MSAD 43 and SAD 43 Teachers Assoc., No. 84-A-05, affirming 84-UC-05.

                                          Case No. 84-A-05
                                          Issued: May 30, 1984
DIRECTORS,                     )
                 Petitioner,   )
                               )          REPORT OF APPELLATE REVIEW
            and                )         OF UNIT CLARIFICATION REPORT
           Bargaining Agent.   )
     The question presented in this appeal of a unit clarification
report is whether the hearing examiner erred by dismissing the Maine
School Administrative District No. 43 Board of Directors' (School
District) petition to remove the position of Athletic Director from
a bargaining unit consisting of full-time certified teachers.
Finding no error in the hearing examiner's decision, we deny the
appeal and affirm the unit clarification report.
     The School District filed its timely appeal pursuant to 26
M.R.S.A.  968(4)(Supp. 1983-84) on May 9, 1984, seeking review of
a unit clarification report issued on April 23, 1984.  The hearing
examiner found, inter alia, that the Athletic Director was not a
"confidential employee" as defined in 26 M.R.S.A.  962(6)(C)(1974);
that the position continued to share a clear and identifiable com-
munity of interest with the other positions in the bargaining unit;
and that although the Athletic Director is a supervisor, the position
should remain in the rank-and-file unit because no bargaining unit
of supervisory employees exists in M.S.A.D. No. 43.  The School
District accepts the first two determinations but takes issue with
the third determination regarding placement of the Athletic Director


     A hearing on the appeal was held in Augusta, Maine on May 16,
1984, Chairman Sidney W. Wernick presiding, with Employer Repre-
sentative Thacher E. Turner and Employee Representative Harold S.
Noddin.  The School District was represented by Annalee Z. Rosenblatt
and the School Administrative District No. 43 Teachers Association
(Union) by J. Donald Belleville.
     The School District is an "aggrieved party" within the meaning
of 26 M.R.S.A.  968(4)(Supp. 1983-84).  The Union is the bargaining
agent for a bargaining unit of full-time certified teachers employed
by the School District.  The jurisdiction of the Maine Labor Relations
Board to hear this appeal and render a decision and order lies in
Section 968(4).
                         FINDINGS OF FACT
     None of the thirty-two findings of fact made by the hearing
examiner at pages 3-7 of his report are disputed.  We find that the
relevant facts in this case were fully and adequately found by the
hearing examiner, and therefore incorporate those findings of fact
herein by reference, as if they were fully set forth in this decision.
     The School District contends the hearing examiner failed to
recognize that the position at issue in this case is that of
"Assistant Principal/Athletic Director" and that he also failed
to consider a 1975 unit determination report which excluded the
M.S.A.D. No. 43 Assistant Principals from the teachers' bargaining
unit on the ground that the Assistant Principals are supervisors.
Had the hearing examiner properly taken these two matters into
consideration, the School District urges, he would have excluded
the Athletic Director position from the teachers' unit since that
position also is a supervisory position.


     The standard of review for bargaining unit rulings by hearing
examiners has been stated in many cases:  "We will overturn a hearing
examiner's rulings and determinations if they are 'unlawful, unreason-
able, or lacking in any rational factual basis.'"  Council 74, AFSCME
and Teamsters Local 48, MLRB No. 84-A-04 at 10 (Apr. 25, 1984),
quoting Teamsters Local 48 and City of Portland, MLRB Report of
Appellate Review at 6 (Feb. 20, 1979).  It thus is not proper for
us to substitute our judgment for the hearing examiner's; our function
is to review the facts to determine whether the hearing examiner's
decisions are logical and are rationally supported by the evidence.
     We find that the hearing examiner's decision that the Athletic
Director position should remain in the teachers' bargaining unit is
entirely logical and rational.  The evidence shows that the Athletic
Director position became vacant in the spring of 1983.  The vacant
position was posted throughout the summer of 1983, but no bargaining
unit employee applied for the position.  Accordingly, in the fall
of 1983 the Superintendent of Schools appointed the high school
Assistant Principal to serve as acting Athletic Director for a one-
year term, with the new job title of "Assistant Principal/Athletic
Director."  The Athletic Director position has been included in the
teachers' bargaining unit and the stipend and release time for the
position have been negotiated for at least the past 10 years.  On the
other hand, the Assistant Principal position has been excluded from
the unit as the result of the 1975 unit determination report.
In November 1983 the School District adopted a new job description
for the Athletic Director position, imposing the requirement that
the Athletic Director hold "administrative certification" and
expanding the duties of the position.  The School District's petition
seeking to remove the position from the unit followed.
     The hearing examiner clearly understood that an Assistant
Principal now holds the Athletic Director's position and that
administrative certification now is required for the position;
these facts are included in the findings of fact and are discussed
in the hearing examiner's report.  We also are satisfied that the


hearing examiner gave proper weight to these facts when making
his determinations.  The hearing examiner's focus on the Athletic
Director position was of course entirely appropriate because that
was the position the School District was seeking to remove.  In
short, we disagree with the School District's contentions that the
hearing examiner failed to note that an Assistant Principal holds
the Athletic Director position and that this alleged oversight
resulted in error.
     We also disagree with the School District's argument that the
1975 unit determination report requires that the position be removed
from the bargaining unit.  The hearing examiner in the 1975 report
found that the two Assistant Principals in M.S.A.D. No. 43 were
supervisors and ordered that they be excluded from the teachers'
bargaining unit.  The examiner noted that the Assistant Principals
could petition for a supervisory employees bargaining unit if they
so desired.  The record shows that such a unit has not been formed,
     The present case differs from the 1975 case for several reasons.
For one thing, the present case deals with a different position
which has been included in the teachers' bargaining unit for at
least 10 years and which continues to share a clear and identifiable
community of interest with the unit.  For another, our policy regard-
ing the placement of supervisory positions in rank-and-file units
has changed substantially since 1975.  As the hearing examiner
correctly stated in the present case, our policy for a number of
years has been to include supervisory positions in rank-and-file
units rather than establish small, separate supervisory bargaining
units.  See, e.g., Maine School Administrative District No. 14 and
East Grand Teachers Association, MLRB No. 83-A-09 (Aug. 24, 1983).
The rationale for our policy "of discouraging the proliferation of
small bargaining units in a single department" was accurately noted
by the hearing examiner at page 13 of his report:
         "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 arbitration 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
The School District fails to recognize that our present policy super-
cedes anything said to the contrary in the 1975 unit report.
     The hearing examiner found in the present case that the Athletic
Director is a supervisor.  He then reasoned that since no supervisory
bargaining unit existed, our non-proliferation policy dictated that
the Athletic Director position remain in the teachers' bargaining
unit.  This analysis was entirely in accord with our policy and the
law:  "An employee holding two positions with the same employer may
be included in a bargaining unit for purposes of one of the positions
even though the second position is excluded from the unit."  Lewiston
Teachers Association v. Lewiston School Committee, MLRB No. 83-08 at 6
n. 1 (Jan. 14, 1983). The School District's argument that the 1975
unit report requires a result contrary to that ordered by the hearing
examiner simply is unpersuasive.
     Since the School District has not shown any error on the part of
the hearing examiner, the unit clarification report must be affirmed.
     On the basis of 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.  968(4)(Supp. 1983-84), it
          1.  The Maine School Administrative District
              No. 43 Board of Directors' appeal of the
              April 23, 1984 unit clarification report
              is denied.
          2.  The April 23, 1984 unit clarification
              report is affirmed.  The Athletic Director
              position shall remain in the teachers'
              bargaining unit.


Dated at Augusta, Maine, this 30th day of May, 1984.

                                 MAINE LABOR RELATIONS BOARD
The parties are advised          Sidney W. Wernick 
of their right to seek           Chairman
review of this decision
and order by the Superior
Court by filing a complaint
pursuant to 26 M.R.S.A.        /s/_________________________________
968(4)(Supp. 1983-84) and        Thacher E. Turner
972(1974) and in accordance      Employer Representative
with Rule 80B of the Rules
of Civil Procedure within
30 days of the date of
this decision.                   /s/_________________________________
                                 Harold S. Noddin
                                 Employee Representative