Portland Superintending School Committee v. Portland Administrative Employee 
Assoc., 87-A-03, affirming 86-UD-14. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 87-A-03 Issued: May 29, 1987 _________________________________ ) PORTLAND SUPERINTENDING SCHOOL ) COMMITTEE, ) ) Appellant, ) ) v. ) ) DECISION AND ORDER PORTLAND ADMINISTRATIVE EMPLOYEE ) ASSOCIATION, ) ) Appellee. ) _________________________________) In response to the January 27, 1986 filing of a petition for appropriate unit determination (Board Form 2a) by which the Portland Administrative Employee Association (Association) requested a unit of Administrative employees of the Portland Superintending School Committee (Committee), a designee of the Executive Director of the Maine Labor Relations Board (Board) commenced evidentiary hearing pro- ceedings in this cause on March 5, 1986. In those proceedings, which were completed on March 13, 1986, the Association sought a deter- mination of the appropriateness of a collective bargaining unit comprised of all of the Committee's remaining unorganized employees. The Committee opposed the Association's petition on the bases 1) that five of the sought-after employees are not public employees, 2) that there is no community of interest among the sought-after employees, 3) that the sought-after public employees could be placed in existing units, and 4) that the creation of an additional unit of Committee employees would offend the Board's policy against the proliferation of small bargaining units. In his unit determination report, issued on October 27, 1986, after consideration of the full evidentiary record, oral argument and the briefs of the parties, the Hearing Examiner found the Coordinator of Computer Services and the Director of Adult Education to be con- fidential employees within the meaning of 26 M.R.S.A. 962(2)(C) (1974). Additionally, he found the Director of Adult Education to be [-1-] ______________________________________________________________________ a division head within the meaning of 26 M.R.S.A 962(6)(D) (1974). Concerning the balance of the requested employee classifications which he found not to be excluded from the definition of the term "public employee" the hearing examiner ordered: 1) That the classifications of Manager for Concessions at the Exposition Building, Videographer for Channel 7, Cablecaster for Channel 7 and Substitute Caller be included in the Benefit Association of School Employees bargaining unit; 2) That the classifications of Administrative Assistant for Adult Basic Education, Facility Director of the Portland Exposition Building, Assistant Building Manager for the Exposition Building, Station Manager for Channel 7 and Facilities Manager be included in the Classified Per- sonnel Units I and II bargaining unit; 3) That the classification of Director of the Portland Rehabilitative Educational Program be included in the Portland Administrators' Association bargaining unit; and 4) That a secret ballot Bargaining Agent election be held as soon as practicable in a bargaining unit composed of the Committee job classifications of: Assistant Director of Adult Education, Coordinator of Adult Basic Education, Coordinator of Vocational and External Programs, Coordinator of Community Life Programming, Assistant Director of Special Services, Coordinator of Evaluation and Data Management, Administrative Assistant for Evaluation and Data Management, Director of Health Education, Education Employment Coordinator for the Handicapped, and School Psychologist. Pursuant to 26 M.R.S.A. 968(4) (Pamph. 1986) and in accordance with Board Unit Determination Rule 1.10, this appeal was commenced on November 10, 1986, when Hugh G. E. MacMahon, Attorney for the Committee, filed a Notice of Appeal of the Hearing Examiner's Unit Determination Report. The Committee contends in its appeal that the Hearing Examiner's "decision is erroneous as a matter of law and is violative of the Board's policy of discouraging the proliferation of small bargaining units." More specifically the Committee contends: [T]hat the 10 employee bargaining unit established by the hearing officer constitutes an inappropriate -2- ______________________________________________________________________ bargaining unit; that the establishment of that small unit is contrary to the intent of the Act; and that the establishment of that small unit violates the Board's consistent policy of discouraging the pro- liferation of small bargaining units in a single department. The Portland School Committee further submits that the hearing officer also erred in concluding that these 10 employees cannot appro- priately be assigned to any of the seven (7) already existing school department employee bargaining units. Both parties filed initial briefs concerning the issues raised on appeal. A reply brief was filed by the Committee on January 20, 1987. Upon the request of the Committee and after due notice, the Board, consisting of Chairman Edward S. Godfrey, presiding, Thacher E. Turner, Employer Representative, and George W. Lambertson, Employee Representative, entertained oral argument on the merits of the issues raised in the appeal, on January 27, 1987. The Board took the matter immediately under consideration. JURISDICTION The jurisdiction of the Board to hear and decide this appeal is conferred by 26 M.R.S.A. 968(4) (Pamph. 1986). Neither party has contested the Board's jurisdiction in this matter. DISCUSSION Only the Committee filed an appeal of the Hearing Examiner's Report and the Committee appeals only that portion of the Report which establishes a separate appropriate unit of ten of the originally sought-after administrative employee classifications. The Committee does not aver that the Hearing Examiner has erroneously found or failed to find any historical fact. On appeal the Committee reiter- ates its contention that the Assistant Director of Adult Education, the Coordinator of Adult Basic Education, the Coordinator of External and Vocational Programs, the Health Director, the School Psychologist and the Assistant Director of Special Services should be included in the Portland Administrators' Association bargaining unit. The Committee also contends on appeal that the Employment Coordinator for the Handicapped, the Assistant to the coordinator of Evaluation and -3- ______________________________________________________________________ Data Management, the Coordinator of Evaluation and Data Management and the Coordinator of Community Life Programming should be included in the Classified Personnel Units I & II bargaining unit. In the pro- ceeding below the Committee made no alternative contention regarding the unit placement of the last two positions above, alleging solely that they were not public employees within the meaning of the Muni- cipal Public Employees Labor Relations Act. Accordingly, we shall not address the Committee's contention, raised for the first time on appeal, that they should be included in the Classified Personnel unit. The only issue raised on appeal is the Committee's contention that the Hearing Examiner committed an error of law by failing to place each of the classifications eventually found to comprise an appropriate unit into existing bargaining units. The Committee's contentions in this regard, as set forth in the Committee's November 18, 1986 particularized statement of each specific point of law and fact on appeal, are, in pertinent part: The Portland School Committee maintains that the 10 employees involved here can be appropriately assigned to other already existing school department employee bar- gaining units; that doing so would protect their rights afforded by the Act; and that since the rights of these 10 employees will be protected by the inclusion of these 10 employees in already existing bargaining units, the Board's non-proliferation policy should apply. There are currently seven bargaining units in the Portland School Department covering approximately 1,000 employees. Those units cover (1) teachers and social workers (P.T.A. unit, 660 employees); (2) skilled, semi- skilled, unskilled and technical positions (B.A.S.E. unit, 200employees); (3) teacher aides and assistants unit (120 employees); (4) principals, assistant prin- cipals and the Director and Assistant Director of P.R.V.T.C. (P.A.A. unit, 22 employees); (5) Intown Learning Center employees (10 employees); and (6) Supervisors of Building Services, Director of Food Services, Accounting Manager, Secretary IV employees, and Transportation Supervisor (Classified units I and II, 9 employees). See Tr. II, 582-583, 677-678; Joint Exhibits 1-6 (collective bargaining agreements). The proliferation of the presently existing bar- gaining units in the Portland School Department has reached the point where, absent compelling circumstances not presented here, further proliferation is wholly -4- ______________________________________________________________________ unwarranted. Indeed, the record shows that due to the large number of already existing bargaining units in the School Department, the School Committee recently had to create a new management position primarily to deal with labor negotiations for several of the School Department bargaining units (Tr. II, 608). In addition, the School Committee retains legal counsel to conduct negotiations with certain other School Department bargaining units (Tr. II, 609). Negotiations with each of the several bargaining units which presently exist thus require the expenditure of a great amount of time, energy and money (Tr. II, 607). The rationale for the M.L.R.B.'s non- proliferation policy is accordingly directly applicable here. (footnotes omitted) The Committee is correct in pointing out that the Board's non- proliferation policy would result in savings for both the Committee and the State were it to be applied in the instant case to require that the employees in the unit found appropriate be "slotted" into already existing units. We have previously noted that such savings are among the aims of our policy against the proliferation of unnecessary small bargaining units. In MSAD 43 v. MSAD 43 Teachers Association, No. 84-A-05 (Me.L.R.B. May 30, 1984) we stated at pages four and five that: 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 served. We shall not in this case, however, exalt such savings, which application of the policy would occasion, over the statutory right of employees to be included in a unit with other employees with whom they share a clear and identifiable community of interest. Such a clear and identifiable community of interest was found by the Hearing Examiner to exist among those employees included in the Administrative employee unit which he found appropriate. Hearing Examiners have broad discretion in deciding community of interest questions. Town of Yarmouth and Teamsters Local Union No. -5- ______________________________________________________________________ 48, No. 80-A-04, slip op at 6 (Me.L.R.B. June 16, 1980). See also Town of Lebanon and Teamsters Local Union No. 48, No. 86-A-01 (Me.L.R.B. Dec. 5, 1985). The Committee has not established that the Hearing Examiner erroneously concluded that the positions in the unit found appropriate share a clear and identifiable community of interest. Rather, the Committee has attempted to show that a com- munity of interest exists between two respective groupings of employees comprising the appropriate unit and two existing bargaining units. It is well established that the Hearing Examiner's duty is to establish an appropriate unit, not the most appropriate unit. Town of Yarmouth and Teamsters Local Union No. 48, No. 80-A-04 (Me.L.R.B. June 16, 1980). We find that he has found an appropriate unit in this case. The Hearing Examiner applied and explained his application of the eleven criteria which we have consistently found relevant to the determination of the existence or absence of community of interest. Although we might not have made the same decision as the Hearing Examiner had we made the appropriate unit determination in the first instance, we will not disturb his determination. The standard employed in our review of Hearing Examiner's bargaining unit rulings has been set forth in many of our previous decisions. In MSAD No. 43 v. MSAD 43 Teachers Association, No. 84-A-05 (Me.L.R.B. May 30, 1984), we stated at page three that: We will overturn a hearing examiner's rulings and deter- minations if they are "unlawful, unreasonable, or lacking in any rational factual basis." It is thus 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. See, e.g., Town of Lebanon and Teamsters Local Union No. 48, No. 86-A-01 (Me.L.R.B. Dec. 5, 1985); Council 74, AFSCME and MSEA, No. 85-A-03 (Me.L.R.B. Aug. 7, 1985). Upon careful examination we find that the Hearing Examiner's Report is not "unlawful, unreasonable or lacking in any rational factual basis." It therefore must be affirmed. Ten-person bargaining units are far from small in comparison with other units which we have sanctioned under the Municipal Public Employees Labor Relations Law. Moreover, we know of no "minimum per- -6- ______________________________________________________________________ centage of total employees" rule applicable to unit configurations. ORDER On the basis of the foregoing 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) (Pamph. 1986), it is ORDERED that the appeal of the Committee filed on November 10, 1986 is hereby DENIED. Dated at Augusta, Maine, this 29th day of May, 1987. MAINE LABOR RELATIONS BOARD The parties are hereby advised /s/_________________________________ of their right, pursuant to 26 Edward S. Godfrey M.R,S.A. 968(4) (Pamph. Chairman 1986), to seek review of this Decision and Order by the Superior Court. To initiate such a review an appealing /s/_________________________________ party must file a complaint Thacher E. Turner with the Superior Court Employer Representative within thirty (30) days of the date of the issuance hereof, and otherwise comply with the requirements of Rule /s/_________________________________ 80B of the Maine Rules of George W. Lambertson Civil Procedure. Employee Representative -7-