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 -1- ____________________________________________________________________________ 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 -2- ____________________________________________________________________________ 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 -3- ____________________________________________________________________________ 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 -4- ____________________________________________________________________________ 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. -5- ____________________________________________________________________________ 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' -6- ____________________________________________________________________________ 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. -7- ____________________________________________________________________________ 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 -8- ____________________________________________________________________________ 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 -9- ____________________________________________________________________________ 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 -10- ____________________________________________________________________________ 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 -11- ____________________________________________________________________________ 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. -12- ____________________________________________________________________________ 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 -13- ____________________________________________________________________________ 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 -14- ____________________________________________________________________________ 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: -15- ____________________________________________________________________________ (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- -16- ____________________________________________________________________________ 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 -17- ____________________________________________________________________________ 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 -18- ____________________________________________________________________________ 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 -19- ____________________________________________________________________________ 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. -20- ____________________________________________________________________________