Saint John Valley Vocational Cooperative Board and Northern Aroostook Vocational Educators, No. 83-A-05, affirming 83-UD-13 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 83-A-05 Issued: February 4, 1983 ________________________________ ) SAINT JOHN VALLEY VOCATIONAL ) COOPERATIVE BOARD ) ) REPORT OF APPELLATE REVIEW OF and ) UNIT DETERMINATION REPORT ) NORTHERN AROOSTOOK VOCATIONAL ) EDUCATORS MTA/NEA ) ________________________________) This is an appeal of a unit determination report, filed pursuant to 26 M.R.S.A. Section 968(4) on February 3, 1983 by the Saint John Valley Vocational Cooperative Board (Board). The hearing examiner determined in his report that a bargaining unit composed of "[a]ll Coordinators, Instructors, Bookkeepers, Instructional Clerks, Bills Clerks, Tutors, Aides, Secretaries and Bus Drivers" employed by the Board was appropriate for purposes of collective bargaining. The Board alleges in its appeal that the hearing examiner erred by including the Student Services Coordinator in a bargaining unit because that position is second-in-command of the Board's office. JURISDICTION The Northern Aroostook Vocational Educators MTA/NEA (Union), the petitioning union in this case, is a public "employee organization within the meaning of 26 M.R. S.A. Section 967. The Board is public employer as defined in 26 M.R.S.A. Section 962(7). The jurisdiction of the Maine Labor Relations Board to review this pro- ceeding and render a decision and order lies in 26 M.R.S.A. Section 968(4). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: A hearing on the Union's representation petitions was held by a Labor Relations Board hear- ing examiner on January 20, 1983. The Board was represented by its Director, John Taylor. At the hearing Taylor challenged certain of the job titles proposed to be included in the unit and urged that the Recording Secretary to the Board [-1-] ___________________________________________________________________________________ was a confidential employee who should be excluded from the unit. After some dis- cussion between Taylor and the Union representative, the parties agreed that the Recording Secretary should be excluded from the unit and that both Coordinators (the Student Services Coordinator and the Distributive Education Coordinator) as well as a number of other positions should be included in the unit. The hearing examiner then questioned whether the professional employees had voted pursuant to 26 M.R.S.A. Section 966(2) to be included in the same bargaining unit with the nonprofessional employees. The Union introduced evidence, consist- ing primarily of a statement signed by most of the professional employees, showing that a majority of the professional employees had voted to be included in the same unit. The hearing examiner accordingly found pursuant to 26 M.R.S.A. Section 966 (1) and (2) that a bargaining unit composed of the Coordinators and the other posi- tions upon which the parties had agreed was appropriate for purposes of bargaining. The Recording Secretary to the Board was expressly excluded from the unit. DECISION At issue is the question whether the Board may raise on appeal an issue which it failed to raise during the proceeding before the hearing examiner. Consistent with our previous decisions, we hold that it cannot. We accordingly will deny the Board's appeal, affirm the hearing examiner's report, and order that the Executive Director or his designee conduct a representation election as soon as possible. In our Report of Appellate Review in Teamsters Local 48 and City of Portland (Feb. 20, 1979) we noted that our authority under 26 M.R.S.A. Section 968(4) is limited to reviewing the evidence and issues presented to the hearing examiner: "In ascertaining whether the hearing examiner's ruling and determ- inations should be affirmed or modified, the Board's task is to review the evidence upon which the hearing examiner based his decisions. New evidence not offered to the hearing examiner clearly is inadmissable for purposes of this review. There is nothing in Section 968(4) or (5) or in any other provision of the Act which suggests that the Board when hearing an appeal of a unit uetermination report may conduct a de novo hearing and admit new evidence not offered at the unit determination hearing." Id., at 5; Accord, Brunswick Association of Paraprofessionals and Brunswick School Committee at 3 (Oct. 10, 1975). We also noted in the City of Portland case, at 4, that 26 M.R.S.A. Sections 966 and 968(4) delegate primary responsibility for de- ciding bargaining unit questions to the hearing examiners, not to the full Labor -2- ___________________________________________________________________________________ Relations Board. In light of the procedures and authority set forth in the statute for handling bargaining unit questions, it is clear that matters not raised before the hearing examiner cannot be raised on appeal to the Board. See, e.g., Town of Sabattus and Teamsters Local 48, MLRB No. 82-A-01 (Sept. 17, 1981). Here the Board did not raise the issue whether the Student Services Coordinator should be excluded from the unit at the hearing before the hearing examiner.[fn]1 The Board's representative urged only that the Recording Secretary should be excluded, and the hearing examiner himself had to raise the issue whether the professional employees had voted to be included in the unit. Since the Board failed to raise the Coordinator issue during the hearing below, it is precluded by the statute from raising the issue on appeal.[fn]2 The appeal therefore must be denied. ORDER Based on the foregoing findings of fact and discussion and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. Section 968(4), it is ORDERED: 1. The Saint John Valley Vocational Cooperative Board's appeal of the unit determination report in this matter is denied. 2. The determinations of the hearing examiner are affirmed. The bargaining unit is composed of all Coordinators, Instructors, Book- keepers, Instructional Clerks, Bills Clerks, Tutors, Aides, Secre- taries and Bus Drivers employed by the Saint John Valley Vocational Cooperative Board. The Recording Secretary to the Board is excluded from the bargaining unit. 3. The Executive Director or his designee is directed to conduct a rep- resentation election for the bargaining unit as soon as possible. __________ 1/ Not only did the Board not raise the issue, but its representative also agreed that the Student Services Coordinator position should be included in the bargaining unit. For the Board to claim on appeal that the hear- ing examiner erred by including the position in the unit is highly improper and raises serious questions about the Board's motives in this matter. 2/ The Board may at the appropriate time raise the issue before a hearing ex- aminer by filing a petition for unit clarification pursuant to 26 M.R.S.A. Section 966(3). The Board alleges in its appeal that it has voted to change the Student Services Coordinator's duties, effective as of July 1, 1983, to include more administrative and managerial responsibilities. Since "we consider the duties currently being performed by the . . . employee," this allegation would carry no weight in this proceeding even if the Board had raised the Coordinator issue below. Waterville Police and Teamsters Local 48 at 4 (Oct. 4, 1978). The allegation would be relevant in a unit clarification proceeding, however. -3- ___________________________________________________________________________________ Dated at Augusta, Maine, this 4th day of February, 1983. MAINE LABOR RELATIONS BOARD /s/______________________________________________ Donald W. Webber, Alternate Chairman /s/______________________________________________ Don R. Ziegenbein, Employer Representative /s/______________________________________________ Harold S. Noddin, Employee Representative -4- ___________________________________________________________________________________