STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 97-UC-O3
Issued: September 18, 1997
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MOUNTAIN VALLEY EDUCATION
ASSOCIATION/MEA/NEA,
Petitioner,
and UNIT CLARIFICATION REPORT
MSAD NO. 43 BOARD OF DIRECTORS,
Respondent
___________________________________
This unit clarification proceeding was initiated on May 12,
1997, when Mr. J. Donald Belleville, UniServ Director with the
Maine Education Association ("MEA" or "union"), filed a petition
with the Maine Labor Relations Board (Board) for clarification of
an existing bargaining unit pursuant to section 966(3) of the
Municipal Public Employees Labor Relations. Law ("MPELRL")
The union's petition seeks inclusion of the positions of
payroll clerk and bookkeeper in the existing secretaries
bargaining unit comprised of the following positions: school
secretary, guidance secretary, building/grounds secretary
receptionist, special education secretary and food nutrition
secretary. The MSAD No. 43 Board of Directors ("employer")
objects to the Board's consideration of the union's petition on
the basis that one of the statutory requirements for filing a
unit clarification petition has not been met; specifically, that
the circumstances surrounding the formation of this bargaining
unit have not changed sufficiently to warrant the proposed
modification in the composition of this unit.
Prior to commencement of the hearing, the parties met with
the hearing examiner to explore the possibility of settlement
and, in the alternative, to formulate stipulations of fact.
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STIPULATIONS
The parties stipulate to the following:
This hearing concerns the positions of payroll clerk
and bookkeeper. The job descriptions which were admitted into
evidence in the 1994 unit determination proceeding related to
these positions (see Mountain Valley Education Association and
MSAD #43 Board of Directors, No. 94-UD-13, Nov. 3, 1994) are
identical to the job descriptions currently in existence, except
for changes in titles. The position then known as "payroll
clerk/administrative secretary" is now known as "payroll clerk."
The position then known as "accountant/ bookkeeper" is now known
as "bookkeeper."
HEARING
After due notice an evidentiary hearing was conducted by the
undersigned hearing examiner on August 27, 1997, at the Board's
conference room in Augusta, Maine- Mr. J. Donald Belleville
appeared on behalf of the Mountain Valley Education Association/
MEA/NEA (MVEA), and the MSAD No. 43 Board of Directors was
represented by S. Campbell Badger, Esq.
The union presented as its witnesses: Ms. Folly Laskey,
payroll clerk, and Ms. Beverly Whittemore, bookkeeper. The
employer did not present witnesses.
There were two documents admitted into evidence in the
course of the hearing: Union Exhibit No. 1 - "Minutes of S.A.D.
No. 43 Board of Director's Meeting, June 4, 1996"; Union Exhibit
No. 2 - "Memo to Ms. Polly Laskey from Mr. Jerry Laliberty,
May 15, 1997, Employment Agreement."
The parties were given the opportunity to examine and cross-
examine witnesses, offer documentary evidence and present opening
and closing arguments at hearing.
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JURISDICTION
The jurisdiction of the hearing examiner to hear this matter
and make a unit determination lies in 26 M.R.s.A. 966(1) and
(3) (1988).
FINDINGS OF FACT
Upon review of the entire record and of the Maine Labor
Relations Board's file pertaining to this bargaining unit, the
hearing examiner finds:
1. The MSAD No. 43 secretaries bargaining unit was formed
in September, 1988, by agreement between the bargaining agent at
the time, "S.A.D. No. 43 Secretaries," and the employer. At that
time the unit consisted of: "school secretaries."
2. In May, 1994, the Mountain Valley Education Association/
MEA/NEA filed a petition for bargaining agent election and unit
determination, which proposed a bargaining unit consisting of:
school secretaries, guidance secretaries, special education
secretaries, food service secretaries, business manager's
secretary, building/grounds secretary, pavroll clerk, and
bookkeeper. (Emphasis added)
3. Three months after the unit determination and bargaining
agent election petition was filed, the MVEA filed a petition to
decertify "S.A.D. No. 43 Secretaries" and certify the MVEA as
bargaining agent for the group of employees named in the May 1994
petition.
4. On October 5, 1994, in a Board-conducted election, the
MVEA was elected as the bargaining agent for a unit of employees
consisting of all of the petitioned-for classifications except
business manager's secretary, payroll clerk and bookkeeper.
(Emphasis added) It appears that, by the time of the election,
the parties agreed to include all of the other positions in the
secretaries bargaining unit.
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5. With regard to the May 1994 unit determination petition,
the determination reached in the case was that the MVEA's
petition should be dismissed for failure of the union to provide
the showing of interest required by Board Rule 1.06(A) (i.e., a
showing of interest on behalf of the employees the union wished
to add to the existing secretaries bargaining unit) . See MVEA
and MSAD #43 Board of Directors, Case No. 94-UD-13 (Nov. 3,
1994).
6. There is a collective bargaining agreement currently in
effect between the parties for the years July 1, 1995, through
June 30, 1998.
7. The recognition clause of this contract reads, in part,
as follows:
A. The Board hereby recognizes the Association as the
exclusive bargaining representative . . . for
secretaries . . . in the positions of school secretary,
guidance secretary, building/grounds secretary/
receptionist, special education secretary, and food
nutrition secretary. The existing positions of finance
secretary/personnel clerk, payroll clerk, accountant/
bookkeeper, and administrative secretary to the
superintendent are excluded from the bargaining unit.
(Emphasis added)
B. When new positions are created, the Board will
notify the Association that a position has been formed
and whether the Board considers it to be a bargaining
unit or non-bargaining unit position. . . If the
Board and the Association do not resolve the issue of
inclusion, either party may seek a determination
pursuant to the rules and procedures of the Maine Labor
Relations Board.
C. Subsequent to the signing date of this Agreement,
if there are changes in personnel employed in positions
that are presently non-bargaining (finance secretary/
personnel clerk, pavroll clerk, accountant/bookkeeper)
as a result of the MLRB unit determination (MLRB Case
No. 94-UD-13) issued November 3, 1994, the Association
will be notified and may request to meet and consult to
determine if the position is now a bargaining unit
position . . . If the Board and the Association do not
resolve the issue of inclusion, either party may seek a
determination pursuant to the rules and procedures of
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the Maine Labor Relations Board. (Emphasis added)
D. [omitted]
8. Ms. Polly Laskey was hired into the position of "payroll
clerk" on June 24, 1996. Ms. Laskey has no first-hand knowledge
as to whether her job duties are different from those performed
by the person who was previously employed in this position.
9. Ms. Beverly Whittemore was an administrative assistant
for Union 25 prior to its merger with MSAD No. 43 in 1989-1990.
In July, 1990, Ms. Whittemore was employed in the payroll depart-
ment of the merged school district. On July 1, 1996, she was
transferred into the position of "bookkeeper." Ms. Whittemore
testified that her job duties are not different from those
performed by the person who was previously employed in the
position of bookkeeper; the only change in the position is a
change in job title.
DISCUSSION
The union seeks to include two positions, that of payroll
clerk and bookkeeper, into the existing school secretaries
bargaining unit at MSAD No. 43. The Municipal Public Employees
Labor Relations Law (MPELRL) provides a procedural mechanism for
changing the composition of an existing bargaining unit to
include positions not included in the unit when it was formed.
Section 966 (3) "Unit Clarification" reads:
Where there is a certified or currently recognized
bargaining representative and where the circumstances
surrounding the formation of an existing bargaining
unit are alleged to have changed sufficiently to
warrant modification in the composition of that
bargaining unit, any public employer or any recognized
or certified bargaining agent may file a petition for a
unit clarification provided that the parties are unable
to agree on appropriate modifications and there is no
question concerning representation.
26 M.R.S.A. 966 (3). Rule 1.16(A) of the Board's Rules and
Procedures provides that unit clarification petitions may be
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denied if: (1) the question raised should properly be settled
through the election process, or (2) the petition requests the
clarification of unit placement questions which could have been
but were not raised prior to the conclusion of negotiations which
resulted in an agreement containing a bargaining unit
description.
The statutory language very clearly indicates that, as a
threshold requirement for consideration of a unit clarification
petition, there must be a change in the circumstances which
existed at the time the unit was formed which would warrant
including positions formerly excluded or excluding positions
formerly included in a bargaining unit.
Unit clarification decisions by the Board's hearing
examiners and cases heard by the Board on appellate review
provide guidance as to the nature of change relevant to these
proceedings. Typically, the focus of Board unit clarification
proceedings has been on a particular job classification and
whether there have been changes in the duties of that job since
the formation of the bargaining unit. State of Maine and Maine
State Employees Association, No. 91-UC-04, slip op. at 13-14
(April 17, 1991); Maine School Administrative District #14 and
East Grand Teachers Association, No. 83-UC-13, slip op. at 4
(June 1, 1983) , reversed on other grounds Maine School
Administrative District 14 and East Grand Teachers Association,
No. 83-A-09 (Me.L.R.B. Aug. 24, 1983); State of Maine and Maine
State Employees Association, No. 82-A-02, slip op. at 5
(Me.L.R.B. June 2, 1983). The Board has also heard unit
clarification cases involving changes in an employer's
organizational structure. City of Bath and Local 1828. Council
74, AFSCME. AFL-CIO, No. 81-A-01 (Me.L.R.B. Dec. 15, 1980).
In addition, the creation of a new classification
subsequent to the formation of the bargaining unit at issue is an
unequivocal change in circumstances which satisfies the threshold
requirement for consideration of a unit clarification petition.
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State of Maine, Department of Inland Fisheries and Wildlife and
Maine State Employees Association, Nos. 83-UC-43 and 91-UC-11,
slip op. at 8 (May 4, 1993); Portland Public Library Staff
Association and Portland Public Library, No. 88-UC-03, slip
op. at 9 (June 2, 1988). On the other hand, merely renaming
a position and making minor changes in its duties and
responsibilities does not constitute a sufficient change to
warrant modification in the composition of a bargaining unit.
Id. at 9.
The union contends in this proceeding that a change in
personnel employed in these two positions, which were
specifically excluded from the unit by agreement of the parties
most recently when the current contract was negotiated,
constitutes the requisite change in circumstances.
The hearing examiner is unaware of any prior unit clarifi-
cation report or decision on appellate review before the Board
which permits modification of a bargaining unit to include
positions previously excluded by agreement of the parties, absent
a substantial change in job duties. In fact, the hearing
examiner in the 1994 unit determination proceeding concerning
this bargaining unit and these very positions states (without
citation to authority): "Although a unit clarification requires
no showing of interest, it does require changed circumstances
(creation of a new job classification or a change in duties for
an existing one) , and therefore cannot be used to add
classifications to a unit that have historically been excluded
simply by choice." Mountain Vallev Education Association and
M.S.A.D. #43 Board of Directors, No. 94-UD-13, slip op. at 25,
n.2 (Nov. 3, 1994). It is clear from the record that the type of
work performed by the payroll clerk and the bookkeeper has not
changed since the formation of this unit. No other evidence was
presented related to changes in the circumstances surrounding the
formation of the secretaries bargaining unit.
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The union attempts to bolster its position by pointing to
the language in Article 1, section C of the current collective
bargaining agreement which specifically addresses the prospect of
changes in personnel in the positions at issue. While this
language seems to reflect an agreement of the parties to waive
any objection to a unit clarification petition that could have
been raised under Board Rule 1-16 (A) (2), it cannot be read to
vest jurisdiction in the Board when it would not otherwise have
it. Jurisdictional requirements cannot be waived by the parties
to a proceeding.
As was noted in the previous unit determination report
concerning this bargaining unit and these positions, an
incumbent bargaining agent may use the unit determination
procedure to seek modification of an existing unit. Mountain
Valley Education Association and MSAD #43 Board of Directors,
No. 94-UD-13, slip op. at 27 (Nov. 3, 1994). In unit deter-
mination proceedings, it is not necessary to meet the change-
in-circumstances prerequisite necessary in unit clarification
proceedings. On the other hand, unit determination petitions
cannot be filed during the term of a collective bargaining
agreement except during the period provided by Board Rule 7.08
(the "contract bar" rule) . It is also necessary to submit a
"showing of interest" at the time the petition is filed on behalf
of employees whose positions are sought to be included in the
existing unit. Id. at 41.
ORDER
On the basis of the foregoing facts and discussion and
pursuant to the provisions of 2G M.R.S.A. 966 (1988 & Supp.
1996), it is hereby ORDERED:
The MVEA's unit clarification petition, filed on
May 12, 1997, seeking to add the positions of payroll
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clerk and bookkeeper to the MSAD No. 43 secretaries
bargaining unit, is dismissed.
Dated at Augusta, Maine, this 18th day of September, 1997.
MAINE LABOR RELATIONS BOARD
/s___________________
Joyce A. Oreskovich
Designated Hearing Examiner
The parties are hereby advised of their right, pursuant to 26
M.R.S.A. 968(4) (1988 & Supp. 1996), to appeal this report to
the Maine Labor Relations Board. To initiate such an appeal, the
party seeking appellate review must file a notice of appeal with
the Board within fifteen (15) days of the date of issuance of
this report. See Board Rules 1.12 and 7.03.
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