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, -1- 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 -2- -2- 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, -3- 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). -4- 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 -5- 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; -6- 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 -7- 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 -8- 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 -9- 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. -10- 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 -11- 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 -12- (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 -13- 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 -14- 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. -15- 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 -16- 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 -17- 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 -18- 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). -19- 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 -20- 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 -21- 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 -22- 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. -23-