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

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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

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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.

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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
      



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