MSAD 14 and East Grand Teachers Assoc., No. 83-A-09, reversing in part and affirming 
in part 83-UC-13 
     



STATE OF MAINE                                       MAINE LABOR RELATIONS BOARD
                                                     Case No. 83-A-09
                                                     Issued:  August 24, 1983
 ___________________________
                            )
MAINE SCHOOL ADMINISTRATIVE )
DISTRICT NO. 14             )
                            )
  and                       )                REPORT OF APPELLATE REVIEW
                            )               OF UNIT CLARIFICATION REPORT
EAST GRAND TEACHERS         )
ASSOCIATION                 )
____________________________)
     
     
     This is an appeal of a unit clarification report, filed pursuant to 26 M.R.S.A.
Section 968(4) on June 15, 1983, by Maine School Administrative District No. 14
("Employer").  The hearing examiner, in his decision dated June 1, 1983, determined
that the changes in the duties of the high school principal employed by the Dis-
trict, since the formation of the bargaining unit in question, did not constitute
sufficient changes to warrant modification of the composition of said unit, within
the meaning of 26 M.R.S.A. Section 966(3).  The hearing examiner also held that
projected future duties of the high school principal, involving collective bargain-
ing, cannot be relied upon to establish that the principal is a confidential em-
ployee, within the definition of 26 M.R.S.A. Section 962(6)(C). The Employer con-
tends, on appeal, that the hearing examiner erred as a matter of both law and fact
in denying the unit clarification petition.

     A hearing on this matter was held on July 12, 1983, Chairman Edward H. Keith
presiding, with Employer Representative Don R. Ziegenbein and Employee Representative
Harold S. Noddin.  The Appellant District was represented by Harry R. Pringle, Esq.,
and the East Grand Teachers Association ("Union") was represented by Mr. Harold B.
Dickinson, Northern Maine UniServ District Director, Maine Teachers Association.
The parties were given full opportunity to examine and cross-examine witnesses,
introduce evidence, and make argument, within the strictures applicable to this
appellate proceeding.  Both parties filed post-hearing briefs, which have been con-
sidered by the Maine Labor Relations Board.


                               JURISDICTION
          
     Maine School Administrative District No. 14, the original petitioner in the
unit clarification proceeding and the Appellant herein, is a public employer, within

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the definition of 26 M.R.S.A. Section 962(7).  Maine School Administrative District
No. 14 is an aggrieved party, within the meaning of 26 M.R.S.A. Section 968(4).
The East Grand Teachers Association is the recognized exclusive bargaining agent
for the certified professional employees, excluding the Superintendent, of Maine
School Administrative District No. 14, within the definition of 26 M.R.S.A. Sec-
tion 962(2).  The jurisdiction of the Maine Labor Relations Board ("Board") to
hear this appeal 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 Board adopts, as modified below, the
following findings of fact made by the hearing examiner:
     
     1.  Maine School Administrative District No. 14 is a public employer, as
defined in 26 M.R.S.A. Section 962(7).

     2.  The East Grand Teachers Association is the recognized exclusive bargain-
ing agent for the certified professional employees, including the high school prin-
cipal and excluding the Superintendent, of Maine School Administrative District
No. 14, within the meaning of 26 M.R.S.A. Section 962(2).

     3.  The bargaining unit, mentioned in the preceding paragraph, was formed
on November 12, 1970, when Maine School Administrative District No. 14 and the
East Grand Teachers Association agreed upon a unit composed of the "Classroom
Teachers and Principals" of Maine School Administrative District No. 14.

     4.  The current description of the unit, outlined in paragraph 2 hereof, is
contained in Article I of the 1982-1983 collective bargaining agreement between
Maine School Administrative District No. 14 and the East Grand Teachers Associa-
tion.

     5.  The bargaining unit, described in paragraph 2 above, presently includes
approximately 23 employees, including the high school and elementary school
principals.

     6.  George Davis served as the high school principal from August, 1966, to
March 1983, when he resigned to take a position in another school district.

     7.  From November 12, 1970, the date of formation of the relevant bargaining
unit, to June 15, 1983, the date on which the petition for unit clarification herein
was filed, the duties of the high school principal have change significantly.

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     8.  Of the seven instructional periods of the school day in 1970, the princi-
pal taught civics or driver's education for four periods each day.  In 1983, the
principal taught only one period, per school day, for part of each academic semes-
ter, and no longer taught civics.

     9.  The principal now uses the time, formerly spent teaching, in performing
supervisory duties.

    10.  In 1970, the principal did not conduct performance evaluations of the
high school teachers.  Such evaluations are now performed regularly by the princi-
pal.
     
    11.  In 1970, the principal had no input on the content of the high school
curriculum.  Since that time, the number of students enrolled at the high school
has risen, allowing the school to offer a greater variety of courses.  As a result
of the academic diversification at the high school, the principal now has a sig-
nificant involvement in the course offerings and curriculum development at the
school.
     
    12.  The principal is now involved in the hiring process for high school teachers
by screening applicants, interviewing candidates, and making hiring recommenda-
tions to the Superintendent.  The principal was not involved in the hiring process
in 1970.

    13.  Under the collective bargaining agreement, mentioned in paragraph 4 hereof,
the principal serves as the first level of the grievance procedure for high school
teachers.

    14.  The principal has never been a member of the Maine School Administrative
District No. 14 negotiating team during collective bargaining nor has he in any
way ever participated, on behalf of the employer, in such bargaining.

    15.  In the area of collective bargaining, Maine School Administrative District
No. 14 intends that the new, yet to be hired, principal will be used as a resource
person for the District's negotiators. The Employer does not intend to have the
new principal sit at the bargaining table on behalf of the District.

    16.  The high school principal schedules, assigns, oversees and reviews the
work of the high school teachers.

    17.  The duties performed by the high school principal, noted in paragraphs 10,

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11, 12, and 13 above, are distinct and dissimilar from those performed by the 
high school teachers.

    18.  In addition to exercising judgment in adjusting grievances, cited in
paragraph 13 hereof, the principal applies established personnel policies and
procedures, in the case of the high school teachers.


                                 DECISION
          
     This unit clarification appeal is being conducted under the authority
granted to the Board by the relevant provisions of the Municipal Public Employees
Labor Relations Act ("Act"), Title 26 M.R.S.A. Section 961, et seq.  The hearing,
which preceded this order and upon which our decision herein is based, was an
appellate proceeding and not a hearing de novo on the facts in dispute.  We have
often discussed the limits placed on the introduction of evidence during such a
proceeding and the nature of the hearing itself.  In Teamsters Local Union No. 48
and City of Portland, Report of Appellate Review of Unit Determination Hearing, at
5-6 (February 20, 1979), we stated:

          " . . . Section 968(4) of the Act provides the right to appeal
     a hearing examiner's report to a party aggrieved by the report.
     That section states that upon the receipt of an appeal, the Board
     shall conduct a hearing in the manner specified in Section 968(5)
     (B), which provides that the parties to a hearing have the right
     to give testimony.  Section 968(4) also provides that after the
     hearing, the Board shall issue a decision which 'shall either affirm
     or modify the ruling or determination of the executive director and
     specify the reasons for such action.'  The appellate hearing con-
     ducted by the Board pursuant to Section 968(4) thus is for the
     purpose of reviewing the hearing examiner's rulings and determina-
     tions, and either affirming or modifying these rulings and determ-
     inations.
     
          "In ascertaining whether the hearing examiner's rulings and
     determinations should be affirmed or modified, the Board's task is
     to review the evidence upon which the hearing examiner based his
     decision.  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 determination
     report may conduct a de novo hearing and admit new evidence not offered
     at the unit determinaUon hearing.  Such new evidence obviously could
     distort our review of the hearing examiner's report.  Since the unit
     determination hearing is the only evidentiary hearing on unit matters
     provided for in the Act, it would obviously offend both the provisions
     of the Act, and common sense to suppose that a party was entitled
     to two evidentiary hearings on a bargaining unit dispute - one before
     the hearing examiner and the second before the full Board. Thus, as

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     we held in our Report of Appellate Review of Unit Determination Hearing,
     in Brunswick Ass'n of Paraprofessionals and Non-Teaching Personnel and
     Brunswick Superintending School Comm. (1975):

               ' . . . we believe that the appeal procedure, authorized
           in  968,  4, of the Act, should be based on a clear and
           thorough review of the evidence adduced at the hearing before
           the Executive Director.  To hold otherwise would open the
           appeal procedure to a continuous and never-ending flow of
           new allegations.  Our charge is to review the Unit Determination
           Report of the Executive Director pursuant to the provisions
           of  968,  4, of the Public Employees Labor Relations Act
           and, under that authority, we must look at the facts and evi-
           dence made available to the Executive Director when he acted
           as a hearing examiner pursuant to  966 of the Act.'
     
          "An important policy consideration which supports the procedures for
     determining bargaining unit questions set forth in the Act is that it would
     be a waste of time and resources for the Board to be primarily responsible
     for determining each and every bargaining unit question which arises.  In
     terms of expediency and efficiency, such determinations are best made at the
     the administrative level, subject to limited review by the full Board.  This
     is the procedure followed by the National Labor Relations Board and by most
     public sector labor boards in the country.  If the full Board were primarily
     responsible for making these determinations, resolution of our already over-
     burdened prohibited practice complaint docket would become hopelessly delayed.
     
          "In addition, the procedures set forth in the Act also have the benefi-
     cial effect of establishing a time certain at which the parties must be pre-
     pared to present their complete case regarding a dispute over a unit matter,
     i.e., at the unit determination hearing.  Because the Board will not admit
     new evidence not offered at the unit determination hearing, there should be
     no incentive for the parties to use the unit determination hearing to 'feel
     out' the opposing party's case or, subsequent to the unit determination
     hearing, to attempt to 'create a record' for use on appeal to fill gaps
     made evident at the evidentiary hearing.
     
          "The record which we review on an appeal pursuant to Section 968(4)
     of the Act is the unit determination report itself, any documentary evi-
     dence offered to the hearing examiner, any admissible testimony introduced
     at the appellate hearing, and any briefs filed by the parties on appeal.
     It is standard procedure for the unit determination report to contain the
     names of the witnesses who testified at the hearing, a description of the
     documents offered into evidence, and a discussion of the relevant facts
     and the issues of the case as perceived by the hearing examiner.  We thus
     are able to determine by examining the unit determination report the wit-
     nesses who appeared at the hearing, the documents which were offered as
     exhibits, and the issues which were raised by the parties."
     
We subsequently held that the foregoing rule and analysis also applied to appellate
reviews of unit clarification reports.  City of Bath and Council 74, AFSCME, MLRB
No. 81-A-01, at 6 (Dec. 15, 1980).  In this case, the Employer argued that, at

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the hearing before the Board, it should be allowed to introduce evidence not presen-
ted to the hearing examiner, in order to amplify and expand the record herein.  The
Employer averred that it should be allowed to do so because the Employer was not
represented by counsel, in the proceeding before the hearing examiner, and because
the Board should consider all relevant evidence in discharging its statutory obli-
gation on bargaining unit questions.  We hold that neither proffered rationale is persua-
sive for abandoning our long-standing rule.  First, the Employer, at its option,
could have been represented by an attorney or other labor relations advisor at the
hearing below.  The decision not to be so represented was made by the Employer and
the Employer must now accept the consequences of its decision.  To hold otherwise
would provide an incentive for parties to appear pro se at unit hearings, discover
the other party's case, and then, on appeal, appear with counsel and present their
full position on the unit question at issue.  Such practice is contrary to the in-
tent of the Act and would totally subvert the authority of the Board's hearing ex-
aminers over bargaining unit questions.  The Employer's alternate rationale also
fails.  As was noted in City of Portland, supra, the Act, in Section 966(3) incor-
porating the provisions of Section 966(1), places the primary jurisdiction and
responsibility for determining bargaining unit questions on the Board's hearing ex-
aminers.  The Board's role, in the bargaining unit context, is to review the hear-
ing examiner's findings of fact and determinations, through appellate proceedings.
While it is important that bargaining unit determinations be made on the basis of
all available relevant evidence, the time and place for the introduction of said
evidence is before the hearing examiner.  The Board, upon invocation of its appel-
late jurisidction in unit matters, will review the hearing examiners' findings of
fact and rulings with reference to the record before the hearing examiner.

     Since this appellate proceeding concerns the hearing examiner's findings of
fact and conclusions of law, we will set forth the applicable standard of review
used by this Board to evaluate the correctness of the hearing examiner's actions.
We have often stated that "[w]e will overturn a hearing examiner's rulings and
determinations if they are 'unlawful, unreasonable, or lacking in any rational
factual basis.'"  City of Bath and Council 74, AFSCME, supra, at 6. See also,
Town of Yarmouth and Teamsters Local Union No. 48, MLRB No. 80-A-04, at 5 (June 16, 
1980).

     The first contention made by the Employer is that the hearing examiner erred,
as a matter of fact and of law, in determining that the threshhold requirement for
a unit clarification, a sufficient change in the circumstances surrounding the

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formation of an existing bargaining unit to warrant modification in the composition
of that bargaining unit, had not been met.  Although, under Rule 1.09(D) of our
Rules and Procedures, the hearing before the hearing examiner is "investigatory and
not adversary" and "[t]here are no burdens of proof," we have held that the
"substantial change" requirement is a threshhold question on which the petitioner,
in a unit clarification proceeding, "bears the burden of alleging the requisite
change and, further, of establishing the occurrence of said change in the unit
then at issue. " State of Maine and Maine State Employees Association, MLRB No.
82-A-02, Interim Order, at 15-16 (June 2, 1983). Applying the foregoing standard
of review to the hearing examiner's determination that no substantial change had
been established in this case, Maine School Administrative District No. 14 and East
Grand Teachers Association, Unit Clarification Report, at 3 (June 1, 1983), we must
reverse the hearing examiner's holding in this regard.  Paragraphs numbered 7, 8,
9, 10, 11, 12 and 13, of our foregoing findings of fact, clearly establish the
occurrence of the requisite substantial change, in the circumstances surrounding
the formation of the bargaining unit in question, to warrant consideration of modi-
fication of the composition thereof.  Having reversed the hearing examiner on this
threshhold question, we must now examine the remaining issues raised by the Employer,
both before the hearing examiner and before this Board.

     The Employer alleges that the high school principal should be excluded from
the collective bargaining coverage of the Act, because the Employer intends to use
the principal, in the future, as a resource person for the purpose of collective
bargaining.  In the alternative, the Employer avers that, as a supervisory employee,
the Act requires that the principal be removed from inclusion in the same bargain-
ing unit with teachers who do not exercise supervisory authority. We will discuss
each of the Employer's contentions, in detail, below.

     Although holding that the Employer had failed to establish the necessary thresh-
hold change, the hearing examiner, at pages 4 through 6 of his decision, went on
to discuss the Employer's averment that the principal be excluded from collective
bargaining coverage as a "confidential" employee, within the meaning of Section
962(6)(C) of the Act.  Since this issue was raised before the hearing examiner, we
may review the same at this juncture.  The test applied to determine whether an em-
ployee is "confidential," as defined in Section 962(6)(C) of the Act, has recently
been amplified and clarified in our decision in the case of State of Maine and
Maine State Employees Association, supra.  Although that case was decided under the 
parallel provisions of the State Employees Labor Relations Act, 26 M.R.S.A. Section

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979, et seq., the analysis discussed therein is equally applicable hereto. In
State of Maine and Maine State Employees Association, we stated:

        "Our previously announced standard, defining 'confidential'
     employees under Section 979-A(6)(C) of the Act, continues to
     have validity and vitality. We believe that our standard is
     consistent with that enunciated by the United States Supreme
     Court in [NLRB v.1 Hendricks County, [454 U.S. 170, 102 S.Ct.
     216, 70 L.Ed.2d 323 (1981]. The latter decision, when read
     within the context of the State Act, serves to further clarify
     the definition of 'confidential' employees. Our standard for
     the exclusion of 'confidential' employees is that those per-
     sons affected are employees who are 'permanently assigned to
     collective bargaining or to render advice on a regularly assigned
     basis to management personnel on labor relations matters.'
     State of Maine and Maine -State Employees Association, [Report of
     Appellate Review of Unit Clarifiation Report (Mar. 2, 1979)],
     at 8. As we have noted above, the 'labor relations' matters, in
     the foregoing context, do not include contract administration ac-
     tions or duties. Applying Hendricks County to this context, those
     employees who have, as part of their work responsibilities access
     to the employer's negotiations positions, in advance of said posi-
     tions being disclosed at the bargaining table, and who, as an integral
     part of their job duties, assist and act in a confidential capacity
     with respect to persons who formulate or determine the employer's
     bargaining positions or bargaining strategy are 'confidential' em-
     ployees, under Section 979-A(6)(C) of the Act."

Case No. 82-A-02, Interim Order, at 10. In the same decision, we further elucidated
the above standard by discussing its application by the Board's hearing examiners.
We held as follows:

           "The State's second argument is that the hearing examiner erred
     by requiring that an employee's involvement in collective bargaining
     matters be significant as well as necessary to warrant exclusion on
     'confidential employee' grounds.  We hold that the hearing examiner
     has correctly interpreted our long-standing policy in this regard.  We
     have often stated that, to be a 'confidential employee,' one must be
     'permanently involved in collective bargaining matters on behalf of
     the public employer or that the duties performed by the employee involve
     the formulation, determination and effectuation of the employer's
     employee relations policies.'  Waterville Police Department and Teamsters
     Local Union No. 48, Report of Appellate Review of Unit Determination
     Hearing, at 3 (10/4/78). This requirement, that the employee's parti-
     cipation in collective bargaining matters be significant, does not set
     out a strict empirical formula mandating the inclusion or exclusion of
     employees from collective bargaining. That determination must be made
     on an ad hoc basis by the hearing examiner on the facts developed through
     the unit hearing process. The requirement of significance of an employee
     participation in collective bargaining matters may be satisfied either
     when the individual's involvement is substantial, although it is performed

                                    -8-
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     rarely, or when the activity is relatively minor but is undertaken on
     a regular basis as part of the employee's job functions.  The signifi-
     cance of the employee's involvement turns on the nature of his or her
     access to information which could, if revealed to the bargaining agent,
     jeopardize the employer's collective bargaining position, Town of Fair-
     field [and Teamsters Local Union No. 48, Report of Appellate Review of
     Unit Determination Hearing (11/27/78)] at 3, and also on what the employee
     does with such information. The employee must use said information in the
     formulation and determination of the employer's labor relations policies
     or collective bargaining proposals in order to be found to be a confiden-
     tial employee. Waterville Police Department, supra, at 3."

Ibid., at 18. In applying the above criteria, the hearing examiner below looked
at the duties which the principal was performing or had performed in the past.
In doing so, the hearing examiner determined that the principal was not a confi-
dential employee, within the meaning of Section 962(6)(C) of the Act.  We must
affirm the hearing examiner's holding.

     The evidence before both the hearing examiner and the Board clearly established
that the high school principal has never participated in any way in the collective
bargaining process on behalf of the Employer.  The Employer's allegation of confi-
dentiality is based exclusively on its intention to involve the principal in col-
lective bargaining matters, on behalf of the Employer, in the future.  In Water-
ville Police Department, supra, at 4 we held:

        "The City Administrator's testimony that since the subordinate
     officers in the Detective Division have recently been included in a
     bargaining unit, the Captain of the Detective Division will partici-
     pate in future negotiations on behalf of the City, does not establish
     that the Captain is a confidential employee within the meaning of
     Section 962[6].  In determining confidential employee status, we con-
     sider the duties currently being performed by the alleged confidential
     employee.  We cannot base a finding of confidentiality upon testimony
     which projects what an employee's duties may be in the future.  In the
     event that a public employee's duties change so as to imply a confiden-
     tial relationship under Section 962[6], the correct procedure is for the
     public employer to file a Petition for Unit Clarification pursuant to
     26 M.R.S.A.  966(3) and in accordance with Rule 1.13 of the Board's
     Rules and Procedures.  At the unit clarification hearing, the employer
     is afforded the opportunity to show that the employee's changed duties
     involve collective bargaining functions or employee relations matters."

The Employer has argued that the above holding, in a unit determination appeal, is
inapposite in the unit clarification context.  The latter application was described
as "draconian" and "a classic catch-22 situation."  Employer's Brief, at 13, n.1.
We disagree for two reasons.  First, the Employer's contention, that a bargaining
unit employee can never perform confidential collective bargaining duties, is
based on inaccurate assumptions.  These premises are that (1) all bargaining unit

                                    -9-
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employees are union members and (2) that any confidential collective bargaining in-
formation shared by an Employer with a unit employee, as an integral part of the
latter's job duties, will be transmitted to the union.  The first assumption is not
only incorrect because of the provisions of Section 963 of the Act but was also clearly
demonstrated in this case.  The high' school principal was not a union member during
the last year of his service with the Employer.  The second, and more critical assump-
tion, is equally erroneous.  Some bargaining unit supervisory employees, such as the
principal in this case, may, through the evolution of the collective bargaining
process, be assigned, as natural outgrowths of their job responsibilities, confi-
dential collective bargaining duties, on behalf of the public employer.  In making
such assignments, the public employer may admonish the affected employee that the
duties are confidential and are not to be discussed with the union.  An employee
ignoring said warning and relating the confidential information to the union would
be subject to discipline by the employer.  So long as such assignments are inherently
related to the employees' work duties and the decision to involve them is not made
with the subjective intent to, thereby, deprive employees of collective bargaining
coverage, the assignments are permitted under the Act.

     The second reason that the Employer's contention, that a bargaining unit em-
ployee can never perform confidential collective bargaining duties, is erroneous
is that the same does not inherently occur in reality.  An example of the lack of
inherency in the Employer's argument is the situation which has developed concern-
ing several employees of the State of Maine and which was the subject of our recent
decisions in State of Maine and Maine State Employees Association, MLRB No. 82-A-02,
Interim Orders (June 2, 1983 and August 9, 1983).  From 1976, the date when the State
employee bargaining units were first created, to 1980, the date of the petition
for unit clarification in the above case, several State bargaining unit employees
had assumed and were performing confidential collective bargaining duties. As a
result of a petition for unit clarification filed by the State, as the public
employer, those employees were excluded from collective bargaining coverage as con-
fidential employees.

     In light of the foregoing analysis, we hold, as did the hearing examiner be-
low, that employees must actually perform confidential collective bargaining duties
before they can be considered to be confidential employees, within the meaning of
Section 962(6)(C) of the Act.  If the new principal hired by the Employer actually
discharges confidential collective bargaining responsibilities, as defined above,
on behalf of the Employer, the Employer should then file a petition for bargaining
 
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unit clarification in the manner provided in Rule 1.13 of the Board's Rules and Pro-
cedures.  The hearing examiner, at that time, will consider the principal's actual
duties and will rule on the petition accordingly.

     There is no dispute in this case that the high school principal, employed by
Maine School Administrative District No. 14, is a supervisory employee, within the
meaning of Section 966(1) of the Act, The second major issue raised by the Employer
is whether, as a supervisory employee, the principal may be included in the same
bargaining unit as teachers who do not exercise supervisory responsibilities. Sec-
tion 966(1) of the Act states:

        "In the event of a dispute between the public employer and an
     employee or employees as to the appropriateness of a unit for pur-
     poses of collective bargaining or between the public employer and
     an employee or employees as to whether a supervisory or other posi-
     tion is included in the bargaining unit, the executive director
     or his designee shall make the determination, except that anyone
     excepted from the definition of public employee under section 962
     may not be included in a bargaining unit.  The executive director or
     his designee conducting unit determination proceedings shall have the
     power to administer oaths and to require by subpoena the attendance
     and testimony of witnesses, the production of books, records and
     other evidence relative or pertinent to the issues represented to
     them.  In determining whether a supervisory position should be ex-
     cluded from the proposed bargaining unit, the executive director or
     his designee shall consider, among other criteria, if the principal
     functions of the position are characterized by performing such manage-
     ment control duties as scheduling, assigning, overseeing and review-
     ing the work of subordinate employees, or performing such duties as
     are distinct and dissimilar from those performed by the employees
     supervised, or exercising judgment in adjusting grievances, applying
     other established personnel policies and procedures and in enforcing
     a collective bargaining agreement or establishing or participating in
     the establishment of performance standards for subordinate employees
     and taking corrective measures to implement those standards.  Nothing
     in this chapter is intended to require the exclusion of principals,
     assistant principals, other supervisory employees from school system
     bargaining units which include teachers and nurses in supervisory posi-
     tions."
          
The Employer, at pages 7 through 10 of its Brief, has argued that the legislative
history of the last sentence of Section 966(1) and the intent of the Legislature,
in enacting said sentence, mandate the exclusion of principals from bargaining units
composed of classroom teachers.  We, like the Employer, at page 7 of its Brief,
have examined the two alternate interpretations of said sentence suggested by McGuire
and Dench in Public Employee Bargaining Under the Maine Municipal Public Employees

                                   -11-
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Labor Relations Law:  The First Five Years, 27 Me. L. Rev. 29, 70, n.2O7 (1975).
Unlike the Employer, we reject the authors' interpretation of the last sentence
of Section 966(1).  The Board believes that the Legislature, in enacting Section
966(1) as a whole intended that the executive director or his designee exercise
discretion in determining the composition of bargaining units which are appropriate
for the purposes of collective bargaining.  The assignment of discretion to the
executive director is recognized explicitly in the use of the word "should," in the
introductory phrase of the next-to-last sentence of Section 966(1).  Said dis-
cretion has also been recognized by this Board in Town of Yarmouth and Teamsters,
Local Union No. 48, supra, at 4, where we stated:

          "The Town misconceives the nature of the hearing examiner's
      responsibilities under 26 M.R.S.A.  966.  As the hearing examiner
      correctly stated, it is his duty to determine whether the unit
      proposed by the petitioner is an appropriate one, not whether the
      proposed unit is the most appropriate unit.  In this determination
      the hearing examiner has broad discretion, particularly in deciding
      community of interest questions.  See, e.g., AFSCME, Pine Tree Council
      No. 74 and City of Brewer, Case No. 79-A-01 at 3-4 (Oct. 13, 1979)."

We believe that, in enacting the last sentence to Section 966(1), the Legislature
intended that, if the executive director, in the exercise of his discretion, de-
cides that a separate supervisory employees bargaining unit is appropriate, in
the context of a school district or department, then principals and assistant
principals may be included in said supervisory employees bargaining unit.  Without
the last sentence of Section 966(1), the same rationale that motivated the executive
director to constitute the supervisory employees' bargaining unit would, by logical
extension, require the creation of a separate bargaining unit for assistant princi-
pals and, under some circumstances, for principals.  By enacting the last sentence
of Section 966(1) of the Act, the Legislature sought to avoid the proliferation of
small bargaining units, in school system bargaining units.  We believe that the
foregoing interpretation of 26 M.R.S.A. Section 966(1) is reasonable and is con-
sistent with the intent of the Legislature and, therefore, we adopt the same.

     The hearing examiner below, at page 6 of his decision, determined, tacitly,
that the high school principal was a supervisory employee.  Despite this holding,
however, the hearing examiner decided that creating a separate single-position bar-
gaining unit for the principal would "fly in the face of the Board's policy of
'discouraging the proliferation of small bargaining units in a single department.'"
Idem., citing Town of Yarmouth, supra, at 4. Section 966(1) of the Act clearly
provides that non-confidential supervisory employees are entitled to collective

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bargaining coverage under the Act.  The same Section of the Act provides that the
executive director, in making bargaining unit determinations, shall consider,
in addition to the standards outlined therein, "other criteria."  Among such
"other criteria" is the Board's policy cited by the hearing examiner.  Town of
Yarmouth, supra, at 4: City of Bath, supra, at 5. One of the Board's hearing
examiners has, previously, outlined the rationale underlying our non-prolifera-
tion rule.  In Teamsters Local Union No. 48 and Bucksport School Department,
Unit Determination Report, at 3 (Mar. 13, 1980), the hearing examiner stated:

          "Small bargaining units must be bargained for and serviced
     just as do large bargaining units.  The State is obligated to
     provide under 26 M.R.S.A. Section 965 the same mediation and ar-
     bitration services for small units as are provided for large
     units.  The formation of small bargaining units among employees
     in the same department can thus result in the employer, the union,
     and the State expending an amount of time, energy and money all out
     of proportion to the number of persons served."

We expressly adopt said rationale herein.  Furthermore, the creation of a single-
member bargaining unit may well impede the individual, placed therein, from secur-
ing the free exercise of his collective bargaining rights, in contravention of
the spirit and intent of Section 963 of the Act.  Town of Sabattus and Teamsters
Local Union No. 48, MLRB No. 82-A-01, at 4 (Sept. 17, 1981).  Considering the
above criterion, we affirm the hearing examiner's decision to keep the high school
principal in the existing comprehensive bargaining unit and we will so order.


                                    ORDER
     
    On the basis of the foregoing findings of fact and decision 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 hearing examiner's finding of fact and conclusion of law, that
         no substantial change in the circumstances surrounding the formation
         of the Certified Professional Employees Bargaining Unit in Maine
         School Administrative District No. 14, between November 12, 1970
         and April 20, 1983, contained in the Unit Clarification Report of
         June 1, 1983, be and hereby is reversed.
     
     2.  That the balance of the Unit Clarification Appeal, filed by Maine
         School Administrative District No. 14 on June 15, 1983, be and hereby
         is denied.
     
     3.  The hearing examiner's decision of June 1, 1983, in all respects
         other than that mentioned in paragraph 1 of this Order, be and
         hereby is affirmed.     

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     4.  The high school principal employed by Maine School Administrative
         District No. 14 shall remain in the existing bargaining unit com-
         posed of all certified professional employees, except for the
         Superintendent, of Maine School Administrative District No. 14.

     
     
Dated at Augusta, Maine, this 24th day of August, 1983.           
                                       
                                                                              
                                   MAINE LABOR RELATIONS BOARD   
                                       
                                       
                                       
                                   /s/_________________________________________
                                   Edward H. Keith, Chairman
                                       
     
     
                                   /s/_________________________________________  
                                   Don R. Ziegenbein, Employer Representative



                                   /s/_________________________________________
                                   Harold S. Noddin, Employee Representative
     
                   
     
     The parties are advised of their right, pursuant to Title 26 M.R.S.A.
Sections 968(4) and 972, to seek review of this decision by the Superior Court
by filing a complaint in accordance with Rule 80B of the Rules of Civil Pro-
cedure within 15 days of the date of this decision.




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