Petition dismissed in 78-A-03. [STATE OF MAINE] [MAINE LABOR RELATIONS BOARD] [Case No. 78-UC-01] [Issued: October 17, 1977] ____________________________ ) LAKES TEACHERS ASSOCIATION ) (Mount Vernon Teachers) ) ) UNIT CLARIFICATION REPORT and ) ) MOUNT VERNON SCHOOL BOARD ) ____________________________) As the result of the filing of a Petition for Unit Clarification dated July 18, 1977, filed by F. Stewart Kinley, UniServ Director for the Maine Teachers Association, legal representative of the Lakes Teachers Association (Mount Vernon Teachers), here- inafter referred to as "Association," a hearing was held on September 17, 1977, at 2:30 p.m. at the Mount Vernon Elementary School, Mount Vernon, as provided by Section 966, Chapter 9-A, Title 26 M.R.S.A. Present at the hearing for the Association were: Sarah C. Bean Teacher, Mount Vernon Elementary School Member, Mount Vernon Teachers Association Lora Duley Teacher, Mount Vernon Elementary School Secretary, Mount Vernon Teachers Association Rebecca Livingston Teacher, Mount Vernon Elementary School President, Mount Vernon Teachers Association June Wagner Teacher, Mount Vernon Elementary School President, Mount Vernon Teachers Association F. Stewart Kinley UniServ Director, MTA/NEA, representing Mount Vernon Teachers Association. Present at the hearing for the Mount Vernon School Board "hereinafter referred to as "School Board") were: Lynn Lindholm Chairwoman, Mount Vernon School Board Millard D. Harrison Superintendent of Schools, School Union #42 Also present at the hearing was Robert I. Goldman, hearing examiner, so designated by the Executive Director of the Maine Labor Relations Board. This dispute concerns the proposed inclusion in the collective bargaining unit of certain teachers who devote only part of the teaching day to the Mount Vernon Elemen- tary School. The teachers currently in the unit spend the whole of the teaching day at the said school. For convenience and coherence purposes, we shall refer to the disputed positions as "part-time" and the teachers already in the unit as "whole-time." This will avoid some confusion since the most recent contract encompassed "full-time" personnel and it is claimed by the Association that some of the "part-time" teachers qualify as "full-time" since they put in a full teaching day, part of which is in Mount Vernon and the remainder elsewhere in the School Union or Community School Dis- trict. There are currently four whole-time classroom teachers at the Mount Vernon Ele- mentary School and these four comprise the bargaining unit with which we are concerned. In addition to these four teachers, there are the following teaching personnel who serve at that school: [-1-] ____________________________________________________________________________________ A Teaching Principal, who is excluded from the unit; A C.E.T.A. Teaching Assistant, who is not in the unit and is not in dispute; A Kindergarten Teacher. She spends 8 a.m. to 12 noon at Mount Vernon and does not teach in any of the other towns. This is one of the disputed positions. A Learning Disabilities Specialist. She puts in a full teaching day, but devotes approximately 40 percent of it to Mount Vernon, the remainder at Wayne and Rome. This is one of the disputed positions. A Speech Therapist. Works 4-1/2 hours per teaching day, but divides her teaching time equally between the C.S.D. Senior High School and the Mount Vernon and Wayne Elementary Schools. This is a disputed position. A Music Teacher. She shares her full teaching day equally among the five elementary schools in School Union #42. This position is disputed. There is another position, a Behavioral Management Specialist, with whom we are not concerned in this determination. A short review of the school system structure and the collective bargaining history between the parties would be useful before proceeding to the dispute itself. The Mount Vernon Elementary School has a student population of approximately 140. It is joined in School Union #42 in the operation of elementary schools in each of the towns of Manchester, Readfield, Rome and Wayne. The Manchester and Readfield elementary schools have the largest teaching staffs with approximately 12 at each; Rome and Mount Vernon have 4; Wayne, 4-1/2. The Union, of course, shares the Super- intendent with Community School District #10 and provides office and staff assistants for his office, as well as some instructional people. Instructions for students at grades 7 through 12 are handled through Community School District #10 which includes Manchester, Mount Vernon, Readfield and Wayne. The School Union shares part of the cost or budget for the School District. School District #10 and the Towns of Readfield, Manchester and Mount Vernon en- gage in collective bargaining under the Public Employees Labor Relations Act with associations who represent their teaching employees; Wayne and Rome are as yet un- affected by the collective bargaining process under the Act. Since School Union #42 employes no teachers directly, it cannot be considered an employer within the mean- ing of the Act and, consequently, an employee organization could not organize on a School union-wide basis if it wanted to. This last fact is at the nub of the prob- lem in this case. Back in 1974 the employer executed a PELR Form 3 thereby recognizing the Lakes Teachers Association (representing Mount Vernon) as the collective bargaining repre- sentative for the "Mount Vernon Teachers." There is some evidence that the interven- ing collective bargaining agreements contained language providing coverage for only "full-time professional personnel." The most recent agreement, which was placed in evidence, expired on August 31, 1977, extended recognition "for the entire group of full-time classroom teachers employed by the Board excluding the Superintendent, Assistant Superintendent and Principal." In May, 1976, prior to the finalizing of the 1976-77 agreement, the parties executed a PELR Form 1, Agreement On Appropriate -2- ____________________________________________________________________________________ Bargaining Unit, which referred to the appropriate unit simply as "Teachers."* At least three of the contested positions were in existence in substantially their same form prior to the execution of the 1976-77 agreement - in one instance since 1973. The evidence at the hearing did not reflect any effort prior to June, 1977, to have any of the contested positions included in the unit or covered by any of the intervening collective bargaining agreements. Nor does the record indicate any standing protest of the failure to so include the positions. The employer concedes that if the positions were "whole-time" at Mount Vernon, they would properly belong in the unit. Indeed there are teachers bearing the same titles and performing the same functions who are included in the units at the Dis- trict and in other towns of the Union. There is no doubt that the content of the positions provides a clear and identifiable community of interest with the positions already in the unit. However, it is claimed that because of the fragmented and part-time nature of the service of each position at Mount Vernon, the necessary com- munity of interest required for joinder with the unit people under the Act is lacking. The evidence indicates the following facts concerning each of the disputed positions: LEARNING DISABILITIES SPECIALIST (Special Education Teacher) This teacher works a full teaching week. Her time is shared between Mount Vernon, Wayne and Rome. Mount Vernon (140 children) receives the benefit of 40 percent of her time. Wayne (88 children) and Rome (75 children) split the remaining 60 percent. Prior to the 1976-77 school year all five towns in the Union shared her time. She is paid and hired by vote of the Union Board which determines how her services will be used and the pro-rata charge to each town; each town however is her direct employer and bears the charge for her services at the town's elementary school. This position is paid on the scale taken from the Community School District collective bargaining agreement, although she spends no time serving the District Schools. The base rate of the Community School District scale was $8300. for l976-77**; the rate for a beginning teacher at Mount Vernon was $6900. She receives all the fringe benefits enjoyed by teachers under the District agreement, but the cost of these is pro-rated among the beneficiary towns. There is one "whole-time" Learning Disabilities Specialist at the Readfield Elementary School; one in Manchester; and two employed by the Community School District. SPEECH THERAPIST The teacher who occupied this position for many years passed away in August of this year. In past years the position served all the towns, except Rome, and the Community School District. ____________________ *The parties should take note that when they agree upon changes in the scope or composition of a bargaining unit, which has been defined in a Form 1 or Form 3 previously filed with the Board, it is imperative that the Board be notified of the change or the Board and Executive Director will continue to be guided by the definition reflected in the Board files. **All the disputed positions are paid at either the School District or Wayne scale, which are very similar. -3- ____________________________________________________________________________________ Beginning with the current school year (in September, 1977) the position has been divided into two separate positions. One Speech Therapist now devotes her time exclusively to Manchester, Readfield and Rome; the other, with whom we are concerned in this matter, will spend her time equally divided at the Community School District Junior High School, Mount Vernon and Wayne. Each is on scale and each political entity will bear approximately one-third of the salary of each teacher. Whereas the former Speech Therapist put in a full teaching day, the current arrangement requires only a total of 4-1/2 hours per day of each of the teachers. Thus, they are in reality regular part-time em- ployees who share their instructional time among the communities served. The new positions are paid at scale and receive all the contract fringe benefits, except for Blue Cross/Blue Shield, which requires a minimum of 30 hours per week for eligibility. The towns bear their pro-rata share of the cost for all benefits. There are no Speech Therapists serving elsewhere in the District or in the Union. MUSIC TEACHER This position was initiated in 1973. The incumbent is in her second year and her time is shared among all five towns in the School Union. Manchester and Readfield consume about 60 percent of her total time and absorb an equal proportion of her salary. She is paid on scale and receives all the benefits of the "whole-timers"; however, the towns share the expense of these benefits on a pro-rated basis. There is a "whole-time" Music Teacher at the Community School District High School, who is in the bargaining unit there. There is also an Instrumental Music Teacher (initiated for this school year) whose serv- ices are shared between the Community School District and towns in the Union other than Rome. This person is paid on scale as well. KINDERGARTEN TEACHER This teacher teaches only at Mount Vernon and only four hours per day, 8 a.m. to 12 noon. She is paid by the hour and receives pro-rated benefits from each town, such as course reimbursement and sick leave, but receives no Blue Cross/Blue Shield protection since her total hours are less than 30. There are other Kindergarten Teachers in the Union, including "whole-time" teachers of Kindergarten at Readfield and Manchester, and the teacher in Rome teaches 1st and 2nd grade classes as well. The Kindergarten Teacher at Wayne works only four hours per day, same as the Mount Vernon situation. The School Board is opposed to the petition for inclusion in the bargaining unit of the named positions essentially on three grounds, which were ably and articulately stated by the Superintendent. Firstly, it is argued that the Act does not contemplate that every conceivable arrangement in the public employment spectrum is subject to the jurisdiction of the Maine Labor Relations Board or the Executive Director; the Board should not feel bounden to dispose of every matter brought before it. Secondly, the placement of these positions in the bargaining unit would put an unconscionable burden on the towns and the Union, and the complexities imposed by their inclusion would force small towns to abandon or contract out some of these services. Contracting out would put an undue strain on their budgets and adminis- -4- ____________________________________________________________________________________ trative capability, and would be contrary to the purposes of the statutes which authorize the organization of School Unions. Thirdly, the history of the relationship between the parties shows a) that these positions have existed over a period of years and the Association has not protested the arrangement nor sought their inclusion in the unit, and b) on the contrary the most recent bargaining agreement which limited the unit to "full-time classroom teachers" is clearly a recognition of, and agreement to, exclusion of these "part-time" positions, and other terms of that agreement lend further credi- bility to this interpretation. The hearing examiner will attempt to answer these concerns in reverse order. With respect to the language of the last contract, the Association argues that "full-time" as used in the Recognition Clause, and in previous contracts be- tween the parties, was never an issue, and is meant only to differentiate regular, on-going teaching service from substitute or on-call teaching service. Further, it is argued that the terms of the agreement are designed only to spell out the rights of the employees in the unit, and no language anywhere in the agreement explicitly excludes regular part-timers. A review of the history and the recently expired agreement leaves the matter decidedly unclear. The Form 1 executed in May, 1976, defined the unit simply as "Teachers." The initial recognition in 1974 referred to "Classroom Teachers." The Preamble Clause of the 1976-77 agreement harkens back to the language of the original recognition, referring to "the Mt. Vernon classroom teachers hereinafter referred to as 'Teachers.'" With respect to the Recognition Clause contained in the latest agreement, there was no evidence presented at the hearing to indicate in any way that the definition therein, "full-time classroom teachers," was speci- fically intended to negotiate out the positions here in dispute, nor that it was adopted as a trade-off during negotiations on some other provision in the collective bargaining agreement of advantage to the Association. Indeed, the Recognition Clause of the 1976-77 agreement specified certain exclusions from the agreed unit, yet does not mention the disputed positions. Unfortunately, nothing of a conclusive nature has surfaced from the examination of the collective bargaining history and the previous agreements negotiated by the parties. With respect to the second concern voiced by the Board, although placing these positions in the bargaining unit at Mount Vernon would undoubtedly lead to various perceived and unforseeable difficulties for the School Board, from all that appears the teachers in the unit, the Association, and the employer-employee relationship have felt the impact of this problem for some time. If these positions are placed in the unit, the Association will undoubtedly inherit various complexities of its own. A school board may well throw up its hands at the prospect of dealing with this situation in light of the fact that it has had the relative comfort of unilateral decision making with respect to the employment conditions affecting these positions, and when it becomes frustrated when its fears seem to be turning into reality. -5- ____________________________________________________________________________________ But we should not anticipate the worst; the purpose of the Act is to encourage peace- ful and intelligent resolution of disputes through the collective bargaining process. More difficult problems than this have been overcome by intelligent problem solving engaged in by well-intentioned parties; the needs of the school children should be motivation enough for that effort. And, lastly, addressing the employer's first point, it is clear that part-time employees are not precluded from coverage under the Act and may be appropriately placed in units with regular or full-time employees. This question has been addressed and disposed of in the past. See Jay School Employees Association and the Jay School Department, Unit Determination Report, December 3, 1975 [76-UD-03]. This therefore will dispose of the stated concern with respect to the Music Teacher and Kindergarten Teacher, since these part-timers teach only at Mount Vernon and are typical regular part-time employees. Accordingly, they should be included in the bargaining unit. SO ORDERED. The other two positions - Learning Disabilities Teacher and the Speech Therapist - are not so typical. However, nothing in the Public Employees Labor Relations Act and nothing in the law relating to the establishment of School Unions suggests that posi- tions structured in this way are to be denied the benefits of the Act, which would be the consequence of adopting the School Board's reasoning in this regard. Since labor representation on a School Union basis is impossible, one can easily conjure up a po- tential for unwholesome extension of such arrangements should that argument hold sway, that is, the establishment of positions on a School Union-wide basis whenever practicable to avoid the impact of collective bargaining, even though the affected employees may desire such affiliation. With the foregoing discussions in mind, it is the opinion of hearing examiner that the four positions should be handled similarly in this matter. This being the, case, it is useful to look at the parameters of this type of pro- ceeding. Section 966, 3, the Unit Clarification provisions of the Act, states: ". . . where the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed sufficiently to warrant modification of an existing bargaining unit, any public em- ployer or any recognized or certified bargaining agent may file a petition for a unit clarification provided that the parties are unable to agree on appropriate modifications, and there is no question concerning representation." Since 1974, when the Town first recognized the Association as the legal represen- tative of its classroom teachers, at least three of the disputed positions have come into being - the Learning Disability Specialist, the new arrangement with respect to the Speech Therapists, and the part-time Kindergarten position. These are changes of some consequence and clearly would warrant modification should these positions be otherwise eligible, and there be no other impediments. Since there is no collective bargaining agreement currently in force and no ques- tion concerning representation of the unit, the Petition is sound in the procedural sense. -6- ____________________________________________________________________________________ It is apparent from the record that significant changes have occurred in the circumstances surrounding the original formation of this existing unit and, since each of the four disputed positions has a close community of interest with the teachers already in the unit, all positions should be included in a single unit of Mount Vernon Elementary School teachers. In the opinion of the hearing examiner the positions of Learning Disabilities Specialist and Speech Therapist at the Mount Vernon Elementary School should be in- cluded to the extent of their employment by the Town of Mount Vernon in a collective bargaining unit consisting of all classroom teachers employed by said town. SO ORDERED. Dated at Augusta, Maine this 17th day of October, 1977. By:/s/________________________________ Robert I. Goldman, Hearing Examiner Maine Labor Relations Board -7- ____________________________________________________________________________________