Case No. 12-UDA-01 & 12-UCA-01
Issued: May 24, 2012









	  The Sanford School Committee (the "Employer") filed this unit
appeal on February 21, 2012, 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 (the "Board").  The unit determination and unit
clarification report which is the subject of this appeal was
issued on February 6, 2012, following an evidentiary hearing held
on October 5, 2011.  The hearing addressed the unit determination
petition filed by the Central Office Staff EA/MEA/NEA (the
"Association"), seeking to create a new unit of central office
staff, as well as the unit clarification petition filed by the
Employer seeking to add the some of the positions in the proposed
unit to an existing bargaining unit represented by Sanford
Federation of Teachers/AFT #3711.  
     In her report, the Hearing Examiner rejected the Employer's
contention that four of the ten positions in the proposed unit are
"confidential" employees and therefore are not entitled to be in
any bargaining unit.  The Hearing Examiner concluded that the
positions in the proposed unit shared the requisite community of
interest and constituted an appropriate bargaining unit and was
unpersuaded by the Employer's arguments to the contrary.  The 

[end of page 1]

Hearing Examiner also rejected the Employer's argument that some
of the support staff positions should be accreted into the
existing AFT secretarial unit through a unit clarification. 
     On appeal, the Employer argues that three of the employees in
the proposed unite are confidential and therefore should have been
excluded, that the remaining positions do not share a community of
interest and therefore do not constitute an appropriate bargaining
unit.  The Employer also argues on appeal that some of the
remaining "non-confidential" employees should have been placed in
the existing secretarial unit. 
     On March 9, 2011, Gregory C. Hannaford, UniServ Director for
the Maine Education Association, filed a petition for Unit
Determination and Bargaining Agent Election for a group of ten
employees, most of whom work at the Sanford School Department's
Central Office.  The Employer filed a timely response to the
petition on March 23, 2011.  In a letter to the Board dated  
April 14, 2011, the Sanford Federation of Teachers/AFT responded
to the petition and to the Employer's response by asserting that a
number of positions in the proposed unit had been improperly
removed from their secretarial unit in 2005 through a side
agreement arising from a grievance.  The Sanford Federation of
Teachers/AFT argued that because a community of interest still
existed between the central office staff and the secretarial unit,
the petition should be denied and the previously certified unit
should be restored.  On April 21, 2011, the Hearing Examiner
informed the Employer, the Association, and the Sanford Federation
of Teachers/AFT that the latter bargaining agent would be
considered a party-in-interest.
     The evidentiary hearing was scheduled for June 29, 2011.  In 

[end of page 2]

the days leading up to the hearing, various procedural questions
arose leading the Employer to file a Unit Clarification petition
on June 24, 2011.  At a request of the Association (and receiving
no objection from the Employer or the AFT), the hearing was post-
poned until October 5, 2011, so that both the unit determination
and the unit clarification matter could be considered.  About two
weeks prior to the hearing, the President of the Sanford Federa-
tion of Teachers/AFT wrote a letter to the Board withdrawing its
effort to intervene in the unit determination matter because they
did "not want to be a spoiler."  
     The evidentiary hearing was held on October 5, 2011.    
Campbell Badger, Esq., appeared on behalf of the Sanford School
Committee and MEA UniServe Director Gregory Hannaford appeared on 
behalf of the Central Office Staff EA/MEA/NEA.  The parties were
afforded full opportunity to examine and cross-examine witnesses,
and to present evidence.  Mr. Jerry Ashlock, appearing on behalf
of the Sanford Federation of Teachers/AFT, was offered the
opportunity to participate in the hearing by examining witnesses,
which it did to some extent, although it offered no witnesses of
its own.  All three parties were offered the opportunity to submit
post-hearing briefs.  Both the Sanford School Committee and the
Association submitted written briefs, but Mr. Ashlock chose not to
submit a brief.  The Hearing Examiner's decision was issued on
February 6, 2012, and the Employer filed a timely appeal to this
     The Sanford School Committee and the Association both
submitted written argument on the appeal.  The Board offered the
parties the chance to present oral argument on March 27, 2012, 
but only Mr. Badger availed himself of that opportunity.     
After Mr. Badger concluded his argument on behalf of the School
Committee, the Board deliberated this matter.  

[end of page 3]
     On March 21, 2012, the Board offices received an additional
document that appeared to be rebuttal testimony from Ms. Crystal
King, an individual who had testified at the hearing.  The Board
was informed of the nature of the document, but refused to
consider it, as an appeal to the Board must be based on the record
before the Hearing Examiner.  See MLRB Rule Ch. 11, section 30(2)
and Topsham Local s/89 District Lodge #4 IAMAW, No. 02- UCA-01,
aff'd, Topsham Local s/89 District Lodge #4 IAMAW and MLRB, AP-02-
68 (Ken. Cty. Sup. Ct., March 20, 2003).
     The Sanford School Committee is an aggrieved party within the
meaning of 26 M.R.S.A. § 968(4).  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 Hearing Examiner reviewed the evidence presented and
concluded that none of the four employees in the proposed
bargaining unit were confidential employees, as the Employer
argued.  In addition, the Hearing Examiner considered the various 
factors contributing to a group's community of interest and
concluded that the bargaining unit as proposed was an appropriate
bargaining unit.  The Hearing Examiner rejected the Employer's
suggestion that the Board establish a new standard for determining
the appropriateness of a bargaining unit.
     The standard of review for bargaining unit decisions issued 
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 

[end of page 4]

     (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,
2003).  We will start with the each of the specific rulings on
confidential exclusions that are under appeal and then turn to the
arguments on the appropriateness of the unit presented by the
     The Employer appeals the Hearing Examiner's conclusion that
the Special Education File Clerk, Suzanne Delafontaine, is not a
confidential employee excluded from the Act's coverage.  The
Employer argues that this file clerk has been assigned to be the
Superintendent's back-up secretary when the Superintendent's
secretary is absent.  There is no dispute that the Superinten-
dent's secretary is a confidential employee, but a claim that as a
back-up person, Ms. Delafontaine "will work at [that secretary's}
work station and have access to her computer files" (Tr. at 69) is
insufficient to transform the back-up person into a confidential
     The standard for excluding an employee from the coverage
under the Act based on the confidential exclusion includes
     those employees who have, as part of their work
     responsibilities, access to the employer's negotiations
     positions, in advance of said positions being disclosed
     at the bargaining table, and who, as an integral part of
     their job duties, assist and act in a confidential

[end of page 5]

     capacity with respect to persons who formulate or
     determine the employer's bargaining positions or
     bargaining strategy. . . 

State of Maine and Maine State Employees Ass'n, No. 82-A-02,
Interim Order, at 10 (June 2, 1983), 
     We affirm the Hearing Examiner's conclusion that Suzanne
Delafontaine is not a confidential employee within the meaning of
§ 962(6)(C).  The Hearing Examiner's conclusions were based on the
evidence and were not unlawful or unreasonable.  She made no legal
error in rejecting as too speculative the Employer's arguments
that Ms. Delafontaine, the Special Education File Clerk, will be
exposed to confidential information in the future when she
actually fills in for the Superintendent's Secretary.  The Hearing
Examiner's reliance on Waterville Police Department and Teamsters
Local Union No. 48, No. 78-A-06, at 4 (Oct. 4, 1978) was
appropriate, as that case has continued to be the standard in
rejecting exclusions based on future job responsibilities.  See,
e.g., Teamsters Union Local 340 and Town of Wells, No. 90-UC-01 at
10 (Nov. 22, 1989)(Testimony on future confidential duties should
be disregarded); Lincoln Sanitary District and Teamsters Local
#40, No. 92-UC-02 at 11-12 (Nov. 17, 1992)(Not appropriate to
raise confidential status until duties actually performed); and
District Lodge #4 IAMAW and Town of Wiscasset, No. 04-UD-01 at 14-
15 (Nov. 24, 2003)(Current duties, not duties projected for the
future, must be the basis for a finding of confidentiality.)
     We note that we have on several occasions suggested to
employers that if they are concerned that an employee will divulge
confidential bargaining information, the employer can caution the
employee that such a disclosure will subject them to discipline. 
See, MSAD No. 14 and East Grand Teachers Assoc., No. 83-A-09 at 10
(Aug. 24, 1983)(When assigning confidential collective bargaining
duties, employer may caution employee that disclosure of the

[end of page 6]

confidential information to the union may result in discipline),
Lewiston Food Service Managers Assoc./MEA and Lewiston School
CommitttEe, No. 99-UD-10 at 26-27 (May 27, 1999)(Employer may
admonish employee that keeping information  confidential is a
condition of continued employment); Granite City Employees Assoc.
and City of Hallowell, No. 01-UD-04 at 27 (May 23, 2001)(same). 
Thus, the Employer has the means to address any perceived problem
in this regard.
     The Employer also appeals the Hearing Examiner's conclusion
that neither the Benefits Specialist, Bethany McGuire, nor the
Payroll Specialist, Pauline Butler, are confidential employees. 
In the analysis of these two positions, we conclude that the
Hearing Examiner made an error by not considering the importance
of a particular piece of evidence that is critical to the
confidentiality status of these two employees.  That piece of
evidence had to do with whether Ms. McGuire had knowledge of the
"bargaining authority" of the school's bargaining team.  The
Hearing Examiner's footnote on page 18 essentially discounted the
significance of the Business Manager's testimony on his
subordinate's knowledge of their bargaining authority. 
     Bargaining authority refers to the authority granted to the
negotiating team to negotiate a tentative agreement to be
presented to both sides for ratification.  The bargaining
authority may be expressed as a general cap, such as the overall
impact of cost items may not exceed a specific percent increase,
or it may be stated specifically with respect to wage increases,
health insurance costs, or non-financial matters to be bargained. 
Bargaining authority is an important concept under the law because
a bargaining team that does not have sufficient knowledge,
guidelines and authority to make tentative agreements risks a
charge of failing to bargain in good faith.  See Teamsters Local
No. 48 v. Town of Bar Harbor, No. 82-35 at 8 (Nov. 2, 1982)(". . . 

[end of page 7]

we have repeatedly held that the bargaining team must be given
authority, by its principal party, which is sufficient for said
team to reach an agreement"), citing City of Westbrook v.
Westbrook Police Unit, No. 81-50, at 6 (Sept. 24, 1981). 
Similarly, if a bargaining team exceeds the bargaining authority
granted, and the employer rejects the tentative agreements that
were made, the employer's action is a failure to bargain in good
faith.  Fox Island Teachers Assoc. v. MSAD #8 Board of Directors,
No. 81-28 at 6 (April 22, 1981). 
     Knowledge of bargaining authority is knowledge of how far the
bargaining team has been authorized to go.[fn]1  Preparing
spreadsheets to calculate the impact of a specific percent
increase in wages or changes in premium contributions does not,
without more, demonstrate a knowledge of the party's bargaining
authority.  Here, however, the Employer's Business Manager
testified that the Ms. McGuire had knowledge of the Employer's
bargaining authority.  That testimony was not refuted and must not
be ignored.  There was also testimony that the Business Manager,
who served on six bargaining teams, was quite dependent upon the
expertise and extensive experience of both Ms. McGuire, the
benefits specialist, and Ms. Butler, the payroll specialist, in
understanding the history and impact of various bargaining
proposals.  We conclude that the Business Manager's reliance on
Ms. McGuire's expertise and the undisputed testimony that she knew
the Employer's bargaining authority compel a conclusion that Ms.
McGuire is a confidential employee within the meaning of
§ 962(6)(C) and must be excluded from the bargaining unit.
     1  Knowledge of bargaining authority should not be confused with
knowing the projected salary increases that department managers use to
develop budgets when the budgets must be submitted before negotiations
are completed. See MSEA and County of York, No. 04-UD-04 at 25 (March
30, 2004).

[end of page 8]
     The situation of Ms. Butler, the payroll specialist, must
follow a similar analysis.  Although there was no direct testimony
on Ms. Butler's knowledge of the Employer's bargaining authority,
other evidence in the record indicates clearly that she "assist[s]
and act[s] in a confidential capacity with respect to persons who
formulate or determine the employer's bargaining positions."   
The evidence indicates that Ms. Butler shares an office with   
Ms. McGuire and that conversations involving confidential
collective bargaining issues that the Business Manager has often
occur in that shared space.  The office adjoins the Business
Manager's office.  The Business Manager testified,
     There is no divider there, so a lot of times
     conversations that you have with one of them, the other
     basically can overhear it, and a lot of times if one
     doesn't have the answer, the other one will pipe up with
     the correct answer.

Transcript at 77.  The Business Manager relies on Ms. Butler's
experience and expertise as he does with Ms. McGuire and considers
both of them to be part of his support team.  We conclude that the
Business Manager's reliance on Ms. Butler combined with her close
physical proximity to Ms. McGuire  combine to provide sufficient
evidence to support our conclusion that Ms. Butler is a confiden-
tial employee within the meaning of § 962(6)(C) and must be
excluded from the unit.
     As a result of our determination that two individuals in the
proposed unit must be excluded, we must apply the community-of-
interest analysis to the remaining positions.  The eight remaining
positions are the Receptionist, IC Coordinator, File Clerk,
Accounts Receivable, Accounts Payable, Title I Assistant,
Administrative Assistant to SPED/SAC Director, and Administrative
Assistant to SPED Director K-6.  In order to determine whether a 

[end of page 9]

clear and identifiable community of interest exists, we must
consider the following eleven factors:
     (1) similarity in the kind of work performed; (2) common
     supervision and determination of labor relations policy;
     (3) similarity in the scale and manner of determining
     earnings; (4) similarity in employment benefits, hours
     of work and other terms and conditions of employment;
     (5) similarity in the qualifications, skills and
     training of employees; (6) frequency of contact or
     interchange among the employees; (7) geographic
     proximity; (8) history of collective bargaining; (9)
     desires of the affected employees; (10) extent of union
     organization; and (11) the employer's organizational

MLRB Rules and Procedures, CH. 11, § 22(3).
     The Employer's general position is that the employees in the
Central Office who perform business and finance related work do not
share a community of interest with the remaining administrative
positions because the nature of their work is different, and
because they are expected to have some experience or training in
accounting or finance.  The Employer argues that because the other
positions are administrative and secretarial positions requiring
only general computer skills and the ability to learn individual
programs, the two groups do not share a community of interest.
     The purpose of considering the various community-of-interest
factors is to ensure that the positions in the resulting bargain-
ing unit have common interests in the mandatory subjects of
bargaining to be discussed in negotiations.  See Lewiston Fire-
fighters Assoc. v. City of Lewiston, 354 A.2d 154, 161 (Me.
1976).[fn]2  We think the Employer is missing this general
     2  "In resolving the appropriateness of bargaining units the
Board's primary goal . . . is to organize employees who have a
substantial mutual interest in wages and other terms and conditions of
employment.  Lewiston Firefighters Association, 354 A.2d at 161. This
'community of interest' insures compatibility among unit members which,
in turn, strengthens the bargaining position of the employees

[end of page 10]

by suggesting that the business and finance centered positions
have different interests than the others.  The community-of-
interest factor "similarity in the kind of work performed" is
satisfied by all of the positions being office jobs; the factor of
"similarity in qualifications, skills and training" is satisfied
in that a basic education with some added experience or training
in office skills are needed, but nothing further such as special
licensing or certification or any level of college education. 
     The Board has never required that the positions in a
bargaining be as similar as the Employer suggests.  Similar does
not mean identical.  As the executive director noted in a previous
          In comparing the nature of the work being performed
     by the various classifications under consideration, the
     essence or basic type of the functions being performed
     is far more important than the details of each
     position's work responsibilities.  Inherent in the
     existence of separate job classifications is a
     difference in the specific work assignment of each
     classification; however, such differences do not
     preclude the inclusion of various classifications in the
     same bargaining unit.          

Auburn Education Ass'n/MTA/NEA and Auburn School Committee, No.
91-UD-03 at 11, aff'd, No. 91-UDA-01 (May 8, 1991).  Here, we hold
that the differences in job duties do not preclude the inclusion
of positions primarily performing business-related tasks with the
other administrative positions.  
     There are other community-of-interest factors that support
the conclusion that the remaining positions would constitute an
appropriate bargaining unit.  Even though individual employees may
have different immediate supervisors, they do have managers in 
as a group. Id." MSAD #48 Teachers Assoc./MEA and MSAD #48 Board of
Directors, 97-UD-03 at 15 (Dec. 23, 1996).

[end of page 11]

common in the central office building.  There is an even greater
similarity in the earnings as the two individuals excluded as
confidential employees were by far the highest paid in the unit as
proposed.  Likewise, there is a similarity in employment benefits
and hours of work, even though they are not identical.
     The Employer attempts to analyze the "frequency of contact or
interchange among employees" without any reference to the next
community of interest factor, "geographic proximity".  Nine of the
ten employees in the proposed unit, or seven out of the eight left
for consideration, work in the Central Office building, and all
their offices are on the same floor.  They have monthly staff
meetings to address issues of common concern.  Ms. King does not
attend monthly meeting of central office employees, as she works
at the high school.  While clearly the employees whose job duties
are most closely related have greater frequency of contact, we
consider the evidence of interchange and the geographic proximity
to produce enough interaction for this criteria to be satisfied. 
With respect to the seven employees working at the central office
and excepting Ms. King, the two community of interest criteria of
frequency of interaction and geographic proximity support the
creation of the bargaining unit.
     In looking at the community-of-interest factors as they
relate to the position held by Crystal King, we find that many of
them indicate that her position does not share a community of
interest with the central office employees.  A number of the
factors reflect very little difference between the central office
employees and those in the secretaries unit, such as similarity in
work performed, similarity in training, similarity in scale and
manner of determining earnings, and similarity in benefits.  These
factors could support placement in either unit.  As noted above,
the frequency of interaction and her geographic proximity to the
others are factors that militate against inclusion of her position 

[end of page 12]

in the central office unit.  
     Ms. King's position is a poor fit with the central office
employees because we consider the "terms and conditions of
employment" to be a factor of particular significance in this
case.[fn]3  We conclude that the significance of Ms. King's
position being located in the high school goes well beyond its
effect on geographic proximity and interaction with others in the
proposed unit.  Ms. King testified that she and her supervisor,
the Special Education Director for grades 7 - 12, were located in
the high school so that the director could be "smack in the
middle" of the population they serve.  Working in a school is
fundamentally different than working in an office building and
presents working conditions that are simply non-issues in an
office building.  With a building full of children, not only is
the working atmosphere different, the expectations and need for
appropriate interactions with students are of paramount
importance.  All adults in the building share the responsibility
for protecting the welfare of the children in their charge,
whether it be related to safety and security or creating an
environment conducive to learning.  These issues are not present
in an office building.  This difference in conditions of
employment also supports our conclusion that the special education
support position for K-6 should be in the central office
bargaining unit as proposed, even though it includes job duties
similar to those of Ms. King.
     The history of collective bargaining in this case is rather
unusual in one respect, although it has an insignificant impact on
the community of interest determination.  Three of the positions
in the proposed bargaining unit had been part of the AFT 
     3  This aspect of the community of interest factor "similarity in
employment benefits, hours of work and other terms and conditions of
employment" was not argued to any extent by either party, as it did not
support either of their respective positions.

[end of page 13]

secretarial unit for over 15 years but were removed from the unit
in 2005.  Those three positions were the administrative assistant
to the Title I administrator (currently Deborah Sanborn), the
assistant to the SPED/SAC director (currently Crystal King), and
the assistant to the SPED director K-6 (currently Donna Hanson). 
     The evidence shows that in 2004, Ms. King filed a grievance
seeking an increase in pay and proposing to remove her position
from the AFT unit and classifying her position in a higher pay
grade.  Her grievance was denied.  The following year, Ms. King's 
position and two others were removed from the AFT unit because
they were considered "confidential" employees, which the Employer
now claims was in error.  There is no evidence of a cause-and
effect relationship between the two events.  What is important to
note is that the three positions had been in the AFT unit for a
long time and there is nothing in the record to suggest that a
lack of community of interest was a motivating factor for their
removal from that unit.  Thus, we can not say that the removal of
these three positions has any particular significance either way.
     A review of this Board's case law indicates that while the
community-of-interest factor "desires of the affected employees"
is particularly important in severance cases, it usually receives
little weight in other cases unless all of the other factors fail
to produce a clear determination one way or the other.  See Ryan
Adams and Teamsters Local Union No. 340 and City of Waterville,
No. 03-UD-02 at 31 (Oct. 28, 2002)(severance case), and MSAD 29
Educ. Assoc. and MSAD 29 Board of Directors, No. 05-UC-01 at 23 
(Dec. 23, 2005)(desire of employee not given more weight than
other factors supporting community of interest).  Usually, the
hearing examiner takes note of testimony presented by witnesses,
if any is offered.  Only  rarely does the hearing examiner review
affidavits submitted by the parties, but even affidavits are not
always reliable.  In one case, the hearing examiner discounted the 

[end of page 14]

reliability of the affidavits because three employees had signed
affidavits both in support of and in opposition to the severance
petition and the testimony suggested that misinformation and
hyperbole were employed by those seeking signatures.  Corporals
and Sergeants, Cumberland County Sheriff's Office and AFSCME and
Cumberland County Commissioners, No. 02-UD-03 (May 31, 2002).   
On occasion, the hearing examiner has stepped back from viewing
the evidence of desires of employees in isolation and assessed the
evidence in terms of whether it reflects the presence or absence
of a community of interest.  See, e.g. Eric Bell and Richmond
Employees Assoc. and Town of Richmond, No. 03-UD-10 at 27   
(Sept. 26, 2003)(desires uniform but seemed to be based on
unrealistic expectation of collective bargaining process not on
whether there is a community of interest in current unit).  See
also Adams and Teamsters 340 and Waterville, No. 03-UD-02 at 31
(desires of employees influenced by possibility of layoff and
unfavorable position in current seniority list).
     In the present case, the only employee whose position was in
the proposed unit who testified was Ms. King, the Union's only
witness.  The Employer also introduced evidence of the desires of
employees in the form of statements written by four different
employees indicating either their desire to be in the AFT unit,
their lack of interest in having a unit created for central office
employees, or their lack of interest in joining any sort of union. 
Two of the employees who signed documents in June indicating a
desire to be a part of the AFT unit submitted memos to the
Employer three months later indicating that they did not wish to
belong to any union.  These documents simply demonstrate that some
people change their mind and some people do not understand the
difference between a bargaining unit and a union.  Without the
opportunity to question the employee, it is difficult to determine 

[end of page 15]

each employee's understanding and true desire.[fn]4  Although the
Hearing Examiner simply referred to the showing of interest as
sufficient to support a finding of a community of interest, we
conclude that it is more accurate to say that to the extent that
the factor "desires of employees" has any bearing in this case,
the evidence is unpersuasive either way.[fn]5  
     In summary, we have reviewed the eleven community of interest
factors with respect to the eight positions remaining in the
proposed bargaining unit after excluding the two employees who are
confidential employees under § 962(6)(C).  We conclude that the
seven positions located in the School Committee's central office
do share a community of interest with each and that it is an
appropriate bargaining unit.  We conclude that the position held
by Ms. King located at the high school does not share a sufficient
community of interest with the central office employees and is
more appropriately placed back into the existing Sanford Federa-
tion of Teachers/AFT secretarial unit from which her position was
removed in 2005.  See Portland Administrative Employee Ass'n and
Portland Superintending School Committee, No. 86-UD-14   
     4  Given the low probative value of this information and the very
high need for protecting the confidentiality of an individual employee's
support for any unionization effort, we agree with the Executive
Director's decision to deny the Employer access to a document dated June
16, 2011, that had been submitted to the Board.  That document stated
that the employees signing it wanted to be part of the AFT unit. (A copy
of this same memo signed individually by two employees on June 20, 2011,
constitutes exhibit C-11).  We also agree with the Executive Director's
refusal to tell the Employer how many employees signed that document, as
that would be inconsistent with the dictates of 26 M.R.S.A. § 967(2)
which requires the Board to employ procedures to protect the
confidentiality of voters.

     5  Furthermore, even if we were inclined to give the documents
submitted as exhibits C-11, C-12, C-15 and C-16 any weight without
supporting testimony from the employee, there are only two employees
providing statements indicating a desire not to be part of the proposed
unit. The documents submitted by Ms. McGuire and Ms. Bulter are
irrelevant as confidential employees are excluded from the unit as a
matter of law.

[end of page 16]

(October 27,1986), aff'd, No. 87-A-03 (May 29, 1987) (placement of
some employees in existing bargaining units considered only after
the examiner found that a community of interest did not exist
among all of the employees in the unit proposed by the union).
     The Employer also argues that the creation of an additional
bargaining unit is contrary to a Board policy that the Employer
mistakenly thinks is a policy against excessive fragmentation of
job classifications.  The Employer contends that the creation of a
central office unit would create "two groups of clerical
employees, all of whom share a community of interest with each
other" and that there is "no rational reason" for the division. 
It is critical to note that any concern about fragmentation refers
to fragmentation of bargaining units, not to fragmentation of
types of jobs, and refers to an arbitrary split in a group of
positions that does not correspond to a separate identifiable
community of interest.  For example, in Town of Yarmouth and
Teamsters Local 48, the Board rejected the employer's call to
create two bargaining units along divisional lines in the Public
Works Department (one for the 9 highway workers and the other for
the 2 Sewer workers), because two units would "unduly fragment the
Department" and would be contrary to the Board's policy "of
discouraging the proliferation of small bargaining units in a
single department" and would also "violate the employees'
guaranteed right to full freedom in the exercise of their repre-

sentational and bargaining rights." 80-A-04 at 4 (June 16, 1980),
citing 26 M.R.S.A. § §  963 and 966(2) and Lewiston Firefighters
Association v. City of Lewiston, 354 A.2d 154, 160-161 (Me. 1976). 
Furthermore, contrary to the Employer's assertion, in this case
there is a rational basis for creating a bargaining unit of
central office employees.  As we have explained above, the
employees in the central office have a community of interest with
each other that is based on issues that distinguish them from 

[end of page 17]

clerical employees in the schools.
     While we understand Employer's concerns about the impact of
another bargaining unit on the workload of the School Committee,
we can find no basis for concluding that the Hearing Examiner
should have or even could have rejected the proposed unit on that
basis.  As the Hearing Examiner correctly noted, 
     [i]t 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.'"  SAD #49
     Educational Technician I Ass'n/MEA/NEA and MSAD #49
     Board of Directors, slip op. 09-UD-09 at 5 (May 6, 2009)
     (quoting Town of Yarmouth and Teamsters Local Union No
     48, No. 84-A-04, slip op. at 4 (MLRB June 1980)(emphasis
     added).  "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 §  962(2)."  Id.,
     citing Portland Administrative Employee Ass'n and
     Portland Superintending School Committee, No. 86-UD-14
     (October 27,1986), aff'd, No. 87-A-03 (MLRB May 29,
     1987) (placement of some employees in existing
     bargaining units considered only after the examiner
     found that a community of interest did not exist among
     all of the employees in the unit proposed by the union).
     This Board has expressly stated that the savings and
convenience resulting from larger units should not be "exalted"
over the statutory right of employees join together in a
bargaining unit with other employees with whom they share a clear
and identifiable community of interest.  Portland Superintending
School Committee v. Portland Administrative Employee Assoc.,   
No. 87-A-03 at 5, affirming No. 86-UD-14 (May 29, 1987).  The
Employer has failed to convince us that the employees' statutory
right should be disregarded in this case.
     To summarize, we have reviewed the evidence presented to the
Hearing Examiner and the arguments presented by the parties and
modify the Hearing Examiner's Order by excluding Ms. Bethany 

[end of page 18]

McGuire, the Benefits Specialist, and Ms. Pauline Butler, the
Payroll Specialist, as they are both confidential employees.  We
also conclude that Ms. Crystal King does not share a community of
interest with the remaining employees in the proposed unit, but
does share a community of interest with the existing Sanford
School Secretaries unit, and belongs in that unit.  For the
reasons explained above, we conclude that the employees in the
remaining seven positions in the proposed bargaining unit share a
community of interest and are an appropriate bargaining unit.
     Finally, without ruling on whether the Employer's unit
clarification petition was procedurally sufficient, we reject the
Employer's assertion that the proper resolution of the pending
matter would be to accrete several of the central office employees
into the existing Sanford Federation of Teachers secretarial
bargaining unit.  An accretion is not appropriate because, other
than Ms. King, the central office employees do not have a
community of interest with the secretarial unit and do have their
own separate identity.  See Cumberland County v. Teamsters Union
Local 340, 07-UDA-01 (January 16, 2007) at 7-8.

     On the basis of the foregoing discussion and pursuant to
authority granted to the Maine Labor Relations Board by the
provisions of 26 M.R.S.A. § 968(4), it is ORDERED:
     1.   That the appeal of the Sanford School Committee
          filed on February 21, 2012, is granted in part and
          is denied in part.  The Unit Determination Report
          No. 11-UD-10 is modified as provided below.

     2.   That the employees in the Benefits Specialist and 
          the Payroll Specialist classifications of the 
          Sanford School Department are confidential employees,
          within the meaning of 26 M.R.S.A. § 962(6)(C), and
          may not be included in any bargaining unit.

[end of page 19]

     3.   That the Assistant to the SPED/SAC Director class-          
          ification does not share a community of interest
          with the employees in the bargaining unit described
          in the next paragraph of this Order, but does share
          a clear and identifiable community of interest with
          the employees in the Sanford School Secretaries
          bargaining unit and is hereby assigned to the
          latter bargaining unit.

     4.   That following central office employee classifica-
          tions at the Sanford School Department share a clear
          and identifiable community of interest and as a group
          constitute an appropriate bargaining unit and that
          unit is established by virtue of this Order:

               Receptionist, IC Coordinator, File Clerk,
               Accounts Receivable, Accounts Payable, Title
               I Assistant, and Administrative Assistant to
               SPED Director K-6.

     5.   That the executive director shall conduct a bargain-
          ing agent election in the bargaining unit described
          in the preceding paragraph of this Order as soon as
          is practicable.

Dated at Augusta, Maine this 24th day of May 2012.

The parties are advised of their right to seek review of this decision and order by the Superior Court by filing a complaint pursuant to 26 M.R.S.A. § 968(4) and in accordance with Rule 80C of the Rules of Civil Procedure within 15 days of the date of this decision. the Rules of Civil Procedure.


Peter T. Dawson

Richard L. Hornbeck
Employer Representative

Employee Representative Carol B. Gilmore participated in the oral argument and deliberation of this matter, but died before the decision was finalized.