STATE OF MAINE                       MAINE LABOR RELATIONS BOARD
                                     Case No. 99-UD-10
                                     Issued:  May 27, 1999    


________________________________
                                )
LEWISTON FOOD SERVICE MANAGERS  )
ASSOCIATION/MEA/NEA,            )
                                )
                Petitioner,     )
                                )
     and                        )        UNIT DETERMINATION
                                )              REPORT
LEWISTON SCHOOL COMMITTEE,      )
                                )
           Public Employer.     )
________________________________)


                           INTRODUCTION
                
     This unit determination proceeding was initiated on 
January 12, 1999, when Ms. Susan Rowe, a representative of the
Lewiston Food Service Managers Association/MEA/NEA (hereinafter
referred to as the "Union"), filed a petition for unit
determination with the Maine Labor Relations Board ("Board" or
"MLRB").  That petition sought to create a bargaining unit of
certain food service employees of the Lewiston School Committee
("Employer").
 
     The Union's proposed Food Service Managers Unit consists of
the following three positions:  Food Service Manager, Assistant
Food Service Manager, and Administrative Assistant for Food
Services.  The Employer's response to the petition states that
the Managers should be put in the existing Food Service Workers
Unit represented by AFSCME.  The Employer contends that this is
required by the Board's policy against proliferation of small
units, that the positions share a community of interest with the
AFSCME unit, and that inclusion in the existing unit would be
"consistent with prior Board rulings."  The Employer also
contends that the Administrative Assistant is a confidential
employee within the meaning of 26 M.R.S.A. 962(6)(C) who should
be excluded from collective bargaining.  In its post-hearing
brief, the Employer also argues that two of the positions at

                              [-1-]

issue are still part of the AFSCME Unit and, therefore, the Union
should have filed a unit clarification petition.  I have examined
the evidence and the arguments of both parties and, for the
reasons explained below, conclude that the unit as proposed by
the union is an appropriate bargaining unit.

                           JURISDICTION

     The Lewiston Food Service Managers Association/MEA/NEA is a
public employee organization within the meaning of 26 M.R.S.A.
962(2) and the Lewiston School Committee is a public employer
within the meaning of 26 M.R.S.A. 962(7).  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).

                             HEARING

     After due notice an evidentiary hearing was held by the
undersigned hearing examiner on March 18, 1999, at the Board's
hearing room in Augusta, Maine.  Ms. Susan Rowe, Uniserv Director
for the Maine Education Association, appeared on behalf of the
Union.  George S. Isaacson, Esq., appeared on behalf of the
Lewiston School Committee.  No one requested to intervene.

     The Union presented as its witnesses Ms. Rina Johnson,
Ms. Claire Bailey, and Ms. Joline Lajoie, all Food Service
Managers, and Ms. Joanne Lagasse, Administrative Assistant.  
The Employer presented as its witnesses Mr. Leon Levesque,
Superintendent, and Mr. Michael Sanborn, Director of Nutrition
Services.
 
     The parties were given the opportunity to examine and cross-
examine witnesses, and offer evidence at the hearing.  In lieu of
oral arguments, the parties filed post-hearing briefs, both of
which were received on April 6, 1999.

                               -2-

                             EXHIBITS

     Prior to commencement of the formal hearing, the parties met
with the hearing examiner to offer exhibits into evidence and
formulate stipulations of fact.  No stipulations were suggested
and the following exhibits were offered into evidence:

Union Exhibit #1    Petition for Appropriate Unit Determination,
                    filed by AFSCME, 10/20/78

Union Exhibit #2    Unit Clarification Report No. 79-UC-03, City
                    of Lewiston and Hot Lunch Workers' Unit,
                    Local 2011, Council 74, American Federation
                    of State, County and Municipal Employees,
                    AFL-CIO (12/19/78)

Union Exhibit #3    12/31/86 petition of Managers stating they no
                    longer want to be represented by AFSCME

Union Exhibit #4    Selected pages of 1985-1986 Collective
                    Bargaining Agreement between Lewiston School
                    Committee and Food Service Workers' Unit,
                    AFSCME (includes title page, recognition
                    clause, termination clause, signature page)

Union Exhibit #5    Selected pages of 1987-1989 Collective
                    Bargaining Agreement between Lewiston School
                    Committee and Food Service Workers' Unit,
                    AFSCME (includes title page, recognition
                    clause, termination clause, signature page)

Union Exhibit #6    1996-1998 Agreement between Lewiston School
                    Committee and Food Service Workers' Unit,
                    AFSCME

Union Exhibit #7    Job Description, Manager, School Food
                    Service, 6/9/92

Union Exhibit #8    Job Description, Assistant Manager, School
                    Food Service, 6/9/92

Union Exhibit #9    Job Description, Administrative Assistant,
                    5/95

Union Exhibit #10   Job Description, Director, School Nutrition
                    Program, 2/97

Union Exhibit #11   Job Description, Driver/Maintenance,
                    Nutrition Program, 6/10/92

                               -3-

Union Exhibit #12   Job Description, Food Service Specialist -
                    Cook, 3/90

Union Exhibit #13   Job Description, Food Service Specialist -
                    Baker, 3/90

Union Exhibit #14   Job Description, Food Service Aide, 3/90

Union Exhibit #15   Job Description, Food Service Assistant I and
                    II (Helper), 3/90

Union Exhibit #16   Personnel Policies, School Department, City
                    of Lewiston, September 2, 1998

Union Exhibit #17   Employee Evaluation Form

Union Exhibit #18   Lewiston School Department Interview Rating
                    Sheet

Union Exhibit #19   Interview Questions, Baker-Lewiston Middle
                    School

Union Exhibit #20   Lewiston School Nutrition Request for Leave

Union Exhibit #21   Lewiston School Department Notice of
                    Personnel Action

Union Exhibit #22   Minor Injury Report

Union Exhibit #23   Employers First Report of Occupational Injury
                    or Disease

Union Exhibit #24   Lewiston School Department Organization Chart

Union Exhibit #25   Lewiston School Nutrition Program Employee
                    Handbook

Employer Exhibit #1   Summary of Community of Interest Criteria

Employer Exhibit #1-A Job Descriptions:  Manager, School Food
                      Service (same as Union Ex. #7); Asst.
                      Manager, School Food Service (same as
                      Union Ex. #8); Food Service Assistant I
                      and II (Helpers) (same as Union Ex. # 5);
                      Food Service Asst. I and II
                      (helper/satellite schools); Food Service
                      Specialist - Cook (same as Union Ex. #12);
                      Food Service Specialist - Baker (same as
                      Union Ex. #13)

Employer Exhibit #1-B Lewiston School Department Notice of
                      Personnel Action (same as Union Ex. #21)

                               -4-

Employer Exhibit #1-C Lewiston School Nutrition Request for
                      Leave (same as Union Ex. #20)

Employer Exhibit #1-D Personnel Policies, School Department,
                      City of Lewiston, September 2, 1998 (same
                      as Union Ex. #16)

Employer Exhibit #1-E 1996-1998 Agreement between Lewiston
                      School Committee and Food Service Workers'
                      Unit, AFSCME (same as Union Ex. #6)


Employer Exhibit #1-F Unit Determination Report No. 73-UD-16,
                      Lewiston Cafeteria Workers and Lewiston
                      Board of Education, June 4, 1973

Employer Exhibit #1-G Selected pages of Collective Bargaining
                      Agreements between Lewiston School
                      Committee and Food Services Workers' Unit,
                      AFSCME, for 1974-75, 1979-80, 1981-82,
                      1983-84, 1985-86, 1987-89

Employer Exhibit #1-H Selected pages of current or most recent
                      Collective Bargaining Agreements between
                      the Lewiston School Committee and AFSCME,
                      MSEA, Lewiston Education Association,
                      Lewiston Administrators' Association, and
                      Lewiston Educational Directors

Employer Exhibit #1-I Examples of School Districts with
                      Bargaining Units that Include Both Food
                      Service Managers and other Food Service
                      Workers prepared by Nutrition Director

Employer Exhibit #1-J Lewiston School Department organizational
                      chart

Employer Exhibit #2   Job Description, Administrative Assistant 
                      5/95 (same as Union Ex. #9)

Employer Exhibit #3   Memo to Elementary Food Service Managers
                      from Michael Sanborn, Director SNP, Dated
                      November 12, 1998

Employer Exhibit #4   Memo from Michael Sanborn, Director, Re: 
                      Job Posting, Dated March 15, 1999

Employer Exhibit #5   Food Service Assistant Interview Questions

         
                        FINDINGS OF FACT
                   
     1.  On May 3, 1973, a representative of AFSCME filed a

                               -5-

"Petition for Appropriate Unit Determination" seeking the
establishment of a cafeteria workers unit at the Lewiston School
Department.  The petitioned-for unit consisted of 25 employees in
the job category of Cafeteria Workers.  A hearing was held on
May 31, 1973.  In a unit determination report dated June 4, 1973
(73-UD-16), the hearing examiner noted that, at the suggestion of
the employer, the unit was expanded to include "managers" as
well.  The parties entered a stipulation stating:

     The bargaining unit, provided it consists of public
     employees as defined in 962 of the Public Employees
     Labor Relations Act, shall include employees of the
     Lewiston School Department Hot Lunch Program excluding
     such positions as the Director and the Bookkeeper.

     2.  On September 12, 1973, AFSCME was certified as the
bargaining agent for the unit of "Employees of the Hot Lunch
Program excluding the Director and Bookkeeper".[fn]1

     3.  In 1978, at a managers' meeting attended by the Food
Service Director and a school administrator, the Food Service
Managers were told that they were supervisors and that the
employer would "acknowledge" them leaving the AFSCME unit because
of conflicts with the rank and file employees.

     4.  A unit clarification request was filed by the City of
Lewiston on October 25, 1978, seeking to exclude from the Food
Service Workers bargaining unit the Managers and Assistant
Managers.  The petition stated:
 
     The managerial personnel in question are, in our
     judgment, supervisors in that they formulate and
     administer policy, make effective recommendations with
     respect to personnel matters, and direct unit personnel
     in the conduct of their duties.

____________________

     1 The Board files indicate that sometime between 1978 and 1985,
the Hot Lunch Workers Unit began to be referred to as the Food Service
Workers Unit.  For the sake of consistency, I will refer to the unit
as the Food Service Workers Unit or the AFSCME Unit.

                               -6-

AFSCME objected to the petition on the grounds that there had
been no significant changes since the formation of the unit, that
the managers were specifically included in the unit and that the
managers were not supervisors.

     5.  In a Unit Clarification Report dated December 19, 1978
(79-UC-03), the hearing examiner dismissed the employer's
petition because the circumstances surrounding the formation of
the unit had not changed sufficiently to meet the threshold
requirement for a unit clarification petition.  The hearing
examiner noted:

     The Managers and Assistant Manager are supervisors. 
     They schedule, assign, oversee and review the work of
     the bakers, cooks and helpers.  They also control
     overtime and administer limited discipline.  While
     these control functions are limited to some extent,
     they nonetheless transcend a strictly routine nature. 
     They are clearly in charge of the kitchen and fully
     responsible for its operation.  This requires many
     daily supervisory decisions.  They also perform
     administrative and clerical functions that other
     Program workers, with rare and minor exceptions, do
     not.  They are out of the kitchen on the average more
     than half of the time doing this distinct non-
     production work. . . .

          . . . The Managers are supervisors now and they
     were supervisors at the time the unit was formed. 

City of Lewiston and Hot Lunch Workers' Unit, AFSCME, 79-UC-03,
slip op. at 6, 7.

     6.  The only other items in the Board's Unit file for the
cafeteria workers are mediation requests from 1985 and 1997. 

     7.  The Recognition Clause in the Food Service Workers 1985-
1986 Collective Bargaining Agreement between the Lewiston School
Committee and AFSCME recognizes AFSCME as the exclusive bargaining
agent for all public employees of the School Nutrition Program
except for the positions of Director, Bookkeeper, and Driver/
maintenance man.  The contract was effective from January of 1985
through December of 1986.

                               -7-

     8.  On Dec. 31, 1986, seven Food Services Managers signed a
petition stating:

     We no longer want to be represented by the Food
     Services Workers Unit, Council #93, AFSCME.  We under-
     stand that this is an official withdrawal from the
     Union and that Council #93 no longer has any respon-
     sibility to represent our interests according to Title
     26, MRSA.  

     9.  In the 1987-89 Food Service Workers Collective
Bargaining Agreement, the employer recognized AFSCME as the
exclusive bargaining agent for all public employees of the School
Nutrition Program except for the positions of Director, Book-
keeper, Managers, Assistant Managers and Driver/maintenance man. 
The contract was effective from January of 1987 through December
of 1989.  The only change in the recognition clause from the
prior agreement was the exclusion of the Manager and Assistant
Manager positions.

     10.  The most recent collective bargaining agreement for the
Food Service Workers Unit expired on Dec. 31, 1998.  Negotiations
are underway for a successor agreement.

     11.  The Unit Determination and Bargaining Agent Election
Petition in the current case was filed on January 12, 1999.  
The employer's response dated January 27, 1999, set forth its
position that the Food Service Managers should be in the same
unit as the other Food Service employees.  The employer indicated
that they were providing a copy of their response to Ms. Beverly
Miner Hatheway, the AFSCME representative for the Food Service
Workers Unit.
  
     12.  An official MLRB Notice regarding the scheduled unit
determination hearing in this case was sent to the employer on
February 8, 1999, for posting at suitable locations at the School
Department.  That notice stated, in part:

                               -8-

          This is a public hearing and any member of
          the public who wishes to attend may do so. 
          Any person or employee who has a substantial
          interest in the proceedings and wishes to
          testify may do so by notifying this office at
          least ten (10) days in advance of the
          hearing.  Petitions to intervene, accompanied
          by a 10 percent showing of interest and proof
          of service on both the employer and original
          petitioner, must be received by the Board on
          or before February 23, 1999.

No petitions to intervene in this case were received and no one
contacted this office with a request to testify.

     13.  The Food Service Managers have overall responsibility
for the food service program at each Manager's assigned school. 
The job descriptions for the Food Service Manager and the
Assistant Food Service Manager positions list the "Distinguishing
Feature of Work" as "This is a management staff position
requiring varied experience in food service production with
progressively responsible positions."  The nature of both jobs
includes three fairly distinct facets:  administrative duties,
supervisory duties, and production work.
  
     14.  The nature of the work performed by the Assistant Food
Service Manager is essentially the same as that of the Food
Service Manager.  The only difference is that the Assistant
Manager is responsible for a satellite school and she does her
purchasing of most items through the Food Service Manager rather
than directly.

     15.  The regular administrative responsibilities take the
Manager out of her kitchen into her office or into other areas of
the school for about three hours a day.  These administrative
duties involve maintaining meal accountability records, student
rosters, production records, inventories, and ordering food and
supplies.  The Managers typically will start the day by opening
up the kitchen, overseeing any deliveries for that day, assigning
work stations and duties based on that day's menu, doing account-
ability tasks outside of the office such as accounting for

                               -9-

students who have been absent or collecting envelopes from the
homerooms, and reconciling the amounts received with the records
for those receiving free, reduced, or paid meals.  The Managers
may have to return to classrooms to resolve discrepancies in the
forms or the funds received.  The Managers count all the money,
complete a deposit slip and put it in a deposit bag for delivery
to the bank.  Food orders are made by the Managers and the
Assistant Manager.  Some items, such as milk, are ordered on a
daily basis while other items are ordered weekly.  Ordering
involves reviewing the menu and determining need based on
inventories and expected consumption.  Orders are sent to the
Administrative Assistant and the Director at the Nutrition
Services Office.  The Managers must also compile other reports
such as the . la carte report that lists items sold on a daily
basis.  All of the Food Service Managers use computers on a daily
basis for things such as daily record forms showing the number of
students receiving meals, daily cash deposits, . la carte reports
and for e-mailing each other.
  
     16.  The supervisory responsibilities of the Managers and
the Assistant Manager include training of personnel, assigning
jobs, assigning breaks and meal periods, and reassigning
employees in accordance with contract provisions if short
staffed.  If an employee is sick, the employee calls in to the
Manager and the Manager, in turn, must call in a substitute. 
Sometimes work assignments must be shifted in the middle of the
day due to equipment problems or staffing shortages.  The
starting and quitting times are set by the Managers based on the
school's schedule and limited by the total hours available for
each employee.  This schedule is typically established at the
beginning of the year.  The items on the menu dictate to some
extent the distribution of daily tasks among employees.
  
     17.  The Food Service Managers are responsible for the
performance of their subordinates and ensure that all employees
follow all safety and sanitation rules in performing their jobs.

                              -10-

The Cooks and Bakers and other more experienced employees also
help new employees learn specific tasks and procedures.
  
     18.  The Managers worked together with the former Director
of Food Services to create the Lewiston School Nutrition Program
Employee Handbook, which is distributed to all food service
employees.  The Handbook includes information on Safety,
Sanitation, Commodity Foods, Food Handling and Preparation and
other related subjects of interest to new employees.  The prior
Director regularly consulted the Managers on the need for updates
to this Handbook.
  
     19.  The Food Service Managers handle the first stage of the
progressive discipline described in Article XIV, Section 1 of the
AFSCME contract.  They are authorized to give an employee an oral
reprimand, in which case a written memorandum is placed in the
employee's personnel file and a copy is provided to the employee. 
If a written reprimand is necessary, it must come from the
Director.

     20.  The Food Service Managers are responsible for trying to
resolve grievances at the lowest level through informal
discussions with the employee.  Formal grievances have been rare
or non-existent.  The first step of the formal grievance
procedure goes to the Director.

     21.  The Food Service Managers are responsible for doing the
payroll, including ensuring that the pay for any employee working
temporarily in a higher classification is adjusted according to
the AFSCME contract.  The Managers are responsible for doing
payroll records on a daily basis.  When the daily time sheets are
completed, the Managers sign them and send them to the
Administrative Assistant.  The Managers are also responsible for
giving initial approval to any requests for leave, initiating
personnel action forms, and completing Minor Injury Reports and
the Workers' Compensation Board First Report of Injury and
Disease Form.

                              -11-

     22.  The Food Service Managers are responsible for
conducting performance evaluations on all of the cafeteria
workers on an annual basis.  This involves completing the
evaluation form, sitting down with the employee in the Manager's
office and discussing the employee's performance and the
evaluation, signing the form and getting the employee to sign it
as well.
  
     23.  A number of years ago, the Food Services Managers
worked with the prior Director to develop the form used to
evaluate the nutrition program employees.  The managers have
discussed the form at managers' meetings in the past and
concluded that it did not need to be changed.
     
     24.  The Food Service Managers are active participants in
the hiring process but do not have the authority to hire anyone
without the approval of the Director and the Superintendent.  The
Food Service Managers assisted in preparing a list of questions
to use in interviewing candidates for positions in the cafeteria.
There have been only two openings since the current Director
started but two Managers participated in those interviews.  The
Director and the Managers interviewed the applicants using the
written questions as a guide or script.  The Managers and the
Director agreed on who should be recommended for the jobs based
on qualifications and the requirements of the AFSCME contract.

     25.  The Food Service Managers, the Assistant Food Service
Managers, and the Administrative Assistant attend a monthly
managers' meeting with the Director.  Various issues are
discussed at these meetings, such as different methods for
preparing items or managing problems, equipment problems, and
changes in the menu.

     26.  The Director holds meetings at each school on a regular
basis for the cafeteria staff.  These meetings are attended by
the staff and Manager assigned to that kitchen.  The meetings
generally cover issues like changes the Director would like to

                              -12-

see, issues that may arise involving the cafeteria, and changes
the Director is planning.

     27.  The Department has five different menus that are
prepared on a monthly basis by the Director.  The Director sends
the menu out to the various Managers for their input.  Sometimes
they have comments or for some reason must change some aspect of
the menu, in which case they notify the Director.  The amount of
input the Director receives varies.

     28.  The Food Service Managers also work with Principals for
their schools on special food or nutrition events for the
children or special events for the families.  The Managers
coordinate these "public relations" activities such as freshman
orientation, a pumpkin festival, parents' week, etc.

     29.  Food Service Managers spend a part of their day working
alongside Food Service Assistants and other classifications in
the AFSCME unit, performing food preparation work, serving or
clean-up duties as necessary.  There have been significant staff
shortages this year, requiring a greater number of the Managers'
hours devoted to production than normal.  On a couple of occa-
sions where staffing was particularly short, the Administrative
Assistant helped out in the cafeteria.

     30.  The nature of the Administrative Assistant position
(formerly called Bookkeeper) is to coordinate and manage all of
the record keeping and accounting functions in the Food Service
Department.  The Administrative Assistant is responsible for
accounts payable and receivable, for compiling various reports
for the state that determine subsidies received by the school,
for payroll records, for providing financial information for
annual audits, for preparing annual report of financial status of
the program, and for assisting the Director with the annual
budget preparation.  Many of the records and reports the
Administrative Assistant works with originate from data provided
by the Food Service Managers--that is, she prepares compilations

                              -13-

or summations of records submitted by them.

     31.  Although not a supervisor, for about a year and a half
the Administrative Assistant had general oversight responsibility
for a half-time clerical position in the office.  The Adminis-
trative Assistant used to assign tasks and oversee the work of
the part-time employee for the Director.  That half-time position
has been vacant since November of 1998. 

     32.  The Administrative Assistant is not involved at all
with the collective bargaining process with the AFSCME unit or
with respect to any other collective bargaining agreement in the
School Department.  The Administrative Assistant has never typed
collective bargaining proposals or strategies, nor has she ever
been asked for input or advice.
  
     33.  The Administrative Assistant shares an office with the
Director of Nutrition and the Department's Driver/maintenance
person, Arthur Allard.  There is no partition or wall separating
work space in the office.  Mr. Allard is not in the office very
much at all, but he calls in to the Administrative Assistant
regularly to communicate problems or report on his whereabouts. 
The Director visits the various schools frequently and is out of
the office more often than he is in.  The Administrative
Assistant spends her entire work day in the office.  

     34.  The Administrative Assistant takes phone messages for
the Director and for all the Managers in the department.  She
also retrieves from the fax machine located in the office various
fax transmissions including those that are addressed to the
Nutrition Director.  She opens mail that is directed to the
Nutrition Director but does not open mail that is marked
"confidential."  

     35.  The Administrative Assistant attends managers'
meetings, takes minutes at those meetings, and distributes those
minutes.  She has attended a meeting with the Director and AFSCME

                              -14-

representatives, a so-called open communication meeting, to take
minutes.
  
     36.  The Administrative Assistant is responsible for
maintaining the Department's personnel files.  She makes sure all
of the personnel-related paperwork is completed properly and is
received by the Personnel Secretary at the Superintendent's
office.  

     37.  Mr. Michael Sanborn began working at the Lewiston
Schools on July 1, 1998, as the Director of School Nutrition.  
He is not a member of the negotiating team that is bargaining
with the AFSCME unit.  He was given a draft of some of the areas
of concern for the School and was asked to give his input and
recommendations in certain areas.  This input was provided to the
Superintendent, members of the School Committee negotiating team,
and the School Committee's legal counsel.  He has been involved
with meetings and various forms of communication with all of
those people.  He has also provided documentation regarding labor
costs, productivity and food costs.  He has conducted research on
school nutrition programs at other schools with respect to
composition of the bargaining units and wage proposals. 

     38.  The Personnel Policies that apply to the positions in
the proposed unit are established by the School Committee and
implemented through the Superintendent and the Director of
Nutrition Services.  The labor relations policy affecting the
employees in the AFSCME Unit is established through the
collective bargaining process between the School Committee and
AFSCME.  

     39.  The pay ranges effective August 15, 1998, for the
positions in the petitioned-for unit are as follows:
     
     Position            Range Min.     Range Mid.     Range Max.
Food Service Mgr.-H.S.      $11.02      $12.03         $13.13
Food Service Mgr.           $10.35      $11.31         $12.34

                              -15-

Asst. Food Service Mgr.     $ 9.68      $10.57         $11.54
Administrative Asst.[fn]2   $11.87      $13.36         $15.04
 
     40.  Most of the Food Service Managers are at the top of
their respect pay ranges.  The Administrative Assistant is at the
middle of her range.

     41.  The School Department Personnel Policies cover
permanent full-time employees who are not covered by a collective
bargaining agreement.  It includes four different salary plans
that apply to four distinct groups:  School Hourly Employees,
Adult Education Employees, School Management Employees, and
Nutrition Program Managers.  Each plan is a separate appendix to
the Personnel Policies, labelled "A," "B," "C," and "D,"
respectively.  All of the ranges are expressed as an hourly rate,
with the exception of the School Management Employees' plan,
which is stated as a weekly amount.  The pay ranges for the Food
Service Managers and the Assistant Food Service Managers have
seven steps and are all in the salary plan labelled "Nutrition
Program Managers."  The range for the Administrative Assistant
has nine steps and is part of the "School Management Employees"
salary plan.  

     42.  The January 1, 1998, pay ranges for the positions in
the AFSCME unit are as follows: 

Food Service Specialist       $9.47 and $9.75 after 5 years
(Cook or Baker)

Food Service Assistant II     $8.56 and $8.82 after 5 years

Food Service Assistant I      $8.03

     43.  For the positions in the proposed unit, the
Superintendent consults with the Director on whether to move an
employee to a higher step.  The Superintendent makes a 

____________________

     2 Shown as an hourly rate based on a 37 hour week for comparative
purposes only.  The personnel manual expresses it as a weekly amount
ranging from $445.24 to $564.03 a week.

                              -16-

recommendation to the School Committee.  The School Committee
also reviews the salary ranges each year in light of cost of
living changes, pay for comparable positions in the city or other
school systems, and adjustments made for other School Department
employees. 
 
     44.  The employment benefits are the same for the Food
Service Managers, the Assistant Food Service Manager, and the
Administrative Assistant, except for vacations.  They all receive
health insurance with 90% of the premium paid for by the
employer, whether they elect a single, 2-person, or family plan. 
They all accrue sick time at a rate of 1 days per month with a
maximum accumulation of 130 days.  There are 12 paid holidays
listed in the Personnel Policies, although one occurs after the
school year is over and at least two others coincide with the
school vacation weeks.  The Managers are also eligible for
tuition reimbursement and mileage reimbursement.
  
     45.  The Personnel Policies include a specific provision
regarding vacation pay for the Food Service Managers.  It states:

     Nutrition Program Managers and Assistant Managers shall
     receive their regular pay during the Christmas,
     February and April recess periods.  Appendix D
     employees shall receive regular pay for workshop days
     and storm days as it is expected that they will work on
     those days to either preserve food products or enhance
     their leadership skills.

One of the Food Service Managers testified that they also
received an additional three vacation days at the end of the
school year, although this is not specified in the personnel
policies.

     46.  The Administrative Assistant, like the other employees
in the "School Management Employees" salary plan, accrues
vacation time on a monthly basis.  The rate starts at 1 day per
month, after five years of service it is 1 days per month, and
after 20 years it is 1-3/4  days per month.  She is not required to

                              -17-

take her vacation during the school vacation weeks.  
     
     47.  The employment benefits provided to individuals in the
AFSCME unit include health insurance with the employer paying
100% of the premium for the employee's coverage but only 50% of
the premium for a 2-person or family plan.  They are entitled to
sick time accrual at a rate of 1 day per month to a maximum of
105 days.  The AFSCME contract provides for nine paid holidays
during the school year and has no provision for vacation pay or
tuition reimbursement.
 
     48.  The Food Service Manager at the High School works from
7:00 a.m. to 3:00 p.m.  Her lunch period is supposed to be 45
minutes but is often just 10 or 15 minutes so that she can make
sure all of the other employees receive the breaks required under
their contract.  The Food Service Manager at the Middle School
works from 6:30 a.m. to 2:30 p.m. while the Assistant Food
Services Manager starts work at 7:00 a.m.  The Administrative
Assistant works from 7:00 a.m. until 4:30 p.m. with an hour lunch
break.
 
     49.  The Food Service Manager at the Middle School worked
long hours during October and November because a cook was out for
a catastrophic illness and a baker quit.  She came in at 5:00 a.m.
many mornings to do the work of these two classified positions and
often stayed working on paperwork until after 4:00 p.m.  During
normal staffing she would not spend more than an hour in the
kitchen doing production work.

     50.  The Administrative Assistant is on a year-round work
schedule.  The High School's Food Service Manager works during
the summer in the summer feeding program from 7:30 a.m. until
1:30 p.m., but not in a management slot.  There is only one Food
Service Manager for the summer feeding program.
   
     51.  The job description for the Administrative Assistant
lists under the heading "Desired Experience and Training" the

                              -18-

following:  "High School graduate or GED equivalent; Four years of
progressively responsible clerical experience, including one year
of supervisory or highly specialized activities performed
independently; Advanced computer skills and experience necessary."

     52.  The job description for the Food Service Manager and
the Assistant Food Service Manager both list under the heading
"Desired Experience and Training" the following:  "High school
diploma or equivalent, Certificate from State Nutrition Programs,
Department of Education offered cooks/bakers course and managers
course.  Specialized education and training in food handling and
safety.  State Certificate in Sanitation."

     53.  The job description for the Food Service Specialist -
Cook lists under the heading "Desired Experience and Training"
the following:  "High school diploma or equivalent or willingness
to acquire one.  Certificate from State Nutrition Programs, Dept.
of Educational & Cultural Services offered cooks course. 
Specialized training in sanitation, food handling, safety. 
Progressively responsible positions in School Food Service. 
Knowledge of basic mathematics."  The job description for the
Food Service Specialist - Baker lists the same items but refers
to a bakers course certificate rather than a cooks course.

     54.  The job description for the Food Service Assistant I
and II (Helper) lists under the heading "Desired Experience and
Training" the following:  "Training in sanitation, food handling,
safety.  Ability to follow oral and written instructions. 
Certificate from State Nutrition Program, Department of
Educational and Cultural Services offered course.  Knowledge of
basic mathematics."

     55.  All of the Food Service Managers, the Assistant Food
Service Manager, and a number of the employees in the AFSCME unit
have received the state certificate in sanitation.

     56.  Food Service Managers, the Assistant Food Service

                              -19-

Manager and the Administrative Assistant attend fall and spring
conferences related to nutrition programs.  The Administrative
Assistant attends some of the same workshops and training as the
managers.

     57.  The Food Service Managers are in daily contact with the
Administrative Assistant and are in contact with the other Food
Service Managers regularly, generally once a week, sometimes 2 or
3 times a week.  They keep in contact by telephone and e-mail. 
The Food Service Managers at the smaller schools tend to interact
with School Administrators and teachers more frequently than at
the larger schools simply because of the layout of the school.  
The Food Service Managers have daily contact with the Director
while the Administrative Assistant's contact with him is more
frequent.
  
     58.  The Food Service Managers are each assigned to a
specific school in the Lewiston School Department at different
geographic locations.  The Assistant Food Service Manager is
assigned to a satellite school and spends part of her day at that
school and part at the High School where her immediate
supervisor, the Food Service Manager, is located.  All of the
schools have an office for the managers located right off the
kitchen preparation area.

     59.  Managers must complete a Personnel Action Form to
initiate the process for getting various changes approved, such
as promotions, transfers, layoffs or resignations.  All Personnel
Action Forms must be signed by the Superintendent before they are
accepted.  Similarly, requests for leave are not granted unless
the Superintendent's signature has been obtained, except in
emergencies.

     60.  The Food Service Managers have not been involved in or
the subject of any collective bargaining since they were removed
from the recognition clause of the AFSCME contract in 1987.

                              -20-

     61.  The Department's Driver/maintenance person is not in
the Food Service Workers' bargaining unit but is in another
bargaining unit at the school.

     62.  The Employer and the Union agree that there are
currently six different bargaining units representing employees
in the Lewiston School Department:  Food Service Workers Unit;
General Government Employees Unit; Education Technicians Unit;
Teachers Unit; Administrators Unit; and Educational Directors
Unit.  The Board's files show that AFSCME is the bargaining agent
for the Food Service Workers Unit; MSEA is the agent for the
General Government Employees; the Lewiston Education Association/
MEA is the bargaining agent for the Educational Technicians Unit
and for the Teachers Unit.  The excerpts of the collective
bargaining agreements submitted as part of Employer's Exhibit #1,
tab H, show that the Lewiston Administrators Association, ASFA,
is the recognized bargaining agent for the Administrators Unit
and that the Lewiston Educational Directors is the recognized
bargaining agent for the Educational Directors Unit.  The Board's
files contain no bargaining agent certifications, voluntary
recognition forms, or collective bargaining agreements for either
of these last two units.  There is no file at all for the
Administrators Unit and the Directors Unit only contains a Form
1, Agreement on Appropriate Unit dated May 8, 1984.

     63.  The smallest bargaining unit at the school is the
Educational Directors Unit, which covers seven positions and,
according to the employer's organizational chart, has one
employee in each of those seven positions.

                           DISCUSSION

     The first issue I must address is whether the Administrative
Assistant should be excluded from collective bargaining as a
confidential employee under section 962(6)(C).  The second issue
is whether the classifications of those public employees in the
petitioned-for unit have a community of interest that supports a

                              -21-

conclusion that it is an appropriate bargaining unit.  I will
then consider the Employer's various arguments raised in their
response and in their post-hearing brief that the positions
should be included in the existing unit of Cafeteria Workers
represented by AFSCME.

CONFIDENTIAL EXCLUSION

     The Employer contends that the Administrative Assistant, as
the only clerical support person for the Director of School
Nutrition, is a confidential employee within the meaning of
section 962(6)(C) and therefore may not be included in a
bargaining unit.  The employer argues that the Director of School
Nutrition is directly involved in formulating the School
Committee's bargaining positions and strategies and that he needs
a confidential assistant to carry out these duties.

     Before getting into the merits of the employer's argument,
it is helpful to step back and remind ourselves of the stated
purpose of the MPELRL.  Section 961 of the Act states:

           961. Purpose   It is declared to be the public
     policy of this State and it is the purpose of this
     chapter to promote the improvement of the relationship
     between public employers and their employees by
     providing a uniform basis for recognizing the right of
     public employees to join labor organizations of their
     own choosing and to be represented by such
     organizations in collective bargaining for terms and
     conditions of employment.

It is clear that the MPELRL is a remedial statute that must be
liberally construed to effectuate the purpose of the Act.  To
that end, it is well-established that exemptions from coverage
under the Act, including the confidential employee exclusion in
question, must be narrowly construed.  State of Maine and MSEA,
No. 82-A-02, slip op. at 6, 6 NPER 20-14027 (Me.L.R.B. June 2,
1983) (Interim Order).
  
     An employee who fits within one of the exclusions listed in
section 962(6) is not granted collective bargaining rights by the

                              -22-

Act.  Section 966(1) prohibits me from including an excluded
position in a bargaining unit.  Section 962(6)(C) excludes any
person:

     Whose duties as deputy, administrative assistant or
     secretary necessarily imply a confidential relationship
     to the executive head, body, department head or
     division head.

The scope of this exclusion includes certain personnel directly
involved in formulating labor relations policy as well as certain
clerical employees.  The parameters of this exclusion have been
summarized by the following:

        Some general principles have been established for
     determining whether a position is confidential.  First,
     employees who have been permanently assigned to
     collective bargaining or to render advice on a
     regularly assigned basis to management personnel on
     labor relations matters are confidential employees. 
     State of Maine and MSEA, No. 82-A-02, slip op. at 10, 
     6 NPER 20-14027 (Me.L.R.B. June 2, 1983) (Interim
     Order).  The term "labor relations matters" does not
     refer to contract administration, but rather
     contemplates "the strategic and tactical considerations
     involved in negotiating collective bargaining
     agreements."  Id., slip op. at 7.  An information
     provider is not a confidential employee.  State of
     Maine and MSEA, No. 78-A-09, slip op. at 8 (Me.L.R.B.
     Mar. 2, 1979). . . .  Finally, current duties, not
     duties projected for the future, must be the basis for
     a finding of confidentiality.  MSAD No. 14 and East
     Grand Teachers Assoc., No. 83-A-09, slip op. at 10,   
     6 NPER 20-14036 (Aug. 24, 1983).

AFSCME and Town of Sanford, 92-UD-03, slip op. at 37 (Me.L.R.B.
Feb. 21, 1992), aff'd., 92-UDA-03 (Me.L.R.B. May 7, 1992).  The
Board has also held that "[i]n many if not most cases, 'confiden-
tial' supervisory employees need access to at least one 'confiden-
tial' clerical employee, in order to carry out their 'confiden-
tial' duties."  State of Maine, No. 82-A-02 (Interim Order), slip
op. at 28.  (Because Superintendent of the Maine Correctional
Center was only marginally involved in the last round of
negotiations, confidential status was not appropriate for his

                              -23-

secretary).
  
     In the present case, the evidence shows that the current
Director of Nutrition Services has had some involvement in the
collective bargaining process with respect to the AFSCME unit in
his first few months on the job.  He has provided input and
recommendations on certain areas of concern to the School and has
attended meetings with various people more directly involved with
the collective bargaining process.[fn]3  That evidence alone,
however, is not sufficient to support a conclusion that the
Director gives advice "on a regularly assigned basis" on "the
strategic and tactical considerations involved in negotiating
collective bargaining agreements."  The evidence is ambiguous, at
best, as to whether the Director has merely provided input or has
been actively involved in the formulation of policies and
strategies.  Furthermore, no evidence was presented regarding the
level of involvement, if any, of the previous Director of
Nutrition Services in the collective bargaining process. 
Therefore, I am unable to conclude that the Director of Nutrition
is a confidential employee.
 
     Even if I were to conclude that the Director of Nutrition
Services is a confidential employee within the meaning of section
962(6)(C), that does not automatically mean that his
Administrative Assistant should be excluded from coverage of the
Act.  The Board's position that "[i]n many, if not most cases,
'confidential' supervisory employees need access to at least one
'confidential' clerical employee, in order to carry out their
'confidential' duties,"  State of Maine, 82-A-02, Interim Order,
slip op. at 28, is a statement of fact rather than a statement of
policy.  It is simply a recognition that confidential supervisory
employees may need a confidential clerical support person.  It 
____________________

     3 The employer's statement in its Post-Hearing Brief that "The
director attends and participates in all bargaining strategy and
proposal formulation meetings with the School Committee" is simply not
supported by the record.

                              -24-

does not suggest that the confidential supervisory employee has
any particular entitlement to a confidential clerical support
person.  See, e.g., Lincoln Sanitary District and Teamsters Union
Local 340, No. 92-UC-02, slip op. at 16 (Me.L.R.B. Nov. 17, 1992)
(holding that where Superintendent prepared all of his own
confidential documents, there was no current need for
confidential clerical support).  It is still necessary to show a
sufficient collective bargaining nexus for the exclusion of the
clerical employee.
  
     Decisions on whether to exclude a particular position from a
bargaining unit must be based on actual job duties and not on
projections of future duties as that would be too speculative to
serve as the basis for excluding a position.  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).  In MSAD #14 and East
Grand Teachers Association, the Board held "employees must
actually perform confidential collective bargaining duties before
they can be considered to be confidential employees, within the
meaning of 962(6)(C)."  No. 83-A-09, slip op. at 10.
  
     In the present case, the evidence does not support a finding
that the Administrative Assistant has access to confidential
collective bargaining information that would justify exclusion
under 962(6)(C).  The Administrative Assistant testified that she
has never typed any collective bargaining documents and there was
no evidence that she was ever privy to any collective bargaining
information.  The employer argues that because the Director and
the Administrative Assistant are located in the same office
without any dividing walls or partitions, the Administrative
Assistant would be privy to all conversations the Director has in
the office on the telephone or in person regarding collective
bargaining matters.  There was no evidence, however, that any such
meetings ever actually occurred in the Director's office.
  
       Similarly, there was no evidence presented that the
Director ever had any telephone conversations in his office

                              -25-

involving confidential collective bargaining information, let
alone any conversations that occurred in the presence of the
Administrative Assistant.  There was no evidence that the
Director ever received faxed documents or telephone messages or
mail that contained any confidential collective bargaining infor-
mation, let alone any that the Administrative Assistant saw. 
Indeed, the Administrative Assistant testified that she did not
open any mail marked "confidential."  A general statement by the
Director that he was "involved in various forms of communication"
with members of the negotiating committee, the Superintendent and
the School's attorney is a far cry from proof that his Assistant
was necessarily privy to confidential collective bargaining
information.
  
     The employer's reliance on the testimony that the Adminis-
trative Assistant has access to confidential personnel files and
that she attends all meetings between the Director and repre-
sentatives of the Food Service Workers' Unit is irrelevant to the
confidential exclusion.  Neither of those activities involve
strategic or tactical considerations in negotiating collective
bargaining agreements.  See, e.g., Winthrop School Department
Food Service Workers, UPIU and Winthrop School Department, No.
97-UD-11 (Me.L.R.B. Aug. 27, 1997), slip op. at 18 (holding that
Food Service Supervisors' access to confidential financial and
personnel information not sufficient for confidential exclusion).
 
     The evidence is insufficient to conclude that the
Administrative Assistant currently performs duties that require
excluding her from collective bargaining under 962(6)(C).  If
the assignment of confidential collective bargaining duties
becomes necessary, the employer can make such an assignment and
then file a petition for unit clarification in accordance with
MLRB Rule 1.13.[fn]4  The hearing examiner will, at that stage, 
____________________

     4 If the public employer does make such confidential assignments
to a unit employee, the employer may certainly admonish the employee
that the duties are confidential and may not be discussed with the

                              -26-

consider the actual duties of the job and will make an
appropriate ruling.  In the meantime, the Administrative
Assistant will not be excluded as a confidential employee.

COMMUNITY OF INTEREST

     As the Law Court has recognized, there are two fundamental
purposes of the MPELRL:  to protect employees' right to self-
organization and to promote the voluntary adjustment of their
terms of employment.  Lewiston Firefighters Assoc., Local 785,
IAFF v. City of Lewiston, 354 A.2d 154, 160 (Me. 1976).  Coherent
bargaining units with a clear and identifiable community of
interest are essential to both of these objectives.  In the
Lewiston Firefighters case, one of the earliest cases inter-
preting the MPELRL, the Law Court stated "the MPELRL acknowledges
and protects the public employee's right to self-organization"
and sets forth the methods for implementing that right.  354 A.2d
at 160 (Invalidating a parity pay provision of the Lewiston City
Charter because it improperly interjected the interests of one
group of employees into the unit created to represent another
group).  When the parties do not voluntarily agree on the make-up
of the bargaining unit, it is up to the Executive Director to
determine the appropriate unit.  Id.
 
     It is well-established that the hearing examiner's duty is
to "determine whether the unit proposed by the petitioner is an
appropriate one, not whether the proposed unit is the most
appropriate unit."  Town of Yarmouth and Teamsters Local Union
No. 48, No. 80-A-04, slip op. at 4 (Me.L.R.B. June 16, 1980); see
also, Portland Superintending School Committee v. Portland
Administrative Employee Assoc., No. 87-A-03, slip op. at 6
(Me.L.R.B. May 29, 1987).  In Yarmouth, the union petitioned for
one unit and the employer responded that two units would be more
appropriate because two other units in the Town were based on

____________________

Union and that maintaining the confidentiality of the information is a
condition of continued employment.

                              -27-

divisional lines.  Noting that each petition "must be judged on
its own merits," the Board stated:

        Moreover, adoption of the Town's position that all
     bargaining units of Town employees must follow
     divisional lines would violate the employees'
     guaranteed right to full freedom in the exercise of
     their representational and bargaining rights.

Yarmouth, 80-A-04, slip op. at 4, citing 26 M.R.S.A. 963 and
966(2) and Lewiston, 354 A.2d at 160-161.  The employees' right
to self-organization is best protected when their judgment on the
appropriate unit is respected, as long as the positions share the
community of interest required by 966(2).  See Portland
Administrative Employee Assoc. and Portland Superintending School
Committee, No. 86-UD-14, slip op. at 28 (Me.L.R.B. Oct. 27,
1986), aff'd., No. 87-A-03 (Examination of the bargaining unit
proposed by the employer not proper until the bargaining unit
proposed in the Union's petition has been considered and
rejected).

     The requirement that the Hearing Examiner examine the extent
of the community of interest was explained by the Board nearly 20
years ago and is still valid today:

     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 Brewer, No. 79-A-01, slip op. at 4, 1 NPER 20-
10031 (Me.L.R.B. Oct. 17, 1979).
   
     In determining whether employees share the requisite

                              -28-

"community of interest" in matters subject to collective
bargaining, the following factors, at a minimum, must be
considered:  (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).  As explained below, consideration of these eleven
factors support a conclusion that the classifications in the
petitioned-for unit share a community of interest.
  
     1.  Similarity in the kind of work performed.  With respect
to the first factor, the nature of the work performed by the
three positions is similar, although not identical.  The nature
of their work is to oversee the food service function and perform
the associated administrative tasks.  The Food Service Managers
and the Assistant Food Service Manager perform essentially the
same function.  They both do a substantial amount of administra-
tive work, they have supervisory responsibilities in their
respective kitchens, and they do varying amounts of food prepara-
tion, serving and cleanup work alongside employees in the AFSCME
unit.  The work performed by the Administrative Assistant is
similar to that of the Managers and Assistant Managers in the
scope and nature of the administrative work she does.  She
compiles the information submitted by the Managers and translates
it into reports suitable for the Superintendent's office and
various state agencies.  Although not a supervisor, she has had
general oversight responsibility for a half-time clerical
position, that, though vacant now, still remains on the
employer's organizational chart.  She has pitched in and helped
out in the cafeteria at times of extreme shortages in staff.

                              -29-

     2.  Common supervision and labor relations policy.  The
second factor also supports a finding that the requisite
community of interest exists.  The Administrative Assistant and
the Food Service Managers all report directly to the Food Service
Director.  The Assistant Food Service Manager reports indirectly
to the Director through the Food Service Managers.  All of the
positions are subject to the policies described in the Personnel
Manual which is established by the School Committee and
implemented by the Superintendent and the Director.

     3.  Wage scale and manner of determining earnings.  The wage
scale and manner of determining earnings are similar for all
three positions in the petitioned-for unit and support a finding
of a community of interest.  The Administrative Assistant is the
highest paid of the group, and her rate is only a few cents above
the highest paid Manager and is less than 10% higher than most of
them.
  
     4.  Benefits, hours, and other terms of employment.  This
factor supports a finding of a community of interest.  The only
real difference relates to accrual and use of vacation time,
which simply reflects the fact that the Administrative Assistant
works for the school on a year-round basis.  I do not consider
this difference in schedule to be a substantial difference in
this case.

     5.  Qualifications, skills and training.  This factor lends
support to a finding of a community of interest as there is no
major difference in the qualifications or training required of
any of the positions, other than differing work experience
requirements.  The skills needed by the Administrative Assistant
are certainly more geared toward bookkeeping and computer skills
than the other positions and less toward food production skills. 
There are not, however, different educational backgrounds,
licenses, or certifications required that might contribute to
conflicting interests among the employees.

                              -30-

     6./7.  Frequency of contact/geographic proximity.  The
frequency of contact or interchange among the employees, the
sixth factor, is closely related to the seventh factor, their
geographic proximity.  As each Manager has her own kitchen at a
separate school, their exchanges are mostly on the telephone or
via e-mail and occur regularly during the week.  As with other
unit determinations in the public school context, I do not put
much weight on these two factors in this circumstance.  See,
e.g., Winthrop, 97-UD-11, slip op. at 22; Gorham Maintenance, Bus
Drivers, Cooks and Custodians, MTA/MEA and Gorham School
Committee, 91-UD-11, slip op. at 19, (Me.L.R.B. May 15, 1991).  

     8.  Collective bargaining history.  The eighth factor,
history of collective bargaining, provides very strong support
for the conclusion that the classifications in the petitioned-for
unit share a clear and identifiable community of interest.  The
Managers and the Assistant Manager were part of the AFSCME Food
Service Workers Unit created in 1973.  Five years later, the
Employer filed a unit clarification petition to remove the
Managers from the unit because the Employer felt that as
supervisors there was a conflict of interest in being in the same
unit as the rank and file employees.  The petition was dismissed
because the hearing examiner concluded that the Managers had been
supervisors since formation of the unit and therefore the
employer had failed to show the substantial change necessary for
a unit clarification petition.  After the Managers submitted a
petition to the union in 1986, their positions were removed from
coverage of the AFSCME contract by the agreement of the Employer
and AFSCME.  The Food Services Managers have been excluded from
the AFSCME contract since that time and have not been represented
by any other union.  The history of collective bargaining in this
case shows that, based on actual experience bargaining together
in the same bargaining unit, all of the parties believed that it
was not appropriate to continue to have the Managers included in
the Food Service Workers Unit.  From the sequence of events
following the formation of the unit in 1973, particularly the

                              -31-

more recent history, I can infer that the bargaining history was
not successful for the Managers.
  
     9.  Desires of employees.  With respect to the ninth factor,
there was no evidence directly reflecting the employees desires
regarding unit configuration.

     10.  Extent of organization.  The extent of union
organization lends support to a finding that the positions share
a community of interest in that the union is seeking to organize
all of the unrepresented employees in the Nutrition Services
Department, other than the Director.
  
     11.  Organizational structure.  The eleventh and final
factor, the employer's organizational structure, also supports a
finding of a sufficient community of interest as all of the
positions in the proposed unit are within the same department and
essentially at the same level in the organizational hierarchy.

     In summary, I have examined and considered all of the
community of interest factors both individually and together with
respect to the positions in the petition-for unit.  I conclude
that these factors establish that the positions share a clear and
identifiable community of interest and therefore constitute an
appropriate unit.

OTHER ISSUES

     The Employer presents four different arguments in their
post-hearing brief on why the Food Service Managers should be
included in the existing Food Service Workers' Unit represented
by AFSCME.  The Employer contends that the Food Service Managers
share a community of interest with the Food Service Workers; the
Managers' supervisory responsibilities do not create the con-
flicts of interest that are the focus of 966(1); a separate unit
for the Managers is contrary to the Board's anti-proliferation
policy; and finally, the Managers have never been lawfully
removed from the Food Service Workers' Unit and there has been no

                              -32-

change justifying their removal.  I am unpersuaded by any of
these arguments and will address each in turn below.

     The Employer's argument that the Food Service Managers share
a community of interest with the members of the Food Services
Workers Unit is not relevant.  As noted above, the hearing
examiner's duty is to determine whether the petitioned-for unit
is an appropriate unit, not whether it is the most appropriate
unit.  Yarmouth, 80-A-04, slip op. at 4.  This approach affords
the greatest protection to the employees' right to self-
organization.  Having already concluded that the positions in the
proposed unit do constitute an appropriate unit, no purpose would
be served by determining whether the Food Service Managers share
a community of interest with the members of the Food Service
Workers Unit.

     The Employer's reliance on Winthrop for their position that
the Managers should be placed in the Food Service Workers Unit is
misplaced.  In that case, the petitioned-for unit included the
Food Service Managers in the same unit as the cafeteria workers. 
The hearing examiner determined that the petitioned-for unit was
appropriate, over the objections of the employer.  In the present
case, the petitioned-for unit does not put the Managers in the
same unit as the other cafeteria workers.  Contrary to the
Employer's assertion (see Employer's Post Hearing Brief fn. 5, 
p. 18), it does matter whether it is the petitioner or the
employer who is advocating a particular unit configuration.  

     The Employer also claims that the Food Service Managers are
essentially working supervisors who do not possess the type or
scope of supervisory responsibility that create conflicting
interests within the meaning of 966(1) that "justify" placement
in a separate unit.  The Employer suggests that the three-part
test regarding supervisory duties contained in 966(1) must be
used to determine whether the positions should be excluded from
the Food Service Workers Unit.  The Employer misconstrues the
purpose of 966(1).  The purpose of the test in 966(1) is to

                              -33-

determine whether a position should be excluded from the proposed
bargaining unit, that is, the petitioned-for bargaining unit, not
the unit the employer claims is appropriate.  The statute is
clear in this respect.  Section 966(1) states, in part:
 
     In determining whether a supervisory position should be
     excluded from the proposed bargaining unit, the
     executive director his designee shall consider, . . .
     (emphasis added)

     The Employer's approach contends that because the Food
Service Managers are not supervisors according to the three-part
test in 966(1), their interests do not conflict with those of
the Food Service Workers, therefore they should not be excluded
from the Food Services Workers Unit.  The approach dictated by
the statute, however, starts with the proposed unit and then
applies the three-part test to determine whether a position
should be excluded from that unit.  In the present case, the
petitioned-for unit contains the Food Service Managers, the
Assistant Food Service Manager and the Administrative Assistant. 
The supervisory relationship of these classifications with the
Food Service Workers is irrelevant because none of the Food
Service Worker positions are in the proposed unit.  The three-
part test in 966(1) need not be considered at all because no one
is claiming that there are conflicts among the positions in the
proposed unit.

     The Employer's third argument is that creating a separate
unit for the Food Service Managers would be contrary to the
Board's policy against the proliferation of small bargaining
units.  The Employer is correct that the Board's long-established
non-proliferation policy is based on a concern that the employer,
the union, and the State would be required to expend time, energy
and money all out of proportion to the number of employees served
by the small bargaining unit.  MSAD #14 and East Grand Teachers
Assoc., No. 83-A-09, slip op. at 13.  I am not convinced that the
proposed unit of nine employees is such a small bargaining unit
that ignoring their statutory right to self-determination is

                              -34-

justified in the name of non-proliferation.
  
     In upholding the creation of a 10-person unit, the Board has
stated, "Ten-person bargaining units are far from small in
comparison with other units which we have sanctioned under the
Municipal Public Employees Labor Relations Law."  Portland, 87-A-
03, slip op. at 6.  Indeed, in discussing the creation of
separate supervisory units, the Board has clearly indicated that
even smaller units can be approved.  The Board stated:

     Except in instances where the resulting one- or two-member
     supervisory unit would contravene our policy of discouraging
     the proliferation, through fragmentation, of small
     bargaining units, we have approved the creation of such
     supervisory units.  

Penobscot Valley Hospital and Maine Federation of Nurses and
Health Care Professionals, AFT, No. 85-A-01, slip op. at 8, 
8 NPER ME-16011 (Me.L.R.B. Feb. 6, 1985).

     The Employer points out that they already have six
bargaining units and creation of a seventh would be burdensome. 
This is the same argument that was made by the employer in
Portland and specifically rejected by the Board.  No. 87-A-03,
slip op. at 5 ("We shall not . . . exalt such savings [realized
by avoiding small units] over the statutory right of employees to
be included in a unit with other employees with whom they share a
clear and identifiable community of interest.")  Given the
substantial size of the proposed unit and the fact that one of
the existing units at the school is even smaller than the
proposed Food Services Managers Unit, I will not invoke the
Board's non-proliferation policy in this case.

     The Employer's final argument is that the Managers have
never been lawfully removed from the Food Service Workers Unit
because an agreement on appropriate unit was never filed with the

                              -35-

Board[fn]5.  They argue that the Union should have filed a unit
clarification petition to modify the Food Services Workers Unit
rather than filing a unit determination petition.  Even if the
Union had filed a unit clarification petition, they argue, the
Union would be unable to show that a substantial change has
occurred since the formation of the unit.  I am unpersuaded by
the Employer's argument for a number of reasons.

     MLRB Rule 1.16(E) states:

     Modifications of collective bargaining units effected
     by agreement of the parties shall be filed with the
     Board.  The Executive Director or the Director's
     designee shall require such agreements to be posted in
     accordance with Rule 1.01(B).

The Employer argues that there was never a valid modification of
the unit to exclude the Food Service Managers because nothing was
filed with the Board.  I am very reluctant to agree with the
Employer's position on this point because the Employer is
responsible, at least in part, for the fact that an agreement on
the modification of the unit was never filed.  I cannot, in good
conscience, penalize an innocent third party for the Employer's
failure to comply with the Board's rule.  Furthermore, section
966(3) of the Act contains a preference to resolve unit placement
matters by agreement of the parties, a preference that is also
reflected in Board Rule 1.16 regarding unit clarification
matters.  It would be contrary to this preference, not to mention
the overall statutory purpose of promoting stability in labor
relations matters, if I were to elevate compliance with a rule
requiring filing of agreements on units over respect for the
agreement between AFSCME and the Employer contained in the
recognition clause of their contract.[fn]6
____________________

     5 The employer raised this issue for the first time in its post-
hearing brief.

     6 The Board routinely recognizes unit descriptions contained in a
recognition clause of a collective bargaining agreement as a valid
agreement on unit modification, at least with respect to the parties

                              -36-

     Even if I were to agree with the Employer that the Union 
should have filed a unit clarification petition,[fn]7 rather
than a unit determination petition, I do not agree with the
Employer's suggested disposition of such a unit clarification
petition.[fn]8  The Employer argues that the petitioners would
be unable to show that the circumstances surrounding the
formation of the unit have changed sufficiently to warrant
modification of the unit, as required by 966(3) and MLRB Rule
1.16.  The Employer supports this argument by pointing to the
testimony that the job duties and responsibilities of the
Managers have not changed very much since the period when the
Managers were covered by the AFSCME contract.  Their argument
implies that the only way one can show a substantial change for
unit clarification purposes is to demonstrate a change in job
duties.  This is not the case.
 
     While substantial changes in job duties are probably the
most common basis for a unit clarification, a substantial change
in any one of the eleven factors could legitimately be the basis
for a unit modification.  For example, a change of employer has
been viewed as a very significant change.  Lewiston Teachers
Association and Lewiston Board of Education, No. 80-UC-01,
(Me.L.R.B. Sept. 25, 1979)(Change of employer from Board of
Health and Welfare and to Board of Education was a significant
change for 966(3) purposes even though duties of school nurse had
remained the same); Biddeford Teachers Assoc. and Biddeford
____________________

to that agreement.

     7 It is also far from clear that the petitioner, the Lewiston Food
Service Managers Association/MEA/NEA, has standing to file a unit
clarification petition in this case.  MLRB Rule 1.16(A) permits only
the employer and the incumbent certified or recognized bargaining
agent to file unit clarification petitions.  Similarly, section 966(3)
restricts unit clarification petitions to any public employer or any
certified or recognized bargaining agent.  At the moment, the
petitioner is not a certified or recognized bargaining agent.

     8 Assuming no one's rights are violated in the process, the final
sentence of Board Rule 1.11(H) stating that "The hearing examiner may
also take other appropriate action" authorizes me to consider a unit
determination petition to be a unit clarification petition.

                              -37-

School Committee, No. 83-UC-03 (Me.L.R.B. Aug. 27, 1982)(change
of employer a substantial change).  Enactment of new statutory
exemption subsequent to the formation of the bargaining unit is
also a substantial change.  State of Maine, Dept. of Inland
Fisheries & Wildlife and MSEA, Nos. 83-UC-43 and 91-UC-11
(Me.L.R.B. May 4, 1993).  In another context, the Board has
recognized that changes in various factors may occur that could
alter the community of interest analysis:

     With the passage of time, changes may transpire which
     will affect one or more of the component community of
     interest factors for the classifications in a given
     bargaining unit and, therefore, the relationship or
     affinity among said classifications will also change.

Teamsters Local Union No. 48 and State of Maine (Institutional
Services)and Council No. 74, AFSCME and MSEA, No. 84-A-02, slip
op. at 4-5, 6 NPER 20-15010 (Me.L.R.B. Apr. 2, 1984), affirming
No. 83-UD-25, (Me.L.R.B. Apr. 2, 1984).

     In the present case, while the job duties may not have
changed appreciably, I am convinced that changes in other factors
support modification of the unit.  The most significant change,
of course, is in the history of collective bargaining and the
extent of union organization.  At the time the unit was formed,
there was no history of collective bargaining.  The history of
collective bargaining during the past 26 years demonstrates that
the Managers are not appropriately included in the Food Services
Workers Unit.

     In 1986, the Food Service Managers requested that they no
longer be represented by AFSCME.  Subsequent to signing the 1986
petition, AFSCME and the Employer agreed to remove the Managers
from the Food Services Unit.  That act can be seen as tacit
recognition that the Managers did not share a community of
interest with the other workers.  Although the Employer argues
that there is no evidence on this issue, given the position of
the Employer at the 1978 unit clarification hearing and the 1986

                              -38-

petition signed by all of the Managers, I am willing to infer
that the Managers wanted out because they felt there was either a
conflict of interest with the AFSCME unit members or there was an
absence of a community of interest with them.  The parties'
agreement to remove the Managers from the AFSCME unit followed 13
years of actual experience of having the Managers in that unit.
  
     With respect to the extent of union organization, no one
seriously contends that the Food Service Managers are still
represented by AFSCME.[fn]9  In my view, AFSCME's apparent
acceptance of the Manager's 1986 petition[fn]10 can be seen as
a tacit disclaimer of interest.  At that time, the Board did not
have any established rule for disclaimer of interest, such as
currently found in MLRB Rule 1.13.  The effect of either an
official disclaimer or what actually transpired in 1986, at least
with respect to the parties involved, is essentially the same. 
These changes in the representation status (or perceived status)
also constitute a substantial change in the circumstances
surrounding the formation of the unit warranting the requested
modification.[fn]11
____________________

     9 AFSCME had ample notice of the current petition as well as
notice of the employer's response.  No request to intervene was
received.

    10 Manifested by the subsequent modification of the recognition
clause in the 1986 contract to exclude the Managers.

    11 Even if these factors do not support a finding of the requisite
substantial change, I would not dismiss the petition.  Where there has
not been a sufficient showing of change to justify a unit clarifica-
tion to remove certain positions from a unit (and there is no collec-
tive bargaining agreement in effect to serve as a bar), the hearing
examiner may transform a unit clarification petition into a unit
determination petition for severance.  See, Orono School Committee and
Orono Teachers Assoc., Nos. 89-UD-04 & 89-UC-02 (Me.L.R.B. Dec. 14,
1988).  The history of collective bargaining is of particular signifi-
cance in severance actions.  Teamsters Local 48 and County of
Cumberland and Council 74, AFSCME, No. 84-UD-11, at 14 (Mar. 16,
1984), aff'd., Council 74, AFSCME and Teamsters Local 48 and
Cumberland County, No. 84-A-04, 6 NPER 20-15013 (Apr. 25, 1984).  The
history of collective bargaining is a direct reflection on whether a
community of interest actually existed.  In this case, after the first
13 years of collective bargaining, AFSCME and the Employer agreed to
remove the Managers from the Food Service Workers Unit.  The Managers 

                              -39-

     In summary, I am unpersuaded by the Employer's various
arguments that the Managers should be placed in the existing Food
Service Workers Unit.

 
                 APPROPRIATE UNIT DETERMINATION

     On the basis of the parties' stipulations, my findings of
fact, and the foregoing discussion, and pursuant to the
provisions of 26 M.R.S.A. 966, I conclude that the following
unit is appropriate for the purposes of collective bargaining:
 
     INCLUDED:  Food Service Manager, Assistant Food Service
                Manager, Administrative Assistant

     EXCLUDED:  Director of Nutrition Services and all other
                employees of the Nutrition Services Department.

     
Dated at Augusta, Maine, this 27th day of May, 1999.

                                MAINE LABOR RELATIONS BOARD


                                /s/________________________
                                Lisa Copenhaver
                                Attorney Examiner


The parties are hereby advised of their right to appeal this
report to the Maine Labor Relations Board pursuant to 26 M.R.S.A.
968(4) (Supp. 1998).  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.

____________________

have been unrepresented since 1986.  This history is strong evidence
that continued inclusion of the Managers in the Food Service Workers
Unit is not appropriate.

                              -40-