Penobscot Valley Hospital and Me. Fed. of Nurses and Health Care Professionals
AFT, No. 85-A-01, reversing in part and affirming in part No. 85-UD-08.



STATE OF MAINE                             MAINE LABOR RELATIONS BOARD
                                           Case No. 85-A-01                  
                                           Issued:  February 6, 1985
         
         
______________________________________         
                                      )
PENOBSCOT VALLEY HOSPITAL             )
                                      )
           and                        )    REPORT OF APPELLATE REVIEW
                                      )    OF UNIT DETERMINATION
MAINE FEDERATION OF NURSES AND HEALTH )
CARE PROFESSIONALS, AFT, AFL-CIO      )
______________________________________)         
         
         
     This is an appeal of a unit determination report, filed pursuant
to 26 M.R.S.A. Section 968(4) on December 21, 1984, by Penobscot
Valley Hospital ("Employer").  The unit determination report, dated
December 7, 1984, which is the subject of this appeal, created two
bargaining units of employees of the Penobscot Valley Hospital.  The
two units thus created were a Professional and Technical bargaining
unit, composed of both professional and non-professional employees,
and a Support and Clerical Employees bargaining unit.  In this appeal,
the Employer has argued:  (1) the two units created by the hearing
examiner are inappropriate for purposes of collective bargaining; (2)
three or four bargaining units should have been created; (3) certain
supervisory employee classifications should have been included in the
units created; (4) the hearing examiner erred in holding that the
Secretary to the Nursing Director is a confidential employee, within
the meaning of 26 M.R.S.A. Section 962(6)(C); (5) the procedure used
to ascertain whether the professional employees wished to be included
in a unit together with non-professional employees was improper; (6)
the hearing examiner erred in failing to apply relevant National Labor
Relations Board precedent in reaching his decision; and (7) the
hearing examiner made several erroneous findings of fact.
         
     A hearing on this matter was held on January 16, 1985, Chairman
Edward S. Godfrey presiding, with Employer Representative Thacher E.
Turner and Employee Representative Harold S. Noddin.  The Appellant
Employer was represented by Charles S. Einsiedler, Jr., Esq., and the
Maine Federation of Nurses and Health Care Professionals, AFT, AFL-CIO

                                [-1-]
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("Union") was represented by National Representative Eileen McManus.
The parties were afforded full opportunity to present evidence and to
make argument, within the strictures applicable to this appellate pro-
ceeding.  Both parties filed post-hearing briefs to supplement the
written argument previously submitted to the hearing examiner.  The
parties' original and supplemental memoranda of law have been con-
sidered by the Maine Labor Relations Board ("Board").
         
                             JURISDICTION
         
     Penobscot Valley Hospital is an aggrieved party, within the con-
text of 26 M.R.S.A. Section 968(4).  The Maine Federation of Nurses
and Health Care Professionals, AFT, AFL-CIO, is a lawful organization
which has at its primary purpose the representation of employees in
their employment relations with employers, within the meaning of 26
M.R.S.A. Section 962(2).  The jurisdiction of the Maine Labor
Relations Board to consider this appeal and render a decision herein
lies in 26 M.R.S.A. Section 968(4).
         
         
                         FINDINGS OF FACT AND
                          CONCLUSIONS OF LAW
         
     This unit determination 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 standard of review, used to eval-
uate the correctness of the hearing examiner's actions, is that such
findings of fact and conclusions of law will be sustained unless they
are "unlawful, unreasonable, or lacking in any rational factual
basis."  City of Bath and Council 74, AFSCME, MLRB No. 81-A-01, at 6
(Dec. 15, 1980); Auburn Firefighters Association and City of Auburn,
MLRB No. 83-A-07, at 4 (Dec. 5, 1983).
         
     The Employer contends that the unit determination report at issue
contains several errors of fact.  The findings alleged to be inac-
curate are listed in paragraph 8, sub-paragraphs (a) through (g), of
the Employer's Statement of Issues on Appeal.  We have reviewed the
Employer's averments in light of the controlling standard cited above
         
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and find that none of the alleged errors of fact, considered either
separately or in combination, leads us to believe that the hearing
examiner labored under a basic misunderstanding of the material facts
of this case.  Even if the alleged errors of fact were all clearly
established, they would not constitute reversible error.
         
     The first issue of law which we will address is whether the
hearing examiner erred by failing to apply National Labor Relations
Board precedent in this matter.  We have in the past stated that, in
interpreting the relevant provisions of the Act in the unit deter-
mination context, reference should be made to the parallel sections of
the National Labor Relations Act and decisions thereunder.  City of
Bangor and Local 1599, International Association of Fire Fighters,
MLRB No. 80-A-03, at 3-4 (July 18, 1980).  The examination of relevant
federal precedent, as an aid to the construction of the various provi-
sions of the Act as a whole, has been approved by the Supreme Judicial
Court.  Baker Bus Service v. Keith, 428 A.2d 55, 56, n.3 (Me. 1981).
The Employer has argued that, until recently, the National Labor
Relations Board's application of its community of interest test would
have resulted in the creation of seven separate bargaining units of
hospital employees and that result should have been persuasive in this
case.  We reject the Employer's contention for three separate reasons.
         
     Administrative and judicial constructions of the National Labor
Relations Act, within the hospital bargaining unit context, clearly
indicate that the relevant sections of federal law are not analogous
to the section of the Act pertinent to this proceeding.  Private sec-
tor hospital unit determinations turn upon interpretation of the 1974
health care amendments to the National Labor Relations Act, 29
U.S.C.A. Sections 152(14), 158(d) and (g), 169, and 183.  See, St.
Francis Hospital, 271 NLRB No. 160, 116 LRRM 1465, 1467-70 (1984) and
cases cited therein.  Since language similar to that of the 1974
health care amendments has not been incorporated into the Municipal
Public Employees Labor Relations Act, the hearing examiner found
federal precedent to be unpersuasive in this case.  Unit Determination 
Report, at 12-13, n.5.  We agree.  Second, while it is our practice
         
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to examine the analysis used by the National Board and the Federal
Courts in interpreting parallel sections of the National Act as an aid
in construing the Municipal Public Employees Labor Relations Act, the
hearing examiner, subject to appellate review by the Board, should
apply such federal reasoning as may be found persuasive to the facts
presented, in reaching an appropriate decision in each case.  Third,
while it is advisable to consider federal precedent in resolving
questions of first impression, the community of interest issue has
often been addressed by this Board.  The controlling section of the
Act, Section 966(2), provides that there must be "a clear and iden-
tifiable community of interest among the employees concerned" for a
given bargaining unit to be appropriate for purposes of collective
bargaining.  Since its adoption in Council 74, AFSCME and City of
Brewer, MLRB No. 79-A-01, at 3-4 (Oct. 17, 1979), we have consistently
approved of the application of an 11-point test to evaluate the pre-
sence or absence of the requisite community of interest.  Council 74,
AFSCME and Teamsters Local 48 and Cumberland County, MLRB No. 84-A-04,
at 10-11 (April 25, 1984).  By applying the 11-point test in his com-
munity  of interest analysis, Unit Determination Report, at 6, n.3,
the hearing examiner adopted a correct legal standard for evaluating
the appropriateness of the bargaining units in this case.
         
     The hearing examiner focused mainly on three separate community
of interest factors in his unit determination analysis.  The three
primary areas of his inquiry were:  (1) similarity in the kind of work
performed, (2) similarity in qualifications, skills, and training, and
(3) similarity in wage scales.  These factors are among those which we
have often applied in evaluating the requisite community of interest
under Section 966(2) of the Act.  City of Brewer, supra.  Hearing exa-
miners have broad discretion particularly in deciding community of
interest questions.  Auburn Firefighters Association, supra, at 8.  We
cannot say that the hearing examiner's decision to emphasize these
three factors is unreasonable in the context of this case.  The facts
underlying the unit composition decisions are outlined at pages 7
through 15 of the Unit Determination Report.  Our review indicates
that the hearing examiner applied the correct legal standard and that
         
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the critical facts underlying his conclusion are supported by substan-
tial evidence in the record.  We affirm the hearing examiner's com-
munity of interest determinations.  We hold that the Support/ Clerical
Unit, as constituted in the Unit Determination Report, is
appropriate for purposes of collective bargaining.
         
     Despite the fact that they share a clear and identifiable com-
munity of interest and would, together, constitute an appropriate unit
for collective bargaining purposes, Section 966(2) provides that "[nlo
unit shall include both professional and nonprofessional employees
unless a majority of such professional employees vote for inclusion in
such unit . . ."  The Employer has challenged the hearing examiner's
finding that the professional employees have indicated their intent to
be included in the same unit with certain non-professional employees,
in satisfaction of the statutory requirement.  The specific objec-
tions, noted in paragraphs 5 and 6 of the Statement of Issues on
Appeal, are as follows:
         
              "The inclusion of professional employees in
         the same bargaining unit with non-professional
         employees, without holding an election to determine
         if a majority of such professionals would vote to
         be included in that bargaining unit; [and]
         
               The failure of the Union to serve on the
         employer, in accordance with M.L.R.B. Rule 1.06,
         the petition referred to in the Unit Determination
         Report and apparently dated October 10, 1984."
         
     In this case, the Union approached each of the professional employees,
individually, and asked whether that person wished to unite with non-
professional employees in a single bargaining unit for collective
bargaining purposes.  Each of the professional employees who agreed to
such inclusion signed the same document, which was then filed with the
Board on October 10, 1984.  It is this writing which was called a
petition on pages 1 and 12 of the Unit Determination Report and upon
which the challenged finding was based.
         
     We will consider the Employer's second objection first.  The
petition which is the subject of Rule 1.06 of the Board's Rules and
Procedures is the petition for unit determination.  The document filed
         
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on October 10, 1984 was merely offered as evidence of some pro-
fessional employees' wishes to be included in the same bargaining unit
with non-professional employees for collective bargaining purposes.
The list of signatures of professional employees was not a petition
for unit determination; therefore, the Union did not violate Rule 1.06
when it failed to serve a copy of the document filed on October 10, 1984
on the Employer.
         
     Relying on Northern Aroostook Vocational Educators and Saint John
Valley Vocational Cooperative Board, Unit Determination Report (Jan. 20, 1983),
the hearing examiner held that the procedure followed by
the Union in this case satisfied the Section 966(2) requirement.  We
believe that the reliance on the Northern Aroostook Vocational Educators
principle was misplaced in this case.  The factual context, in which
the earlier unit decision was made, was reported as follows:
         
        "The Union representative stated that the pro-
         fessional employees have voted to be included in
         a unit with the non-professional employees, and as
         evidence of the vote he introduced a petition
         signed by most of the professional employees which
         states that the signers 'desire to have our
         employment position(s) included in a single
         bargaining unit containing both professional and
         nonprofessional positions.'  This petition was
         admitted into the record as Union Exhibit No. 1.
         The hearing examiner accepts the Union represen-
         tative's representation and the petition as suf-
         ficient evidence that a majority of the
         professional employees have voted to be included in
         a unit with the nonprofessional employees, and
         therefore finds that the language of Section 966(2)
         has been satisfied."
         
Northern Aroostook Vocational Educators, supra, at 2.  Since no pro-
fessional employee vote was conducted in the present case, the facts
of the Northern Aroostook matter are clearly distinguishable from
those now before the Board.  We hold that the petition procedure uti-
lized by the Union in this case does not satisfy the requirement of a
vote set forth in Section 966(2) of the Act.
         
     To rectify the lack of a proper professional employee vote at the
Penobscot Valley Hospital, we will order the Executive Director to
         
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conduct, contemporaneous with the bargaining agent election and
through such mechanism as he deems appropriate, a secret ballot vote
of the professional employees whose classifications have been placed
by the hearing examiner in the "Professional/Technical Unit."  The
purpose of that vote will be to ascertain whether a majority of said
professional employees wish to be included in a bargaining unit with
the non-professional employees whose classifications were also placed
in the "Professional/Technical Unit" by the hearing examiner.[fn]1  If a
majority of all the professional employees favor such inclusion, the
professional employees' ballots on the issue of representation will be
tallied together with those of the said non-professional employees, to
determine whether a majority of the combined group, as a single
Professional/Technical Unit, wish to be represented by a bargaining
agent for collective bargaining purposes.  Should a majority of all
the professional employees not vote in favor of such inclusion, the
professional employees' ballots on the issue of representation and
those of the said non-professional employees will be counted separa-
tely, to determine whether either group, as a separate bargaining
unit, wishes to be represented by a bargaining agent for purposes of
collective bargaining.  The professional employees, whose wishes on
the question of inclusion in the same unit with the said non-
professional employees will be ascertained in the manner described
above, are those designated by the Employer at page 2 of its brief
before the hearing examiner:  the Physicians Assistants, the
Registered Nurses and the Medical Technologists.  In light of the
nature of their work and their educational background, the employees
in these three classifications are "professional employees," within
_________________         
         
    1 The professional employees will be voting on whether they wish to
be included in a single bargaining unit with the non-professional
employees in the following job classifications:  Licensed Practical
Nurse, Licensed Practical Nurse/Operating Room Technician, Certified
Nursing Assistant, Unit Secretary, Assistant Chief Technologist,
Medical Laboratory Technician, Certified Laboratory Assistant,
Technical Laboratory Assistant, Lab Secretary/Phlebotomist, Pharmacy
Nurse Technician, Pharmacy Technician, Operating Room Technician,
Staff Radiological Technologist, Physical Therapy Assistant and
Emergency Medical Technician.

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the definition of Section 962(5) of the Act.  Having affirmed the
conclusion that the professional employees share the requisite clear
and identifiable community of interest with each other as well as with
the said non-professional employees, we hold that each of the possible
units resulting from the professional employees' vote on the unit-
inclusion question is appropriate for purposes of collective
bargaining:  i.e., either one Professional/Technical Unit or a
Professional Unit and a separate Technical Unit.
         
     The Employer argues that the hearing examiner erred as a matter
of law in excluding the employees in the Unit Manager, Shift Manager,
and Patient Account Supervisor job classifications from either of the
two bargaining units created.  Applying the tripartite test embodied
in Section 966(1) of the Act, the hearing examiner found that these
employees satisfied each requirement of the statutory standard and,
therefore, are supervisory employees within the meaning of the Act.
Section 966(1) does not require the exclusion of supervisory employees
from bargaining units composed of the employees whom they supervise
but relegates the decision of the supervisory employees' unit status
to the sound discretion of the hearing examiner.  Maine School
Administrative District No. 14 and East Grand Teachers Association,
MLRB No. 83-A-09, at 12 (Aug. 24, 1983).  Except in instances where
the resulting one- or two-member supervisory unit would contravene our
policy of discouraging the proliferation, through fragmentation, of
small bargaining units, we have approved of the creation of such
separate supervisory units.  Maine School Administrative District No.
14, supra, at 12-13; Maine School Administrative District No. 43 and
Maine School Administrative District No. 43 Teachers Association, MLRB
No. 84-A-05, at 4-5 (May 30, 1984).  The purpose of creating separate
supervisory employee bargaining units is to minimize potential
conflicts of interest within bargaining units, between supervisors and
their subordinate employees, as well as to lessen conflicts of loyalty
for supervisors between duty to their employer and allegiance to
fellow unit employees.
         
     The Employer concedes that the employees in question are super-
visory employees, within the meaning of Section 966(1), but argues
         
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that they should have been included in either of the two units created
by the unit determination decision.  The record indicates that there
are at least eight supervisory employees at the Penobscot Valley
Hospital.  Unit Determination Report, at 18.  In the event that a
supervisory employees bargaining unit is constituted at some time in
the future to include at least the three pertinent classifications,
such unit would not violate our non-proliferation policy.  We hold
that the hearing examiner did not abuse his discretion in excluding
clearly supervisory employees from the bargaining units created in
this case.
         
     The Appellant's final allegation is that the hearing examiner
erred in concluding that the Secretary to the Director of Nursing is a
confidential employee, within the meaning of the Act.  Section
962(6)(C) provides that those employees who have a significant
involvement with collective bargaining or labor relations matters,
other than contract administration duties, on behalf of the public
employer are excluded from the collective bargaining coverage of the
Act and may not be placed in any bargaining unit.  We have further
clarified our interpretation of Section 962(6)(C) as follows:
         
         "This requirement, that the employee's par-
          ticipation 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 deter-
          mination must be made on an ad hoc basis by the
          hearing examiner on the facts developed through the
          unit hearing process.  The requirement of sig-
          nificance of an employee participation in collec-
          tive bargaining matters may be satisfied either
          when the individual's involvement is substantial,
          although it is performed rarely, or when the acti-
          vity is relatively minor but is undertaken on a
          regular basis as part of the employee's job func-
          tions.  The significance of the employee's involve-
          ment 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 Fairfield
          [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
         
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          said information in the formulation and deter-
          mination of the employer's labor relations policies
          or collective bargaining proposals in order to be
          found to be a confidential employee.  Waterville
          Police Department [and Teamsters Local Union No.
          48, Report of Appellate Review of Unit
          Determination Hearing (Oct. 4, 1978)], at 3."
         
Maine School Administrative District No. 14, supra, at 8-9, citing
State of Maine and Maine State Employees Association, MLRB No.
82-A-02, Interim Order, at 18 (June 2, 1983).  Despite the last sen-
tence in the above quotation, we have previously stated that clerical
employees who do not formulate or determine the employer's labor rela-
tions policies may, nevertheless, be found to be confidential employees
This conclusion is in recognition of the fact that "in many if not
most cases, 'confidential' supervisory employees need access to at
least one 'confidential' clerical employee, in order to carry out
their 'confidential' duties."  State of Maine, supra. at 28.
         
     The facts underlying the holding that the secretary to the
Director of Nursing is a confidential employee are outlined on page 19
of the Unit Determination Report.  Although the Employer contends that
the Secretary's work primarily involves contract administration acti-
vities, the record also shows that the employee types nursing policies
formulated by the Director of Nursing and has access to information
which, if revealed to the bargaining agent outside the ordinary course
of business, could "giv[e] the union an unfair advantage and
jeopardiz[e] the Hospital's positions."  Unit Determination Report, at
19-20.  Were we making the initial ruling in this matter, we might
possibly have reached a different conclusion; however, the hearing
examiner heard all the testimony and was in the best position to eva-
luate it.  His decision that, in the circumstances, the Secretary to
the Director of Nursing is a confidential employee is supported by
substanttal evidence in the record and is, therefore, affirmed.
         
         
                                ORDER
         
     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
         
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Relations Board by 26 M.R.S.A.  968(4) (Supp. 1984-85), it is ORDERED:
         
       1.  The hearing examiner's December 7, 1984 order,
           creating a Professional/Technical Bargaining Unit
           at Penobscot Valley Hospital, is reversed.
           Contemporaneous with the bargaining agent elec-
           tion mentioned below, the Executive Director,
           through such mechanism as he deems appropriate,
           shall conduct a secret ballot vote of the
           professional employees who had been placed in the
           "Professional/Technical Unit" by the hearing exa-
           miner, to determine whether a majority of said
           professional employees wish to be included in a
           bargaining unit together with non-professional
           employees whose classifications were also placed
           in the "Professional/Technical Unit" by the hear-
           ing examiner.  If a majority of said professional
           employees vote in favor of such inclusion, the
           professional employees' ballots on the issue of
           representation will be tallied together with
           those of the said non-professional employees, to
           determine whether a majority of the combined
           group of voters, as a single Professional/
           Technical Unit, wish to be represented by a
           bargaining agent for collective bargaining pur-
           poses,  Should a majority of the said pro-
           fessional employees not vote in favor of such
           inclusion, said professional employees' ballots
           on the issue of representation and those of the
           aforementioned non-professional employees will be
           counted separately, to determine whether either
           group, as a separate bargaining unit, wishes to
           be represented by a bargaining agent for purposes
           of collective bargaining.
         
       2.  Since the professional employees mentioned in the
           preceding paragraph share a clear and iden-
           tifiable community of interest with each other as
           well as with the non-professional employees men-
           tioned in said paragraph, we hold that each of
           the possible units which could result from the
           professional employees' vote on the unit inclu-
           sion question is appropriate for purposes of
           collective bargaining.
         
       3.  The Support/Clerical Bargaining Unit of Penobscot
           Valley Hospital employees, created by the
           December 7, 1984 Unit Determination Report, is
           appropriate for collective bargaining purposes
           and the unit determination decision creating said
           unit is affirmed.
         
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       4.  The hearing, examiner's order of December 7, 1984,
           excluding the Unit Managers, Shift Managers, and
           Patient Account Supervisor from either of the
           bargaining units of Penobsoot Valley Hospital
           employees created on that date, is affirmed.
         
       5.  The hearing examiner's order of December 7, 1984,
           declaring the Secretary to the Director of
           Nursing of the Penobscot Valley Hospital to be a
           confidential employee, is affirmed.
         
       6.  As soon as possible, the Executive Director shall
           conduct representation elections for the
           bargaining units mentioned in paragraph 2 and 3
           above as well as a unit status vote for the pro-
           fessional employees mentioned in paragraph 1
           hereof.
         
Dated at Augusta, Maine, this 6th day of February, 1985.
         
                                  MAINE LABOR RELATIONS BOARD
         
         
         
                                  /s/_________________________________
The parties are advised           Edward S. Godfrey
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. 1984-85) 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
                                                                     
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