The Central Lincoln County Educational Specialists 
Association/MEA/NEA (the "Association") filed this unit appeal 
on April 24, 2014, 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 report 
which is the subject of this appeal was issued on March 20, 
2014, following a proceeding on November 12, 2013, presided over 
by Gwendolyn D. Thomas, the Board’s Hearing Examiner.  
 
	The November 12, 2013, proceeding addressed a unit deter- 
mination petition filed by the Association, naming Alternative 
Organizational Structure #93 as the employer.  The petition 
sought to create a new unit of specialists, including three 
speech therapists, four social workers, and two occupational 
therapists.  These positions served the schools of Bristol, 
South Bristol, Jefferson, Nobleboro, and Great Salt Bay, which 
together make up Alternative Organizational Structure #93 (“AOS 
#93”).  In its petition, the Association specifically noted that 
“some of the employees are currently represented and/or covered 

[end of page 1]

under an existing bargaining unit and contract from one of the 
AOS” member towns, and listed the expiration dates of the agree-
ments with each of the five towns.  The petition also stated,
 
	The filing of this petition is to comply with the 
	requirements of title 20A – the reorganization of school 
	districts. AOS employees must be represented and covered by 
	an AOS bargaining unit and contract.

	The Hearing Examiner dismissed the Association’s petition 
after concluding that AOS #93 was not the employer of the 
employees holding the positions at issue and because seven of 
the eight positions in the sought-after unit were already 
covered by a bargaining agreement with the member school units.  
The Association appeals that decision.
 
			JURISDICTION
 
      The Central Lincoln County Educational Specialists 
Association is an aggrieved party within the meaning of 26 
M.R.S.A.  �968(4) and an employee organization within the meaning 
of 26 M.R.S.A.  �967.  AOS #93 is a public employer within the 
meaning of 26 M.R.S.A.  �962(7).  The jurisdiction of the Maine 
Labor Relations Board to hear this appeal and to render a 
decision herein lies in 26 M.R.S.A.  �968(4).

			PROCEDURAL HISTORY
 
	The Educational Specialists Association filed its unit 
determination petition on July 17, 2013, seeking to create a new 
bargaining unit of specialists, including speech therapists, 
social workers, and occupational therapists serving various 
member schools of AOS #93.  The petition named AOS #93 as the 
public employer.  On July 24, 2013, the AOS #93 Board of 
Directors objected to the unit determination petition and asked 
that the petition be dismissed, asserting that the various 

[end of page 2]

specialists were all employed by the individual schools, and 
were not employed by the AOS #93 Board.  AOS #93 also asserted 
that five of the positions sought to be included in the new unit 
were already covered by existing collective bargaining 
agreements with another bargaining agent and thus could not be 
the subject of a unit determination petition under the contract 
bar rule.
 
	A prehearing conference took place on October 16, 2013, at 
which time both parties presented their proposed witness lists, 
exhibits, and stipulations.  The Central Lincoln County 
Educational Association/MEA/NEA was represented by Joan Morin 
and the AOS #93 Board of Directors was represented by Campbell 
Badger.  The evidentiary hearing was scheduled for November 12, 
2013.  At that time, the parties made their opening statements 
on the record and presented arguments regarding the pending 
motion to dismiss.  The Hearing Examiner orally granted AOS 
#93’s motion to dismiss.  In doing so, the Hearing Examiner 
relied on the oral arguments of the parties, as well as the 
exhibits and stipulations in the record, all pertinent statutes 
and Board Rules, and the parties’ previously submitted written 
arguments.  The Hearing Examiner indicated that a written 
decision would follow and that the appeal period would run from 
the date the written decision was issued.
 
	The standard of review for bargaining unit determinations 
is well established:  The Board 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, No. 84-A-04 at 10 
(Apr. 25, 1984), quoting Teamsters Local 48 and City of     
Portland, 78-A-10 at 6 (Feb. 20, 1979). 

[end of page 3]
 
			DISCUSSION
 
	This is the first time the Board has been called upon to 
rule on the meaning of 20-A M.R.S.A.  �1464-A or, for that 
matter, any aspect of the unit determination, merger and 
election issues raised by Maine’s School Reorganization Law.  
Chapter 103-A of Title 20-A establishes the conditions for the 
formation, governance, and financing of regional school units 
(“RSU’s”).  P.L. 2007, c. 240, Pt. XXXX.  The statute expressly 
states that RSU’s function as the employer of all employees 
working within the RSU for all purposes, including  �1464[fn 1] and 
collective bargaining under Title 26, chapter 9-A, the Municipal 
Public Employees Labor Relations Law.  20-A M.R.S.  �1452, sub-
 �8.  

	Within a year of the enactment of Chapter 103-A, the 
opportunity to submit an alternative plan was expanded to allow 
the creation of an “alternative organizational structure” if 
certain requirements were met.  See P.L. 2007, ch. 668,  �42 and 
P.L. 2009, c. 580,  �5.  The objective of the alternative 
organizational structure (“AOS”) is to achieve consolidation of 
various core administrative functions such as business 
operations and system administration, special education 
administration, and transportation administration,[fn 2] while 
allowing the AOS to permit the member school units maintain a 
certain amount of independence through the provisions of the 
Interlocal Agreement.[fn 3] Section 1464-A addresses collective 
bargaining issues for alternative organizational structures. 

___________________________
1  �1464 established detailed procedures for tranistioning the pre-existing
collective bargaining obligations in separate schools or districts to RSU-
wide bargaining obligations.
2 An AOS must also adopt: Core curriculum and procedures for standardized
testing, a plan for consistent school policies and calendars, and a plan for 
consistent collective bargaining agreements. 20-A MRSA  �1461-B(3)(A).
3 For example, the Interlocal Agreement for AOS #93 expressly provides that
the Member School Units are responsible for the operation of the schools
within their jurisdiction, that all real and personal property remains the 

[end of page 4]

P.L. 2009, c. 580,  �8.  The substance of  �1464-A is quite 
similar to that of  �1464, which sets forth detailed procedures 
for the transition of the collective bargaining obligations of 
multiple employers and multiple bargaining agents to RSU-wide 
bargaining.  Section 1464-A applies only to AOS’s and imposes 
comparable requirements and transition mechanisms for the 
employees of the alternative organizational structure.  The most 
significant difference is that  �1464-A does not require any 
restructuring of the existing bargaining units of employees who 
are employed by each member school unit in the AOS. 
 
	The relevant portions of  �1464-A are set forth below, with 
language relevant to the issue before us highlighted in bold:

	 �1464-A. Collective bargaining in alternative 
	organizational structures 

	1. Assumption of obligations, duties, liabilities and 
	rights.   On and after the operational date of an 
	alternative organizational structure, teachers and 
	other employees whose positions are transferred from a 
	school administrative unit or school union to the 
	alternative organizational structure and were included 
	in a bargaining unit represented by a bargaining agent 
	continue to be included in the same bargaining unit and 
	represented by the same bargaining agent pending 
	completion of the bargaining agent and bargaining unit 
	merger procedures and bargaining for initial 
	alternative organizational structure collective 
	bargaining agreements covering alternative 
	organizational structure employees, as described in 
	this section. After employees become employees of the 
	alternative organizational structure, the alternative 
	organizational structure has the obligations, duties, 
	liabilities and rights of a public employer pursuant to 
	Title 26, chapter 9-A with respect to those employees. 

	2. Structure of bargaining units.   All bargaining 
	units of alternative organizational structure employees 
	must be structured on an alternative organizational 
________________________
property of the member school unit, and only the member school unit and not
the AOS has the authority to close a school.  Ex. E-1.

[end of page 5]

	structure-wide basis. Teachers and other school 
	employees who are employed by the alternative 
	organizational structure to provide consolidated 
	services must be removed from the existing bargaining 
	units of teachers and other employees who are employed 
	by each member school unit and merged into units of 
	alternative organizational structure employees. Merger 
	into alternative organizational structure-wide 
	bargaining units is not subject to approval or 
	disapproval of employees. Formation of alternative 
	organizational structure-wide bargaining units must 
	occur in accordance with this subsection. 

		A. In each alternative organizational structure, 
		there must be one unit of teachers if any teachers 
		are employed by the alternative organizational 
		structure, and, to the extent they are on the 
		effective date of this paragraph included in 
		bargaining units, other certified professional 
		employees, excluding principals and other 
		administrators. 
		B. Any additional bargaining units in an 
		alternative organizational structure must be 
		structured as follows. 
			(1) In the initial establishment of such 
			units, units must 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 alternative organizational structure and 
			avoiding conflicts among different bargaining 
			agents to the extent possible. 
			(2) In the event of a dispute regarding the 
			classifications to be included within an 
			alternative organizational structure-wide 
			bargaining unit, the current bargaining agent 
			or agents or the alternative organizational 
			structure may petition the Maine Labor 
			Relations Board to determine the appropriate 
			unit in accordance with this section and 
			Title 26, section 966, subsections 1 and 2. 

		C. When there is the same bargaining agent in all 
		bargaining units that will be merged into an 
		alternative organizational structure-wide 
		bargaining unit, the units must be separated and 
		merged on the operational date or the date 

[end of page 6]

		represented employees are transferred to the 
		alternative organizational structure, whichever is 
		applicable, and the alternative organizational 
		structure shall recognize the bargaining agent as 
		the representative of the merged unit.

	20-A M.R.S.A.  �1464-A. 

The remaining paragraphs of this sub-section go into great 
detail about representation and elections in an AOS-wide unit 
when, due to prior representation status, more than one 
bargaining agent represents employees in the newly merged 
bargaining unit. [fn 4 5]

	Section 1464-A clearly contemplates two different kinds of 
employers in an AOS:  Each member school unit is an employer and 
the AOS is an employer.  This is evident from the wording of the 
second sentence of sub- �2:

	Teachers and other school employees who are employed 
	by the alternative organizational structure to 
	provide consolidated services must be removed from 
	the existing bargaining units of teachers and other 
	employees who are employed by each member school unit 
	and merged into units of alternative organizational 
	structure employees. 
 
Furthermore, as the repeated reference to being “employed by” 
the AOS indicates, the entire substance of 1464-A deals with the 
collective bargaining rights and responsibilities related to 
those employees who are employed by the alternative 
organizational structure, not those employed by the member 
_________________
4 Paragraph D-when all bargaining agents are affiliates of the same union, the
units simply merge;  �E-when agents are the same union/affiliate and some
employees are not represented, union stays if majority were represented. If 
not, an election is held;  �F-if different unions represent parts of the
unit, election petition cannot be filed until 3 years from operational date
of the AOS or the date of transfer of employees, whichever is later.
5 Subsection 3 has general language about the obligation to bargain and 
subsection 4 addresses the application of existing collective bargaining 
agreements before the execution of a collective bargaining agreemet for an
AOS-wide bargaining unit.

[end of page 7]

school units.  Thus, for  �1464-A to apply, the individuals in 
the positions at issue must be employees of the AOS.
 
	On appeal, the Association argues that the Hearing Examiner 
erred in concluding that AOS #93 was not the employer of the 
individuals employed in the positions at issue.  The Association 
argues “that the employees were through the actions of the AOS 
and as a matter of fact and law transferred to the AOS and are 
therefore employees of the AOS.” (Brief to Board, p.1)  The 
Association also argues on appeal that the Hearing Examiner 
“incorrectly characterized and misrepresented the Association’s 
position” by stating that the Association had admitted that the 
employees involved had not been transferred to AOS #93.  Id.
	 
	The Association’s legal argument to the Hearing Examiner 
below was that if “an AOS employee is somebody who provides 
consolidated services throughout the schools contained within 
the AOS, . . . [then] Title 20-A,  �1464-A really automatically 
says that you must pull them from their existing bargaining 
units and put them into their own AOS [bargaining unit]” to 
bargain with the AOS as the employer.  (Oral arg. Tr. at 12).  
The Association contended that with the opportunity to present 
witnesses, it would become clear that even though the 
specialists had not been transferred to the AOS, the evidence 
would show that the specialists were employed by the AOS and 
should have been transferred.  On appeal to this Board, the 
Association makes several factual assertions that it claims 
would have proved the existence of this employment relationship 
had the Hearing Examiner proceeded with an evidentiary hearing.  
We will first consider the statutory provisions underlying the 
Association’s argument.

[end of page 8]
 
	The Association’s starting premise is based on an incorrect 
reading of the second sentence of  �1464-A(2), which states:

	Teachers and other school employees who are employed 
	by the alternative organizational structure to provide 
	consolidated services must be removed from the 
	existing bargaining units of teachers and other 
	employees who are employed by each member school unit 
	and merged into units of alternative organizational 
	structure employees.

	20-A M.R.S.A.  �1464-A(2).

The Association’s position essentially transforms this sentence 
to read, ‘teachers and other school employees who provide 
consolidated services are AOS employees and must be removed from 
the existing bargaining units.’  This is incorrect.  The clause 
“who are employed by the alternative organizational structure” 
qualifies which teachers or other school employees are being 
referred to.  That qualification cannot be ignored.  As the 
Hearing Examiner pointed out, the preceding subsection in  �1464 
makes it clear that teachers or other school employees from the 
member schools are not employees of the AOS unless they are 
transferred to the AOS. [fn 6]
 
	We also note that in the several instances where  �1464-A 
establishes time-frames for merger of bargaining units of AOS 
employees, the statute requires that the units be merged “on the 
operational date or the date represented employees are trans-
ferred to the alternative organizational structure, whichever is 
applicable.”  This exact language occurs in  �1464-A(2)(C), 
_______________
6 "On and after the operational date of an [AOS] ... employees whose
positions are transferred from a school ... to the [AOS] and were included
in a bargaining unit ... continue to be included in the same bargaining
unit and represented by the same bargaining agent pending completion of the
[merger of bargaining units] and bargaining for the initial [AOS] collective
bargaining agreements covering [AOS] employees, as described in this section.
After employees become employees of the [AOS], the [AOS] has the obligations,
duties, liabilities and rights of a public employer pursuant to Title 26,
chapter 9-A with respect to those employees." 20-A MRSA  �1464-A(1).

[end of page 9]

 �1464-A(2)(D), and  �1464-A(2)(E).  With respect to timing when a 
bargaining agent election is required, the time frame is 
measured from “the operational date of the alternative organiza-
tional structure or the date on which positions are transferred 
from member school units to the alternative organizational 
structure, whichever is later”. See  �1464-A(2)(F) sub-(2) and 
(4).  Given the frequency with which  �1464-A refers to the date 
of the “transfer” of positions or employees to the AOS, it is 
reasonable to conclude that an actual transfer of the positions 
is required by the law.
 
	The Hearing Examiner made her ruling based on the 
documentary evidence and the parties’ oral and written argument 
on the AOS’s Motion to Dismiss.  The Hearing Examiner relied on 
the collective bargaining agreements and the teaching contracts 
signed by the specialists, the terms of the Interlocal Agreement 
assigning the responsibility of educating students to the member 
school units, and the methods by which State subsidies and other 
funds received by AOS are to be distributed to the member school 
units.  She also concluded that while the AOS #93 2013-2014 
budget has a line item for a Special Services Director, there is 
no money allocated for speech therapists, social workers, or 
occupational therapists. (Decision at 9, #5).  Upon review, we 
note that there is no evidence of an actual transfer of these 
positions or their incumbents from a member school unit to the 
AOS.  As we have concluded above that Title 20-A,  �1464-A 
requires an actual transfer, we hold that the Hearings Examiner 
made no error of law in dismissing the petition because AOS #93 
is not the employer.  We need not rely on the Association’s 
“admission” that a transfer did not occur, as there is no 
evidence of a transfer or any assertion that evidence of an 
actual transfer would be produced at a hearing.

[end of page 10]
 
	In summary, the Association sought to have this Board 
create an AOS-wide bargaining unit through the application of 
the Association’s mistaken view of the meaning of  �1464-A(2).  
A clear prerequisite to the establishment of an AOS-wide unit by 
operation of  �1464-A, however, is the employment by the AOS of 
teachers or other employees to provide consolidated services. 
The petition must be dismissed because AOS #93 is named as the 
employer but it is not the specialists’ employer within the 
plain meaning of 20-A M.R.S.A.  �1464-A. [fn 7]  	
 
	The Association’s factual assertions that the AOS 
“illegally” assigned specialists to a bargaining unit does not 
alter our conclusion.  If the AOS or the member school units 
made such changes in order to subvert the statutory rights of 
the specialists to collectively bargain as provided by Title 26, 
chapter 9-A, the filing of a prohibited practice complaint would 
have been appropriate.  Similarly, the allegation that some 
specialists were initially employed by the AOS during its first 
year of operation in 2009 is not relevant to our analysis of the 
facts regarding a petition filed in 2013. 

	The Association notes that the Interlocal Agreement can be 
amended to enable the AOS to become the employer of the 
specialists in question, and argues that the Agreement should 
have been changed.  It is not our place to comment on that 
assertion.  We prefer to note that the Reorganization Plan and 
AOS #93 Interlocal Agreement approved by the State Board of 
Education includes a “Plan for Consistent Collective Bargaining 
Agreements” which includes the creation of an “AOS Joint 
Bargaining Advisory Committee” with specified duties and goals. 
(Section 13-E, p. 11 of Ex. E-1.) One of the stated duties of 
this advisory committee is “to meet and consult with any joint
_____________________
7 Consequently, we need not address the contract bar issue.

[end of page 11]
 
bargaining committee formed by the bargaining agents of the 
local bargaining units.”  Thus, in addition to the possibility 
of amending the Interlocal Agreement, the issues unique to the 
specialists could be addressed at the bargaining table with the 
member school units, or through meeting with the Joint Bargain-
ing Advisory Committee.   With such a framework in place, we are 
confident that the parties can work together to address the 
issues involving the specialists. 

							ORDER

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

		that the appeal of the Central Lincoln County 
		Educational Specialists Association/MEA/NEA, filed 
		with respect to the Unit Determination Report in Case 
		No. 14-UD-01 is denied and the dismissal of the 
		petition is affirmed.

Dated at Augusta, Maine, this 11th day of June, 2014.

					MAINE LABOR RELATIONS BOARD