     Some teach episodically (such as a specialized course
     offered every fall).  On average, most adjuncts teach one to
     two courses in a semester.

[end of page 8]

16.  By comparing the list of adjuncts who taught in the spring
     of 2009 with the list of adjuncts who taught in the fall of
     2009, it can be concluded that between 59.4 percent and 69.7
     percent of the adjuncts taught in both of these semesters,
     depending on the college.
17.  The manner in which adjuncts are hired is variable and,
     compared to the manner in which regular faculty are hired,
     casual.  An adjunct may be hired after sending a resume to
     the college, after being referred by another employee, or
     after having interviewed for another position or having some
     other connection with the college.  At SMCC, the far largest
     employer of adjuncts in the System (250 300 adjuncts per
     semester), the chairs of each department independently
     solicit and hire adjuncts.  They may consult with the
     college Vice President in hiring, but rarely do so.  At
     CMCC, the department chairs also hire and schedule adjuncts. 
     At WCCC (18 25 adjuncts), the Academic Dean hires all the
     adjuncts directly.  The colleges attempt to hire adjuncts
     with the same qualifications as the qualifications of the
     regular faculty.
18.  The hiring of regular faculty is considerably more formal,
     and governed by the faculty collective bargaining agreement 
     and by the policies of the System.  Faculty vacancies are
     posted.  A search committee is assembled, which may include
     the academic dean, the human resources manager, faculty
     members, and other employees.  The search committee
     recommends final candidates; the president of each college
     interviews the final candidates and hires from amongst them.
19.  Adjuncts can be offered continuing employment in the System;
     that is, the opportunity to teach one or more courses from
     semester to semester.  There is no policy or practice in the
     System preventing this.  Based on their experience and their
     relationship with their department chairs, some adjuncts 

[end of page 9]

     have the reasonable expectation that they will teach some
     courses from semester to semester unless that are told
     otherwise.  
20.  Examples of adjuncts who have been offered continuing
     employment in the System are as follows:  Richard Snodgrass
     has taught as an adjunct at CMCC consistently since the fall
     of 2005.  His average course load has been two to three
     courses per semester.  His department chair sends adjuncts a
     table of available classes each semester and asks adjuncts
     which classes they want to teach.  Iris Selig has taught as
     an adjunct at CMCC since the spring of 2006.  Her average
     course load has been two courses per semester.  Her
     department chair contacts her a few months before each
     semester to ask what courses she wants to teach.  Mark Dion
     has taught the same criminology course at SMCC 12 times in
     the past ten years (Dion took a four year break in teaching
     to attend law school).  Unless Mr. Dion hears otherwise from
     his department chair, he knows that he will be scheduled to
     teach the course in each coming semester.  Lauritz Dyhrberg,
     a retired high school teacher, first taught as an adjunct at
     SMCC in the fall of 2005 when he was asked to develop and
     teach a course in Maine history by the history department
     chair.  After teaching this course for two semesters, he
     began teaching a second history course and has, since that
     time, taught two courses per semester.  Mary-Beth Taylor
     taught three courses per semester as an adjunct at CMCC from
     the fall of 2003 until the spring of 2006.  She left to take
     a full-time job with another employer and recently asked the
     department chair if she could return to CMCC as an adjunct. 
     She taught two classes in the fall of 2009 and is teaching
     one class in the spring of 2010.
21.  At SMCC and CMCC, department chairs decide whether or not to
     re-employ adjuncts who wish to be re-employed.  The decision
     
[end of page 10]

     not to retain an adjunct is occasionally brought to the
     attention of the president of the college where the adjunct
     taught.
22.  Faculty may only be terminated for "just cause" pursuant to
     the collective bargaining agreement.  A termination may be
     grieved and brought to arbitration.
23.  The primary duty of adjuncts is to prepare and teach the
     course or courses that they are employed to teach.  Adjuncts
     are not provided offices, although some shared space is
     available at some colleges.  Adjuncts are not required to
     keep office hours, but most find ways to allow students to
     contact them for assistance or questions (providing email
     addresses and phone numbers, arriving early or staying late
     to their scheduled class, etc.).  Adjuncts do not act as
     formal advisors to students, or oversee independent
     projects.  Adjuncts do not sit on college governance and
     standing committees and do not attend regular faculty
     meetings.  The colleges often provide an orientation meeting
     for adjuncts in the fall.
24.  The primary duty of the faculty members is also to prepare
     and teach the courses they are employed to teach.  Faculty
     generally have an assigned office and maintain office hours. 
     They are required to act as student advisors.  They oversee
     independent projects.  They advise student clubs and
     organizations.  They sit on governance and standing
     committees.  They are invited to attend faculty meetings.
25.  There is no system-wide salary scale for adjuncts.  Adjuncts
     are typically paid based on a per-credit fee; most courses
     taught by adjuncts are three credits.  Some colleges in the
     System pay a flat fee to adjuncts for a three-credit course
     regardless of their education or experience.  For instance,
     YCCC pays adjuncts $2000 per three-credit course; CMCC pays
     adjuncts $1,875 per three-credit course.  Other colleges 

[end of page 11]

     maintain an adjunct salary scale or matrix which takes into
     account teaching experience and/or education.  These scales
     range from the lowest (NMCC - $768 to $1,440 for a three-
     credit course) to the highest (SMCC - $1,839 to $2,469 for a
     three-credit course).  Adjuncts are paid no benefits, with
     the exception that the System contributes to the Maine
     Public Employees Retirement System for any adjunct who
     participates in the retirement system through other
     employment.
26.  The pay and benefits for the regular faculty are outlined in
     the collective bargaining agreement.  Full-time faculty are
     expected to teach a full-time course load, also defined in
     the agreement and varying from college to college (generally
     15 18 credit hours taught per semester).  The agreement
     contains a system-wide salary matrix of steps and levels. 
     For instance, a full-time faculty member with a bachelor's
     degree may be paid an annual salary between $32,590 (Step A,
     Level IV) and $70,284 (Step Y, Level VI).  Regular faculty
     progress a step every year after satisfactory evaluation. 
     The agreement provides for a wide variety of benefits, such
     as health insurance, dental insurance, life insurance,
     tuition waivers, funds for professional development, etc.
27.  Adjuncts do not receive evaluations about their performance
     from college personnel or administration; nor are personnel
     files maintained on them.  Rarely is their teaching
     performance directly observed by college personnel or
     administration.  Students are asked to complete written
     evaluation for all of their courses, whether they are taught
     by regular faculty or by adjuncts.  Adjuncts are given
     copies of their student evaluations.
28.  The evaluation of faculty members is prescribed by the terms
     of the collective bargaining unit.  Faculty members must be
     evaluated on a yearly basis (twice yearly for probationary 

[end of page 12]

     faculty members).  Faculty/management evaluation committees
     exist at each college, with regular faculty holding half the
     seats.  The agreement provides that all monitoring or
     observation of faculty members for purposes of evaluation
     must be done with the knowledge of the faculty member.
29.  Each college in the system prepares its own annual budget
     proposal.  A System-wide budget is then compiled and
     proposed to the Legislature.  The money budgeted for the
     hiring of adjuncts at each college is a "salary pool"
     considered sufficient to cover adjunct costs (which consist
     primarily of the pay they receive).  The dollar amount of
     the pool is estimated according to the previous year's
     expenditure on adjunct services.  The actual cost of adjunct
     services for a particular year may be under or over the
     projected budget.  Faculty and other positions are "costed
     out" on the basis of the number of positions to be employed. 
                         
                           DISCUSSION

     The unit petitioned for by the Union is "all adjunct faculty
members who teach credit courses."  Both the MCCS and Union argue
(for different reasons) that the hearing examiner should not
attempt to create any other adjunct bargaining unit than the one
as petitioned for by the Union (for example, a unit that excludes
newly-hired adjuncts or includes only adjuncts that have taught a
certain number of semesters in a certain period of time).  The
hearing examiner accepts this limitation, and will limit her
decision to whether or not "all adjunct faculty members who teach
credit courses" is an appropriate bargaining unit that may be
created under the terms of the UMSLRA.
     The primary arguments raised by the parties are as follows:
First, are adjuncts "regular employees" as defined by  1022(8)? 
Second, do the adjuncts share a community of interest with each
other and/or with the present faculty unit?  Third, under the 

[end of page 13]

circumstances presented, may an additional bargaining unit be
created under the limitations set forth in  1024-A?  The hearing
examiner will address these questions in turn below.

Are adjuncts "regular employees" as defined by  1022(8)?

     Section 1022(11) of the University Act defines the employees
covered by the act as follows:  "University, academy or community
college employee" means any regular employee of the University 
of Maine System, the Maine Maritime Academy or the Maine
Community College System performing services within a campus or
unit . . . ."  Section 1022(8) defines "regular employee" to mean
" . . . any professional or classified employee who occupies a
position that exists on a continual basis."  While the University
Act definition of covered employees is structured similarly to
the definition of covered employees under the Municipal Law and
the State Employees Act[fn]3 - covering employees of the
respective covered employer, with discrete and defined exceptions
- only the University Act has the added requirement that covered
employees be a "regular employee" who occupies a "position that
exists on a continual basis."  This language is unique to the
UMSLRA.
     The University Act was enacted in 1976.  Since that time,
the Board has rarely been called upon to hear appeals of unit
questions under this Act.  See Maine Maritime Academy v. MSEA,
No. 03-UCA-01, slip op. at 3-4 (MLRB May 15, 2003) (outlining
past Board and hearing examiner unit cases under UMSLRA).  To the
extent that the Act parallels the Municipal Law (enacted in 1969)
or the State Employees Act (enacted in 1974), the Board has used
precedent under those acts to interpret the UMSLRA.  Id., at 4,
8.  However, to the best of the hearing examiner's knowledge, the
Board has never been called upon to evaluate the unique term
"regular employee" used in the University Act, which has no 

     3  Municipal Public Employees Labor Relations Law's definition of
"public employee" at  962(6); State Employees Labor Relations Act's
definition of "state employee" at  979-A(6).

[end of page 14]

parallel in either the Municipal Law or the State Employees Act. 
Further, the hearing examiner has not found, nor have the parties
suggested, that any legislative history sheds light on the
meaning of this term, or why it was part of UMSLRA though not in
previously enacted state labor relations laws.
     One hearing examiner evaluated the language not long after
UMSLRA's enactment, in Associated Faculties of the University of
Maine and the University of Maine, No. 77-UD-02 (MLRB Aug. 4,
1978).  In that case, the parties had stipulated to the parameters
of the University faculty bargaining unit.  Left in dispute were
whether "soft-money"[fn]4 faculty not on tenure track and
librarians should be included in that unit.  The hearing examiner
found that "soft-money" faculty not on tenure track were employed
under very similar terms and conditions as the other faculty.  The
project term for most soft-money employees was three years and, in
many cases, grants were renewed rather routinely or substitute
money 
was found to continue a project.  The University argued that the
soft-money positions did not exist on a "continual basis" but were
instead positions "created to fill a need and temporarily accorded
faculty rank, but only for the term of a project or grant."  The
hearing examiner found that the soft-money faculty were regular
employees, as defined, reasoning:
     There is nothing in the language which the Legislature
     has used which indicates an intent to deny the benefits
     of the Act to employees under the Act solely on the
     grounds that their future with the University may be less
     than secure, or that a position may lose its funding
     basis after a period of time. . . .  A reasonable reading
     of the definition of regular employees, vis, "any
     professional or classified employee who occupies a
     position that exists on a continual basis," means nothing
     more than the position should not exist on an
     interrupted, irregular or occasional basis; the position
     need not be interminable. 

     4  According to the decision, soft money was non-University funds,
usually from grants for specific research or innovative enterprises
funded by governmental or private foundation funding sources.

[end of page 15]

AFUM and University of Maine, at 8 (emphasis supplied).

While the facts of the AFUM case were considerably different from
the present matter, the hearing examiner was certainly correct
that the meaning of "regular employee" must be derived from a
"reasonable reading" of the language that the Legislature chose
to use when enacting the Act.       
     The use of the term "position" is unique in the Act.  The
Employer argued that adjuncts do not hold a "position" because
their employment is paid from a general salary pool maintained by
each college for the purpose of purchasing adjunct services. 
Regular faculty positions, by contrast, are costed out
individually, and budgeted and funded on an on-going basis.  This
is an interesting argument, but one which was not ultimately
persuasive.  The budgeting process was described only briefly in
testimony; the fact that adjuncts are paid out of a general pool
does not seem to equate with any inherent limits on funding the
adjunct services.[fn]5  The nature of adjunct employment
(whereby adjuncts are paid based on credit hours taught, with
essentially no other benefits or cost items) allows it to be
budgeted in this pooled fashion.  This does not prove that
adjuncts do not "occupy a position" when they teach classes at
the college, only that their positions are in many ways different
from the faculty positions (and cost the System far less).  In
sum, the manner in which adjuncts are funded may be a relevant
consideration here, but the funding alone does not prove that
adjuncts do not hold a "position."  Ultimately, the hearing
examiner concludes that the term "position" in  1022(8) means
nothing more specific or unusual than "employment," "work" or a
"job."  Further, separating the term "position" from the
remainder of the 


     5  There was no testimony, for example, that the use of adjuncts
was ever curtailed because the amount budgeted for the salary pool was
underestimated.  The existence of the salary pool does not, in itself,
prove that the adjuncts do not hold positions.  It more seems to prove
that the MCCS has a great deal of flexibility in utilizing adjuncts.

[end of page 16]

statutory language - "occupies a position that exists on a
continual basis" - does not aid in interpreting that language.
     Do the adjuncts occupy a "position that exists on a
continual basis?"  The hearing examiner finds that they do for
two reasons.  First, the evidence was overwhelming that adjuncts
are a large and indispensable part of the teaching faculty in the
Community College System.  While their use varies somewhat among
campuses and among departments, about 40 to 45 percent of all the
course sections offered in the System are taught by adjuncts.  As
adjuncts are particularly used to teach general education classes
(essential to the conferring of an Associate of Arts degree),
there is no reason to believe that their use in the System will
decrease in the foreseeable future.  The Union has made a very
strong case that adjuncts as a class of employees or as a pool of
employees exist on a continual basis in the Community College
System; their use is too large and consistent to conclude
otherwise.  The fact that the position of adjunct truly exists on
a continual basis within the System may be sufficient, without
more, to support a conclusion that they are "regular employees"
within the meaning of  1022(8).
     In addition, because the System relies so heavily upon the
existence of adjuncts, individuals employed as adjuncts appear
able to maintain a level of employment continuity if they choose
to do so.[fn]6  This conclusion is supported by the record in
the 

     6  The Supreme Court of New Hampshire has also recognized the
connection between the need for adjuncts and their continuity of
employment, in affirming the finding of the Public Employee Labor
Relations Board that certain college adjunct instructors were not
"temporary" employees:
     " . . . [the Board's] conclusion, amply supported by the
     evidence that 'the college would be hard put to operate
     without its established cadre of adjunct lecturers,' is
     relevant to determining whether the adjuncts have a
     'reasonable expectation of continued employment.'  The
     nature and extent of the college's reliance upon the adjunct
     faculty could reasonably lead them to expect that the

[end of page 17]

following two ways.  First, the Union presented evidence (Union
Exh. No. 8) that over 60 percent of the employees who served as
adjuncts in the spring of 2009 also served as adjuncts in the
fall of 2009 (the hearing examiner found this quite compelling
evidence of continuity, considering especially that this was
continuity that existed between traditional school years, not
simply within a traditional school year).  Second, the testimony
of the Union witnesses, while necessarily anecdotal, clearly
supported a conclusion that an adjunct who wanted to teach with
some regularity could do so.  The individual adjunct contracts do
not promise continuing employment; on the other hand, there is
nothing in the contract nor is there any System policy that
prevents the re-employment of adjuncts on some regular basis.  It
is logical that adjuncts who fulfill their teaching roles
satisfactorily would be used again if the adjuncts desired it,
thereby saving the System time and money in always recruiting
adjuncts with no MCCS experience. 
     While it would have been preferable to have more information
about the continuity of adjunct employment over a longer period
of time, the hearing examiner concludes that the Union evidence
was sufficient on this point.  The System apparently maintains
limited records regarding adjuncts that have been employed in
past years, and there is inconsistent record-keeping among
colleges regarding the use of adjuncts.  If the Employer had
evidence to counter the evidence of adjunct employment continu-
ity, it did not seek to keep the record open to present it.
     In conclusion, the significant need of the System for
adjuncts combined with the de facto continuity of the employment 

     [fn 6 cont'd.] college would be likely to rehire them."
Appeal of the University System Board, 795 A.2d 840, 845-846 (NH,
2002).  While cases from other jurisdictions must be read with caution
due to the unique language of our University Act, the connection found
by the Court in this decision is instructive.  

[end of page 18]

of individual adjuncts support a conclusion that adjuncts occupy
a "position that exists on a continual basis" within the meaning
of  1022(8) and thus are covered employees protected by the
University Act. 
       
Do the adjuncts share a community of interest with each other
and/or with the present faculty unit?

     It must be noted first that the Employer has not argued that
the adjuncts do not share a community of interest amongst
themselves; rather the Employer has focused on the similarities
between the adjuncts and the regular faculty.  Based on long-
standing Board precedent, however, the first issue to be
addressed in a unit determination hearing is whether the unit as
petitioned for by the Union is appropriate   not whether some
other variant bargaining unit is appropriate.  Town of Yarmouth
and Teamsters Local Union No. 48, No. 84-A-04, slip op. at 4
(MLRB June 16, 1980).  Only in very rare circumstances has the
Board considered an alternate bargaining unit, and then only
after determining that the unit as proposed in the petition is
not appropriate.[fn]7  Therefore, there was really no argument
presented that the adjuncts do not share a community of interest.
     If the hearing examiner were required to determine whether
the adjuncts share a community of interest, it is clear from a
review of the factors as outlined in Chap. 11,  22(3) of the
Board Rules that they do:  (1)(similarity of work performed) - 

     7  See, e.g., SAD #49 Educational Tech I Assoc/MEA/NEA and MSAD
#49 Board of Directors, No. 09-UD-09 (MLRB May 6, 2009) and cases
cited therein.  Further, the Employer here has not argued that a
specific alternative bargaining unit is appropriate while the
petitioned-for unit is not.  The Employer has suggested that there may
be a subset of adjuncts whose employment history establishes that they
hold a position that exists on a continual basis, but it seems that
the record-keeping regarding adjunct employment would make such a
delineation impossible.  As to the similarity between adjuncts and
regular faculty, the Employer has made no suggestion that the hearing
examiner is somehow empowered to place adjuncts in the long-standing
faculty bargaining unit.

[end of page 19]

they perform similar work under similar conditions; (2)(common
supervision) - they sign similar employment contracts and are
similarly supervised, meaning that they have virtually non-
existent direct supervision or evaluation; (3)(similarity in
earnings) - they have relative similarity in scale and manner of
determining earnings despite some slight variation between
colleges; (4)(similarity in benefits and hours) - they have
similar benefits   basically none   and their hours of work and
terms and conditions of employment are similar; (5)(similarity in
qualifications) - they have relatively similar qualifications,
skills and training on the record as presented; (6)(frequency of
contact) and (7)(geographic proximity) - they have infrequent
contact or interchange and they do not have geographic proximity,
but these factors are of little importance as the University Act
requires that all bargaining units be created on a System-wide
basis; (8)(history of collective bargaining) and (10)(extent of
union organization) - they are essentially the last group of
unrepresented MCCS employees who have an arguable right to be
represented for purposes of collective bargaining; (9)(desires of
affected employees) - to the extent known, the adjuncts wish to
be represented by MSEA for purposes of collective bargaining in a
separate bargaining unit; and (11)(employer's organizational
structure) - the adjuncts basically hold the same position within
the Employer's organizational structure at each college.  For all
these reasons, the adjuncts share a community of interest, and
are an appropriate bargaining unit based on these factors.  
     Although a limited amount of evidence was presented
regarding the terms and conditions of employment for the faculty
in the System, the adjuncts do not appear to share the same
community of interest with them that they do with each other. 
Even if there were a significant community of interest between
the faculty and the adjuncts, there is nothing the hearing 

[end of page 20]

examiner could "do" with that fact in the context of determining
the present petition.  The parties have stipulated that the
adjuncts are not part of the faculty bargaining unit and never
have been in the 30-year history of that unit.  The provisions in
the faculty collective bargaining agreement regarding part-time
faculty do not pertain to adjuncts.  The faculty unit is
represented by a different bargaining agent (Maine Education
Association) which has not heretofore expressed an interest in
representing the adjuncts, nor have they petitioned to intervene
in the present matter.  The Employer has not petitioned to add
the adjuncts to the faculty unit (nor is it clear that the
Employer could do so without some evidence that adjuncts wish to
be represented by MEA).  The showing of interest signed by the
adjuncts do not indicate that they desire to be represented by
MEA.  Under these circumstances, there is no legal mechanism
whereby the adjuncts may be placed into the faculty bargaining
unit.  As the adjuncts have established that they share a
community of interest, the only outcome permitted here would be
to approve the creation of the unit as petitioned for by the
Union or to dismiss the petition if the University Act prevents
the creation of an additional unit, as the employer argues.  This
final argument will be addressed next.

May an additional bargaining unit be created under the limitations
set forth in  1024-A?

     The last issue presented here is whether the terms of the
University Act prevent the creation of an adjunct bargaining 
unit in addition to the bargaining units already enumerated in 
 1024-A.  Section 1024-A (3) provides:
     3.  Community colleges.  It is the express legislative
     intent to foster meaningful collective bargaining for
     employees of the community colleges.  Therefore, in
     accordance with this policy, the bargaining units shall
     be structured with one unit in each of the following 

[end of page 21]

     occupational groups:
          A.  Faculty and instructors;
          B.  Administrative staff;
          C.  Supervisory;
          D.  Support services;
          E.  Institutional services; and
          F.  Police.

Section 1024-A (5) provides:

     5.  Additional bargaining units.  Notwithstanding
     subsection 1, 2 or 3, the Legislature recognizes that
     additional or modified university system-wide units,
     academy units or community college units may be
     appropriate in the future.  The employer or employee
     organizations may petition the executive director for
     the establishment of additional or modified university
     system-wide units, academy units or community college
     units.  The executive director or a designee shall
     determine the appropriateness of those petitions, taking
     into consideration the community of interest and the
     declared legislative intent to avoid fragmentation
     whenever possible and to insure employees the fullest
     freedom in exercising the rights guaranteed by this
     chapter. . . .

     The University Act is also unique amongst the other state
collective bargaining laws in that it describes with specificity
the occupational groups for bargaining units to be created under
the Act.  The described units for the (now) Community College
System have changed over time in the Act.  When the Vocational
Technical Institutes were first added to the University Act in
1977, the following occupational groups were listed:  faculty and
instructors, administrative staff, and classified employees (P.L.
1977, Chap. 581).  In 1978, the classified employee occupational
group was removed from the Act (P.L. 1977, Chap. 641).  In 1985,
the Act was again amended as it related to VTI bargaining units,
and the additional four described occupational groups
(supervisory, support services, institutional services, and
police) were added (P.L. 1985, Chap. 695).  The list of six
occupational groups contained in  1024-A(3) has not changed 

[end of page 22]

since that time.  Despite the specific and unique listing of
occupational groups in the University Act, the actual MCCS
bargaining units have not organized in keeping with the Act. 
There are currently five organized bargaining units in the
System.  The "police" bargaining unit (or security) was never
organized as a separate unit but employees in that occupational
group are, instead, part of the support services bargaining unit. 
In addition, while the MEA has long represented the "faculty and
instructors" employed by the System, there is no separate
occupational title of "instructor;" rather, "faculty" is the term
uniformly used to refer to all of the teaching staff covered by
that agreement.
     Based on the plain language of the Act, the Legislature
recognized that additional units may be appropriate in the future
and empowered the executive director to add units, taking into
consideration " . . . the community of interest and the declared
legislative intent to avoid fragmentation whenever possible and
to insure the employees the fullest freedom in exercising the
rights guaranteed by this chapter."  The hearing examiner has
already set forth findings that the petitioned-for unit of
adjuncts has established a community of interest, and thus is an
appropriate bargaining unit.  The adjuncts have presented
sufficient showing of interest to support their placement in a
separate bargaining unit, have not expressed an interest in being
represented by MEA as their bargaining agent, but rather have
expressed an interest in being represented by MSEA.  The over-
arching purpose of the University Act (and all the state
collective bargaining laws) is to provide a uniform basis for the
covered employees to " . . . join labor organizations of their
own choosing and to be represented by such organizations in
collective bargaining for terms and conditions of employment."  
 1021.  Therefore, insuring the affected employees their 

[end of page 23]

"fullest freedom" in exercising their collective bargaining
rights certainly supports the creation of a new and separate
adjunct bargaining unit.
     The Legislature has cautioned against "fragmentation
whenever possible."  The factors outlined above that favor the
creation of an adjunct bargaining unit considerably outweigh any
concerns regarding fragmentation, however.  Indeed, fragmentation
(as that term is generally understood)[fn]8 is not a genuine
concern on the unique facts presented here.  First, in over 30
years since the VTI's were included in the University Act,
bargaining units have not proliferated beyond those enumerated in
the statute (indeed, there are only five bargaining units rather
than the enumerated six).  Adding a sixth unit could scarcely be
described as "fragmentation" at this point.  Second, the vast
majority of MCCS employees who are not adjuncts are presently
represented in bargaining units - 92 percent.  Even the most
recently-configured MCCS bargaining units have been stable and in
existence for over 20 years.  Therefore, there are not many
employees left - other than the adjuncts - to create additional
bargaining units.  Third, granting the petition for all adjuncts
limits any fragmentation of this fairly sizeable group of
employees.  Finally, the arguments for creating an adjunct
bargaining unit are certainly more compelling than the arguments
presented in the only other instance when a determination was
required to add a bargaining unit to the statutorily-created
units under the University Act - when a Law School faculty 

     8  It is not entirely clear that the Legislature's concern was
too many bargaining units - what the Board has generally described as
proliferation.  The legislative history of the passage of the original
University Act (prior to the addition of the VTI's) reveals that one
of the primary concerns of the Legislature was that bargaining units
be configured on a system-wide basis rather than on a college-wide
basis.  It is certainly possible that this was the Legislature's
entire concern in using the term "fragmentation."  The Union here, of
course, is seeking a system-wide unit of adjuncts.  

[end of page 24]

bargaining unit was created as a separate unit from the
University of Maine faculty unit by unit determination.  Law
Faculty Association and the University of Maine, No. 77-UD-03
(MLRB Aug. 4, 1978).[fn]9 
     Finally, both parties presented argument ascribing meaning
to the fact that the MCCS employed adjuncts at the time the VTI's
were added to the University Act.  The parties seemed to agree
that adjuncts were employed by the VTI's from the time the VTI's
were first included in the University Act, although numbers were
obviously not as high as the present time.  If adjuncts were
employed at that time, why didn't the Legislature explicitly
include them in one of the listed occupational groups?  Even
though the teaching occupational group has been consistently
described as "faculty and instructors" - with no specific mention
of adjuncts - it is hard to ascribe any particular legislative
meaning to this.  It is possible, for instance, that the
Legislature believed the terms "faculty and instructors" was
broad enough to include adjuncts (by comparison,  1024-A
provides for only a "faculty" bargaining unit for both the
University of Maine System and the Maine Maritime Academy).  It
is also possible that adjuncts were used far less at that time
and were not on the "legislative radar."  The fact remains,
however, that when the MEA petitioned to create the VTI faculty
bargaining unit, it did not seek to include adjuncts and adjuncts
have never been included in that bargaining unit.  At this point 

     9  The hearing examiner in that case found that the law school
operated as an autonomous entity and the law school faculty shared a
limited community of interest with the University faculty.  Despite
the fact that the University Act had been enacted less than two years
before the decision, and despite the admonition in the Act that any
additional bargaining units must be structured on a system-wide basis,
the petition to create a separate law school faculty unit was granted. 
It is important to note that the law school unit did not thereafter
elect a bargaining agent and never negotiated a CBA; likewise, the
creation of an adjunct bargaining unit may not necessarily result in
an active "fragmented" unit.

[end of page 25]

in time, if this substantial number of MCCS employees are to have
a bargaining unit, it must be created as an additional unit.
     For all of these reasons, the hearing examiner concludes
that this is an appropriate instance where an additional
bargaining unit may be created in the System, within the meaning
of  1024-A.
                           CONCLUSION
                                
     On the basis of the foregoing facts and discussion and
pursuant to the provisions of 26 M.R.S.A.  1024-A, the petition
for unit determination filed on October 23, 2009, by Maygan
Hardison of behalf of MSEA is granted.  The following described
unit is held to be appropriate for purposes of collective
bargaining:
     
     INCLUDED:  All adjunct faculty members employed by the 
                Maine Community College System who teach          
                credit courses.

     EXCLUDED:  All other employees of the Maine Community        
                College System.

A bargaining agent election for this unit will be conducted
forthwith.

Dated at Augusta, Maine, this 23rd day of February, 2010.
          
                              MAINE LABOR RELATIONS BOARD


                              
                              /s/________________________________
                              Dyan M. Dyttmer
                              Hearing Examiner    


The parties are hereby advised of their right, pursuant to 26
M.R.S.A.  1028(2), 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 Chapter 11,  30 of the Board Rules.

[end of page 26]