Maine Federation of Nurses and Health Professionals, AFT and Penobscot Valley
Hospital, Case No. 85-UD-08; affirmed in part and reversed in part in 85-A-01.

                                           Case No. 85-UD-08, et al.
                                           Issued:  December 7, 1984
                     Petitioner,      )
              and                     )     UNIT DETERMINATION REPORT
Lincoln, Maine,                       )
                     Public Employer. )
     The questions presented in this unit determination case are (1)
how many bargaining units of employees should be created at the
Penobscot Valley Hospital (Hospital) and (2) what job classifications
should be included in these units?  The hearing examiner concludes
that two bargaining units are appropriate for purposes of collective
bargaining, one composed of professional and technical employees and
the other of support and clerical workers, and also makes several
determinations regarding supervisory and confidential employees.
     The Maine Federation of Nurses and Health Professionals, AFT,
AFL-CIO (Union), filed petitions for a unit determination and an elec-
tion pursuant to 26 M.R.S.A.  967(2) (Supp. 1983-84) on September 14,
1984, seeking to represent one "wall-to-wall" bargaining unit of all
non-supervisory public employees at the Hospital.  The Union proposed
to exclude all department heads, management employees, supervisors,
and confidential employees from the unit.  On October 10, 1984 the
Union filed a petition signed by a majority of the professional
employees at the Hospital stating that the signers wished to be
included in a single bargaining unit with the non-professional
     After a pre-hearing conference on November 2, 1984, a hearing on
the petitions was held on November 8, 1984 in Augusta, Maine.  The
Union was represented by National Representative Eileen McManus and


the Hospital by Charles S. Einsiedler, Jr., Esq.  The Hospital urged
at the hearing that four bargaining units of Hospital workers should
be created--a professional unit, a technical unit, a support unit, and
a clerical unit--and also contended that the Unit Managers, Shift
Managers, Patient Accounting Supervisor, and the Secretary to the
Director of Nursing should be included in the units.  The Union's
position was that one bargaining unit of all employees was
appropriate, that the Unit and Shift Managers and the Patient Accounting
Supervisor are supervisors who should not be included in the unit, and
that the Secretary to the Director of Nursing is an excluded confiden-
tial employee.
     The Hospital presented the following witnesses at the hearing:                                                                                             
          Penelope Stevens            Director of Nursing
          Nancy Brandow               Director of Personnel
          Susan Harvey                Director of Physical
     The Union presented as witnesses:
          Donna Pereira               Registered Nurse
          Connie Zagorianakos         Unit Secretary
          Nellie Stevens              Certified Nursing Assistant
          Elsie Duplisea              Registered Nurse
     The following documents were admitted into the record as exhibits:
         Union Exhibit No. 1          A list of job classifi-
                                      cations which the Union proposes
                                      to exclude from the bargaining unit.
         Hospital Exhibit No. 1       A list of employee names and job
                                      classifications organized
                                      according to the four bargaining
                                      units which the Hospital proposes
                                      to establish.
     In addition, after the hearing the hearing examiner received from
the Union a copy of the Hospital Administrative District No. 1 Board
of Directors' By-Laws.  This copy of the by-laws was marked Union
Exhibit No. 2 and was admitted into the record.  Both parties filed
post-hearing briefs which have been considered by the hearing exam-
iner.  The last brief was filed on November 19, 1984.

     The Union is a "public employee organization" within the meaning
of 26 M.R.S.A.  967(2) (Supp. 1983-84).  Although given the oppor-
tunity to do so, the Hospital did not contest this agency's jurisdic-
tion over this case.  However, because the question of the Labor
Relations Board's jurisdiction over a hospital administrative district
has never before been decided and because an administrative officer
has the authority to raise jurisdictional questions on his own motion,
the hearing examiner requested that the parties submit evidence
regarding the jurisdictional issue.  The evidence, which consists of
Chapter 58 of the Private and Special Laws of 1967 and the Hospital's
by-laws, shows the following:
     Hospital Administrative District No. 1, the district which oper-
ates Penobscot Valley Hospital, was created in April 1967 when the
Legislature enacted chapter 58 of the Private and Special Laws.
Section 1 of chapter 58 authorized a number of towns in northern
Penobscot County to enter into an agreement for the formation of a
hospital administrative district which "shall acquire, or construct,
maintain and operate a community general hospital for the care of those
persons requiring it."  Section 2 of chapter 58 provides that the
district shall be governed by a board of directors composed of 2 mem-
bers from each town, except that the town of Lincoln shall have 3 mem-
bers.  The members are elected for three-year terms by popular vote at
town meeting in each town.  Section 3 authorizes the board of direc-
tors, in order to carry out the purpose of the agreement, to incur debt
up to a limit of $1,000,000 by borrowing money and issuing bonds and
notes.  The district is declared to be a "quasi-municipal corporation"
within the meaning of 30 M.R.S.A.  5053 (1974), a provision dealing
with the debt liability of municipalities and quasi-municipal corpora-
tions.  Section 5 authorizes the directors to issue annual tax warrants
to assessors of the towns in the district in order to raise the funds
needed to make sinking fund payments and to pay interest on any bonds or
     According to Section 2 of Article V of the Hospital's by-laws,
fifteen towns are members of the district (Lincoln, Mattawamkeag,

Howland, Enfield, Burlington, Lowell, Springfield, Lee, Passadumkeag,
Chester, Winn, Seboeis, Maxfield, Prentiss, and Webster).  Section 2
of Article I of the by-laws states that "[o]wnership and control of
the hospital and all facilities shall be in the name of the citizens"
of these towns.  A number of committees are established by Article
VII, including a Building and Grounds Committee, a Finance Committee, a
Personnel Policies Committee, and a Planning Committee.  Article X of
the by-laws authorizes the directors to hire an administrator to run
the hospital.  The adminstrator is authorized to hire the employees
necessary to operate the facility.
     Based on these facts, the hearing examiner finds that Hospital
Administrative District No. 1 and Penobscot Valley Hospital are
"public employers" subject to this agency's jurisdiction because they
are "bod[ies] acting on behalf of [a] municipality or town" within
the meaning of 26 M.R.S.A.  962(7) (Supp. l983-84).[fn]1  The governing
body which operates the Hospital is a board of directors elected by
popular vote from the towns which make up the district.  Among other
things, the directors are authorized to incur necessary debt, to tax
the member towns in order to service the debt, and to hire an admini-
strator to run the Hospital.  Various committees of the board of
directors are responsible for different phases of the Hospital's
operation.  The district has been declared to a be a "quasi-municipal
corporation" by the Legislature for purposes of debt liability, and
the by-laws provide that control of the Hospital and all facilities
shall be in the name of the citizens of the towns.  These facts
establish that the district and the Hospital are subject to the towns'
control or right to control, and that they are consequently "acting on
behalf of" the towns within the meaning of Section 962(7).  Baker Bus

   1 Section 962(7) states in its entirety:
         "Public employer" means any officer, board, commission,
     council, committee or other persons or body acting on behalf
     of any municipality or town or any subdivision thereof, or of
     any school, water, sewer or other district, or of the Maine
     Turnpike Authority, or of any county or any subdivisions

Service, Inc. v. Keith, 416 A.2d 727, 730-31 (Me. 1980).
     Because the Hospital is a "public employer," the hearing examiner
has jurisdiction to hear this case and rule on the Union's petitions
pursuant to 26 M.R.S.A.  966 (Supp. 1983-84).
                         FINDINGS OF FACT AND
                          CONCLUSIONS OF LAW
     The Hospital is a facility of approximately 42 beds, about 14 of
which were closed shortly before the hearing of this case due to a low
patient census.  A number of employees were laid off as a result of
this reduction in beds.  The Hospital has a number of small departments
including nursing, laboratory services, pharmacy, central supply,
dietary, buildings and grounds, fiscal services, radiology, physical
therapy, administration, personnel, medical records, social services,
and housekeeping.  Approximately 130 employees holding about 40 job
classifications are involved in this case.
     The issues presented for decision are (1) how many bargaining
units should be created and which job classifications should be
included in the units, (2) should the Unit Managers, the Shift Mana-
gers, and the Patient Accounting Supervisor, whom the Union alleges
are supervisors, be included in the bargaining units, and (3) should
the Director of Nursing's Secretary, alleged by the Union to a con-
fidential employee, be included in the units?  The hearing examiner
will decide these questions in the order presented.
     The Union urges that one large unit of all non-supervisory public
employees at the Hospital is appropriate for purposes of bargaining,
while the Hospital contends that four bargaining units are required.
The standards governing unit determinations are set forth in 26
M.R.S.A.  966(2) (Supp. 1983-84) and provide that the hearing examiner
must attempt to establish units that which both insure employees "the
fullest freedom" in exercising their organizing and bargaining rights

as well as a "clear and identifiable" community of interest.[fn]2
     Having carefully considered the record of this case in relation
to these two standards, and especially considering the 11 commmunity
of interest criteria set forth by the Labor Relations Board on
numerous occasions,[fn]3 the hearing examiner has decided that two
bargaining units of Hospital employees are appropriate.  One unit will
consist of the professional and technical employees, and the other
will include the support and clerical employees.  Particularly crucial
to this decision was consideration of the following community of
interest factors:  (1) similarity in the kind of work performed, (2)
similarity in qualifications, skills, and training, and (3) to a
lesser extent, similarity in wage scales.  In addition, dividing the
employees into two units will allow both groups of employees the
fullest freedom in exercising their labor rights.  The units proposed
by both the Union and the Hospital would inhibit the full exercise of
   2 Section 966(2) states:
         The executive director of the board or his designee shall
     decide in each case whether, in order to insure to employees
     the fullest freedom in exercising the rights guaranteed by
     this chapter and in order to insure a clear and identifiable
     community of interest among employees concerned, the unit
     appropriate for purposes of collective bargaining shall be
     the public employer unit or any subdivision thereof.  No unit
     shall include both professional and nonprofessional employees
     unless a majority of such professional employees vote for
     inclusion in such unit, except that teachers may be included
     in a unit consisting of other certificated employees.
   3 "(1) similarity in the kind of work performed; (2) common
     supervision and determination of labor-relations policy; (3)
     similarity in the scale and manner of determining earnings;
     (4) similarity in employment benefits, hours of work and
     other terms and conditions of employment; (5) similarities in
     the qualifications, skills and training of employees; (6)
     frequency of contact or interchange among the employees; (7)
     geographic proximity; (8) history of collective bargaining;
     (9) desires of the affected employees; (10) extent of union
     organization; and (11) the public employer's organizational
AFSCME, Council 74 and City of Bangor, MLRB No. 79-A-01 at 3-4 (Oct.
17, 1979).

these rights in the hearing examiner's opinion; the Union's proposed
unit would force employees with greatly different jobs, training, and
interest to bargain as a group, while the Hospital's proposal would
unnecessarily fragment the employees into several small units.
     A.  THE PROFESSIONAL/TECHNICAL UNIT.  The employees included in the
professional/technical unit are distinguished from the support and
clerical employees in that they are engaged in some facet of actual
patient care or treatment.  Within this common denominator, the
employees perform a variety of duties, including directly caring for
or treating the patients, preparing medications, transcribing and
routing doctors' orders, preparing and performing laboratory tests,
analyzing or diagnosing the results of lab tests, or functioning as
an assistant in the performance of any of these duties.  The two units
of employees are also distinguishable in that most of the professional
and technical employees are required to have some sort of post-high
school education or training as well as a license or certificate before
they can perform their duties.  Finally, the professional and tech-
nical employees generally are paid at higher wage scales than are
the support and clerical employees.
     The job classifications included in the professional/technical
unit, the number of employees holding each classification, and a brief
description for each classification of (a) duties performed, (b)
required training and licensure, and (c) pay scale are as follows:
          1. Physician's Assistant (4 employees)
          (a)  Physician's assistants (PA's) examine and treat
     patients in the emergency room and also respond to acute
     emergency situations on the hospital floor.  PA's give shots,
     stitch up cuts, do pap smears, and write orders for
          (b)  Baccalaureate degree plus two years of post-
     graduate training.  Licensed by both the State of Maine and
     the Federal government.
          (c)  PA's are salaried employees, with a salary range
     of $18,500 to $24,100 per annum ($8.89 - $11.58 per hour).

          2. Medical Technologist (2 employees)
          (a)  Medical Technologists analyze and diagnose the
     results of lab tests.
          (b)  Baccalaureate degree and a license.
          (c)  $7.08 - $9.24 per hour.
          3. Registered Nurse (16 employees)
          (a)  RN's assess patients, prepare written care plans,
     and then monitor and evaluate the patients to determine
     whether the care plan is effective.  They also perform all
     direct patient care duties and are qualified to administer
     all forms of medication procedures, including intravenous
     medication.  Although RN's are not supervisors, they direct
     the Licensed Practical Nurses, the Certified Nurses
     Assistants and the Unit Secretaries in the carrying out of
     direct patient care.
          (b)  RN's may have a baccalaureate degree, a three-year
     diploma degree, or two-year associate's degree.  All are
     required to hold a license issued by the State.
          (c)  $7.50 - $9.68 per hour (plus 45> per hour shift dif-
         ferential for the evening shift and a 60> differential for
         the night shift).
          4. Licensed Practical Nurse (18 employees) and
          Licensed Practical Nurse/Operating Room Technician (1 employee)
          (a)  LPN's assist the RN's in developing patient care
     plans and they also perform patient care duties such as
     giving baths, changing dressings, and administering all
     medications except for intravenous medications.  The LPN's
     differ from the RN's in that LPN's are not responsible for
     assessing or evaluating patients to the same degree as RN's
     are.  The LPN/OR Technician assists in the operating room.
          (b)  One year of post-high school education and a
          (c)  $5.35 - $6.98 per hour (with the same shift differ-
     tials as RN'S receive).
          5. Certified Nursing Assistant (9 employees)
          (a)  The CNA's work with the RN's and the LPN's in pro-
     viding direct patient care.  CNA's perform procedures

     involving patient hygiene, dietary care, and feeding.  They
     make beds, give enemas, and take vital signs.
          (b)  A 100-hour post-high school course and a cer-
     tificate.  Some CNA's do not have a certificate because they
     were grandfathered when the certificate requirement was
          (c)  $4.08 - $5.32 per hour (with the same shift dif-
     ferential as RN's and LPN's receive).
          6. Unit Secretary (6 employees)
          (a)  Unit Secretaries perform clerical duties on the
     hospital floor.  These employees transcribe doctors' orders
     from the patient charts regarding medications, treatments
     and diet, and see that these orders go to the correct
     department.  They type floor census sheets, the daily nur-
     ses' reports, and the information on the patient charts.
     They also answer the telephone.
          (b)  A one-day, national certification test.
          (c)  $4.08 - $5.32 per hour.
          7. Assistant Chief Technologist (1 employee)
          (a)  This employee collects laboratory specimens, runs
     tests on then, monitors the results, and institutes new lab
     procedures and methodologies when needed.
          (b)  Two-year associate degree and a certificate.
          (c)  $7.00 - $8.83 per hour.
          8. Medical Laboratory Technician (3 employees)
          (a)  MLT's collect laboratory specimens, run tests on
     them, and dispose of the specimens.
          (b)  Two-year associate degree and a certificate.

          (c)  $6.00 - $7.84 per hours.
          9. Certified Laboratory Assistant (1 employee)
          (a)  The Certified Laboratory Assistant functions as
     an MLT and works in the areas of microbiology and hematology.

          (b)  A one-year post-high school course and a
          (c)  $6.00 - $7.84 per hour.
          10. Technical Laboratory Assistant (1 employee)
          (a)  This employee works in the lab running routine
     tests and procedures.  The employee is not involved in eva-
     luation of the results of lab tests.
          (b) On-the-job training.
          (c)  $4.08 - $5.32 per hour.
          11. Lab Secretary/Phlebotomist (1 employee)
          (a)  The Lab Secretary/Phlebotobmist performs such
     duties as drawing blood and taking it to the lab, filing lab
     slips and lab reports, typing and answering the telephone,
     disposing of lab specimens, scheduling lab tests, and inven-
     torying lab supplies.
          (b)  On-the-job training.
          (c)  $4.08 - $4.89 per hour.
          12. Pharmacy Nurse Technician (2 employees)
          (a)  These employees are LPN's who work with the phar-
     macist.  They fill the dose bins, keep records, and perform
     other duties in the pharmacy.
          (b)  One year of post-high school education and a
          (c)  $5.35 - $6.98 per hour.
          13. Pharmacy Technician (1 employee)
          (a)  This employee works with the Pharmacy Nurse Tech-
     nicians mixing and packaging drugs and solutions, getting
     drugs to the nursing department, and keeping track of
          (b)  On-the-job training.
          (c)  $4.12 - $5.38 per hour.

          14. Operating Room Technician (2 employees)
          (a)  OR Techs set up the operating room for surgery,
     making sure that all instruments are laid out, assist the
     doctors during surgery, and clean up after surgery.
          (b)  A one-year post-high school course and a cer-
     tificate, although the Hospital does not require certification.
          (c)  $5.10 - $6.66 per hour
          15. Staff Radiological Technologist (4 employees)
          (a)  These employees position patients for X-rays, take
     the X-rays, and then expose and process the film.
          (b)  Two-year post-high school course, and registration
     with the American Medical Association.
          (c)  $5.30 - $6.91 per hour.
          16. Physical Therapy Assistant (1 employee)
          (a)  The Physical Therapy Assistant performs all physi-
     cal therapy and rehabilitation treatments except for the
     initial diagnosis, which is done by a doctor.
          (b)  Two-year associate degree and a license.
          (c)  $7.25 - $9.18 per hour.
          17. Emergency Medical Technician (7 employees)
          (a)  The EMT's primary responsibility is riding the ambu-
     lance and performing on-the-scene emergency medical care.
     EMT's assess patients on-the-scene, take vital signs, bandage
     wounds, put on splints, and perform tracheotomies and
     defibrillation.  The EMT's also work in the emergency room.
          (b)  A 150-hour State-approved course and a license which
     must be maintained through continuing education course.  All of
     the EMT's except one are also CNA's because during the recent
     reduction in force a number of CNA's "bumped" into EMT posi-
          (c)  $5.35 - $6.98 per hour when on the ambulance; $4.15
     to $5.42 per hour when working in the emergency room if the
     EMT is also a CNA, $4.05 to $5.29 per hour if not a CNA.
     In addition to the facts that the professional/technical
employees primarily perform patient care or treatment functions,
usually are required to have some post-secondary education or training
and a license or a certificate, and have somewhat similar salary scales
these employees also have frequent interchange as they perform
their duties and work in close geographical proximity (the patient
floors, the emergency room, the lab, and the pharmacy).  Finally, a
majority of the professional employees (the Physician's Assistants,
Medical Technologists, and Registered Nurses) have signed a petition
stating their desire to be included with the non-professional
employees in a single bargaining unit.[fn]4  These facts showing similari-
ties between the professional and technical employees mean that these
employees likely share common concerns and interests about such mat-
ters as patient care issues, staffing levels, educational and training
opportunities, and promotion possibilities.  In light of all these
considerations, the hearing examiner finds that the professional and
technical job classifications listed above share a clear and iden-
tifiable community of interest and constitute an appropriate
bargaining unit for purposes of collective bargaining.[fn]5
     B. THE SUPPORT/CLERICAL UNIT.  The employees included in this
bargaining unit generally perform support and clerical duties as
opposed to patient care or treatment functions.  The support duties
include such matters as cooking, cleaning, doing laundry, receiving
and distributing hospital supplies, and making small repairs, while the
clerical duties include typing, filing, record keeping, operating the
switchboard, bookkeeping, and entering and retrieving computer data.
Unlike the professional and technical employees, the support and
clerical employees for the most part are not required to have any
post-secondary education or training, nor are they required to hold
     4 This petition satisfies the requirement in Section 966(2) that a
majority of professional employees must vote to be included in the
unit before such employees can be included in a unit with non-
professional employees.  See, e.g., Northern Aroostook Vocational
Educators and Saint John Valley Vocational Cooperative Board, Unit
Determination Report at 2 (Jan. 20, 1983).
     5 The hearing examiner is aware that this unit is not fully con-
sistent with either the earlier "community of interest" approach or


licenses or certificates.  Most of the support and clerical workers
are required to have a high school degree or the equivalent or some
relevant experience.  All of the support and clerical employees occupy
one of six salary scales, as follows:  $3.75 - $4.89 per hour (central
supply, dietary, laundry, and housekeeping workers); $4.08 - $5.32 per
hour (various clerical employees); $4.15 - $5.42 per hour (general
maintenance workers); $4.35 - $5.68 per hour (assistant cooks); $4.70
- $6.13 per hour (various clerical); and $5.00 - $6.53 per hour (the
cook).  The job classifications in the support/clerical unit and the
number of employees holding each classification are as follows:[fn]6

      1.  Central Supply Worker (4 employees)

      2.  Laundry Worker (1 employee)

      3.  Dietary Helper (3 employees)

      4.  Housekeeper (4 employees)

      5.  General Maintenance Worker (5 employees)

      6.  Assistant Cook (3 employees)
the more recent "disparity of interests" approach taken by the
National Labor Relations Board when determining hospital bargaining
units.  Both of these approaches are based on the 1974 health care
amendments to the National Labor Relations Act, 29 U.S.C.A. 
152(14), 158(d) and (g), 169, and 183, and on federal case law
interpreting these amendments.  See, e.g., St. Francis Hospital, 271
NLRB No. 160, 116 LRRM 1465, 1467-70 (1984).  Because similar amend-
ments have not been enacted for Maine's labor relations statutes, the
hearing examiner has concluded that the traditional community of
interest analysis developed under the Maine statutes applies in this
case even though a hospital is involved.  Pursuant to this analysis,
professional/technical units have on occasion been established in
Maine.  See, e.g., Council 74, AFSCME and State of Maine, Unit
Determination Report at 7-11 (Sept. 22, 1976).  Many of the con-
siderations and rationales discussed in the State of Maine case are
equally applicable here.
     6 The record is not clear whether all the support and clerical job
classifications at the Hospital were discussed at the hearing.  If any
rank-and-file support or clerical classification does not appear in
this list, it should nonetheless be understood to be included in the
bargaining unit, as the hearing examiner's intent is to include all
such positions.

      7.  Cook (1 employee)
      8.  Patient Account Representative (5 employees)
      9.  Patient Registration Representative (6 employees)
     10.  Medical Records Clerk (1 employee)
     11.  Switchboard Operator (3 employees)
     12.  Transcriptionist/Coder (1 employee)
     13.  Medical Records Transcriptionist (2 employees)
     14.  Accountant (1 employee)
     15.  Utilization Management Coordinator/Medical Records
            Transcriptionist (1 employee)
     16.  Computer Operator (1 employee)
     17.  Accounts Payable Coordinator (1 employee)
     In light of the similarities in the type of work performed, in
the qualifications and training of the employees, and in the wage
scales, the hearing examiner finds that the job classifications listed
above share a clear and identifiable community of interest and that
these classifications form an appropriate unit for purposes of collec-
tive bargaining.  As is the case in most unit determination pro-
ceedings, there are several positions in the "gray" area which could
be properly included in either bargaining unit.  For example, the Unit
Secretaries and the Lab Secretary/Phlebotomist perform secretarial and
clerical duties and could reasonably be included in the
support/clerical unit.  However, the hearing examiner decided to
include these employees in the professional/technical unit because the
testimony of Elsie Duplisea, RN, and Unit Secretary Connie
Zagorianakos establishes that the Unit Secretaries are an
"indispensable" part of the nursing team.  The Unit Secretaries work
closely with the RN's, LPN's and CNA's in providing patient care, and
have little contact or interchange with the other clerical employees.
Moreover, like the RN's, LPN's, and CNA's, the Unit Secretaries are
answerable to the Director of Nursing and are evaluated by the Unit
Managers.  In the hearing examiner's judgment these facts show that

the Unit Secretaries are much more closely allied with employees in
the professional/technical unit than with the members of the
support/clerical unit.  The same rationale applies to the Lab
Secretary/Phlebotomist, who works in the laboratory, not in the
Hospital's business offices, and to other positions such as the Tech-
nical Lab Assistant and the Pharmacy Technician.
                         II. THE SUPERVISORS
     The Hospital contends that three classifications, the Unit
Managers, Shift Managers, and the Patient Accounting Supervisor, should
be included in the bargaining units.  The Union opposes inclusion of
these classifications on the ground that these are supervisory posi-
tions which should not be included in rank-and-file bargaining units.
The issues which must be decided are (1) are the employees holding
these 3 positions supervisors and (2) if they are supervisors, should
the positions be included in the bargaining units?
     The record shows with regard to the Unit and Shift Managers that
the Director of Nursing is the head of the nursing department and the
Operating Room Supervisor/Assistant Director of Nursing is second-in-
command.  Under these two positions are 3 Unit Managers and 4 Shift
Managers, all of whom are RN's.  Penelope Stevens, the Director of
Nursing, testified that the primary function of both Unit and Shift
Managers is patient care.  However, the record shows that these
employees also perform other significant duties.
     The Unit Managers are responsible for various areas of the hospi-
tal.  As do the Director and Assistant Director of Nursing, they
usually work the day shift.  In addition to patient care, the Unit
Managers perform such duties as scheduling the work hours of the
nursing staff (the RN's, LPN's, CNA's and Unit Secretaries), reviewing
time cards for accuracy, and, along with the Shift Managers, evalu-
ating the members of the nursing staff, subject to the review of the
Director of Nursing.  They review job applications and interview job
candidates.  They can verbally reprimand employees but otherwise have
no responsibility for disciplining or discharging employees.  Two of

the Unit Managers have offices out of which they work (the emergency
room Unit Manager does not have an office).  Witness Duplisea esti-
mated that the Unit Managers spend about 10% of their time directly
caring for patients and the rest of their time managing and
     The Shift Managers supervise the nursing staff on the evening and
night shifts.  During these shifts they are the highest authorities in
the nursing department.  They interpret and apply Hospital policies
during these shifts and insure that proper patient care is being
carried out.  They have the authority to send a nursing employee home
if the shift is overstaffed and can call employees in to work if the
shift if understaffed.  They participate in the evaluations of nursing
employees and can give verbal reprimands.  The Shift Managers share an
     Both the Unit and the Shift Managers are salaried employees who
are not eligible for overtime.  The RN's and other members of the
nursing staff are hourly employees.  If averaged out, the yearly
salary for the Unit Managers would be $10.50 - $11.77 per hour,
while the Shift Managers' salaries would be $9.61 - $11.05 per hour on
the evening shift and $9.75 - $11.20 per hour on the night shift.  The
Mangagers receive more vacation time than do the other members of the
nursing staff.  Finally, the Unit and Shift Managers are members,
along with the Director and Assistant Director of Nursing, of the
Nursing Executive Committee.  The purpose of this committee, which
meets weekly, is to monitor patient care in the hospital.  Among the
matters discussed are Hospital policies and procedures, discipline of
employees who commit errors, the qualifications of employees for the
supervisory positions, and employee skill inventories.
     In light of this evidence, the hearing examiner finds that both
the Unit Managers and the Shift Managers are supervisors under the
Act.  These employees clearly perform some or all of the following
"management control duties" identified in 26 M.R.S.A.  966(1):  (1)
scheduling, assigning, overseeing and reviewing the work of subordi-
nate employees, (2) performing duties which are distinct and dissim-
ilar from those performed by the supervised employees, (3) and

exercising judgment in applying established personnel policies.[fn]7
While the Shift Managers presumably spend a greater percentage of their
time on direct patient care than do the Unit Managers, the Shift
Managers unquestionably are the supervisors of their shifts,
interpreting and applying hospital policy and insuring that the other
employees perform their duties.  Because of their membership in the
Nursing Executive Committee, the Shift Managers clearly are more closely
allied with the Unit Managers and the Director of Nursing than with the
rank-and-file members of the nursing staff.
     The hearing examiner also finds that the Patient Accounting
Supervisor is a supervisor.  According to the testimony of Sue Harvey,
the Director of Physical Services, the Patient Accounting Supervisor
works at the registration desk registering patients and also performs
such duties as scheduling the work of the other employees in the
department of patient registration; hiring employees in conjunction
with the Director of Patient Accounting; evaluating employees; develop-
ing policies and procedures for the department; disciplining
employees with the approval of the Director; and approving and signing
the time cards for about 10 employees.  These duties clearly establish
that this employee is a Section 966(1) supervisor.
     Having determined that the 3 job classifications at issue are
supervisory positions, the hearing examiner must now decide whether

    7 Section 966(1) states in pertinent part:
          "In determining whether a supervisory position should be
      excluded from the proposed bargaining unit, the executive
      director or his designeee shall consider, among other cri-
      teria, if the principal functions of the position are charac-
      terized by performing such management control duties as
      scheduling, assigning, overseeing and reviewing 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 perfor-
      mance standards for subordinate employees and taking correc-
      tive measures to implement those standards."

these positions should be included in the bargaining units.  The
Hospital correctly points out that the Labor Relations Board's policy
is to include supervisory positions in rank-and-file bargaining units
at least in some circumstances.  However, this policy is limited to
situations involving only one or two supervisors   In such situations
the Board reasons that inclusion of the supervisors is warranted in
order to avoid the proliferation of small bargaining units with their
attendant expenses.  See, e.g., M.S.A.D. No. 14 and East Grand
Teachers Association, MLRB No. 83-A-09 at 12-13 (Aug. 24, 1983) (one
supervisor).  When more than 1 or 2 supervisors are involved, the Board
usually creates a separate supervisory bargaining unit on the theory
that separate units give both groups of employees their fullest
freedom in exercising their bargaining rights and also avoid conflicts
of interest between supervisors and the employees they supervise.
See, e.g., Town of Kennebunk and Teamsters Local 48, MLRB No. 83-A-01
(Oct. 4, 1982) (three supervisors).
     The most appropriate course in this case is to exclude the super-
visors from the two rank-and-file units.  At least 8 supervisors have
been identified, and others may well work at the Hospital in classifi-
cations not considered in this proceeding.  These supervisors super-
vise a fairly large number of employees; the 7 Unit and Shift Managers
supervise 16 RN's, 19 LPN's, 9 CNA's, 6 Unit Secretaries, and 7 EMT's,
while the Patient Accounting Supervisor supervises at least 10
employees.  As the duties performed by the supervisors show, these
employees are somewhat allied with management and thus do not share a
clear and identifiable community of interest with the rank-and-file
employees.  Moreover, exclusion of the supervisors will insure that
all employees are granted the fullest freedom in excercising their
rights to select a bargaining agent and engage in bargaining, and also
will avoid any potential conflicts of interest.  The hearing examiner
therefore concludes that supervisors should not be included in either
of the two rank-and-file units.  Because no employee organization has
petitioned to represent the supervisors at the Hospital, the hearing
examiner makes no determinations with regard to the proper composition
of a supervisory unit.

     The final matter to be determined is whether the Secretary to the
Nursing Director should be included in the support/clerical bargaining
unit; the Hospital contends that the Secretary is a "public employee"
who should be included, while the Union argues that she is a
"confidential employee" excluded by the Act.[fn]8  The test for deter-
mining whether a secretary is a confidential employee is whether the
secretary as part of her regular duties has access to the employer's
employee relations positions and policies prior to the time that these
matters are revealed to the employees or the union.  See, e.g.,
Council 74, AFSCME and Town of Brunswick, Unit Determination Report at
4 (Feb. 22, 1984); State of Maine and Maine State Employees
Association, MLRB No. 82-A-02 at 10 (June 2, 1983).
     The evidence shows that the Secretary, Holly McCafferty, works
part-time for Nursing Director Penny Stevens, and the rest of her time
for another department.  She performs general clerical duties for the
Nursing Director.  Among the matters which she types are nursing poli-
cies formulated by Stevens, the minutes of Nursing Executive Committee
meetings, disciplinary notices, and employee evaluations.  She also
typed the lay-off list for the recent reduction in force.
     These duties show that the employee has access to confidential
employee relations decisions and policies prior to the time that these
matters are revealed to the employees.  Disciplinary matters and
employee qualifications for promotion are discussed at the NEC
meetings.  The employee's access to such matters as disciplinary
notices, employee evaluations, and lay-off lists means that if the
employee was included in a unit the content of these matters could be
   8 Section 962(6)(C) (1974) states that "public employee" means any
employee of a public employer except for any person "[w]hose duties as
deputy, administrative assistant or secretary necessarily imply a con-
fidential relationship to the executive head, body, department head, or
division head."
     Section 966(1) (Supp. 1983-84) provides that "anyone excepted from
the definition of public employee under section 962 may not be
included in a bargaining unit."


revealed to the union prior to the time that the Hospital was ready to
disclose them, the union an unfair advantage and jeopar-
dizing the Hospital's positions.  The hearing examiner therefore
concludes that the Nursing Secretary is a "confidential employee" who
cannot be included in any bargaining unit.

     On the basis of the foregoing findings of fact and discussion and
by virtue of and pursuant to the powers granted to the hearing
examiner by 26 M.R.S.A.  966 (Supp. 1983-84), it is ORDERED:
     1.  The Professional/Technical Bargaining Unit at Penobscot
         Valley Hospital is composed of the following job classi-
         fications:  Physician's Assistant, Medical Technologist,
         Registered Nurse, Licensed Practical Nurse and
         LPN/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,
         Emergency Medical Technician, and any other professional
         or technical classifications which could properly be
         included in this unit.
     2.  The Support/Clerical Bargainng Unit at Penobscot Valley
         Hospital is composed of the following job classifi-
         cations:  Central Supply Worker, Laundry Worker, Dietary
         Helper, Housekeeper, General Maintenance Worker,
         Assistant Cook, Cook, Patient Account Representative,
         Patient Registration Representative, Medical Records
         Clerk, Switchboard Operator, Transcriptionist/Coder,
         Medical Records Transcriptionist, Accountant,
         Utilization Management Coordinator/Medical Records
         Transcriptionist, Computer Operator, Accounts Payable
         Coordinator, and any other support or clerical classifi-
         cations which could properly be included in this unit.
     3.  The Unit Managers, Shift Managers and Patient Accounting
         Supervisor are supervisors who are not included in any
         bargaining unit at the present time.
     4.  The Secretary to the Director of Nursing is a confiden-
         tial employee who is statutorily barred from being
         included in a bargaining unit.

     5.  Representation elections should be held for the two
         bargaining units as soon as practical.
Dated at Augusta, Maine, this 7th day of December, 1984.
                                   MAINE LABOR RELATIONS BOARD
                                   Wayne W. Whitney
                                   Hearing Examiner
     The parties are advised of their right, pursuant to 26 M.R.S.A.
Section 968(4) (Supp. 1983-84), to appeal this report to the full
Labor Relations Board by filing a notice of appeal with the Board
within 15 days of the date of this report.