STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 97-UD-11
Issued: August 27, 1997
_____________________________
)
WINTHROP SCHOOL DEPARTMENT )
FOOD SERVICE EMPLOYEES/ )
UNITED PAPERWORKERS )
INTERNATIONAL UNION, )
)
Petitioner, )
) UNIT DETERMINATION REPORT
and )
)
WINTHROP SCHOOL DEPARTMENT, )
)
Respondent. )
_____________________________)
INTRODUCTION
This is a unit determination proceeding that was initiated
on March 17, 1997, when Mr. Roland Samson, a representative of
the United Paperworkers International Union ("UPIU" or "union"),
filed a petition with the Maine Labor Relations Board (Board) for
determination of an appropriate bargaining unit pursuant to
Section 966(1) of the Municipal Public Employees Labor Relations
Law ("MPELRL"). The union's petition seeks the formation of a
bargaining unit composed of the following food service positions
in the Winthrop School Department: main site manager, satellite
manager, cook I, assistant cook, baker, food service utility/
transporter and cafeteria worker.
The Winthrop School Department ("employer") agrees that the
classifications of cook I, assistant cook, baker, food service
utility/transporter and cafeteria worker belong in the same
bargaining unit. The employer contends, however, that the
positions of main site manager and satellite manager are
supervisory positions and should be excluded from the proposed
unit on this basis pursuant to Section 966(1). In addition, the
employer presented testimony at hearing that these classifica-
tions have access to "confidential" information that, arguably,
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exempts them from the definition of public employee pursuant to
Section 962(6)(C).
After due notice an evidentiary hearing on the petition was
held by the undersigned hearing examiner on May 7, 1997, at the
Board's conference room in Augusta, Maine. Mr. Raymond Hinckley,
international representative, UPIU, and Mr. Samson appeared on
behalf of the Winthrop School Department food service employees.
Mr. L. Roger Lajeunesse, superintendent of schools, and Ms. Lynda
Pratt, child food/nutrition director, appeared on behalf of the
Winthrop School Department. No one requested to intervene.
Prior to commencement of the formal hearing, the parties met
with the hearing examiner to explore the possibility of settle-
ment and, in the alternative, to offer exhibits into evidence and
formulate stipulations of fact.
EXHIBITS
The parties agreed to the admission of the following
exhibits:
Joint Exhibit No. 1 Job Description: Cook
Joint Exhibit No. 2 Job Description: Assistant Cook
Joint Exhibit No. 3 Job Description: Baker
Joint Exhibit No. 4 Job Description: Food Service
Utility/Transporter
Joint Exhibit No. 5 Job Description: Cafeteria Worker
Joint Exhibit No. 6 Job Description: Main Site Manager
Joint Exhibit No. 7 Job Description: Satellite Manager
Petitioner's Exhibit No. 1 Organizational chart
Petitioner's Exhibit No. 2 List of employees with title,
school building and hours of
work
Employer's Exhibit No. 1 Job Description: Child Food/
Nutrition Director
Employer's Exhibit No. 2 Organizational chart, Winthrop/
Monmouth Schools
Employers' Exhibit No. 3 Mission Statement
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STIPULATIONS
The parties have agreed to the following pertinent facts:
1. The petitioner, United Paperworkers International Union,
is a bargaining agent within the meaning of the MPELRL.
26 M.R.S.A. 962(2).
2. The respondent, Winthrop School Department, is a public
employer within the meaning of the MPELRL. 26 M.R.S.A. 962(7).
3. Prior to this petition, none of these classifications
have been the subject of a unit determination decision by the
Board.
4. There is no certification bar (see Rule 1.14) or
contract bar (see Rule 1.15) to the filing of this unit
determination petition.
5. 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.
6. The following five job classifications share a community
of interest and belong in the same bargaining unit: cook I,
assistant cook, baker, utility/transporter and cafeteria worker.
7. The five job classifications mentioned above share a
community of interest in the following sense:
a) all of the employees in these classifications are
involved in food service and food service preparation;
b) the policy and procedure handbook written by the
previous nutrition director applies to all five
classifications;
c) all of the employees in these classifications are
hourly and the range of pay is approximately $5.16 to
$7.65 per hour; further, the superintendent and the
nutrition director set the wages for these five
classifications; and,
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d) these employees share a similarity in employment
benefits as described in the policy and procedure
handbook including sick days, holiday, bereavement,
vacation leaves, retirement benefits, health insurance,
course reimbursement and overtime; there is some
distinction between full-time and part-time status but
no distinction on the basis of job classification. The
hours of work are also similar in that they all have a
five-day work week and a nine-month work year.
HEARING
The union presented as witnesses Lori Holmes, main site
manager, and Kathy Dunn, satellite manager. The employer
presented Lynda Pratt, child/food nutrition director, and
Katherine Gray, satellite manager. The parties were given the
opportunity to examine and cross-examine witnesses.
BRIEFS
At the close of the hearing, the parties were offered the
choice of either summarizing their respective positions orally or
submitting written summaries after review of the transcript.
Mr. Hinckley chose to summarize his case orally at the close of
the hearing in lieu of a written brief. Mr. LaJeunesse elected
to submit a written brief rather than an oral summary.
The employer's deadline for submission of a brief was
June 24, 1997, but nothing was received until July 25, 1997,
well after the hearing examiner began writing this report. The
union objects to the employer's one-page summary on the basis of
its untimeliness and contends that the submission should not be
given any consideration. This hearing examiner determined that
no undue prejudice would result from reviewing the employer's
submission prior to completing this report.
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).
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FINDINGS OF FACT
Upon review of the entire record, the hearing examiner
finds:
1. The Winthrop School Board and the Monmouth School Board
have merged their child nutrition programs in order to provide a
consolidated food service program to their various schools. The
child food/nutrition director, Lynda Pratt, is the head of this
merged program. She reports to the superintendent of schools in
the Winthrop School Department, L. Roger Lajeunesse. The program
was merged effective with the start of the 1996-97 school year.
2. The Winthrop/Monmouth Schools' Child Nutrition Program
provides food service to three Winthrop schools (the Winthrop
Grade School, the Winthrop Middle School and the Winthrop High
School), and to three Monmouth schools (the Cottrell School, the
Monmouth Middle School and Monmouth Academy). There is also a
contract to provide food service to Wayne Elementary School,
Fayette Elementary School and Wales Elementary School.
3. The three Winthrop schools are 15-17 miles away from
each other and the three Monmouth schools are within a half mile
of each other.
4. The programas main production kitchen is located at the
Winthrop Middle School. Lori Holmes, the main site manager, is
employed at the Middle School. Kathy Dunn and Mary Riggs serve
as satellite managers for the Winthrop Grade School and the
Winthrop High School, respectively. Katherine Gray is the
satellite manager responsible for all three Monmouth schools.
Prepared meals are "satellited" out from the production
kitchens to the other buildings on a daily basis. In addition,
goods stored in the Monmouth School freezers are transported to
the Winthrop Middle School as needed. The actual transporting of
the food is usually done by either the satellite manager, the
person in the utility/transporter classification, or one of the
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three cafeteria workers "satelliting" to the contracting
elementary schools. The satellite manager is responsible for
ensuring that the proper food amounts are received by the
facility.
5. The written job description for the position of main
site manager contains the following relevant details:
Salary: As established yearly by the program
director with consideration from the
Superintendent of Schools.
Evaluation: The employee will be evaluated by the
Child/Food Nutrition Director after three
(3) months of employment in the
probationary range for consideration to
the permanent range and evaluated each May
for consideration for additional
compensation recommendations to the
superintendent.
SUMMARY:
The Main Site Manager oversees operations of the
facility manager's operation staff. Daily production
and satelliting of food to all other buildings. Keeps
production records, inventory control. Promotes public
relations with staff, students and community.
ESSENTIAL DUTIES AND RESPONSIBILITIES: Other duties
may be assigned.
The duties of the Main Site Manager will be under the
direction and supervision of the Child Food/Nutrition
Director and will include but not be limited to:
1. in the absence of the Child Food/Nutrition
Director be responsible for the food service
operations;
2. responsible for the food service operation to
which assigned;
3. supervise the activities of all food service
employees to which assigned;
4. responsible for meal preparation, satillity
(sic), serving, and clean-up of breakfast and
lunch meals;
5. responsible for meal accountability, meal
costing inventory control, and taking of
monthly physical inventory, and equipment
maintenance for the operation to which
assigned;
6. supervision of student employees;
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7. assist the food service director in menu
planning, production scheduling, building
cleanliness, and personnel training and
evaluations;
8. responsible for carrying out the preparation of
theme days and national educational display in
operation where assigned;
9. responsible for promoting and maintaining good
public relations with students, parents,
teachers in their operation.
6. Ms. Holmes, who has been employed in the position of
main site manager since September 1996, has not assisted the
nutrition director in menu planning, formal personnel training or
evaluations. Ms. Holmes expects that she will be involved in
evaluating food service employees before the end of the school
year.
7. The written job description for the position of
satellite manager contains the following relevant information:
Salary: Established by the director with
consideration from the Superintendent of
Schools
SUMMARY:
The Satellite Manager oversees the operation.
Maintains good quality and control of food served.
Promotes good public relations with staff, teachers and
students. Reports directly to the Child Food/Nutrition
Director.
ESSENTIAL DUTIES AND RESPONSIBILITIES. Other duties may
be assigned.
The duties of the Satellite Site Manager will be under
the direction and supervision of the Child
Food/Nutrition Director and will include but not be
limited to:
1. responsible for the food service operation to
which assigned;
2. supervise the activities of all food service
employees to which assigned;
3. responsible for meal preparation, serving and
cleanup of breakfast and lunch meals at
operation to which assigned;
4. responsible for meal accountability, meal
costing, inventory control and taking of
monthly physical inventory, and equipment
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maintenance for the operation to which
assigned;
5. responsible for monthly records sent to
director in a timely manner for the operation
to which assigned;
6. responsible for any direct deliveries to site
being checked in accurately and paperwork sent
to director for the operation to which
assigned;
7. supervision of student employees;
8. responsible for preparing and helping with any
extra field trips, special events, banquets at
the operation to which assigned;
9. responsible for carrying out the preparation of
theme days and nutritional educational displays
in the operation to which assigned,
10. maintains good public relations with students,
teachers and parents.
8. The work schedules for the positions in question are set
by the child food/nutrition director, including employees'
requests for time off.
9. Satellite managers provide input to the child food/
nutrition director on performance evaluations but do not complete
any formal review process independently. Any reviewing of the
work of subordinate employees is limited to ensuring they are
able to perform their jobs and receive the assistance they need.
Although tasks are assigned to employees by managers after they
complete the daily production schedules, this is a routine task
dictated by menu items and job classifications.
10. The job descriptions of cook, assistant cook, baker,
food service utility/transporter and cafeteria worker indicate
that these employees are evaluated by the food service site
manager and the nutrition director and the annual evaluations in
May serve as the basis for additional compensation recommenda-
tions to the superintendent. The actual practice, however, has
been limited to seeking input from the managers. There was no
indication that the manager's completed appraisal was relied upon
by the director.
11. Plans to involve the main site and satellite managers
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in the development of a new performance appraisal form were not
implemented. The managers did discuss a new evaluation format in
a few regularly-scheduled "managers' meetings"; however, this
effort was discontinued due to lack of funds available to pay
managers for their attendance at these meetings. The "managers'
meetings" which were conducted were open to anyone interested in
attending; the cook attended the meeting(s) in which the
performance evaluations were discussed.
12. None of the incumbent managers have the authority to
adjust grievances, apply established personnel policies or take
any disciplinary action on their own. All of the managers
testified that they would report such problems to the child
food/nutrition director for her handling.
13. The job description for the position of child
food/nutrition director reads, in part, as follows:
SUMMARY: The Director of Child Food/Nutrition is the
overall supervisor of the food/nutrition program. The
director maintains food service checking account, pays
bills, and makes out payroll for staff personnel. The
director handles purchasing of all food, equipment, and
other products needed for good maintenance of the
program. The director must make sure that the foodi
nutrition facilities in all buildings are properly
maintained. The director is responsible for hiring and
training of all food service employees.
ESSENTIAL DUTIES AND RESPONSIBILITIES: . . .
(17) Administers personnel policies and evaluates
cafeteria managers, transporter/utility person, and
cooks; (18) Standardizes personnel policies, levels of
cleanliness, health and safety; (19) Interviews,
screens, and recommends appointment of all cafeteria
personnel; (20) Interviews and employs all food service
employees; (21) Checks all food service personnel
payroll; (22) Provides workshop and training for all
food service employees.
SUPERVISORY RESPONSIBILITIES: Supervises all food
service operations.
14. The main site and satellite managers perform a variety
of duties as needed to assist the food service team such as
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preparing meals, serving, transporting, and cleaning up. In
addition to these duties, they also perform various inventory
control duties such as completing daily meal accountability
sheets, ensuring that supplies received are accounted for, daily
and monthly inventory tracking, handling meal tickets, etc. The
main site manager testified that all of the food service
employees, including herself, pitch in and help each other
perform duties. Ms. Holmes testified that managers are
"everywhere where they need to be to help out--the paperwork is
just an added step at the end of the day." One of the satellite
managers testified that, regardless of designated duties, all of
the food service employees help each other out.
15. The managers' duties related to meal accountability and
inventory are also performed by other employees. For example the
assistant cook's job description has listed as one of the
essential duties and responsibilities: "responsible for meal
accountability, costing and inventory control in the operation to
which assigned." The job descriptions for the baker and cook I
classifications state: assists in meal accountability, costing
and inventory control in the operation to which assigned," and
the cafeteria worker's job description states "assist in daily
meal accountability."
16. The main site manager, the satellite managers and the
other five classifications are all subject to the policies
(including benefits) and procedures set out in the Nutrition
Program's policy and procedure manual.
17. The main site manager, the satellite managers and the
other five classifications have their pay rates established by
the child food/nutrition director with consideration from the
superintendent.
18. The job descriptions of main site manager and satellite
manager indicate that these employees are evaluated by the child
food/nutrition director.
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19. The two satellite managers who testified each earn
$8.51 per hour. The main site manager earns $10.00 per hour.
The rates for the other five positions in the unit range from
$5.16 to $7.65.
20. The main site manager and the satellite managers have
a nine-month work year and a five-day work week.
21. All of the positions in question require a high school
diploma or GED and previous experience with large scale cooking
and food preparation and serving.
22. The Nutrition Program serves nine different buildings.
There is a significant amount of contact between workers within
each building. A substantial number of the workers have contact
with other buildings either through satelliting food out, working
split shifts or phone contact.
23. There is no history of collective bargaining for the
employees in the Child Nutrition Program.
24. The satellite managers who testified differ in their
opinions as to whether they desire to be included in the
bargaining unit.
25. One of the satellite managers testified that, on
occasion, she has ~confidential discussions" with food service
employees concerning medical problems or personal problems which
require absence from work. Also, she testified that she is
informed as to which students "have free tickets."
26. The child food/nutrition director testified that the
satellite managers and the assistant cook at the Middle School
have access to information considered "extremely confidential"
pertaining to a family's "economic standing" (related to
eligibility for free or reduced-paid meal tickets).
27. The child food/nutrition director testified that it is
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a part of her job duties to present a budget each year and,
"within the budget is labor, wages and benefits"; this budget is
presented as a recommendation for the superintendent to act on or
not.
DISCUSSION
The Municipal Public Employees Labor Relations Law (MPELRL)
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 hearing examiner must determine
whether the petitioned-for unit is an appropriate unit, not
necessarily whether it is 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). In the present case, the question is
whether it is inappropriate to include the main site manager and
the satellite managers in a bargaining unit with the other food
service workers.
I. SUPERVISORY STATUS
The primary issue presented in this case is whether the main
site manager and the satellite managers are supervisory employees
within the meaning of 26 M.R.S.A. 966(1) and, if so, whether
they should be assigned to a separate bargaining unit. Unlike
the National Labor Relations Act, the MPELRL grants supervisors
collective bargaining rights and permits the inclusion of
supervisors in bargaining units of subordinate employees. In
Penobscot Valley Hospital and Maine Federation of Nurses and
Health Care Professionals, No. 85-A-01, 8 NPER ME-16011
(Me.L.R.B. Feb. 6, 1985), the Board stated:
Section 966(1) does not require the exclusion of
supervisory employees from bargaining units composed of
the employees whom they supervise but relegates the
decision of the supervisory employees' unit status to
the sound discretion of the hearing examiner. Maine
School Administrative District No. 14 and East Grand
Teachers Association, MLRB No. 83-A-09, slip op. at 12
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(Aug. 24, 1983). Except in instances where the
resulting one- or two-member supervisory unit would
contravene our policy of discouraging the prolifera-
tion, through fragmentation, of small bargaining units,
we have approved the creation of such separate super-
visory units. Maine School Administrative District No.
14 supra, at 12-13; Maine School Administrative
District No. 43 and Maine School Administrative District
No. 43 Teachers Association, MLRB No. 84-A-05, slip op.
at 4-5 (May 30, 1984). The purpose of creating separate
supervisory employee bargaining units is to minimize
potential conflicts of interest within bargaining units,
between supervisors and their subordinate employees, as
well as to lessen conflicts of loyalty for supervisors
between duty to their employer and allegiance to fellow
unit employees." Penobscot Valley Hosp., Case No.
85-A-01, slip op. at 8.
Section 966(1) gives guidance to the hearing examiner in
identifying situations where conflicting interests and loyalties
may arise. The relevant portion of 966(1) states:
In determining whether a supervisory position should be
excluded from the proposed bargaining unit, the
executive director or his designee shall consider, among
other criteria, if the principal functions of the
position are characterized by performing such management
control duties as scheduling, assigning, overseeing and
reviewing the work of subordinate employees, or
performing such duties as are distinct and dissimilar
from those performed by the employees supervised, or
exercising judgment in adjusting grievances, applying
other established personnel policies and procedures and
in enforcing a collective bargaining agreement or
establishing or participating in the establishment of
performance standards for subordinate employees and
taking corrective measures to implement those standards.
The three-part test contained in Section 966(1) will be
applied to the job classifications in question to determine
whether, in fact, these are supervisory positions of the sort
that would require exclusion from the proposed bargaining unit.
Under the first portion of the test, one must consider whether
the principal functions of the managers involve scheduling,
assigning, overseeing or reviewing the work of subordinates. It
is clear that the principal functions currently performed by the
main site manager and the satellite managers do not involve
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setting work schedules, although both types of managers regularly
assign work when making the daily production schedules. These
assignments, however, are dictated more by the menu items and
types of work performed by different job classifications than by
any level of real "management control."
The degree of oversight and review of subordinates' work
that is performed by the satellite managers is in line with the
activities of a lead person or a working supervisor responsible
for coordinating the efforts of a team. Similarly, the extent of
the main site manager's authority and actual performance of these
duties is in line with that of a working supervisor, notwith-
standing a job description that could be read to include a
greater degree of authority. Neither of the positions in
question have as their principal functions the type of management
control duties that would create a conflict. See. e.g.,
Teamsters Local Union No. 48 and Van Buren Light and Power
District, No. 85-UD-14 (Me.L.R.B. Jan. 25, 1985) (duties of line
foreman who assigned, oversaw and reviewed work of employees was
not substantially different than duties performed by subordinate
employees so as to warrant exclusion from unit); Teamsters Local
Union No. 48 and Town of Pittsfield, No. 81-UD-09 (Me.L.R.B.
Jan. 15, 1981) (sergeant position found to be 'working
supervisor" where supervisory duties were limited and undemanding
and bulk of time was spent on regular patrol work).
The second prong of the test to determine whether
supervisory positions should be excluded examines whether the
supervisor performs duties that are "distinct and dissimilar"
from the duties performed by the supervised employees. This
requirement has been described as:
[D]uties contemplated by the 'distinct and dissimilar'
criterion include those in connection with hiring (or
making recommendations), transfers, layoffs and
recalls, and promotions--duties that substantially
align the interests of the supervisor with the
interests of the employer and cause conflicts of
interest [with other employees]. State of Maine and
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Maine State Emnlovees Association, No. 91-UC-04, slip
op. at 15 (Me.L.R.B. Apr. 17, 1991).
The employer seems to argue that the duties of the main site
manager and satellite managers to maintain records, complete
reports and account for supplies used and on hand are "management
control" duties that are "distinct and dissimilar" from the work
performed by other food service workers within the meaning of
Section 966(1). This is not the case. These fiscal responsibil-
ities, while certainly very important to the school department's
ability to provide nutritious meals to the children within a
strict budget, are not the type of "management control" duties
that would create conflicts of interest with other employees in
the collective bargaining context.
Neither the main site manager nor the satellite managers
have been involved in decisions to hire, transfer, lay off,
recall or promote individuals to any degree that would create a
conflict of interest or loyalties. Participation on a three-
person hiring committee with the nutrition director and the
building principal is not significant involvement in the hiring
process that would "substantially align the interests of the
supervisor with the interests of the employer and cause conflicts
of interest." Id. It is important to note that the child food/
nutrition director is primarily responsible for these personnel
decisions both in theory (see job description) and in fact.
With respect to the third prong of the supervisory exclusion
test, the evidence indicates that neither the main site manager
nor the satellite managers have exercised judgment in adjusting
grievances, applying other established personnel policies or
enforcing a collective bargaining agreement. The main site
manager has concluded that she must take all personnel issues or
discipline problems to the nutrition director, and the satellite
managers also testified that they would go to the nutrition
director to resolve any discipline problems.
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Similarly, neither the main site manager nor the satellite
managers have participated in either the establishment or
enforcement of performance standards for subordinate employees.
The employer emphasizes its plans to involve the main site
manager and the satellite managers more directly in the process
of conducting performance evaluations in the future. A project
selected for the managers to work on as a group was to overhaul
the performance evaluation forms; however, this project was put
on hold before it started because of budget cuts.
In determining appropriate unit placement, the Board must
look at the actual job performed and not statements of what will
be done in the future.
We have repeatedly rejected arguments, in the unit
determination or unit clarification context, which were
based upon the intention or ability to treat or to
utilize employees in certain ways in the future.
M.S.A.D. No. 14 and East Grand Teachers Ass'n., MLRB
No. 83-A-O9, slip op. at 9 (Aug. 24, 1983). Like the
hearing examiner below, this Board focuses its
appellate reviews of unit decisions on actual and past
circumstances and views future intentions and
capabilities as being too speculative in nature to
serve as justifications therefor. Auburn Firefighters
Association and City of Auburn, No. 83-A-07, slip op.
at 7, 6 NPER 20-15003 (Me.L.R.B. Dec. 5, 1983).
If a bargaining agent is certified or recognized for the
unit found appropriate in this case and the actual duties
performed by the main site manager or the satellite managers
change substantially to include as principal functions the
management control duties previously noted, the employer may file
a Petition for Unit Clarification pursuant to 26 M.R.S.A. 966(3)
and in accordance with Board Rule 1.16.
Based on the record, I conclude that the satellite managers
do not possess sufficient supervisory authority to warrant
exclusion from a unit consisting of the five other food service
classifications. The satellite managers perform the same tasks as
other employees included in the unit for a substantial part of
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their work day. They also coordinate the work of other employees,
complete paperwork and inventory control measures to account for
those meals and serve as a communication link with the main site
manager and the nutrition director. Their daily work duties do
not consist of the management control functions described in
Section 966(1) that could present a conflict of interest.
The main site manager also functions as a working supervisor
whose interests are not substantially different than the other
food service workers. Despite the expectations that the main
site manager will perform various management control duties in
the future, this unit determination must be based on current
jobs, not on what an employee might be doing in the future. See
Auburn Firefighters Association and City of Auburn, No. 83-A-07,
6 NPER 20-15003, slip op. at 7 (Me. L.R.B. Dec. 5, 1983); Lincoln
Sanitary District and Teamsters Union Local 340, No. 92-UC-02,
slip op. at 11 (Me.L.R.B. Nov. 17, 1992).
The principal functions of both the main site manager and
the satellite managers do not involve the types of management
control duties that are likely to create a conflict of interests
or loyalties. Consequently, there is no need to exclude these
positions from the unit on that basis.
II. CONFIDENTIAL INFORMATION
The MPELRL specifically excludes certain confidential
employees from coverage under the Act, thereby precluding them
from inclusion in a bargaining unit. The Act excludes those.
"[w]hose duties as deputy, administrative assistant or secretary
necessarily imply a confidential relationship to the executive
head, body, department head or division head . . . ." 26 M.R.S.A.
962(6)(C) (1988).
The Board's long-standing interpretation of this section is
that "to be a 'confidential employee,' one must be 'permanently
involved in collective bargaining matters on behalf of the public
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employer or that the duties performed by the employee involve the
formulation, determination and effectuation of the employer's
employee relations policies.'" State of Maine and Maine State
Employees Association, No. 82-A-02, Interim Order, slip op. at 18
(June 2, 1983) (quoting Waterville Police Department and
Teamsters Local Union No. 48, Report of Appellate Review of Unit
Determination Hearing, slip op. at 3 (10/4/78)).
The employer contends that it is inappropriate to include
these manager positions in the unit because the managers are
privy to, or will have access to, various types of confidential
information. This contention is without merit.
The employer presented testimony regarding the type of
information the main site manager and satellite managers had
access to: documentation related to meal subsidies for
economically needy children and information regarding employees'
requests for time off that were confidential in nature. While
there is no doubt that maintaining the confidentiality of this
information is extremely important, and that maintaining this
confidentiality is a legitimate job requirement, it has no
bearing on determining whether a position should be included in a
bargaining unit. The only type of confidential information that
is relevant to this determination is information related to the
employer's collective bargaining strategies and positions.
The employer contends that the four food service managers
will have input into the school department's position on
collective bargaining and will participate in recommending
compensation levels as budgets are being prepared. Again, unit
determination issues cannot be based on what the duties may be in
the future. The Board has stated:
In determining confidential employee status, we
consider the duties currently being performed by the
alleged confidential employee. We cannot base a
finding of confidentiality upon testimony which
projects what an employee's duties may be in the
future. In the event that a public employee's duties
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change so as to imply a confidential relationship under
Section 962(6), the correct procedure is for the public
employer to file a Petition for Unit Clarification
pursuant to 26 M.R.S.A. 966(3) and in accordance with
the Board's Rules and Procedures. Waterville
Police Decartment and Teamsters Local Union No. 48,
No. 78-A-06, slip op. at 4 (Me.L.R.B. Oct. 4, 1978).
The evidence presented leads to the conclusion that the main
site and satellite managers are not privy to the type of
confidential information which would require their exclusion from
the proposed bargaining unit under Section 962(6) (C).
III. COMMUNITY OF INTEREST
Since neither of the above-referenced exclusions apply, the
remaining question in this unit determination proceeding is
whether the petitioned-for positions share a clear and identifi-
able community of interest. In this case, the parties have
stipulated that a bargaining unit consisting of the classifica-
tions of cook I, assistant cook, baker, utility/transporter and
cafeteria worker is an appropriate unit; therefore, the issue
here is whether the main site manager and the satellite manager
positions share a community of interest with these other five
classifications.
The Board has explained the duty of hearing examiners to
determine whether a community of interest exists 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 negotiations 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-02, slip op. at 4, 1 NPER 20-10031
(Me.L.R.B. Oct. 17, 1979). See also Board Unit
Determination Rule 1.11(F).
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The Maine Supreme Judicial Court has further elaborated on the
underlying reason for requiring prospective unit members to have
a community of interest:
The institutional purpose of the bargaining unit, then,
is to strengthen the bargaining position of the
employees as a group. . . . In light of the role
played by the bargaining unit, we likewise believe that
the two fundamental purposes of the MPELRL--freedom of
employee self-organization and voluntary adjustment of
the terms of employment--are best effectuated through
the creation of coherent bargaining units composed of
employees who have "an identifiable community of
interest" in the subjects controlled by the collective
bargaining agreement." Lewiston Firefighters
Association v. City of Lewiston, 354 A.2d 154, 161 (Me.
1976).
Because the purpose of the bargaining unit is to strengthen
the bargaining position of the employees as a group and not
weaken it, the Board's goal is to make sure the employees have a
substantial mutual interest in wages and other terms and
conditions of employment. Lewiston Firefighters Association, 354
A.2d at 161.
In evaluating the presence or absence of community of
interest in matters subject to collective bargaining, the Board
requires, at a minimum, assessment of the following eleven
factors: (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. (Rule 1.11(F)).
The employer contends that the satellite managers and the
main site manager do not share a community of interest with the
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other classifications because, in part at least, there is not a
similarity in the kind of work performed. The concept of
"community of interest" does not require that the work performed
by the various employees be identical. As the Executive Director
of the Board noted in a previous case:
In comparing the nature of the work being performed by
the various classifications under consideration, the
essence or basic type of the functions being performed
is far more important than the details of each
position's work responsibilities. 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 Education
Association/MTA/NEA and Auburn School Committee,
No. 91-UD-03, slip op. at 11 (Feb. 27, 1991).
The evidence presented shows that all of the positions,
including the managers, perform different aspects of food service
work. The fact that the main site manager and the satellite
managers spend a greater proportion of time on paperwork than
other employees does not, in itself, mean there is no similarity
in the nature of work performed.
The second factor, common supervision and determination of
labor relations policy, supports a finding of community of
interest with the other food service workers. As noted above,
all of the positions are subject to the policies established in
the policy and procedure book developed by the previous nutrition
director. In addition, all of the positions are under the common
supervision of the nutrition director even though the degree of
day-to-day contact with the director may vary.
The scale and manner of determining earnings is sufficient
to support a finding of community of interest between the
managers and the other classifications. Testimony was received
that two of the satellite managers earn $8.51 per hour while the
other positions range from $5.16 to $7.65 per hour. The main
site manager's pay rate of $10.00 per hour is not so out of line
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with the rest as to preclude a finding of community of interest.
Moreover, the manner of determining earnings of employees in the
subject classifications is the same.
The fourth factor, similarity in benefits, hours and other
terms and conditions of work, supports a finding of community of
interest. All of the manager positions in question have the same
benefits, the same five-day work week and same work year as the
other classifications in the unit. The only differences in
benefits relate to part-time or full-time status, not job
classification.
The job descriptions for all of the positions include
identical requirements of education and/or experience: "High
school diploma or general education degree (GED) previous
experience with large scale cooking and food preparation/
serving." No evidence was presented to indicate that the skills
and training required of these positions is so different as to
disrupt an otherwise sufficient community of interest.
The sixth and seventh factors, frequency of contact or
interchange among the employees and geographic proximity, are not
determinative in school settings, especially in Maine. See MSAD
48 Teachers Association/MEA/NEA and MSAD 48 Board of Directors,
No. 97-UD-03, slip op. at 19 (December 23, 1996).
The eighth and tenth factors are not at issue here because
there is no history of collective bargaining for these positions
and the union is interested in representing all of the positions
in question. The employer's organizational structure supports a
finding of community of interest because all of the positions are
within the same functional division of the school department.
The desires of the affected employees are not uniform:
three of the four affected managers testified and, of those, two
prefer inclusion and one prefers exclusion. Reviewing this
factor does not compel a finding on the overall community of
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interest either way.
The community of interest factors referred to in Rule 1.11(F)
have been considered. They establish that the petitioned for unit
is an appropriate unit for purposes of collective bargaining.
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 unit of employees of the Winthrop School
Department is held to conform to statutory requirements:
INCLUDED: main site manager, satellite
manager, cook I, assistant cook
baker, food service utility/
transporter and cafeteria worker
EXCLUDED: the child food/nutrition director
and all other employees of the
Winthrop School Department.
Dated at Augusta, Maine this 27th day of August, 1997.
MAINE LABOR RELATIONS BOARD
/s/________________________
Joyce A. Oreskovich
Hearing 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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