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.

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                                    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.
         
         
         
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                                    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.
         
         
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              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
         
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              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
         
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           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.
         
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         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.
         
         
         
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              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
         
         
         
         
         
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              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.
         
         
         
         
         
         
         
         
         
         
         
         
         
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