STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 92-UC-03
Issued: November 17, 1992
_____________________________________
)
UNION 29 TEACHERS ASSOCIATION )
OF MECHANIC FALLS, )
)
Petitioner, )
) UNIT CLARIFICATION REPORT )
and )
)
MECHANIC FALLS SCHOOL COMMITTEE, )
)
Employer. )
_____________________________________)
This unit clarification case was commenced on the June 15, 1992,
filing of a Petition oy the Union 29 Teachers Association of Mechanic Falls
(Association) requesting that the position/classification of School Nurse
be incluced in a collective bargaining unit of Teachers and other professional
Mechanic Falls School Committee (Committee) employees represented by the
Association and described in the recognition clause of the parties' 1990-91
and 1991-92 contracts as:
all state certified full-time and part-time professional
employees of the Committee defined in Section 962; subsection 5,
Chapter 9-A, Title 26, Maine Revised Statutes Annotated,
excluding the Superintendent, the Principal, Aides, Teacher
Associates, Assistants, teachers teaching less than one-half time
(less than fifteen (15) hours per week), employees that have
worked less than six (6) months and any other employees as
defined in section 962, subsection 5, Chapter 9-A, Title 26,
Maine State Revised Statutes Annotated.
The Association's petition asserts that the School Nurse position was
created subsequent to formation of the bargaining unit, that the Association
sought and was denied unit inclusion of the classification during the par-
ties' most recent contract negotiations, and that as a part-time professional
certified employee the School Nurse position falls within the unit descrip-
tion set forth above. The July 2, 1992, Response filed by the Committee
asserts that the Nurse lacks a sufficient community of interest with
employees in the existing Teachers' unit to permit her inclusion therein.
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Upon due notice, an evidentiary hearing was scheduled for and con-
ducted on Friday, August 28, 1992, in Augusta, Maine. The Association was
represented at hearing by MTA UniServ Director Susan Rowe. The Committee
was represented by Attorney George S. Isaacson. No other interested party
participated or requested to participate in the proceedings. The Committee
elicited testimony from Superintendent Robert Wall. The Association eli-
cited testimony from Association President Mary Martin and School Nurse
Andrea Farr.
In off-the-record discussion, the Association tendered the following
described exhibits:
A-1. A one-page offer of employment/letter of agreement between Farr and
Wall, dated July 11 and 13, 1991.
A-2. A three-page draft Union School Nurse job description, dated 5/92.
A-3. A one-page Department of Education Professional Educational
Specialist K-12/School Nurse Certification, expiring 7/1/92, issued
to Andrea L. Farr.
A-4. A fourteen-page comprehensive contract between the Association and
the Committee effective 1990-91 and 1991-92.
A-5. A seventeen-page comprehensive contract effective between the par-
ties during the 1992-93 school year.
A-6. A four-page Mechanic Falls 1972-73 Salary Schedule.
A-7. A nine-page comprehensive contract effective between the parties
during the 1979-80 school year.
A-8. One page of Association notes of the parties' bargaining respecting
the Nurse's unit placement dated May 30, 1992.
A-9. A one-page Department of Education Educational Specialist cer-
tificate issued to Farr (34 Professional, 502) expiring 7/1/93.
A-10. A one-page Nurse license issued to Farr and expiring 5/3/94.
A-11. A five-page contract between the parties effective during the school
year 1974-75.
A-12. A five-page contract between the parties effective during the school
year 1975-76.
A-13. A five-page contract between the parties effective during the school
year 1976-77.
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During the hearing, the Committee tendered the following exhibits for
identification:
C-1. Two pages numbered 87 and 89 bearing the title CERTIFICATE; SCHOOL
NURSE as amended effective 7/1/91.
C-2. A two-page composite exhibit comprised of April 2, 1990,
certificates of the results of bargaining agent and professional
unit composition preference elections.
C-3. A composite exhibit composed of three one-page employment letters of
agreement dated and signed by Andrea Farr on August 6, August 6, and
June 2, 1992, respecting Mechanic Falls, Poland and Minot school
commitees.
C-4. A one-page exhibit entitled "Percentage of Time Which School Nurse
is employed by Mechanic Falls School Department."
C-5. Two pages consisting of the front cover and recognition clauses of
the parties' 1992-93 contract.
C-6. A three-page exhibit entitled "Mechanic Falls School Committee
Comparison of Teacher Positions and Part-Time School Nurse
Position."
The parties stipulated to tne admissibility of Association exhibits one
through seven and nine through eleven. Association exhibit eight was
withdrawn. Committee exhibits numbered one and three through five were
admitted without objection. Committee exhibit two was admitted over the
objection of the Association. Committee exhibit six was admitted over the
Association's objection, but is modified by those facts in supplement to
and in contradiction thereof made herein. I have considered Association
exhibits one through seven and nine through eleven as well as Committee
exhibits one through six in making the findings of fact set forth in this
report.
In off-the-record discussion, the parties reached the following stipu-
lations:
1. Association exhibits one through ten are admissible, with the agreed
caveat that Association Exhibit number 2 is a draft job-description.
2. The Committee employs only one School Nurse.
3. The Committee is a public employer within the meaning of the Municipal
Public Employees Labor Relations Law (MPELRL).
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4. Incumbent School Nurse Andrea Farr is a public employee within the
meaning of the MPELRL.
5. Teachers are the Committee's only organized employees.
6. The Association is the bargaining agent, within the meaning of the
MPELRL, of the bargaining unit of Teachers described above.
7. The School Nurse is a professional employee within the meaning of the
MPELRL.
8. In addition to the School Nurse and certificated Teachers, the
Committee employs the following professional employees:
Superintendent of Schools, Director of Special Education, Director of
Adult Education, School Principal, and Guidance Counselor.
9. The Committee's Speech Therapist possesses an educational specialist
certificate.
10. The Speech Therapist's principal duties are those of a speech teacher.
11. Unit placement of the School Nurse was raised during negotiations for
the parties' 1992-93 collective bargaining agreement.
12. No agreement concerning unit placement has been reached by the parties.
13. There is no contention of abandonment of the unit placement issue in
bargaining.
14. The hearing examiner may take administrative notice of the parties'
February 18, 1970, agreement on appropriate bargaining unit which
initially established the description of the Teachers' unit involved
in the instant matter.
15. The initial unit description mentioned next-above has been modified by
mutual agreement of the parties and is most recently described in the
recognition clause of the existing contract.
16. Andrea Farr was initially employed as a School Nurse in 1984.
17. Prior to Ms. Farr's tenure, the Committee had employed a part-time
School Nurse for between one and two years.
Both parties filed posthearing briefs, the last of which was filed on
September 29, 1992. On September 4, 1992, the hearing examiner notified
the parties of his "desire to take administrative notice of the February 13,
1990 Agreement on Appropriate Bargaining unit which established a
bargaining unit of Poland (Union 29) educational support employees which
included, by express classification, the School Nurse." No objection to
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such administrative notice was made. The parties stipulated on October 20
and 21, 1992, that the Nurse is paid in separate checks, by each town,
signed by either the Town Manager or the Town Treasurer. The February 13,
1990 Agreement and the parties' October 20-21 Stipulation regarding the
payment of the Nurse's wages are hereby incorporated by reference into the
findings of fact which follow later in this report.
JURISDICTION
The jurisdiction of the hearing examiner to hear this matter and to
make a unit clarification determination lies in 26 M.R.S.A. 966(1) and
(2) (1988). Neither party has objected to the undersigned's assumption of
jurisdiction over this matter.
POSITIONS OF THE PARTIES
The Association contends that the Nurse shares a community of interest
with existing professional bargaining unit members and is included as a
part-time professional employee by the unit's present definition set forth
in the parties' contract's recognition clause.
The Committee contends that the recognition clause excludes employees
like the Nurse working less than one-half time and that the Association is
estopped from pursuing inclusion of the Nurse based upon community of
interest which was not specifically alleged in the petition. Finally, the
Committee contends that there is no community of interest between the Nurse
and members of the existing unit. In its posthearing brief, the Committee
stated that it is willing to recognize the Nurse in a bargaining unit of
one.
FINDINGS OF FACT
The original Agreement on Appropriate Bargaining Unit which defined
the professional unit at issue in this case was filed December 8, 1969, and
described the unit by the names of included employees. Subsequently, on
February 18, 1970, an Agreement on Appropriate Bargaining Unit was filed
memorializing the parties' agreement on a unit of Classroom Teachers and
Teaching Principals. The parties' contract for the period 1974-75 contains
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no recognition clause, but clearly applies to Teachers. The parties'
1979-80 contract's recognition clause states, with regard to the unit's
description:
A. The Mechanic Falls School Committee (hereafter called the
"Committee") recognizes the Union #29 Teachers' Association
(hereafter called the "Association") as the exclusive bargaining
agent, through August 31, 1980, for all State certified full-time
professional employees of the Committee as defined in Maine
Revised Statutes Annotated, Title 26, Chapter 9A, Section 962,
Subsection 5, excluding the Superintendent, the principal, aides,
assistants, associates, and any other employees as defined in
Maine Revised Statutes Annotated, Title 26, Chapter 9A, Section
962, Subsection 6.
B. Unless otherwise indicated, the term "teacher(s)" when used
in this agreement shall refer to professional employees in
Paragraph A.
The contract in effect for 1990-91 and 1991-92 contains a recognition
clause identical in every material aspect to that contained in the 1992-93
contract. The parties' 1992-93 contract contains the following recognition
clause:
A. The Mechanic Falls School Committee (hereinafter called the
"Committee") recognizes the Union #29 Teachers' Association
(hereinafter call the "Association") as the exclusive bargaining
agent through August 15, 1993, for all state certified full-time
and part-time professional employees of the Committee defined in
Section 962; subsection 5, Chapter 9-A, Title 26, Maine Revised
Statutes Annotated, excluding the Superintendent, the Principal,
Aides, Teacher Associates, Assistants, teachers teaching less
than one-half time (less than fifteen (15) hours per week),
employees that have worked less than six (6) months and any other
employees as defined in section 962, subsection 5, Chapter 9-A,
Title 26, Maine State Revised Statutes Annotated.
B. Unless otherwise indicated, the term "teacher(s)" when used
in this Agreement shall refer to professional employees in
Paragraph A.
On April 2, 1990, the Teachers Association of Poland/MTA/NEA was cer-
tified as the exclusive collective bargaining agent of a bargaining unit of
Poland School Department Secretaries, Permanent Substitutes, School Nurses,
Teacher Associates, Teacher Aides, Library Aides, Cooks and Cafeteria
Workers.
The following findings of fact employ the Community of Interest fac-
tors set forth in Board Unit Determination Rule 1.11 (F) and compare the
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employment of the School Nurse at Mechanic Falls with the employment of
Mechanic Falls professional employee unit members.
Andrea Farr was employed as a School Nurse by the Committee in
September of 1984. She presently works as a School Nurse under separate
contract with school committees in Poland (signed August 5 & 6, 1992),
Mechanic Falls (signed August 5 & 6, 1992), and Minot (signed June 1 & 2,
1992).[fn]1 Her approximate weekly work hours/days of work are 21/102 in
Poland, 14/82 in Mechanic Falls and variable/up to twelve in Minot. Farr's
hourly wage and employment benefits at Mechanic Falls are: $10.96, three
holidays (Veterans, Labor and Thanksgiving days), nine sick days
(accumulable to 45 per year), one personal day and three bereavement days.
Farr's hourly wage and employment benefits, provided by collective
bargaining agreement at Poland, are $10.72, five holidays (Columbus,
Christmas, New Year's, Martin Luther King, Jr.'s Birthday and Memorial
days), eleven sick days (accumulable to 55), one personal day, reimburse-
ment for mileage for travel and conferences, Blue Cross/Blue Shield (BC/BS)
single member health insurance coverage, and three days' bereavement leave.
Farr's hourly wage at Minot is $10.52. The contract respecting Farr's
employment at Minot states, "(Your benefits will be provided by Poland and
Mechanic Falls School Committees only)." Approximately 42% of Farr's
School Nurse employment is for Mechanic Falls.
Mechanic Falls' Teachers perform regularly-scheduled educational
classroom work. The Guidance Counseler at Mechanic Falls performs no
teaching duties. The School Nurse performs a variety of health-related
screening, diagnostic, medical treatment, resource, inspection, record
keeping, referral, counseling, visitation, and consultation services. The
limited instruction which Farr performs is almost exclusively individual
rather than classroom in nature. Temporary work hour scheduling changes
________________________
1 Taking into consideration the control or right to control implicit in
the parties' public employer stipulation and in the absence of evidence or
allegation that the Nurse is an employee of School Union 29 rather than of
each of the three separate schools, I conclude that the evidence
establishes Farr's employment in Mechanic Falls to be separate from her
employment by any other Union 29 school committee.
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are accomplished for the School Nurse by consultation among all of the
School Principals involved. Farr's compensation at the individual schools
is unaffected by such adjustments in scheduling or hours. Farr practices
out of a clinic located between the Guidance and Principal's offices and
takes her lunch along with other professional unit employees in the
Teachers' room at the Elm Street School.[fn]2 Farr interacts with members of
the professional unit during work and during on-premises off-duty time.
Farr works with the Guidance Counselor and Home Economics/Health Teacher to
establish the content of student programs, such as the annual fifth and
sixth grade human growth and development curriculum. Farr served on the
curriculum committee one year when health was targeted for incorporation
into the formal curriculum and has participated in multi-grade wellness
classes. Farr annually attends two or three Pupil Evaluation Team (PET)
meetings and provides health/medical records in support of 90% of all PET
meetings at Mechanic Falls. Farr possess a Bachelor's Degree, a Maine
State Department of Education and Cultural Services certification as a
Professional Educational Specialist (K-12) with a School Nurse endorsement[fn]3
and is registered as a Professional Nurse with the Maine State Board of
Nursing. Teachers possess a Bachelor's degree and a teaching certificate.
Teachers work for a proportionately higher yearly salary. Farr is an
hourly-wage worker.
Teachers have their full BC/BS family plan coverage paid by the
Committee. Farr obtains no health insurance coverage through Mechanic
Falls. It appears that Farr's single coverage health insurance is paid
exclusively by the Poland School Committee; however, there is no indication
of whether this situation is the result solely of coverage flowing from her
bargaining unit membership at Poland. Although the record establishes that
the Nurse is eligible to receive similar retirement benefits and the
optional life insurance which is available to Teachers, there is no evi-
________________________
2 Although Farr's two-hour lunch is unpaid, 50% of her lunches involve,
to some degree, consulting with Teachers or Principals. There is no
indication of the actual amount of time devoted to such consultation.
3 The authorization of such certificate is for non-instructional pur-
poses.
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dence respecting contributions from the Nurse or any other source to secure
either of these benefits. There is no evidence concerning whether the pro-
visions of mutually-exclusive holidays by Poland and Mechanic Falls
reflects the scheduling of mutually-exclusive duty days.[fn]4 The Committee's
exhibit number 3 contains a Nurse contract with Mechanic Falls which states,
"please see Mechanic Falls GDB for benefits and explanations." Committee 3
also contains a Poland Nurse contract which states, "please see educational
support staff ESP for benefits and explanations." The record does not
establish what these acronyms are and neither the "GDB" nor the "ESP"
were offered or admitted into evidence.
Teachers get no paid holidays, earn twenty days annual sick leave
accumulable to 120 and are eligible for an unspecified sick leave bank.
Teachers get two personal and five bereavement leave days. Teachers work
six hours per day compared to Farr's contractual seven. The Teachers,
Guidance Counselor and Farr perform all of their work for Mechanic Falls at
the Elm Street School, where they are all supervised by the Building
Principal. The Speech Therapist is supervised by the Director of Special
Education. Teacher labor relations are established through collective
bargaining with the Committee. The labor relations policy for the Nurse is
unilaterally set by the Mechanic Falls School Committee. Teachers interact
frequently with teaching team members and same-grade-level Teachers, and
with other-grade-level Teachers when they attend faculty meetings. Farr's
interaction with Teachers is less frequent. Farr does not attend afternoon
faculty meetings because she is not present at Mechanic Falls when they
occur.
The Nurse and the members of the professional unit are all employed in
various aspects of direct student contact delivering education-related ser-
vices for the Committee. As professional employees the Nurse and Teachers
________________________
4 Different paid holidays are provided by Poland and Mechanic Falls. It
may well have initially been anticipated that the Labor, Veterans and
Thanksgiving Day holidays would occur on days during which the Nurse was to
work solely at Mechanic Falls. However, the record establishes that the
Nurse now works four mornings per week at Mechanic Falls and the respective
four afternoons at Poland.
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all perform work which is predominately intellectual and varied in
character, involving the consistent exercise of discretion and judgment.
As professional employees they all share a common background of advanced
knowledge acquired through "a prolonged course of specialized instruction
and study in an institution of higher learning or a hospital." The School
Nurse, Speech Therapist and Home Economics/Health Teacher all possess
student-health-related responsibilities.
The Nurse and the representatives of the existing unit desire the
petitioned-for clarification.[fn]5 There is nothing inherent in the employer's
organizational structure which argues against the requested clarification.
There is likewise nothing in the collective bargaining history of the
Employer which counsels denial of the requested clarification. In this
regard there is only tacit non-inclusion until the most recent nego-
tiations, during which the accretion request of the Association was refused
by the Committee.
All of the unit members and the Nurse work only during the school
year. Although the Nurse's contract specifies that the Nurse will work at
Mechanic Falls on two seven-hour workdays per week, the evidence establishes
that she works there on each of four mornings per week. The Speech
Therapist until last year worked on a shared basis devoting three and one-
half days to Mechanic Falls and one and one-half days per week to Minot.
The Art Teacher initially worked only four days a week.
The approximate potential annual "salaried" earnings of Teachers esti-
mated on a formal at-school[fn]6 hourly basis using a 6 hour/day, 181 day
school year ranges from a minimum of $17.40 to a maximum of $31.00 per
hour.[fn]7 Although it is clear that the wages, hours and terms and conditions
________________________
5 There is no evidence of the desires of any other affected employees.
6 There was no evidence respecting whether or not Teachers devote any
unremunerated hours to their teaching duties either at the school or at
their homes. The probative value of using a "salary" figure extrapolated
into an hourly rate is therefore diminished.
7 Teacher salaries have not been adjusted, herein, to reflect contrac-
tual furlough days.
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of employment of unit members are set through collective bargaining, the
manner of arrival at the Nurse's hourly wage rate and benefits, terms and
conditions of employment is unclear. The Superintendent, when asked if the
School Committee acts on the letter of agreement establishing the Nurse's
wages and benefits responded, "Not yearly, no." The Superintendent simi-
larly indicated that School Committee interaction concerning and action
upon his recommendation, based upon relative student population, is the
method by which the Nurse's relative regularly-scheduled work hours among
the three schools, in Union 29, are arrived at. The testimony by the
Mechanic Falls Teachers Association President in response to the question
of "who sets any employee policies in Mechanic Falls" was that "[e]mployee
policies are set by the school board." Although signed by the
Superintendent, the Nurse's contract is with the Mechanic Falls School
Committee, which Committee, as a party to the contract, has the option of
unilaterally terminating the contract upon fourteen days' notice. There is
no evidence that the Superintendent makes effective recommendations with
respect to the exercise of the committee's managerial hiring and firing
authority.
Unlike Teachers, the Nurse is not eligible for payroll deduction,
administrative team or extra-curricular assignment/pay[fn]8, or sick leave
bank. The Nurse receives no course reimbursement, possesses no grievance
or layoff/recall rights, does not enjoy inter-school visitation privileges
and is not entitled to professional study,[fn]9 sabbatical, maternity/adoption,
conference or jury duty leave benefits.
The Mechanic Falls School Committee employs Teachers, a Guidance
Counselor, a Speech Therapist, a School Nurse, and employees in the classi-
fications of Superintendent, Director of Special Education, School
(Building) Principal, Director of Adult Education, Custodian, Cafeteria
Worker (including Cooks), Teacher Aide, Bus Driver and School Secretary.
________________________
8 There is no evidence that eligibility to conduct extra-curricular
activities is restricted to Teachers.
9 There is no evidence of a requirement of continuing education credit
for Teachers or Nurses.
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DISCUSSION
As is more fully explained below, I conclude in light of the evidence
and the parties' arguments that the petition in this case was properly
filed and that the School Nurse shares a community of interest with
employees in the existing professional employee bargaining unit. The
MPELRL provides in section 966(1) that:
In the event of a dispute between the public employer and an
employee or employees as to the appropriateness of a unit for
purposes of collective bargaining or between the public employer
and an employee or employees as to whether a supervisory or other
position is included in the bargaining unit, the executive director
or his designee shall make the determination.
26 M.R.S.A. 966(1) (1988). The MPELRL provides, with respect to the
availability of Board unit clarification procedures, that:
Where there is a certified or currently recognized bargaining
representative and where the circumstances surrounding the for-
mation of an existing bargaining unit are alleged to have changed
sufficiently to warrant modification in the composition of that
bargaining unit, any public employer or any recognized or cer-
tified bargaining agent may file a petition for a unit clarifica-
tion provided that the parties are unable to agree on appropriate
modifications and there is no question concerning representation.
26 M.R.S.A. 966(3) (1988). The purpose of unit clarification procedures
is to analyze job classifications in light of changes which have occurred
since tne formation of the bargaining unit to determine whether the changes
are sufficient to warrant modification of the unit's description. The
creation of a new job classification is a change that is usually deemed
sufficient to satisfy the threshold requirement of "substantial change."
Portland Public Library Staff Association and Portland Public Library,
No. 88-UC-03, slip op. at 9 (Me.L.R.B. June 2, 1988).
Rule 1.16(A) of the Board's Unit Determination Rules provides, in per-
tinent part, that:
Unit clarification petitions may be denied if (1) the question
raised should properly be settled through the election process,
or (2) the petition requests the clarification of unit placement
questions which could have been but were not raised prior to the
conclusion of negotiations which resulted in an agreement con-
taining a bargaining unit description.
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This rule reflects a policy favoring the establishment of bargaining unit
descriptions through timely agreement of the parties.[fn]10 It is discretionary
and permits but does not mandate the dismissal of unit clarification (UC)
petitions. See State v. MSEA, No. 82-A-02, slip op. at 5, 6 (Me.L.R.B.
June 2, 1983).
Upon consideration I find that the record indicates that all of the
statutory prerequisites to the filing of the instant UC petition have been
satisfied. The petitioning Association is the certified collective
bargaining agent and the School Nurse position was created after the unit
was initially created. No party has asserted and the record evidence does
not give rise to an inference of the existence of a question concerning
representation.[fn]11 Finally, the record establishes that the issue of the
Nurse's unit placement was raised prior to and remained unresolved[fn]12 at the
conclusion of the parties' presently effective collective agreement, which
contains a bargaining unit description.
The School Nurse position has been occupied by Ms. Farr since 1984.
It is undisputed that a number of collective bargaining agreements have
been concluded since 1984 which do not directly address the unit placement
of the School Nurse. The parties' past practice establishes that the Nurse
was tacitly excluded. These facts, however, do not estop the Association
from seeking to include the Nurse in the existing professional unit.
The Association argues that the School Nurse is a professional
employee included in the unit by that portion of the recognition clause of
________________________
10 Monetary predictability and the adequate funding of collective
bargaining agreements is enhanced by the Board's rule allowing the
dismissal or refusal of petitions raising clarification issues for the
first time subsequent to and in contradiction of contractually agreed upon
unit descriptions.
11 The possibility of the accretion of one employee to a unit of this
size does not create a question concerning representation.
12 There is no evidence that the permissively negotiable issue of unit
placement was purposefully abandoned in consideration of any collective
bargaining concession. See generally the last sentence and cases cited in
footnote seven of Thomaston and Teamsters Local Union No. 340, No. 90-UC-03,
slip op. at 13 (Me.L.R.B. Feb. 22, 1990) (citing cases).
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the parties' agreement which specifies the inclusion of "all state cer-
tified full-time and part-time professional employees of the Committee.[fn]13
The Committee argues that the recognition clause, which excludes "teachers
teaching less than one-half time (less than fifteen (15) hours per week),"
excludes the Nurse because sne works at Mechanic Falls less than one-half
of her total School Union #29 (Mechanic Falls, Minot, and Poland Schools)
workweek. Inasmuch as the panties have stipulated that with regard to the
School Nurse "[n]o agreement on unit placement was reached," it is
unnecessary to resolve these mutually exclusive interpretations.[fn]14
The Committee contends that the sole basis for clarification asserted
in the petition and, therefore, the only issue before the hearing examiner
is the Association's assertion that the Nurse's position falls within the
unit description contained in the parties' contract's recognition clause.
The Committee construes the Association's failure to assert, in the UC
petition, the existence of a community of interest with Mechanic Falls pro-
fessional employee unit members as a fatal defect requiring dismissal.[fn]15 I
find to the contrary. The Board's unit clarification procedures are not so
technical in their pleading requirements. Because the issue of community
of interest is implicit in every unit clarification, see 26 M.R.S.A. 966
(1988 & Supp. 1991), I find that it need not be expressly invoked by "magic
words" in the UC petition.
Additionally, the Committee contends that Farr's inclusion as a School
Nurse in an educational support unit (ESU) of Poland School Committee
________________________
13 See recognition clause, supra, page 1.
14 Moreover, the exclusion of less than half-time employees applies by
the contract's terms only to Teachers "teaching less than one-half time."
The Guidance Counselor, a non-teaching professional, would be excluded from
the unit if this portion of the recognition clause applied to professional
employees who "teach" less than half-time. This provision also refers to a
half-time hourly amount which is appropriate to a Mechanic Falls' 30-hour
Teacher's workweek. The evidence establishes a 6-hour day for Teachers and
a contractually specified 7-hour day for the Nurse. I do not interpret
this clause to exclude professionals "professing" less than one-half time.
15 Interestingly, the issue of lack of community of interest was raised
by the Committee in its Response as its sole basis for opposing the peti-
tion.
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employees, rather than in an existing Poland Teachers' unit, estops the
Association from asserting that in Mechanic Falls the Nurse shares a com-
munity of interest with Teachers.[fn]16 I reject this argument. The Poland units
were both established by agreement of the parties, not by unit determination
hearing and report.[fn]17 Second, because only "an" appropriate unit is required[fn]18
absent an express finding of lack of community of interest with Poland
Teachers, even unit placement in the Poland ESU by report would not be proba-
tive respecting the issue of community of interest with Poland Teachers.
The Board has addressed the duty of hearing examiners to assess
whether a community of interest exists among prospective fellow unit mem-
bers as follows:
Title 26 M.R.S.A. 966(2) requires that the hearing examiner
consider whether a clear and identifiable community of interest
exists between the positions in question so that potential
conflicts of interest among bargaining unit members during nego-
tiations will be minimized. Employees with widely different
duties, training, supervision, job locations, etc., will in many
cases have widely different collective bargaining objectives and
expectations. These different objectives and expectations during
negotiations can result in conflicts of interest among bargaining
unit members. Such conflicts often complicate, delay and
frustrate the bargaining process.
AFSCME and City of Bangor, No. 79-A-01, slip op. at 4, 1 NPER 20-10032
(Me.L.R.B. Oct. 17, 1979). See also Board Unit Determination Rule 1.11(F).
Accordingly, the inquiry now turns to whether the Nurse shares a community
of interest with employees in the existing professional employee unit.
________________________
16 Apparently, the Committee contends that Poland Education Support Unit
Nurse placement is incompatible with and bars the advancement of any asser-
tion of community of interest between the Nurse and Teachers in the instant
case.
17 "Appropriate unit determinations, particularly those reached by
agreement of the parties, are not immutable." Teamsters Local Union 340 and
the Town of Wells, No. 90-UC-01, slip op. at 3 (Me.L.R.B. Nov. 22, 1989).
18 0n1y "an" appropriate unit, not the "most" appropriate unit, is
required. See Portland Superintendent School Committee v. Portland
Administrative Employee Association, No. 87-A-03, slip op. at 6 (Me.L.R.B.
May 29, 1987).
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In evaluating the presence or absence of community of interest, the
Board requires, at minimum, assessment of the following eleven factors:
(1) similarity in the kind of work performed; (2) common super-
vision and determination of labor-relations policy; (3) simi-
larity in the scale and manner of determining earnings; (4)
similarity in employment benefits, hours of work and other terms
and conditions of employment; (5) similarities in the qualifica-
tions, skills and training of employees; (6) frequency of contact
or interchange among the employees; (7) geographic proximity; (8)
history of collective bargaining; (9) desires of the affected
employees; (10) extent of union organization; and (11) the public
employer's organizational structure.
Council 74, AFSCME and City of Brewer, MLRB No. 79-A-01, slip op. at 3-4,
1 NPER 20-10031 (Oct. 17, 1979); (cited with approval in Penobscot Valley
Hospital and Maine Federation of Nurses and Health Care Professionals, AFT,
AFL-CIO, MLRB No. 85-A-01, slip op. at 4, 8 NPER ME-16O11 (Feb. 6, 1985)).
It is correct, as is urged by the Committee, that the School Nurse
performs no substantial teaching duties.[fn]19 However, the possession of simi-
lar, not identical, job responsibilities and conditions is the dispositive
inquiry in community of interest determinations. Were it otherwise, one-
person Nurse units would proliferate in school departments and the Guidance
Counselor here would not be appropriately included in this unit along with
Teachers. Compare 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, 14 NPER ME-22006 (Me.L.R.B. May 8, 1991). Additionally, the
part-time nature of the Nurse's regularly-scheduled work would not preclude
a finding of community of interest with full-time employees, see Town of
Lebanon and Teamsters Local Union No. 48, No. 86-A-01, 8 NPER ME-17005
(Me.L.R.B. Dec. 5, 1985), even if the unit were restricted exclusively to
full-time employees, and it is not.[fn]20 I find little reason to exclude on
________________________
19 The record indicates that the Speech Therapist teaches but that the
Guidance Counselor does not.
20 Although no present member of the professional unit works less than
full-time, the Speech Therapist and the Art Teacher previously worked 3
and 4 days per week, respectively. The contract's recognition clause
expressly includes Teachers who work one-half time.
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the basis of differing total work hours the School Nurse who works fourteen
hours per week (47% of the 30-hour workweek of full-time Teachers) when the
parties have acknowledged by way of description in the recognition clause
that Teachers working one-half time would share a community of interest
with other full-time professional unit employees.
Although there are other unorganized employees with whom the Nurse
might be included for bargaining purposes by agreement of the parties, the
record does not establish such agreement and voluntary recognition to have
occurred or to be imminent.[fn]21 Finally, it is unlikely that the Board would
find the School Nurse to be appropriately included in any other future
bargaining unit configuration established by unit determination proceeding.
The Guidance Counselor and Speech Therapist are already included in the
professional employee bargaining unit and the Superintendent is statutorily
excluded by 26 M.R.S.A. 962(6)(E) (1988). The only remaining professionals,
the Directors of Special and Adult Education, may perform distinguishing
supervisory duties more in common with the School Principal than the School
Nurse. If they do not perform predominatingly supervisory duties, the
Directors, as leadworkers, would probably be included in the professional
employee unit. It is doubtful that a three-person residual unit would be
approved in light of the Board's predisposition against small units respecting
which the costs are potentially duplicative and in which the collective power
of the employees is attenuated. Establishment of a separate single-member
School Nurse bargaining unit also would offend the Board's long-standing
policy against the unnecessary proliferation of small bargaining units.
The Board has explained the rationale underlying its policy as follows:
_________________________
21 The Board has stated that "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." Auburn School Committee v. Auburn Education Association,
No. 91-UDA-01, slip op. at p.3 n.1, 14 NPER ME-22006 (Me.L.R.B. May 8,
1991). See, e.g., Woodland Education Association/MTA/NEA and Baileyville
School Committee, Agreement on Appropriate Bargaining Unit (Me.L.R.B filed
July 19, 1984) (agreed unit including secretaries, aides, custodians, bus
drivers, food service personnel and nurse), MSAD 22 Non-Teaching Association
and MSAD 22, Agreement on Appropriate Bargaining Unit (Me.L.R.B. filed
Nov. 18, 1970) (agreed unit including secretaries and clerks, teacher
aides, lunch workers, custodians, bus drivers and school nurse).
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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.
M.S.A.D. 43 and M.S.A.D. 43 Teachers Association, No. 84-A-05, slip op.
at 4-5, 7 NPER 20-15015 (Me.L.R.B. May 30, 1984), see, e.g., MSAD 14 and
East Grand Teachers Association, No. 83-UCA-09, slip op. at 13, 6 NPER
20-14036 (Me.L.R.B. Aug. 24, 1983), MSAD 16 Library Employees Association
and MSAD 16 Board of Directors, No. 82-A-03, slip op. at 3 (Me.L.R.B.
Aug. 12, 1982). Accordingly, I find that Board factor 10, extent of union
organization, supports a finding of community of interest.
The professional employee unit members and the School Nurse work out
of the same geographic single-school location, dine in tne same Teachers'
room, interact with each other officially during work and during on-
premises off-duty time. They are all supervised by the Building Principal,
with the exception of the Speech Therapist, who is supervised by the
Director of Special Education.
"[I]n Maine school nurses have traditionally been included in teacher
bargaining units, and a number of cases find that school nurses clearly
share a community of interest with teachers." Tri-Town Teachers Association
and MSAD No. 52, No. 84-UC-06, slip op. at 8 (Me.L.R.B. Aug. 27, 1984)
(noting the absence of any case in Maine holding to the contrary and
citing, e.g., Biddeford Teachers Association and Biddeford School Committee,
No. 83-UC-03, slip op. at 7 (Me.L.R.B. Aug. 27, 1982), Lewiston Teachers
Association and Lewiston Board of Education, No. 80-UC-01, slip op. at 5
(Me.L.R.B. Sept. 25, 1979). See also, Orono School Committee and Orono
Teachers Association, Nos. 89-UD-04 & 89-UC-02 (Me.L.R.B. Dec. 14, 1988)
(including teachers, counselors, librarians and school nurse).
In light of this and the strong community of interest inherent in the
statutory self-determination election requirement set forth in 26 M.R.S.A.
966(2) (1988), I conclude that a rebuttable presumption of community of
interest exists among professional employees. That presumption has not
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been rebutted in the facts of this case. I determine that of the Board's
eleven community of interest factors, those numbered above as 1, 2, 5, 6,
7, 9 and 10 support a finding of community of interest. I further conclude
that factors numbered 8 and 11 neither support nor detract from a finding
of community of interest. Finally, I conclude that the only community of
interest factors which disfavor granting of the petition are "similarity in
the scale or manner of determining earnings" and "similarity in employment
benefits, hours of work and other terms and conditions of employment."
The evidence respecting differences in earnings and benefits primarily
reflects the fact that the School Nurse has not been previously covered by
a collective bargaining agreement. See Orono School Committee and Orono
Teachers Association, No. 89-UD-04 and 89-UC-02, slip op. at 16 (Me.L.R.B.
Dec. 14, 1988). I conclude that the factors supporting a finding of com-
munity of interest both quantitatively and qualitatively outweigh those
factors that do not support a finding of community. Accordingly, I make
the unit clarification determination set forth below.
UNIT CLARIFICATION DETERMINATION
Pursuant to 26 M.R.S.A. 966 (1988 & Supp. 1991) and on the basis of
the above discussion applying the Board's precedent to the facts in light
of the legal arguments of the parties, I conclude that the School Nurse is
appropriately included in the existing Mechanic Falls Professional Employee
collective bargaining unit.
Dated at Augusta, Maine, this 17th day of November, 1992.
FOR THE EXECUTIVE DIRECTOR OF THE
MAINE LABOR RELATIONS BOARD
/s/_______________________
M. WAYNE JACOBS
Designated Hearing Examiner
The parties are hereby advised of their right pursuant to 26 M.R.S.A. 968(4)
(Supp. 1991), to appeal this report to the Maine Labor Relations Board. To
initiate such an appeal, the 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 Rules 1.12 and 7.03 for full requirements.
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