Auburn School Committee v. Auburn Education Association/MTA/NEA, MLRB 
No. 91-UDA-01 (May 8, 1991)
Affirming MLRB No. 91-UD-03 (Feb. 27, 1991).

					    Case No. 91-UDA-01
					    Issued:  May 8, 1991

		   Appellant,          )
				       )          DECISION AND ORDER
	    v.                         )     ON UNIT DETERMINATION APPEAL
		   Appellee.           )

     On August 17, 1990, the Auburn Education Association/MTA/NEA ("Union")
filed a petition for unit determination with the Maine Labor Relations Board
("Board") pursuant to section 966 of the Municipal Public Employees Labor
Relations Law ("MPELRL"), 26 M.R.S.A.  966 (1988 & Supp. 1990) and the Board's
Unit Determination Rules.  In its petition the Union sought a determination that
a merged unit of Auburn School Department aides, assistants and secretaries
would conform with the requirements of section 966.  In a unit determination
report dated February 27, 1991 (No. 91-UD-03), the hearing examiner determined
that it would.  On March 11, 1991, the Auburn School Committee ("Committee")
filed a Notice of Appeal pursuant to 26 M.R.S.A.  968(4) (1988) and Board Rule
1.12, and in accordance with Rule 1.12(B), filed its memorandum of appeal on
April 2, 1991.  The parties waived their right to a hearing and oral argument
and filed written briefs, the last of which was received on April 29, 1991.
The Board deliberated the matter on May 11, 1991.

     The Committee contends in its appeal that the hearing examiner erroneously
concluded that the employees in the two units proposed for merger (the secre-
taries' unit and the teacher aides and assistants' unit) share a community of
interest as required by section 966(2), 26 M.R.S.A.  966(2) (1988).


     The Appellant, the Auburn School Committee, is an aggrieved party within
the meaning of 26 M.R.S.A.  968(4) (1988), and is the public employer within


the meaning of 26 M.R.S.A.  962(7) (Supp. 1990).  The Auburn Education
Acsociation is the bargaining agent, within the meaning of 26 M.R.S.A.  962(2)
(1988), for the secretaries' unit and for the teacher aides and assistants' unit
of the Auburn School Department.  The jurisdiction of the Board to hear this
appeal and to render a decision lies in 26 M.R.S.A.  968(4) (1988).


     The pertinent facts are not in dispute in the appeal; therefore, we adopt
as our own the findings of fact made by the hearing examiner in the proceeding


     In 1989, the MPELRL was amended to provide a procedure for the merger of
multiple bargaining units that have the same public employer and bargaining agent.
26 M.R.S.A.  966(4) (Supp. 1990).  That provision contains two requirements for
a merger: 1) a finding by the Board that the expanded unit would conform with
the requirements of section 966, and 2) a subsequent election in which a
majority of the employees in each of the original units approves the merger.

     Among the requirements of section 966 that must be met is a finding that
the merged unit would be appropriate -- that is, that there is a "clear and
identifiable community of interest" among the employees in the units proposed
for merger.[fn]1  It is this requirement that is at issue in this appeal.

     More specifically, the Committee alleges that the findings of fact do not
support the hearing examiner's conclusion that the following criteria tend to
establish that the secretaries share a clear and identifiable community of
interest with the teacher aides and assistants:

	  similarity in the kind of work performed;
	  common supervision;
	  similarity in the scale and manner of determining earnings;
	  similarity in employment benefits, hours of work and length
	    of work year;
	  similarity in qualifications, skills and training.

     The Board has previously set forth the standard that it applies in
reviewing decisions of the executive director or the director's designee in

     1 The new merger provision puts the Board in an unusual position for two


representation proceedings:

     We will overturn a hearing examiner's rulings and determinations
     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.

Portland Superintending School Committee v. Portland Adminstrative Employee
Association, No. 87-A-03, slip op. at 6 (Me.L.R.B. May 29, 1987), citing
MSAD No. 43 v. MSAD No. 43 Teachers Association, No. 84-A-05, slip op. at 3, 7
NPER 20-15915 (Me.L.R.B. May 30, 1984).

     The Board has reviewed the unit determination report, as well as the argu-
ments of the parties supplied in written briefs.  The findings of fact in the
proceeding below, which are not challenged by the Appellant, support the conclu-
sion that the requisite community of interest exists between the members of the
secretaries' unit and members of the teacher aides and assistants' unit, and

reasons.  First, in connection with the establishment of units other than merged
units, the Board has developed a set of eleven criteria that are to be con-
sidered in making a community-of-interest determination.  One of those criteria
is desires of employees.  In those cases where the other factors are not so
clear as to require a community-of-interest determination one way or the other,
the desires of employees weigh heavily in the determination, since the collec-
tive bargaining statute directs the Board to insure to employees the fullest
freedom in exercising their collective bargaining rights.  Under the new
merger provision of section 966(4), no showing of interest that would indicate
employee desires is required, and the merger election (which explicitly reveals
employee desires) does not occur until after the Board has made its determination
of appropriateness.  Thus, the Board must make its determination of appropriate-
ness without the benefit of that information.

     The merger provision is puzzling in a second respect.  For normal unit deter-
minations, section 966 provides for a bargaining agent election either after the
employer and agent have agreed on what unit is appropriate or, if the parties
cannot agree, after the Board has determined what unit is appropriate based on
its community-of-interest criteria.  Section 966(4), on the other hand, requires
a determination of appropriateness by the Board for proposed mergers even if
there is no disagreement between the parties.  They are not permitted to agree
on the composition of the merged unit and then proceed directly to an election.
That distinction puts the Board in an odd position.  On the one hand, parties
are permitted to establish original units of virtually any composition they
desire, whether or not those units would be found appropriate under the Board's
community-of-interest standards.  Yet when the parties desire to merge existing
units, the Board may be faced with the task of applying those standards to an
expanded unit made up of units that themselves don't meet the standards.


therefore that the hearing examiner's determination was not unlawful, unreason-
able, or lacking in any rational factual basis.  Pursuant to 26 M.R.S.A.
 968(4) (1988), we hereby deny the appeal and affirm the unit determination
report in its entirety.


     On the basis of the foregoing discussion and by virtue of and pursuant to
the powers granted to the Maine Labor Relations Board by the provisions of 26
M.R.S.A.  968(4) (1988), it is ORDERED:

     1.  That the appeal of the Auburn School Committee filed on
	 March 11, 1991, is denied, and that the unit determination
	 report is affirmed in its entirety.

     2.  That the Executive Director shall conduct two merger elections,
	 one for the employees in the secretaries' bargaining unit and
	 one for the employees in the teacher aides and assistants'
	 bargaining unit, as soon as is practicable.

Dated at Augusta, Maine, this 8th day of May, 1991.


The parties are hereby advised
of their right, pursuant to 26           /s/_______________________________
M.R.S.A.  968(4) (1988), to             Peter T. Dawson
seek review of this Decision             Chair
and Order on Unit Determination
Appeal by the Superior Court.
To initiate such a review an
appealing party must file a              /s/_______________________________
complaint with the Superior              Howard Reiche, Jr.
Court within thirty (30) days            Employer Representative
of the date of receipt hereof,
and otherwise comply with the
requirements of Rule 80C of the
Maine Rules of Civil Procedure.         /s/________________________________
											George W. Lambertson
											Employee Representative