STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 97-UC-O3 Issued: September 18, 1997 ___________________________________ MOUNTAIN VALLEY EDUCATION ASSOCIATION/MEA/NEA, Petitioner, and UNIT CLARIFICATION REPORT MSAD NO. 43 BOARD OF DIRECTORS, Respondent ___________________________________ This unit clarification proceeding was initiated on May 12, 1997, when Mr. J. Donald Belleville, UniServ Director with the Maine Education Association ("MEA" or "union"), filed a petition with the Maine Labor Relations Board (Board) for clarification of an existing bargaining unit pursuant to section 966(3) of the Municipal Public Employees Labor Relations. Law ("MPELRL") The union's petition seeks inclusion of the positions of payroll clerk and bookkeeper in the existing secretaries bargaining unit comprised of the following positions: school secretary, guidance secretary, building/grounds secretary receptionist, special education secretary and food nutrition secretary. The MSAD No. 43 Board of Directors ("employer") objects to the Board's consideration of the union's petition on the basis that one of the statutory requirements for filing a unit clarification petition has not been met; specifically, that the circumstances surrounding the formation of this bargaining unit have not changed sufficiently to warrant the proposed modification in the composition of this unit. Prior to commencement of the hearing, the parties met with the hearing examiner to explore the possibility of settlement and, in the alternative, to formulate stipulations of fact. -1- STIPULATIONS The parties stipulate to the following: This hearing concerns the positions of payroll clerk and bookkeeper. The job descriptions which were admitted into evidence in the 1994 unit determination proceeding related to these positions (see Mountain Valley Education Association and MSAD #43 Board of Directors, No. 94-UD-13, Nov. 3, 1994) are identical to the job descriptions currently in existence, except for changes in titles. The position then known as "payroll clerk/administrative secretary" is now known as "payroll clerk." The position then known as "accountant/ bookkeeper" is now known as "bookkeeper." HEARING After due notice an evidentiary hearing was conducted by the undersigned hearing examiner on August 27, 1997, at the Board's conference room in Augusta, Maine- Mr. J. Donald Belleville appeared on behalf of the Mountain Valley Education Association/ MEA/NEA (MVEA), and the MSAD No. 43 Board of Directors was represented by S. Campbell Badger, Esq. The union presented as its witnesses: Ms. Folly Laskey, payroll clerk, and Ms. Beverly Whittemore, bookkeeper. The employer did not present witnesses. There were two documents admitted into evidence in the course of the hearing: Union Exhibit No. 1 - "Minutes of S.A.D. No. 43 Board of Director's Meeting, June 4, 1996"; Union Exhibit No. 2 - "Memo to Ms. Polly Laskey from Mr. Jerry Laliberty, May 15, 1997, Employment Agreement." The parties were given the opportunity to examine and cross- examine witnesses, offer documentary evidence and present opening and closing arguments at hearing. -2- JURISDICTION The jurisdiction of the hearing examiner to hear this matter and make a unit determination lies in 26 M.R.s.A. 966(1) and (3) (1988). FINDINGS OF FACT Upon review of the entire record and of the Maine Labor Relations Board's file pertaining to this bargaining unit, the hearing examiner finds: 1. The MSAD No. 43 secretaries bargaining unit was formed in September, 1988, by agreement between the bargaining agent at the time, "S.A.D. No. 43 Secretaries," and the employer. At that time the unit consisted of: "school secretaries." 2. In May, 1994, the Mountain Valley Education Association/ MEA/NEA filed a petition for bargaining agent election and unit determination, which proposed a bargaining unit consisting of: school secretaries, guidance secretaries, special education secretaries, food service secretaries, business manager's secretary, building/grounds secretary, pavroll clerk, and bookkeeper. (Emphasis added) 3. Three months after the unit determination and bargaining agent election petition was filed, the MVEA filed a petition to decertify "S.A.D. No. 43 Secretaries" and certify the MVEA as bargaining agent for the group of employees named in the May 1994 petition. 4. On October 5, 1994, in a Board-conducted election, the MVEA was elected as the bargaining agent for a unit of employees consisting of all of the petitioned-for classifications except business manager's secretary, payroll clerk and bookkeeper. (Emphasis added) It appears that, by the time of the election, the parties agreed to include all of the other positions in the secretaries bargaining unit. -3- 5. With regard to the May 1994 unit determination petition, the determination reached in the case was that the MVEA's petition should be dismissed for failure of the union to provide the showing of interest required by Board Rule 1.06(A) (i.e., a showing of interest on behalf of the employees the union wished to add to the existing secretaries bargaining unit) . See MVEA and MSAD #43 Board of Directors, Case No. 94-UD-13 (Nov. 3, 1994). 6. There is a collective bargaining agreement currently in effect between the parties for the years July 1, 1995, through June 30, 1998. 7. The recognition clause of this contract reads, in part, as follows: A. The Board hereby recognizes the Association as the exclusive bargaining representative . . . for secretaries . . . in the positions of school secretary, guidance secretary, building/grounds secretary/ receptionist, special education secretary, and food nutrition secretary. The existing positions of finance secretary/personnel clerk, payroll clerk, accountant/ bookkeeper, and administrative secretary to the superintendent are excluded from the bargaining unit. (Emphasis added) B. When new positions are created, the Board will notify the Association that a position has been formed and whether the Board considers it to be a bargaining unit or non-bargaining unit position. . . If the Board and the Association do not resolve the issue of inclusion, either party may seek a determination pursuant to the rules and procedures of the Maine Labor Relations Board. C. Subsequent to the signing date of this Agreement, if there are changes in personnel employed in positions that are presently non-bargaining (finance secretary/ personnel clerk, pavroll clerk, accountant/bookkeeper) as a result of the MLRB unit determination (MLRB Case No. 94-UD-13) issued November 3, 1994, the Association will be notified and may request to meet and consult to determine if the position is now a bargaining unit position . . . If the Board and the Association do not resolve the issue of inclusion, either party may seek a determination pursuant to the rules and procedures of -4- the Maine Labor Relations Board. (Emphasis added) D. [omitted] 8. Ms. Polly Laskey was hired into the position of "payroll clerk" on June 24, 1996. Ms. Laskey has no first-hand knowledge as to whether her job duties are different from those performed by the person who was previously employed in this position. 9. Ms. Beverly Whittemore was an administrative assistant for Union 25 prior to its merger with MSAD No. 43 in 1989-1990. In July, 1990, Ms. Whittemore was employed in the payroll depart- ment of the merged school district. On July 1, 1996, she was transferred into the position of "bookkeeper." Ms. Whittemore testified that her job duties are not different from those performed by the person who was previously employed in the position of bookkeeper; the only change in the position is a change in job title. DISCUSSION The union seeks to include two positions, that of payroll clerk and bookkeeper, into the existing school secretaries bargaining unit at MSAD No. 43. The Municipal Public Employees Labor Relations Law (MPELRL) provides a procedural mechanism for changing the composition of an existing bargaining unit to include positions not included in the unit when it was formed. Section 966 (3) "Unit Clarification" reads: Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the formation 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 certified bargaining agent may file a petition for a unit clarification 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). Rule 1.16(A) of the Board's Rules and Procedures provides that unit clarification petitions may be -5- 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 containing a bargaining unit description. The statutory language very clearly indicates that, as a threshold requirement for consideration of a unit clarification petition, there must be a change in the circumstances which existed at the time the unit was formed which would warrant including positions formerly excluded or excluding positions formerly included in a bargaining unit. Unit clarification decisions by the Board's hearing examiners and cases heard by the Board on appellate review provide guidance as to the nature of change relevant to these proceedings. Typically, the focus of Board unit clarification proceedings has been on a particular job classification and whether there have been changes in the duties of that job since the formation of the bargaining unit. State of Maine and Maine State Employees Association, No. 91-UC-04, slip op. at 13-14 (April 17, 1991); Maine School Administrative District #14 and East Grand Teachers Association, No. 83-UC-13, slip op. at 4 (June 1, 1983) , reversed on other grounds Maine School Administrative District 14 and East Grand Teachers Association, No. 83-A-09 (Me.L.R.B. Aug. 24, 1983); State of Maine and Maine State Employees Association, No. 82-A-02, slip op. at 5 (Me.L.R.B. June 2, 1983). The Board has also heard unit clarification cases involving changes in an employer's organizational structure. City of Bath and Local 1828. Council 74, AFSCME. AFL-CIO, No. 81-A-01 (Me.L.R.B. Dec. 15, 1980). In addition, the creation of a new classification subsequent to the formation of the bargaining unit at issue is an unequivocal change in circumstances which satisfies the threshold requirement for consideration of a unit clarification petition. -6- State of Maine, Department of Inland Fisheries and Wildlife and Maine State Employees Association, Nos. 83-UC-43 and 91-UC-11, slip op. at 8 (May 4, 1993); Portland Public Library Staff Association and Portland Public Library, No. 88-UC-03, slip op. at 9 (June 2, 1988). On the other hand, merely renaming a position and making minor changes in its duties and responsibilities does not constitute a sufficient change to warrant modification in the composition of a bargaining unit. Id. at 9. The union contends in this proceeding that a change in personnel employed in these two positions, which were specifically excluded from the unit by agreement of the parties most recently when the current contract was negotiated, constitutes the requisite change in circumstances. The hearing examiner is unaware of any prior unit clarifi- cation report or decision on appellate review before the Board which permits modification of a bargaining unit to include positions previously excluded by agreement of the parties, absent a substantial change in job duties. In fact, the hearing examiner in the 1994 unit determination proceeding concerning this bargaining unit and these very positions states (without citation to authority): "Although a unit clarification requires no showing of interest, it does require changed circumstances (creation of a new job classification or a change in duties for an existing one) , and therefore cannot be used to add classifications to a unit that have historically been excluded simply by choice." Mountain Vallev Education Association and M.S.A.D. #43 Board of Directors, No. 94-UD-13, slip op. at 25, n.2 (Nov. 3, 1994). It is clear from the record that the type of work performed by the payroll clerk and the bookkeeper has not changed since the formation of this unit. No other evidence was presented related to changes in the circumstances surrounding the formation of the secretaries bargaining unit. -7- The union attempts to bolster its position by pointing to the language in Article 1, section C of the current collective bargaining agreement which specifically addresses the prospect of changes in personnel in the positions at issue. While this language seems to reflect an agreement of the parties to waive any objection to a unit clarification petition that could have been raised under Board Rule 1-16 (A) (2), it cannot be read to vest jurisdiction in the Board when it would not otherwise have it. Jurisdictional requirements cannot be waived by the parties to a proceeding. As was noted in the previous unit determination report concerning this bargaining unit and these positions, an incumbent bargaining agent may use the unit determination procedure to seek modification of an existing unit. Mountain Valley Education Association and MSAD #43 Board of Directors, No. 94-UD-13, slip op. at 27 (Nov. 3, 1994). In unit deter- mination proceedings, it is not necessary to meet the change- in-circumstances prerequisite necessary in unit clarification proceedings. On the other hand, unit determination petitions cannot be filed during the term of a collective bargaining agreement except during the period provided by Board Rule 7.08 (the "contract bar" rule) . It is also necessary to submit a "showing of interest" at the time the petition is filed on behalf of employees whose positions are sought to be included in the existing unit. Id. at 41. ORDER On the basis of the foregoing facts and discussion and pursuant to the provisions of 2G M.R.S.A. 966 (1988 & Supp. 1996), it is hereby ORDERED: The MVEA's unit clarification petition, filed on May 12, 1997, seeking to add the positions of payroll -8- clerk and bookkeeper to the MSAD No. 43 secretaries bargaining unit, is dismissed. Dated at Augusta, Maine, this 18th day of September, 1997. MAINE LABOR RELATIONS BOARD /s___________________ Joyce A. Oreskovich Designated Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4) (1988 & Supp. 1996), 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. -9-