STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 91-UD-11
Issued: May 15, 1991
________________________________________
)
GORHAM MAINTENANCE, BUS DRIVERS, COOKS )
AND CUSTODIANS ASSOCIATION/MTA/NEA, )
)
Petitioner, )
)
and ) UNIT DETERMINATION REPORT
)
GORHAM SCHOOL COMMITTEE, )
)
Public Employer. )
________________________________________)
This unit determination (merger) proceeding was initiated on
December 19, 1990, when the Gorham Maintenance, Bus Drivers, Cooks and
Custodians Association/MTA/NEA (hereinafter referred to as "Union") filed
a petition for unit determination with the Maine Labor Relations Board
("Board") pursuant to 26 M.R.S.A. 966(4) (Supp. 1990) and the Board's
Unit Determination Rules. The Union's petition seeks a determination that,
if merged, two existing bargaining units of employees of the Gorham School
Committee ("Employer") would conform with the requirements of 26 M.R.S.A.
966 (1988 & Supp. 1990). The units at issue are one consisting of
Maintenance Personnel, Bus Drivers, Cooks and Custodians ("MBDCC unit")
and one comprised of Secretaries, Teacher Aides and Teacher Assistants
("SAA unit").
The Employer opposes the granting of the Union's petition and bases
its position on three premises: (1) the Union is equitably estopped from
proceeding with the proposed merger, (2) a merger petition may not be
granted unless both bargaining units involved are covered by existing
collective bargaining agreements, and (3) the two units do not share the
requisite community of interest level for their merger to result in an
appropriate bargaining unit. The Union was represented in this matter by
Cheryl Lunde, UniServ Director, Maine Teachers Association, and the Employer
was represented by Roger P. Kelley, Labor Relations Consultant.
Prior to convening the formal evidentiary proceeding, the parties met
with the hearing examiner in an informal conference whose purpose was to
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ascertain whether there were any material issues of relevant fact involved
in this matter. Through the diligent effort and cooperation of the par-
ties, a complete stipulation of the relevant facts was reached, obviating
the need for a formal proceeding. Said stipulation has been incorporated
into the findings of fact herein. Participating in the conference as
resource persons were:
Jonathan Falk
Educational Support Personnel Organizer
Maine Teachers Association
Marilyn Gryskwicz
President
Gorham Maintenance, Bus Drivers, Cooks and
Custodians Association/MTA/NEA
Timothy W. McCormack
Superintendent of Schools
Gorham School Department
Mary Pettengill
Secretary
Gorham School Department
Bruce Rudolph
Business Manager
Gorham School Department
Priscilla Watus
Educational Technician II
Gorham School Department
The following documents, the only exhibits proposed for admission, were
admitted into the record:
Joint Exhibit No. 1 Documents relating to creation of, and repre-
sentation for, the Secretaries, Teacher Aides
and Teacher Assistants' Unit, consisting of:
Letter from Mr. Falk to Superintendent
Goldman, dated April 23, 1990
Petition for Appropriate Unit Determination,
dated April 23, 1990
Petition for Election, dated April 23, 1990
Letter from Mr. Falk to Superintendent
Goldman, dated May 4, 1990
Agreement between the Gorham School Committee
and the Gorham MBDCC Ass'n/MTA/NEA, dated
5/4/90 and 5/10/90
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Agreement on Appropriate Bargaining Unit,
undated
Meeting Agenda, Gorham School Committee,
meeting of May 9, 1990
Minutes of Meeting, Gorham School Committee,
meeting of May 9, 1990, dated May 16, 1990
Letter from Marc Ayotte, M.L.R.B., to Mr. Falk
and Superintendent Goldman, dated May 14,
1990
M.L.R.B. Election Report and Certification,
dated June 18, 1990
Letter from Cheryl Lunde to Superintendent
McCormack, dated September 18, 1990
Joint Exhibit No. 2 July 1, 1988 - June 30, 1991 Collective
Bargaining Agreement between the parties
Joint Exhibit No. 3 Facts pertinent to the proposed merger, as
amended as a result of the parties' discus-
sion at the conference
Joint Exhibit No. 4 School Department Organizational Chart with
chain of command for classifications in each
unit attached and as modified as a result of
the parties' discussion at the conference
Joint Exhibit No. 5 Unit salary range comparisons
Joint Exhibit No. 6 Benefits and terms and conditions of employ-
ment, supplement to Joint Exhibit No. 3 and
as modified as a result of the parties' dis-
cussion at the conference
Joint Exhibit No. 7 Chart illustrating frequency of contact among
the classifications at issue, with definitions
of "low," "medium," and "high" as suggested by
the hearing examiner and including a stipula-
tion of the parties
Joint Exhibit No. 8 Chart showing work locations for classifica-
tions at issue
Joint Exhibit No. 9 Job descriptions for Bus Driver, Cafeteria
Manager, Head Cook, Food Service Assistant,
Food Service Helper II, Food Service Helper I,
Head Custodian, Building Custodian, Maintenance
Personnel, Mechanic, School Secretaries,
Guidance Secretary, Teacher Aide, Teacher
Assistant, School Nurse Assistant, and Library
Teacher Assistant classifications
Joint Exhibit No. 10 Gorham School Department Administrative
Procedure Compensation and Benefits for
School Secretaries
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Joint Exhibit No. 11 Gorham School Department Administrative
Procedure Fringe benefits for School Aides
and Assistants
The parties were accorded full opportunity to present proposed stipula-
tions, to introduce evidence, and to make argument. The parties presented
their arguments through post-hearing briefs, the last of which was filed
with the Board on April 8, 1991.
JURISDICTION
The Gorham Maintenance, Bus Drivers, Cooks and Custodians Association/
MTA/NEA is the recognized bargaining agent for the Gorham School Department
Maintenance, Bus Drivers, Cooks and Custodians' bargaining unit and is the
certified bargaining agent for the Gorham School Department Secretaries,
Teacher Aides and Teacher Assistants' bargaining unit. The Gorham School
Committee is the public employer of the employees whose classifications are
included in the bargaining units mentioned in the preceding sentence. The
executive director's jurisdiction to conduct this unit merger proceeding
and to issue this report lies in 26 M.R.S.A. 966 (1988 & Supp. 1990).
FINDINGS OF FACT
Upon review of the entire record, the executive director finds:
1. The Gorham Maintenance, Bus Drivers, Cooks and Custodians
Association/MTA/NEA is the recognized bargaining agent, within the meaning
of 26 M.R.S.A. 962(2) (1988), of a unit of Gorham School Department
employees described as follows:
INCLUDED: Employees classified as Maintenance Personnel, Bus
Drivers, Custodians and Cafeteria Workers
EXCLUDED: Persons in the above classifications employed less
than six months, persons who are temporary, seasonal,
part-time (less than 5 hours daily), or on-call
employees, and all other employees of the Gorham
School Committee.
2. The Gorham Maintenance, Bus Drivers, Cooks and Custodians
Association/MTA/NEA is the certified bargaining agent, within the meaning
of 26 M.R.S.A. 962(2) (1988), of a unit of Gorham School Department
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employees described as follows:
INCLUDED: Secretaries, Teacher Assistants and Teacher Aides
EXCLUDED: All central office personnel and all other employees
of the Gorham School Committee.
3. The Gorham School Committee is the public employer, within the
meaning of 26 M.R.S.A. 962(7) (1988), of all of the employees whose
classifications are included in one of the bargaining units mentioned in
paragraphs 1 and 2 hereof.
4. During April, 1990, the parties were attempting to reach agreement
on an appropriate bargaining unit of Secretaries, Teacher Aides and Teacher
Assistants.
5. During the course of the discussions mentioned in the preceding
paragraph, the Union served a Petition for Appropriate Unit Determination
and a Petition for Election, former M.L.R.B. forms 2 and 5 respectively,
upon the Employer. The cover letter, from Mr. Falk to then Superintendent
Goldman, dated April 23, 1990, stated:
Enclosed please find a Petition for Appropriate Unit
Determination (MLRB Form 2) and a Petition for Election
(MLRB Form 5) for a bargaining unit of aides, secretaries
and assistants. As we discussed on the telephone, the Form
2 is being filed to prevent any unnecessary delays, in the
unlikely event that the School Committee does not agree with
the proposed unit at its May meeting.
The effect of these petitions will be to create a separate
bargaining unit of aides, assistants, and secretaries, with
a separate contract from the existing maintenance, bus
driver, custodian and cook unit. Please don't hesitate to
call me if you have any further questions about this matter.
6. On or about May 4, 1990, the parties reached agreement in prin-
ciple on an appropriate bargaining unit of Secretaries, Teacher Aides and
Teacher Assistants, and the Gorham School Committee adopted said agreement
at its meeting of May 9, 1990.
7. The unit agreement mentioned in the preceding paragraph was filed
with the Board on May 10, 1990, and, upon satisfaction of the Board's
posting requirement, said agreement was formally accepted by the Board.
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8. The Board conducted a bargaining agent election on June 18, 1990,
as a result of which the Union was certified as the bargaining agent for
the Gorham School Department Secretaries, Teacher Aides and Teacher
Assistants' bargaining unit.
9. On September 18, 1990, MTA UniServ Director Lunde wrote to
Superintendent of Schools McCormack, proposing that the Employer volun-
tarily agree to the unit merger that is the subject of this action.
10. The Gorham School Department Maintenance, Bus Drivers, Cooks and
Custodians' bargaining unit has been represented by a bargaining agent
since 1971 and a series of collective bargaining agreements have been nego-
tiated for said unit since it was first organized.
11. The current collective bargaining agreement for the unit mentioned
in the preceding paragraph runs from July 1, 1988, through June 30, 1991.
12. Since the Union became certified as the bargaining agent for the
Gorham School Department Secretaries, Teacher Aides and Teacher Assistants'
bargaining unit, the parties have not engaged in collective bargaining for
said unit.
13. The primary work duties for each of the classifications in the
Gorham School Department Maintenance, Bus Drivers, Cooks and Custodians'
bargaining unit are as follows:
Maintenance Personnel: Skilled trades, including boiler opera-
tion, plumbing, electrical work, equipment operation, carpentry
and painting
Bus Drivers: Operating school buses and promoting safety of, and
maintaining discipline among, pupil/passengers
Custodians (including Head Custodian): Keeping school buildings
and grounds clean and litter-free; also snow removal
Mechanics: Repairing and maintaining school department's motor
vehicles
Food service employees (including Cafeteria Managers, Head Cooks,
Food Service Assistants and Food Service Helpers I and II):
Maintaining food inventory, preparing and serving food, and
keeping food preparation facilities clean
14. The primary work responsibilities of the positions in the Gorham
School Department Secretaries, Teacher Aides, and Teacher Assistants'
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bargaining unit are as follows:
Secretaries (including Guidance Secretaries): Preparing mater-
ials and correspondence, maintaining files, and operating
office equipment
Teacher Aides: Preparing instructional materials, supervising
pupils, and tutoring small groups
Teacher Assistants (including School Nurse Assistants and Library
Teacher Assistants): Preparing materials, maintaining student
records, supervising students, instructing small groups or
otherwise directly assisting certificated professional staff in
the performance of their duties
15. The Food Service Assistants and Food Service Helpers I and II are
supervised by a Cafeteria Manager or a Head Cook and the Custodians are
supervised by a Head Custodian. The Cafeteria Managers, Head Cooks, and
Head Custodians, along with the Maintenance Personnel, Bus Drivers,
Custodians and Cooks' unit classifications not mentioned in the preceding
sentence, are supervised by one of three program directors, who report to
the School Department Business Manager, who, in turn, reports to the
Superintendent of Schools.
16. The Secretaries are supervised by a building Principal or by the
Director of Special Education. The teachers (including all those covered
by the teachers' unit collective bargaining agreement) in conjunction with
the building Principal or the Director of Special Education are the direct
supervisors of the Teacher Aides and Teacher Assistants. The building
Principals and the Director of Special Education report to the
Superintendent of Schools.
17. The labor relations policies for all of the classifications at
issue are determined by the Gorham School Committee, except to the extent
that such policies are inconsistent with the provisions of the collective
bargaining agreement for the Maintenance, Bus Drivers, Cooks and
Custodians' bargaining unit.
18. The compensation for all of the classifications at issue is based
on hourly rates. The salary ranges are as follows:
Maintenance $ 9.03 - 10.16/hr.
Bus Drivers $ 8.51 - 9.58/hr.
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Mechanic $10.51 - 11.58/hr.
Head Custodians* $10.03 - 11.16/hr.
Bldg. Custodians* $ 8.21 - 9.25/hr.
Cafeteria Workers
Manager $ 7.36 - 8.29/hr.
Head $ 7.20 - 8.10/hr.
Assistant $ 6.82 - 7.68/hr.
Helper 2 $ 6.74 - 7.59/hr.
Helper 1 $ 6.38 - 7.18/hr.
School Secretaries
Sec. I $ 7.10 - 8.82/hr.
Sec. II $ 7.33 - 9.02/hr.
Teacher Aides $ 7.10 - 8.38/hr.
Teacher Assts. $ 7.70 - 9.57/hr.
*Although a second shift differential of $.25/hour is available to all
employees in the Maintenance, Bus Drivers, Cooks and Custodians' unit,
these are the only classifications that work second shift.
19. The following table depicts the employment benefits enjoyed by the
classifications at issue with the Maintenance, Bus Drivers, Cooks and
Custodians' unit listed as "MBDCC" therein:
BENEFIT MBDCC AIDES/ASSTS. SECRETARIES
Holidays 13 legal holidays 12
Vacations
bus driver, 1st yr: 1 day/mo 3 days/yr., school year
custodian & after 3 mos after 1 yr. 1-7 yrs: 1 wk
maintenance 1-7 yrs: 2 wks 8-10 yrs: 2 wks
8-10 yrs: 3 wks 10+ yrs: 3 wks
10+ yrs: 4 wks
full year
food service 1 yr: 5 days 1-7 yrs.: 2 wks
8+ yrs. 3 wks
Sick leave 1 1/2 days/mo. 1 1/2 days/mo. 1 1/2 days/mo.
accum. to 130 accum. to 120 accum. to 120
Emergency 2 days 1 day 2 days
Leave
Bereavement 3 days 3 days 3 days
Leave
Personal none none none
Leave
Health Ins. 100% of prior yr. Prior year's 100% of prior year
for mos. worked single coverage for mos. worked
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E/ee share: 10% cap for mos. worked E/ee share: 15% cap
E/ee share: 15% cap
Dental Ins. 85% of 2-person none none
plan for mos. worked
Life Ins. equal to annual equal to annual equal to annual
salary salary salary
Retirement 5 wks. pay after none none
Bonus 15 yrs.
Sick Leave $100/10 mo. e/ees none $100/10 mo. e/ees
Bonus $125/12 mo. e/ees $125/12 mo. e/ees
Course
Reimbursement $300/yr. none none
Disability Ins. payroll deduction payroll deduction payroll deduction
available available available
Pension may join M.S.R.S. must joint M.S.R.S. may join M.S.R.S.
E/er pays e/er share E/er pays e/er share E/er pays e/er share
Maternity
Leave 8 wks., unpaid 8 wks., unpaid 8 wks., unpaid
Paternity
Leave 3 days, from none none
sick leave
Family care 2 days 2 days from 2 days from
Leave sick leave sick leave
20. The work day and work year for each classification at issue are as
follows:
Maintenance 8 hrs./day, 52 weeks/yr.
Bus Drivers 8 hrs./day, 37 weeks/yr.
Mechanic 8 hrs./day, 52 weeks/yr.
Custodians 8 hrs./day, 52 weeks/yr.
Cafeteria Workers 5 1/2 hrs. day, 35 weeks/yr.
Secretary 1 8 hrs./day, 52 weeks/yr.
Secretary 2 7-7 1/2 hrs./day, 37-39 weeks/yr.
Teacher Aides 7 hrs./day, 35 weeks/yr.
Teacher Assts. 7 hrs./day, 35 weeks/yr.
21. The grievance procedure for the employees in the MBDCC unit con-
sists of four steps, culminating in final and binding arbitration. There
is no grievance procedure for the Secretaries, Teacher Aides and Teacher
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Assistants.
22. The minimum educational and training requirements for the classi-
fications at issue are as follows:
Maintenance Personnel: Maine Dept. of Labor Low Pressure Boiler
Operator License and experience in plumbing, electrical work,
food service equipment operation, carpentry and painting
Bus Drivers: Maine School Bus Operator License and driving
experience
Mechanics: Maine Motor Vehicle Inspection Certificate and Bus
Operator License, and heavy vehicle repair and maintenance
experience
Custodians: Experience in building cleaning and operation
Cafeteria Workers: Experience in food preparation or school
lunch program
Secretaries: Experience in general office work and procedure
Teacher Aides: High school diploma and experience working with
young people
Teacher Assistants: Completion of two years of college or 60
college credit hours and experience working with students
and adults
School Nurse Assistant: RN or LPN license, auto driver's license,
and nursing and clerical experience
23. The frequency of professional contact or interchange among the
classifications at issue is depicted in the following chart:
CLASSIFICATION CUST. HEAD CUS. MAINT. DRIVERS MECH. FS MGR FS HEAD FS ASST. HELP I HELP II SEC. AIDES ASSTS.
CUSTODIANS
HEAD CUSTODIAN HIGH
MAINTENANCE HIGH HIGH
BUS DRIVERS LOW LOW LOW
MECHANIC LOW LOW LOW HIGH LOW
F.S. MANAGER LOW LOW MEDIUM LOW LOW
F.S. HEAD LOW LOW MEDIUM LOW LOW MEDIUM
F.S. ASSISTANTS LOW LOW LOW LOW LOW HIGH HIGH
F.S. HELPER 1 LOW LOW LOW LOW LOW HIGH HIGH HIGH
F.S. HELPER 2 LOW LOW LOW LOW LOW HIGH HIGH HIGH HIGH
SECRETARIES LOW/M LOW/M MEDIUM MEDIUM LOW LOW MEDIUM LOW LOW LOW
AIDES LOW LOW LOW LOW LOW MEDIUM MEDIUM LOW LOW LOW HIGH
ASSISTANTS LOW LOW LOW LOW LOW LOW LOW LOW LOW LOW HIGH HIGH
On the above chart, "Low" means no professional contact to rare contact;
"Medium" means occasional contact; and "High" means regular, daily contact
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or interchange.
24. Three Teacher Assistants at the Narragansett School have "medium"
contact, as defined in the preceding paragraph, with the Food Service
Manager at that school. Of the six schools in the system, five have a food
service program. Narragansett School has a total of ten Teacher Assistants.
25. The Gorham system's six schools each serve as work sites for
Custodians, Secretaries, and Teacher Assistants. Five schools have food
service programs and four have Teacher Aides. The Maintenance Personnel
are based at the high school but work throughout the system. The Bus
Drivers are based at the school department garage; however, they drive from
school to school throughout the system. The Mechanics are based, and
perform most of their work, at the school department garage.
26. The distribution of employees within the classifications at issue
is as follows:
Maintenance Personnel: 2
Bus Drivers: 18 (in addition, 3 Bus Drivers work less than 5
hours/day and are part-time employees, excluded
from the MBDCC unit by the recognition article
of the parties' collective bargaining agreement)
Mechanic: 1
Custodians: 14 (2 additional Custodians work less than 5 hours/day)
Cafeteria Workers: 12 (6 additional Cafeteria Workers work less
than 5 hours/day)
Secretaries: 12
Teacher Aides: 8 (1 additional Teacher Aide works less than 5
hours/day)
Teacher Assistants: 33 (4 additional Teacher Assistants work less
than 5 hours/day)
The parties have not resolved whether Teacher Aides and Assistants who work
less than 5 hours/day are included in the Secretaries, Teacher Aides and
Teacher Assistants' bargaining unit.
27. Including the classifications at issue, most of the Gorham School
Department employees are currently organized for purposes of collective
bargaining. Other than the positions involved in this case, the other
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employee groups at the Gorham School Department are:
Certificated professional staff: represented together in a unit
Administrators: not organized
Central office staff: not organized
Program directors (i.e., Food Service, Transportation, and
Facilities): not organized
28. The Gorham School Department's organizational structure is repre-
sented by the following diagram:
Gorham School Committee
|
|
----------------------Superintendent of Schools---------------------------------------
/ | | \
/ | | \
Business Manager Administrative Asst. HS Prin. | JHS Prin. Elem. Prin. Sp. Ed. Dir. Adult Ed Dir.
----------- / / \ \--------- | | \ \ \
/ / \ \ | | \ \ \
/ / \ \ | | \ \ \
Food Service Dir. Bookkeeper Transportation Dir. Facilities Dir. P/T Secretary A.D. Assst. Prin. Secretaries Teachers*
| / | / \ / \
| / | / \ / \
Managers Drivers Mechanic Head Custodian Maintenance Assistants Aides
| |
Head Cook Custodians (*All those covered by teacher contract)
/ \
Assistant Helper I & II
DISCUSSION
The Employer's first contention is that, through application of the
principle of equitable estoppel, the Union should be barred from prose-
cuting the petition for unit merger. In Pino v. Maplewood Packing Co.,
375 A.2d 534 (Me. 1977), Mr. Justice Wernick outlined the elements
necessary to equitable estoppel as follows:
Unlike waiver, which, taken as the voluntary relinquishment of
a known right, concentrates on fundamentally subjective con-
siderations, estoppel in pais is concerned with essentially
objective factors. Estoppel flows from the actual consequences
produced by the conduct of A upon B regardless of whether A sub-
jectively intended the consequences, and which resulted because,
objectively evaluated, B has justifiably relied upon A's conduct.
Id. at 538-9. Hence, when party A does or says something and party B
reasonably relies thereon to party B's detriment, party A is estopped from
denying its original act or statement or from acting in a manner incon-
sistent therewith.
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The Board has applied the doctrine of equitable estoppel in appropriate
instances. Here, the only "detriment," that the Employer has suggested as
having flowed from the Union representations that preceded the Employer's
agreeing to the appropriateness of the SAA unit, is that the Employer was
required to participate in the instant proceeding. Brief on behalf of
Employer, at 5-6. Had the Employer refused to agree to the composition of
the SAA unit, such a unit could have been created through the unit deter-
mination process. In either scenario, the Union could have filed a unit
merger petition, once it became the bargaining agent for all of the units
at issue. The instant proceeding would have occurred in either event;
therefore, any Employer reliance, in agreeing to the appropriateness of the
SAA unit, did not result in the detriment claimed. In the circumstances,
it is not proper to apply the doctrine of equitable estoppel against the
Union.
A subsidiary procedural objection advanced by the Employer is that
granting the petition would be allowing "through the back door" what is not
otherwise allowed, thereby "emasculating" the Board's procedures. Brief on
behalf of Employer, at 3-4 and 6. The Employer's argument is based on the
following: (1) since the MBDCC unit's collective bargaining agreement does
not expire until June 30, 1991, and since the instant petition was not
filed within the window period provided in Board Rule 7.08, the Union could
not lawfully seek accretion of the SAA unit into the former unit through
the unit determination process and (2) the composition of neither of the
existing units could have altered through the unit clarification process
because the circumstances surrounding the formation of each unit had not
changed substantially, as required by 26 M.R.S.A. 966(3). Prior to
enactment of 26 M.R.S.A. 966(4), the Employer's argument would have been
persuasive; however, the merger provision changed prior law by providing
that the "contract bar" would not apply to merger proceedings and by
omitting the "substantial change" requirement as a prerequisite for altering
unit configurations through unit mergers.
The Employer's second procedural objection to the Union's petition is
that granting said petition would be premature at this time because Section
966(4) allegedly contemplates that all units proposed for merger have
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collective bargaining agreements in effect and " . . . is silent on the
obligations of the parties where no collective bargaining agreement exists
for one of the proposed merger units." Brief on behalf of Employer, at
7-8. The relevant portion of the Act, 26 M.R.S.A. 966(4)(A) (Supp. 1990),
states:
After an expanded unit is certified, the parties shall then
bargain over modifications needed in order to provide for the
wages, hours and working conditions or contract grievance
arbitration for the newly included positions in any existing
collective bargaining agreement or any collective bargaining
agreement being negotiated.
Where there is an unexpired collective bargaining agreement in
the merged bargaining unit with a different expiration date from
any other collective bargaining agreement in the merged bargain-
ing unit, all contracts shall be honored to their expiration
date unless mutually agreed to otherwise by the public employer
and the bargaining agent. Collective bargaining agreements may
be bargained on an interim basis in any merged bargaining unit
so that all collective bargaining agreements expire on the same
date.
The first sentence of this paragraph addresses situations, such as that
present herein, in which one of the units at issue has a collective
bargaining agreement in effect and the other does not. In such instances,
the parties must negotiate over the mandatory subjects of bargaining for
those classifications that were not covered by a bargaining agreement prior
to the merger. The second sentence quoted above deals with situations
where each of the units at issue is covered by a collective bargaining
agreement at the time of the merger. In such circumstances and unless the
parties agree otherwise, all agreements continue in effect throughout their
terms. If the agreements have different expiration dates, once the earlier
expiration date is reached, the parties may negotiate an interim agreement
that will expire on the same date as the other agreement. That way, the
agreements for all of the classifications in the merged unit will expire at
the same time and the parties can then negotiate a new agreement for the
entire unit. Hence, the Employer's argument is without merit.
When a unit merger election is sought, the executive director or the
director's designee is required, by 966(4) of the Act, to determine
whether the merged unit being proposed conforms to the requirements set
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forth in 966. Such requirements are: (1) all of the units at issue must
consist of employees of the same public employer, (2) all such units must
be represented by the same bargaining agent, (3) the preference expressed
in 966(1) against including supervisory employees in the same unit with
the employees whom they supervise, (4) the 966(2) requirement that
classifications assigned to the same unit must share a clear and iden-
tifiable community of interest, (5) the 966(2) requirement that, if pro-
fessional and non-professional employees are proposed to be included in the
same unit, a majority of all of the professional employees affected must
vote in favor of such inclusion for it to occur, (6) the 966(4)(B) pro-
viso that, if a decertification petition has been filed for any of the
units involved in the merger proceeding, the decertification petition
must be resolved prior to consideration of the merger petition, (7) the
965(4)(C) limitation that only one merger petition may be filed per year
for the same bargaining units, (8) the 966(4)(E) prohibition against
merging a unit composed primarily of supervisory employees with any other
unit, and (9) the 966(4)(F) proscription against merging a teachers' unit
with a unit of non-professional employees. Auburn Education Association/
MTA/NEA and Auburn School Committee, No. 91-UD-03, slip op. at 9 (Me.L.R.B.
Feb. 27, 1991). In the instant case, it is uncontested and the hearing
examiner concludes that the proposed unit meets all of these requirements
except for requirement number 4 above.
The sole substantive issue presented herein is whether the classifica-
tions in the MBDCC unit share a sufficient community of interest with the
positions in the SAA unit for all of the classifications, together, to
comprise a unit which is appropriate for purposes of collective bargaining.
To constitute an appropriate unit, employee classifications must share a
clear and identifiable community of interest. 26 M.R.S.A. 966(2) (1988).
The eleven-point test to determine whether the statutorily-required com-
munity of interest level is present in a given case was developed by the
Board in Council 74, AFSCME and City of Brewer, No. 79-A-01, slip op. at
3-4, 1 NPER 20-10031 (Me.L.R.B. Oct. 17, 1979), and has been incorporated
into Rule 1.11(F)(1) of the Board's Rules. Among the relevant community of
interest criteria are:
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(1) similarity in the kind of work performed [13 and 14]; (2)
common supervision and determination of labor relations policy
[15, 16 and 17]; (3) similarity in the scale and manner of deter-
mining earnings [18]; (4) similarity in employment benefits,
hours of work and other terms and conditions of employment [19,
20 and 21]; (5) similarity in qualifications, skills and training
of employees [22]; (6) frequency of contact or interchange among
the employees [23 and 24]; (7) geographic proximity [25]; (8)
history of collective bargaining [8, 10, 11 and 12]; (9) desires
of the affected employees; (10) extent of union organization [1,
2 and 27]; and (11) the employer's organizational structure [28].
The numbers appearing within the brackets in the foregoing quotation refer
to the paragraph(s) of the findings of fact pertinent to the criterion
immediately preceding each set of brackets.
The following criteria suggest that the MBDCC unit classifications
share a clear and identifiable community of interest with the Secretaries,
Teacher Aides and Teacher Assistants: similarity in scale and manner of
determining earnings and similarity in employment benefits. All of the
positions in the units at issue are compensated on an hourly basis and
their wage rates range from $6.38 to $11.58 per hour. Most of the
employment benefits enjoyed by the employee classifications in the two
units are substantially similar. Among such essentially equivalent bene-
fits are: same paid holidays; similar leave policy for sickness, emergen-
cies, maternity, bereavement, personal needs, and family needs; and similar
health, life, and disability insurance. All of the employees except for
the Aides and Assistants are eligible for a sick leave bonus. While there
are differences in paid vacation benefits, those differences relate to
whether particular classifications are employed on a school-year or
calendar-year basis. A few benefits (dental insurance, retirement bonus,
course reimbursements, and paternity leave) are only enjoyed by the
employees in the MBDCC unit.
The following criteria tend to establish that the MBDCC unit classifi-
cations do not share the requisite community of interest level to be
included in the same bargaining unit as the Secretaries, Teacher Aides and
Teacher Assistants: different kind of work performed; lack of common
supervision; lack of a grievance procedure for Secretaries, Aides and
Acsistants; different qualifications and training requirements; and assign-
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ment to different divisions of the employer's organizational structure.
The hearing examiner has recently discussed the "kind of work per-
formed" factor as follows:
In comparing the nature of the work being performed by the
various classifications under consideration, the essence or basic
type of the functions being performed is far more important than
the details of each position's work responsibilities. Inherent
in the existence of separate job classifications is a difference
in the specific work assignment of each classification; however,
such differences do not preclude the inclusion of various classi-
fications in the same bargaining unit. In a school department
setting, for example, there may be, and usually are, approximately
a dozen job classifications; however, there are only four basic
types of work being performed. The kinds of work in a typical
school milieu are: (1) administrators supervising professional
and non-professional employees, (2) teachers and other educational
specialists such as counselors or librarians participating
directly in the educational process, (3) educational support per-
sonnel providing direct support to the educational process, and
(4) non-educational support staff performing the manual or mechan-
ical work to keep the department's physical plant in operation.
In the instant case, the Teacher Assistants and Aides are educa-
tional support personnel, directly participating in the educa-
tional process.
Auburn Education Association/MTA/NEA and Auburn School Committee, No.
91-UD-03, slip op. at 11 (Me.L.R.B. Feb. 27, 1991), aff'd, Auburn School
Committee v. Auburn Education Association/MTA/NEA, No. 91-UDA-01 (Me.L.R.B.
May 8, 1991). In the instant case, the fundamental nature of the MBDCC
unit employees' work is provision of non-educational support, while the
essential character of the Secretaries, Aides and Assistants' function is
to provide educational support.
The lines of supervision for the positions in the two units are
markedly different. The Secretaries, Aides and Assistants are all, at
least in part, supervised by the educational administrators--the building
Principals and the Director of Special Education--who in turn report
directly to the Superintendent of Schools. None of the employees in the
MBDCC unit are supervised by the educational administrators; those
employees are supervised by the three non-academic program directors, who
in turn report to the Business Manager, who then reports to the
Superintendent of Schools. The Business Manager is not in the chain of
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command for any of the employees in the SAA unit. While, in the first
instance, the labor relations policies for all of the employees whose posi-
tions are involved herein are determined by the Gorham School Committee and
are implemented by the Superintendent of Schools, the policies applicable
to the classifications in the MBDCC unit are different from those relating
to the other positions at issue because those of the former unit have been
modified by a collective bargaining agreement, while those of the latter
group have not.
The terms and conditions of employment are different for the employees
in the two units at issue. The MBDCC unit has a grievance procedure that
culminates in binding arbitration. The SAA unit does not have a grievance
procedure at this time.
The qualifications and training of most of the SAA unit positions is
quite different than those required for members of the MBDCC unit. The
former are primarily educational in nature, including a high school
diploma, completion of two years of college or attainment of an RN or LPN
certificate. Preparation for employment in the latter group of classifica-
tions is gained through experience in the particular skills required for
each position. Typically such experience is gained through on-the-job
training or apprenticeship, rather than through formal education.
Finally, the classifications in the two units are in separate divi-
sions of the Employer's organizational structure. The MBDCC unit positions
are all in an operational division under the direction of the school
department Business Manager. The SAA unit classifications are all in the
educational division under the direct supervision of the Superintendent of
Schools.
The following criteria do not militate either for or against a holding
of a shared clear and identifiable community of interest among the posi-
tions in the two units: the hours of work within each unit, the degree of
professional contact or interchange between employees in the two units, the
geographic proximity of the employees, the history of collective bargain-
ing, and the extent of union organization among Gorham School Department
employees. The hours worked per day and the length of the work year vary
within each of the current units and, therefore, there is little probative
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value to this factor. Second, the nature of their employment greatly
reduces the weight assigned to the degree of interchange and geographic
proximity factors when evaluating units of school department employees.
In the initial report in Auburn, supra, slip op. at 13-14, the hearing
examiner noted:
Because of the insular nature of employment in a school depart-
ment, the only occasional professional contact [among the classi-
fications at issue] is not particularly significant. Teachers,
unless engaged in team teaching, usually have only occasional
contact with other teachers and employees working in one school
building have only rare professional contact with those in other
buildings. The degree of employee contact is, therefore, far
less helpful a factor in evaluating school units than it is in
most other employment settings. Similarly, the Secretaries in
Auburn work in the same 14 buildings as the other employees at
issue here.
Hence, the two factors have little weight here.
Unit merger proceedings inherently concern two or more separate
bargaining units and separate units almost always have distinct and dif-
ferent bargaining histories. There was no evidence concerning the lengthy
MBDCC unit bargaining history, other than its length, nor that of the SAA
unit. Little probative value could be discerned from the history of
collective bargaining factor herein.
Finally, the extent of union organization criterium can, as was noted
in the Auburn unit report, supra, slip op. at 14, be helpful in consti-
tuting new units or when considering unit status of residual or unique
employees. Neither the Board's non-proliferation policy nor residual
employees are at issue; therefore, this factor is not helpful.
The community-of-interest factors have been evaluated and reviewed
individually and together. Those factors establishing that the positions
in the MBDCC unit do not share a clear and identifiable community of
interest with those in the SAA unit are qualitatively more significant than
those militating for the opposite result. This is especially true because
most of the former criteria, including nature of work performed, different
supervision, dissimilar qualifications and training, and assignment to dif-
ferent divisions of the Employer's organizational structure, are inherent
in the classifications themselves. The factors tending to establish the
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requisite level of community of interest flow from the bargaining histories
of the two units. The classifications in the Maintenance, Bus Drivers,
Cooks and Custodians' bargaining unit do not share a clear and identifiable
community of interest with the positions in the Secretaries, Teacher Aides
and Teacher Assistants' unit, within the meaning of 26 M.R.S.A. 966(2);
therefore, a merger of said two units would result in a unit that does not
conform with the requirements set forth in 26 M.R.S.A. 966.
ORDER
Pursuant to 26 M.R.S.A. 966(4), the petition for unit determination
(merger) filed by the Gorham Maintenance, Bus Drivers, Cooks and Custodians
Association/MTA/NEA, on December 19, 1990, in Case No. 91-UD-11, is hereby
denied.
Dated at Augusta, Maine, this 15th day of May, 1991.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Marc P. Ayotte
Executive Director
The parties are advised of their right, pursuant to 26 M.R.S.A. 968(4)
(1988), to appeal this report to the Maine Labor Relations Board. A party
seeking appellate review must file a notice of appeal with the Board within
fifteen (15) days of the date of issuance of this report. See Board Unit
Determination Rule 1.12, Board General Provisions Rule 7.03.
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