STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 97-UD-03
Issued: December 23, 1996
_______________________________
)
MSAD #48 TEACHERS ASSOCIATION/ )
MEA/NEA )
)
Petitioner, )
)
) UNIT DETERMINATION REPORT
and )
)
MSAD #48 BOARD OF DIRECTORS, )
)
Respondent. )
_______________________________)
This unit determination proceeding was initiated on June 27,
1996, when MSAD #48 Teachers Association/MEA/NEA (hereinafter
referred to as "the union") filed a petition for unit determina-
tion pursuant to Section 966 (1) of the Municipal Public
Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 961 et
seq. The union's petition seeks the creation of a bargaining
unit consisting of custodians and maintenance workers,[fn]1 food
service personnel, secretaries and educational technicians I, II
and III,[fn]2 and excluding teachers, administrators, superintend-
ent's office staff, bus drivers and mechanics.[fn]3
____________________
1 The parties agree that the positions of groundskeeper/
custodian, custodial services director and head maintenance
worker belong in the same unit as custodians and maintenance
workers.
2 The parties agree that the positions of tutor and job coach
belong in the same unit as all educational technicians.
3 The union's petition originally sought inclusion of bus
drivers and mechanics. Records kept by the Maine Labor Relations
Board indicate that in April, 1978, the employer voluntarily
recognized "S.A.D. #48 Bus Drivers Association" (Association) as
the bargaining agent for bus drivers. Once it was notified of
the bargaining agent of record, the union amended its petition
to request decertification of the Association. There was no
collective bargaining agreement in effect for bus drivers at the
time and, according to the employer, face-to-face negotiations
with a bargaining agent had not occurred for a number of years.
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The M.S.A.D.#48 Board of Directors (hereinafter referred to
as "the employer") filed a timely response, wherein it disputes
the appropriateness of a single, comprehensive unit for all of
the named positions. The employer submits that the positions
fall into two (2) distinct categories and should be organized as
follows: (i) an "educational support" unit including secretaries
and educational technicians, and (ii) a "non-educational support"
unit including custodians, maintenance workers, and food service
personnel.
In the event the hearing examiner agrees with the employer's
proposed two-unit configuration, the union contends that
secretaries are more appropriately placed in the "non-educational
support" unit; otherwise, the union does not take issue with the
employer's proposed placement of all other positions.
Upon due notice an evidentiary hearing was conducted on
August 14, 1996, in the Board's conference room in Augusta,
Maine. Joseph A. Stupak, Jr., UniServ Director, appeared on
behalf of MSAD #48 Teachers Association/MEA/NEA; Bruce Smith,
Esq., appeared on behalf of MSAD #48 Board of Directors. No one
requested to intervene nor did any party other than those
mentioned herein appear at the hearing or request to be heard.
Prior to commencement of the formal evidentiary hearing the
parties met with the hearing examiner to explore the possibility
of settlement of this petition and, in the alternative, to
formulate stipulations of fact and offer exhibits into evidence.
The stipulations that were reached appear below. The union
____________________
On December 4, 1996, the union withdrew its petition for
decertification and for inclusion of bus drivers and mechanics in
the proposed unit based on the "reviv[al] of [a] collective
bargaining relationship" between the employer and bus drivers
since the filing of this petition (i.e., a collective bargaining
agreement executed on September 6, 1996) and an agreement that
mechanics belong in the same bargaining unit as bus drivers.
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did not offer documentary evidence. The following exhibits were
offered by the employer and admitted into evidence without
objection:
Exhibit No. 1 - Current Benefits and Pay
Exhibit No. 2 - Bus Drivers Association
Exhibit No. 3 - Organizational Chart
Exhibit No. 4 - Policies (Employment)*
Exhibit No. 5 - Job Descriptions
Exhibit No. 6 - Benefit Plan**
Exhibit No. 7 - Individual Contracts Related to
Insurance Benefits
Exhibit No. 8 - Personnel Directory***
Exhibit No. 9 - Hours for Custodians and Maintenance
Exhibit No. 10 - Prior Benefit and Pay Package
(*) Sections of this exhibit marked "draft" were before the Board
of Directors at the time of hearing and had had a first reading.
(**) The benefits marked as "recommendations" are now in effect
and, to the extent there are discrepancies between Ex. No. 1 and
Ex. No. 6, Ex. No. 1 controls.
(***) This document had not yet been finalized for the 1996-97
school year, but it was accurate as of the date of hearing.
The formal evidentiary hearing was convened for the purpose
of taking testimony. Witnesses are identified in the hearing
transcript. The parties were afforded the opportunity to examine
and to cross-examine witnesses. At the close of the hearing the
parties requested and were granted the opportunity to present
post-hearing briefs in lieu of oral argument. The post-hearing
briefs were filed simultaneously and received on September 24,
1996.
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
(2) (1988).
STIPULATIONS
The parties have agreed to the following pertinent facts:
1. The petitioner, MSAD #48 Teachers Association/MEA/NEA,
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is a bargaining agent within the meaning of 26 M.R.S.A. 962
(2).
2. The respondent, MSAD #48 Board of Directors, is a public
employer within the meaning of 26 M.R.S.A. 962 (7).
3. Prior to this petition, none of the positions proposed
for inclusion in this unit(s) has been the subject of a unit
determination decision by this Board.
4. The following positions should be excluded from the
unit(s) determined as a result of this petition: hot lunch
supervisor, transportation/buildings and grounds director and
superintendent's office staff (i.e., those positions specifically
listed in Respondent's Ex. 8).
5. There is no certification bar (see Rule 1.14) nor
contract bar (see Rule 1.15) to the filing of this unit
determination petition.
6. In the event the proposed unit is not found to be
appropriate, the union wishes to participate in an election in
any units determined to be appropriate.
7. If the hearing examiner determines that one unit is
appropriate, the parties agree that all of the positions belong
in this unit.
FINDINGS OF FACT
Upon review of the entire record, the hearing examiner
finds:
1. M.S.A.D. #48 covers approximately 250 square miles; it
consists of six townships and is located in two counties. The
district includes one (1) high school (Nokomis Regional), three
(3) junior high schools (Corinna, Hartland and Newport), and five
(5) elementary schools (Eastland, Hartland, Newport, Palmyra and
St. Albans).
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2. All of the classifications subject to this petition are
employed in the various schools throughout the district and
considered by the parties to be "support staff".
3. The number of employees employed in the various
classifications is as follows:
Secretaries - 11
Educational Technicians - 54
Custodians - 18
Maintenance Workers - 2
Food Service Personnel - 21
4. The primary work responsibilities for the positions of
ADMINISTRATIVE SCHOOL SECRETARY and SCHOOL SECRETARY include:
transcription; typing, mailing and postage; collection of data,
filing and maintaining confidential files; telephone work;
ordering supplies and bookkeeping; scheduling appointments and
maintaining teacher attendance logs; welcoming visitors. The
ADMINISTRATIVE SCHOOL SECRETARY has the additional
responsibilities of assigning duties to and supervising the work
of clerical personnel, and recording and accessing personnel
information.
5. The primary work responsibilities for the position of
EDUCATIONAL TECHNICIAN III include: working directly with
Chapter One (or "special ed") students; performing short-term
instruction and classroom management with indirect professional
supervision; supervising small groups of students; identifying
and screening students selected for the program; maintaining
records on all Chapter One students; coordinating and arranging
work schedules so as to maximize supplemental services for these
students; maintaining effective communication by keeping parents
and teachers informed and involved in the program.
6. The primary work responsibilities for the position of
EDUCATIONAL TECHNICIAN II include: performing instructional
duties directly supervised by the classroom teacher; performing
short-term instruction and classroom management activities under
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direct supervision; conducting one-on-one or small group
instruction with indirect supervision; and maintaining effective
communication with personnel, students and parents.
7. The primary work responsibilities for the position of
EDUCATIONAL TECHNICIAN I/LIBRARY include: performing instruc-
tional duties directly supervised by the teacher; typing;
ordering books; maintaining files; management of overdue books
and related fines; making simple repairs on damaged books;
monitoring attendance in the library; maintaining the reserve
book system and magazine shelf; assisting in inventory of library
materials; shelving incoming books; maintaining current inventory
of supplies; and overseeing the general neatness and
attractiveness of the library.
8. The primary work responsibilities for the position of
EDUCATIONAL TECHNICIAN I include: assisting the classroom
teacher in the preparation of learning materials and activities,
and with the copying and collating of materials; and performing
instructional duties directly supervised by the teacher.
9. The primary work responsibilities for the position of
CUSTODIAN include: keeping buildings and premises neat, clean
and sanitary; regulating heat, ventilation, and air conditioning
systems; snow removal; daily safety checks of all exit doors and
panic bolts; and raising and lowering of the American flag.
10. The primary work responsibilities for the position of
MAINTENANCE WORKER include: repairing toilets, urinals, water
lines and water coolers; installing similar equipment; cleaning
sewage system; replacing lights and ballasts; minor roof, floor,
furniture, tractor, mower and snowblower repairs; completing
minor renovations; and constructing racks and shelves.
11. The primary work responsibilities for the position of
COOK include: supervising and instructing kitchen personnel in
the safe, proper and efficient use of all equipment; maintaining
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standards of safety and cleanliness; checking food shipments and
signing invoices; determining the quantities of food to be
prepared; preparing food; ordering and maintaining inventory; and
supervising daily cleaning of all kitchen equipment.
12. The primary work responsibilities for the position of
ASSISTANT COOK include: assisting in the preparation and serving
of food, assuming responsibility for replenishing food supply
during meal times, and storing and disposing of unused food;
assisting in the daily cleaning of kitchen areas; and performing
major cleaning of refrigerators.
13. Secretaries, educational technicians and custodians
"report to" their school's principal (see job descriptions). The
educational technicians are also directly or indirectly super-
vised by the classroom teacher or librarian to whom they are
assigned. The Director of Transportation/Maintenance shares
responsibility for hiring and evaluating custodians; however, the
school principal is responsible for the day-to-day supervision of
custodians.
14. Maintenance workers report to the Director of
Transportation/Maintenance.
15. According to written job descriptions, cooks report to
the Director of Food Services and assistant cooks report to the
cooks. Superintendent William Braun testified that building
principals, while not actually in the kitchen supervising the
work of the food service personnel, take responsibility for their
day-to-day supervision; if there is a particular problem, it is
usually reported back to the Director of Food Services who is
located at the high school. Superintendent Braun further
testified that the building principal, "probably because of their
direct building supervision, [does] the actual evaluation [of
food service workers] and review[s] it with [the Director of Food
Services]."
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16. Superintendent Braun testified that principals "have
direct supervision over [all personnel in] that building.
There's a lot of ownership in buildings." Mr. Braun stated that
the principal of each building "feel[s] very responsible for
everything" that goes on in his or her school, no matter which
employee is involved.
17. The M.S.A.D. #48 Board of Directors establishes labor
relations policy for all of the classifications subject to this
petition.
18. The M.S.A.D. #48 Board of Directors determines pay
ranges for all of the classifications subject to this petition.
19. The hourly pay ranges for the classifications in
question are as follows:
Secretaries - $6.25 - $9.25
Ed. Tech. I - $6.00 - $8.00
Ed. Tech. II - $7.00 - $8.50
Ed. Tech. III - $8.00 - $10.00
Custodian - $6.25 - $9.50
Maintenance Worker - $8.00 - $12.75
Food Service Personnel - $7.00 - $9.00
20. The M.S.A.D. # 48 Board of Directors established
benefits and terms and conditions of employment for all of the
employees subject to this petition based on recommendations of an
ad hoc committee.
21. The ad hoc committee mentioned in the preceding
paragraph is composed of members of the administration and
members of the school board. It recently recommended a uniform
approach to the determination of wages (i.e., an evaluation
format and performance-based pay increases) for all of the
classifications subject to this petition.
22. The committee also recommended uniformity in benefits by
grouping employees according to the length of their work year and
granting the same benefits to employees within each group.
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Specifically, the committee differentiated classifications in the
following manner and granted the same benefits to employees
within each category:
* EMPLOYED DURING THE SCHOOL YEAR
Educational Technicians - Food Service Personnel
* EMPLOYED DURING THE SCHOOL YEAR PLUS 20 DAYS
Secretaries
* EMPLOYED THROUGHOUT THE CALENDAR YEAR
Custodians - Maintenance Workers
23. Superintendent Braun testified that the committee "spent
a great deal of time . . . trying to find some way to tie the
groups together . . . [T]he only thing we could tie it to was
basic work year, time."
24. Educational technicians and food service personnel (all
employed during the school year) receive the following benefits:
HOLIDAYS 6
SICK AND PERSONAL LEAVE DAYS 11
BEREAVEMENT 3
PROFESSIONAL At discretion of supervisor and
superintendent
VACATION 0 - 5 days, depending on years of service
COURSES Reimbursed up to $150
HEALTH INS. 100% single coverage or $850 cash in lieu
JURY DUTY Difference in pay b/t base wage and jury
compensation
25. Secretaries (employed during the school year plus 20
days) receive the following benefits:
HOLIDAYS 8 (Head Sec./High School - 11)
SICK AND PERSONAL LEAVE DAYS 12 (Head Sec./High School - 14)
BEREAVEMENT 4 (Head Sec./High School - 5)
PROFESSIONAL At discretion of supervisor and
superintendent
VACATION 0-10 days, depending on years of service
(Head Sec. - 15)
COURSES Reimbursed up to $150 (Head Sec. - $200)
HEALTH INS. 100% single coverage or $850 cash in lieu
JURY DUTY Difference in pay b/t base wage and jury
compensation
26. Custodians and maintenance workers (employed throughout
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the calendar year) receive the following benefits:
HOLIDAYS 11
SICK AND PERSONAL LEAVE DAYS 14
BEREAVEMENT 5
PROFESSIONAL At discretion of supervisor and
superintendent (not given to custodians)
VACATION 0 - 15 days, depending on years of service
COURSES Custodians only; reimbursed up to $150
HEALTH INS. 100% single coverage or $850 cash in lieu
JURY DUTY Difference in pay b/t base wage and jury
compensation
27. The approximate hours of work for all of the classifica-
tions are as follows:
Secretaries - 7:30 a.m.- 3:30 p.m. (7.5 hrs./day)
Educational Technicians - 7:30 a.m. - 3:30 p.m.
(7.5 hrs./day)
Custodians - varied shifts (8hrs.- 10.5hrs. avg./day)
Maintenance Workers - 6:30 a.m. - 5:00 p.m. (10.5 hrs./day)
Food Service Personnel - 6:00 a.m. - 1:00 p.m. (7 hrs./day)
28. The qualifications, skills and training required for the
positions of ADMINISTRATIVE SCHOOL SECRETARY and SECRETARY are as
follows:
(i) high school diploma; (ii) demonstrated knowledge in
general office procedure; and (iii) skills in general
organization, word processing, and computer use; or such
alternatives to the above qualifications as the Board may
find appropriate and acceptable.
29. Mr. Lyford Beverage and Mr. Joseph Gallant, principals
in M.S.A.D. #48, testified that the position of secretary
requires a high level of judgment and communication skills.
Mr. Beverage described the secretaries' duties to include
directing all communications that come into the school,
overseeing the student accounts (about $150,000 worth of
business) and working with auditors, working on weekly building
reports and yearly state reports, and keeping the assistant
principal and principal abreast of complications that need
attention. "She schedules a great deal of my work load, a great
deal of the assistant principal's work load; really a kind of a
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managerial status, I think." Mr. Beverage, who has been the
principal at Nokomis Regional High School for six or seven years,
testified that he considers the secretaries in his office to be a
part of his "administrative team," and has advocated for several
years that they be treated "perhaps in executive status or
something like that." Mr. Beverage testified that this is not
something he would say about educational technicians, custodians
or food service personnel.
30. Mr. Gallant explained that he and two other principals
need to divide their time between two or more school buildings
and that, in their absence, secretaries have to make certain
judgments and take on more responsibility than otherwise expected
(e.g., deal with irate parents, determine whether a situation
warrants the principal's attention, make decisions on first aid,
deal with students sent to the principal's office, all the while
assisting teachers with copying and the like).
31. The qualifications required for the position of
EDUCATIONAL TECHNICIAN III are as follows: three years of
college, preferably in education, or such alternatives as the
Board may find appropriate and acceptable.
32. The qualifications and training required for the
position of EDUCATIONAL TECHNICIAN II are as follows: (i) high
school diploma; (ii) two years of post-secondary education, or
sixty hours of study in an educationally-related field/vocational
education; (iii) two years of employment within the field of
assignment; and (iv) participates in ongoing in-service
education.
33. The qualifications and training required for the
position of EDUCATIONAL TECHNICIAN I are as follows: (i) high
school diploma or G.E.D.; (ii) participates in an orientation
program; and (iii) participates in ongoing in-service education.
34. The qualifications and skills required for the position
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of CUSTODIAN are as follows: (i) high school diploma; and (ii)
demonstrated ability to relate to students and other adults.
35. The qualifications, skills and training required for the
position of MAINTENANCE WORKER are as follows: (i) high school
diploma; (ii) vocational training at the post-secondary level;
and (iii) demonstrated knowledge of maintenance services.
36. The qualifications, skills and training required for the
position of COOK are as follows: (i) high school diploma; (ii)
demonstrated knowledge of high quality food and nutrition
programs; (iii) knowledge of government regulations concerning
public school food services; (iv) knowledge of health and safety
standards as they apply to food services; (v) demonstrated
experience in the preparation and delivery of food to large
groups of people; and (vi) ability to communicate with and
supervise a large number of personnel.
37. The qualifications and skills required for the position
of ASSISTANT COOK are as follows: (i) high school diploma; and
(ii) knowledge of procedure used in food preparation.
38. Ms. Evelyn Hickey, who has been a secretary for M.S.A.D.
#48 for 27 years, testified that she sees the educational
technicians "in the hallway type thing" and might do some copying
for them from time to time, but that she does not work with them
in the classroom. Ms. Hickey stated that she works with the
cafeteria staff on a regular basis (selling hot lunch tickets
once a week), is always asking the custodian to do something
(e.g., go to the bank, get an ice pack or band-aids), and that
she occasionally does typing for teachers. Ms. Hickey stated
that all of the employees (except custodians) come into the
office daily to check their mailboxes.
39. Ms. Dawn Hale, a secretary at the junior high school in
Corinna, testified that hers is the smallest school in the
district with approximately 75 students, two grades, five
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teachers, one part-time educational technician (employed in the
library four afternoons a week) and no cafeteria. Ms. Hale
testified that she does not work as many hours as most other
secretaries, rarely sees the custodian since their work hours are
completely different, and does no work in conjunction with the
library aide or any educational technicians from other schools.
Ms. Hale stated that the secretaries in the district telephone
each other frequently.
40. Ms. Hickey testified:
Q. If you had your choice as to which, how a bargaining
unit would be composed here, which employees would be
included in which bargaining units, as an employee,
what would your choice be?
A. With food services, custodial ... Preferably we'd like
to be all in one unit.
41. None of the classifications subject to this petition has
a history of collective bargaining with the employer.
42. The employer's organizational structure is divided into
seven functional units: (1) Building Administration; (2)
Buildings/Grounds; (3) Budget/Finance; (4) "H.S.A.D"; (5) Nurse;
(6) Special Services; (7) Chapter I Migrant. The secretaries and
educational technicians fall within the Building Administration
division; the maintenance workers and custodians fall within the
Buildings/Grounds division; and the food service workers fall
within the Budget/Finance division.
43. Superintendent Braun testified that, in his opinion,
educational technicians and secretaries should be organized in a
"direct educational support group" and the remaining positions in
an "indirect educational support" group. Superintendent Braun
explained that educational technicians and secretaries have
"direct relationships with teachers, with parents, with students
. . . ." Also, "they're within full sight all day long of those
students, and they act as also a role model for students."
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DISCUSSION
The Municipal Public Employees Labor Relations Law vests in
the executive director of the Maine Labor Relations Board
(Board), or his designee, the authority to determine "the
appropriateness of a unit for purposes of collective bargaining."
26 M.R.S.A. 966(1) (1988). The touchstone of an appropriate
bargaining unit is that its members share "a clear and
identifiable community of interest" in the subjects controlled by
a collective bargaining agreement. 26 M.R.S.A. 966(2);
Lewiston Firefighters Association v. City of Lewiston, 354 A.2d
154, 161 (Me. 1976).
The union has petitioned the Board for a single,
comprehensive unit comprised of educational technicians I, II,
and III,tutors, job coaches, secretaries, food service personnel,
custodians (including groundskeeper/custodian and custodial
services director) and maintenance workers (including head
maintenance worker).
The employer contends that the petitioned-for unit is not
appropriate because educational technicians and secretaries do
not share a clear and identifiable community of interest with the
other employees. The employer proposes two separate bargaining
units: (i) an educational support staff unit comprised of
educational technicians and secretaries; and (ii) a non-
educational support staff unit for all other employees.
It is well-established that the hearing examiner's role in
unit determination matters is to decide whether the petitioned-
for unit is an appropriate unit, not necessarily the most
appropriate unit. Town of Yarmouth and Teamsters Local 48,
No. 80-A-04, slip op. at 4. (Me.L.R.B. June 16, 1980). The focus
of this unit determination report, therefore, is whether it is
inappropriate to include secretaries and educational technicians
in a bargaining unit with food service personnel, custodians and
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maintenance workers,[fn]4 not whether some other unit
configuration would be more appropriate.
In resolving the appropriateness of bargaining units the
Board's primary goal, as noted above, is to organize employees
who have a substantial mutual interest in wages and other terms
and conditions of employment. Lewiston Firefighters Association,
354 A.2d at 161. This "community of interest" insures compati-
bility among unit members which, in turn, strengthens the
bargaining position of the employees as a group. Id. The crux
of this case lies in determining whether it will weaken the
bargaining position of food service personnel, custodians and
maintenance workers to include secretaries and educational
technicians in their bargaining unit.
The following factors must be considered, at a minimum, in
determining whether employees share the requisite "community of
interest" in matters subject to collective bargaining: (1)
similarity in the kind of work performed; (2) common supervision
and determination of labor relations policy; (3) similarity in
the scale and manner of determining earnings; (4) similarity in
employment benefits, hours of work and other terms and conditions
of employment; (5) similarity in the qualifications, 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 employer's
organizational structure. Board Rule 1.11(F).
The first and fifth factors, similarity in the kind of work
performed and similarity in qualifications, skills and training
of employees, are at the heart of the employer's claim that it is
inappropriate to include the secretaries and educational
____________________
4 There is no dispute about the appropriateness of a unit
comprised of food service personnel, custodians and maintenance
workers.
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technicians in a bargaining unit with food service personnel,
custodians and maintenance workers. The employer relies on two
prior Board decisions to make its case, Auburn Education
Association/MTA/NEA and Auburn School Committee, No. 91-UD-03
(M.L.R.B. Feb. 27, 1991), aff'd, Auburn School Committee v.
Auburn Education Association/MTA/NEA, No. 91-UDA-01 (M.L.R.B.
1991); Gorham Maintenance, Bus Drivers, Cooks and Custodians
Association/MTA/NEA and Gorham School Committee, No. 91-UD-11
(M.L.R.B. May 15, 1991), arguing that the nature of the work and
skills required of secretaries and educational technicians is
similar and that it differs from that required of the "non-
educational support classifications."
The Auburn and Gorham decisions were further refined in the
subsequent case of East Grand Teachers Association/MTA/NEA and
M.S.A.D. No. 14 Board of Directors, No. 92-UD-01 (M.L.R.B.
October 1, 1991), and the case at hand is more like East Grand,
in many respects, than Auburn or Gorham. In Auburn, the union
petitioned for a merger of two bargaining units, one comprised of
teacher assistants and aides, and the other comprised of
secretaries. The employer disputed the appropriateness of a unit
comprised of these classifications; however, the executive
director determined that it would not be inappropriate to merge
these units because they share a community of interest with each
other.
In the case at hand, the parties agree that secretaries and
educational technicians share a community of interest with each
other. If the union here had petitioned for a separate
bargaining unit for these classifications, Auburn would support
the petition. That is not to say, however, that a more inclusive
unit is necessarily inappropriate and that is the issue in this
case.
Gorham was a merger petition as well, involving the merger
of a unit comprised of secretaries, aides and assistants with a
unit of bus drivers, cooks, custodians and maintenance workers.
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While it is true that the executive director determined that the
nature of work factor militated against a merger of these units,
that factor was just one of several which made a difference to
the executive director when he denied the petition. As is
further explained below, many of the factors which played a part
in his decision do not pertain to the case at hand.
In East Grand, the union petitioned the Board for a
bargaining unit almost identical to the unit proposed by the
union here. The executive director discussed the "educational
support" and "non-educational support" distinctions made in
Auburn and Gorham, and advanced by the employer in this case, and
refined them to some extent. The result was to place secretaries
in the group formerly named "non-educational support" (renamed
the "operational support" group) with food service personnel,
custodians, maintenance workers and bus drivers. Moreover, the
ultimate determination was to grant the union's petition to
create a comprehensive unit comprised of teachers aides,
secretaries, food service personnel, bus drivers, maintenance
workers and custodians.
The employer went to great lengths to extol the extensive
communication skills, discretion and judgment required of
secretaries in this district. Assuming this to be the case, one
does not get to the employer's desired result as it would seem
that secretaries are more like teachers than most educational
technicians. The teachings of Auburn, Gorham and East Grand
counsel hearing examiners to explore the essence of the functions
being performed by employees and the essence of a secretary's
work is clerical and administrative, not educational. In
addition, secretaries share with all employees other than
educational technicians the educational requirement of a high
school diploma. This factor does not distinguish secretaries and
educational technicians from the other employees.
In any event, it is not necessary for the nature of work and
qualifications, skills and training required of various employees
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to be identical in order to be placed in the same bargaining
unit. As the executive director noted in Auburn:
"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
classifications in the same bargaining unit."
Auburn, slip op. at 11. In this case, the parties agree that all
of these positions are essentially support staff. The hearing
examiner finds that this commonality carries the weight of the
first and fifth factors favorably toward a finding of the
requisite community of interest.
The following factors also support a finding that the
positions in question share a clear and identifiable community of
interest with each other, based on the ad hoc committee's recent
efforts set forth in facts 20 - 26 above: (3) similarity in the
scale and manner of determining earnings, and (4) similarity in
employment benefits. Hours of work and other terms and conditions
of employment are sufficiently similar to find a community of
interest in this regard.
The second factor, common supervision and determination of
labor relations policy, militates for a finding of a community of
interest among these employees. The Board of Directors
establishes labor relations policy for all of the positions
involved in this petition. As to "common supervision," the
testimony and documentary evidence supports a finding that the
building principal supervises all of these employees except for
the maintenance workers who travel among the various buildings
throughout the district. While it is true that educational
technicians have the closer supervision of a classroom teacher or
librarian, and that the Director of Transportation/Maintenance
plays a part in the hiring and evaluation of custodians, the
building principal's "ownership of the building," as testified to
by the superintendent, speaks to the commonality of all of these
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positions in this regard (except for the maintenance workers).
The sixth and seventh factors, frequency of contact or
interchange among the employees and geographic proximity,
militate against a finding of the requisite community of
interest. The district is huge and, while the secretaries seem
to keep in contact by way of the telephone, there was no evidence
presented concerning the frequency of contact among employees in
the same classification scattered throughout the district. It
seems fair to presume, for the sake of discussion, that contact
among employees in identical classifications located throughout
this district is extremely infrequent and that contact among
employees in different classifications located in the same school
is frequent. In any event, it is not inappropriate to organize
school district employees without regard to either of these
factors, especially in Maine. Gorham, No. 91-UD-11, slip op. at
19; Auburn, No. 91-UD-03, slip op. at 13-14.
The eighth and tenth factors, history of collective
bargaining and extent of union organization, militate for a
finding of community of interest because none of these
classifications has a history of collective bargaining and the
union desires to represent all of these employees in a
comprehensive unit. It does not appear from the record that the
union's organizing effort excluded any employees who remain
unrepresented.
The employer's organizational structure, on its face,
militates against a finding of community of interest among these
employees since food service personnel are in one division,
custodians and maintenance workers in another, and secretaries
and educational technicians in yet another. There is no evidence
on the record regarding the relationship of the employer's
organizational structure to matters subject to the collective
bargaining process beyond that which has already been discussed.
As noted in findings of fact 20 - 23, the Board of Directors
established labor relations policy for all of the employees,
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regardless of organizational division, and the ad hoc committee
aligned pay structure and benefits based on length of work year,
not organizational division. Lines of supervision cross over
divisions in light of the "building ownership" of principals.
On balance, the eleventh factor, the employer's organizational
structure, does not weigh heavily for or against a finding of
community of interest.
The final factor to consider is the ninth one, desires of
the affected employees. The only evidence presented in this
regard was the testimony of Ms. Evelyn Hickey. The hearing
examiner found Ms. Hickey to be a credible witness and puts much
stock in her opinion in light of her 27 years of experience in
the school district. It is fair to presume that Ms. Hickey has a
good feel for what her co-workers desire and some weight will be
given to her opinion in this regard. No evidence was presented
to support a finding that the subject employees do not desire to
be a part of a comprehensive unit.
The community of interest factors have been considered.
Those factors establish that the petitioned-for unit is an
appropriate unit for purposes of collective bargaining.
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APPROPRIATE UNIT DETERMINATION
On the basis of the foregoing findings of fact and
discussion and by virtue of and pursuant to the provisions of
26 M.R.S.A. 966, the following described unit of employees of
M.S.A.D. #48 is held to conform to statutory requirements:
INCLUDED: Secretaries, Educational Technicians I, II, III,
Job Coaches, Tutors, Food Service Personnel,
Custodians, Maintenance Workers, Groundskeeper/
Custodian, Custodial Services Director and Head
Maintenance Workers.
EXCLUDED: Hot Lunch Supervisor, Transportation/Buildings and
Grounds Director, Superintendent's Office Staff,
Teachers, Administrators, Bus Drivers, Mechanics
and all other employees of M.S.A.D.#48.
Dated at Augusta, Maine this 23rd day of December, 1996.
MAINE LABOR RELATIONS BOARD
/s/__________________________
Joyce A. Oreskovich
Attorney Examiner
The parties are hereby advised of their right, pursuant to
26 M.R.S.A. 968(4) (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 for requirements.
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