MSAD 43 and SAD 43 Teachers Assoc., No. 84-UC-05, affirmed by 84-A-05. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 84-UC-05 ________________________________ ) MAINE SCHOOL ADMINISTRATIVE ) DISTRICT NO. 43 BOARD OF ) DIRECTORS ) and ) UNIT CLARIFICATION REPORT ) SCHOOL ADMINISTRATIVE DISTRICT ) NO. 43 TEACHERS ASSOCIATION ) ________________________________) This unit clarification proceeding was initiated on January 17, 1984, when the Maine School Administrative District No. 43 Board of Directors ("Employer") filed a petition for unit clarification pursuant to Section 966(3) of the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. Section 961, et seq. A hearing on the petition was held on March 5, 1984 at the Bureau of Labor Standards Conference Room, State Office Building, Augusta, Maine. The Employer was represented at the hearing by Management Consultant Annalee Z. Rosenblatt and the School Administrative District No. 43 Teachers Association ("Union") was represented by J. Donald Belleville, UniServ Director, Maine Teachers Association. The Employer, by its unit clarification petition, seeks the exclusion of the position of Athletic Director from the Maine School Administrative District No. 43 Certificated Professional Employees bargaining unit. The grounds alleged by the Employer, as mandating the requested change, are that the duties and responsibilities of the position have, since the creation of the bargaining unit in question, significantly changed to the extent that: (1) the employee in said position is now a "confidential" employee, within the meaning of Section 962(6)(C), and is, therefore, excluded from the collective bargaining coverage of the Act and (2) the position no longer shares a clear and identifiable community of interest with the other classi- fications in the current unit and must, therefore, be excluded there- from. The Union opposed the granting of the Employer's petition by [-1-] _____________________________________________________________________ alleging that the Athletic Director has continued to do the same work since the creation of the bargaining unit and that said position continues to share a clear and identifiable community of interest with the other classifications in the current unit. The Employer presented the following employees of Maine School Administrative District No. 43 as witnesses at the hearing: Walter A. Buotte, High School Principal, Charles E. Lever, Assistant High School Principal and Athletic Director, and Courtney L. Prentiss, Superinten- dent of Schools. The Union presented Richard J. Plante, a teacher at Maine School Administrative District No. 43 and President of the Union, as its witness in this proceeding. The following documents were admitted into the record as exhibits: Joint Exhibit No. 1 1983-1985 Collective Bargaining Agreement between Board of Directors of School Administrative District No. 43 and School Administrative District No. 43 Teachers Association Joint Exhibit No. 2 Job Description for S.A.D. No. 43 Athletic Director, effective April, 1980 Joint Exhibit No. 3 Job Description for S.A.D. No. 43 Athletic Director, effective November 14, 1983 Joint Exhibit No. 4 Arbitrator's Decision and Award, Re: Non-Renewal of Former Athletic Director, Dated December 5, 1983 The parties were afforded full opportunity to present witnesses, to examine and to cross-examine the same, to present documents and other evidence, and to make argument. JURISDICTION The Maine School Administrative District No. 43 Board of Directors is the public employer, within the definition of 26 M.R.S.A. Section 962(7), of a bargaining unit composed of all full time certified teachers having more than six months service in the District, excluding the Superintendent, Assistant Superintendent, Principals, Assistant -2- _____________________________________________________________________ Principals, Guidance Director, and Special Education Coordinator. The School Administrative District No. 43 Teachers Association is the recognized bargaining agent, within the meaning of 26 M.R.S.A. Section 962(6), for the aforementioned bargaining unit. The juris- diction of the hearing examiner to hear this case and rule on the petition for unit clarification lies in 26 M.R.S.A. Section 966. FINDINGS OF FACT Upon review of the entire record, the hearing examiner finds: 1. The Maine School Administrative District No. 43 Board of Directors is the public employer, within the definition of 26 M.R.S.A. Section 962(7), of all full time certified teachers having more than six months service in the District and said employees, together, constitute the bargaining unit at issue in this proceeding. Explicitly excluded from the bargaining unit are the Superintendent, Assistant Superintendent, Principals, Assistant Principals, Guidance Director, and Special Education Coordinator employed by the District. 2. The School Administrative District No. 43 Teachers Association is the recognized bargaining agent, within the meaning of 26 M.R.S.A. Section 962(2), for the bargaining unit mentioned in the preceding paragraph. 3. In addition to the positions noted as being included in the bargaining unit in paragraph 1 hereof, Articles 7(D), 9(C), and 10(D) of the current collective bargaining agreement between the parties provide that extracurricular activity positions, to the extent that they are held by full time teachers, are included in the bargaining unit. Some of the extracurricular positions have been and are now held by persons who are not full time teachers. 4. One of the extracurricular positions, mentioned in the pre- ceding paragraph, is that of Athletic Director. This position has been in existence for at least the last eleven years. 5. During the spring of 1983, the employee who was then com- pleting his third year of service to the District as the Athletic Director was not granted a renewal contract for said position. -3- _____________________________________________________________________ 6. As a result of the non-renewal mentioned in the preceding paragraph, the Athletic Director position became vacant. 7. In accordance with Article 9(C) of the collective bargaining agreement between the parties, the job opening for the Athletic Director position was posted between June and August of 1983. 8. No bargaining unit employees applied to fill the Athletic Director vacancy, in response to the notice mentioned in the pre- ceding paragraph. 9. During August of 1983, the Maine School Administrative District No. 43 Board of Directors met and decided that the Athletic Director vacancy should be re-posted and, if there were no applicants therefor, the Superintendent was authorized to appoint an acting Athletic Director to serve a one-year term. 10. In response to the Board of Directors' decision, noted in the preceding paragraph, the Athletic Director position vacancy was re-posted, no bargaining unit employee applied for the position, and the Superintendent appointed the high school Assistant Principal to serve as acting Athletic Director for a one-year term. 11. While employed as a teacher by the District, the high school Assistant Principal served for eight years as the Athletic Director. 12. From April of 1980 to November 14, 1983, the qualifications required for the Athletic Director position were: "1. Minimum of one (1) year as a coach or athletic director 2. Must be a high school staff member 3. Must demonstrate organizational capabilities 4. Such alternatives to the above qualifications as the Board of Directors may find appropriate and acceptable." 13. On or about November 14, 1983, the Maine School Administrative District No. 43 Board of Directors adopted a new job description for the Athletic Director position. 14. The job description mentioned in the preceding paragraph amended the qualifications for the Athletic Director position, cited in paragraph 12, by renumbering qualification 3 as number 2 and by -4- _____________________________________________________________________ replacing number 2 with the following: "3. Must hold administrative certification" 15. While the "Job Goal" section of the Athletic Director job description remained essentially unchanged in the November 14, 1983 document, the discussion of the classification's duties was greatly expanded therein. The April, 1980 job description merely stated that the Athletic Director "supervises" coaches while the duties listed in the November, 1983 job description are as follows: "1. Supervise, evaluate, discipline and adjust grievances of coaches. 2. Assists the principal in screening applicants for coaching positions. 3. Participates in the planning of negotiations strategies with the Administrative team. 4. Assumes the responsibility for compliance with district athletic policies." 16. Serving under the April, 1980 job description, the Athletic Director supervised the coaches, recommended discipline for the coaches to the principals, and enforced compliance with District athletic policies. The Athletic Director frequently assisted in the hiring of coaches under the former job description; however, his role in that process was less formal than at present. 17. In performance of the duties listed in the November, 1983 job description and cited in paragraph 15 above, the Athletic Director has done the following: a. Supervised coaches, verbally disciplined a coach, and informally adjusted a grievance. Since no formal evaluation forms exist to rate the perform- ance of coaches, the acting Athletic Director has evaluated coaches as part of his teacher perform- ance evaluation. This latter evaluation was con- ducted by the Athletic Director within his duties as Assistant Principal. b. Assisted the high school Principal in hiring two coaches. c. Enforced the District athletic policies. 18. The Athletic Director has not participated in any collective bargaining or labor negotiations-related activities, on behalf of management, under either the old or the new job description. -5- _____________________________________________________________________ 19. The "performance responsibilities" sections are essentially the same in the old and new Athletic Director job descriptions. 20. Unlike the full time teachers and the employees holding the other extracurricular positions, the Athletic Director has no direct student instructional or supervisory responsibilities. The duties of the Athletic Director, as outlined in several of the above para- graphs, primarily involve supervising and coordinating the activities of the other unit employees, the coaches. 21. All of the present unit employees share common determination of labor relations policy in that the policies for all of them, includ- ing the Athletic Director, are determined by the relevant collective bargaining agreement or by the Board of Directors. All of the full time teachers and the Athletic Director are supervised by the Prin- cipals; therefore, they share common supervision. 22. All extracurricular activities positions in Maine School Administrative District No. 43, including the Athletic Director, are salaried classifications and the amount of the stipends are set by the collective bargaining agreement between the parties. 23. None of the extracurricular positions, as such, enjoy any employment benefits. The hours of work for the athletic coaches are dependent upon their respective sports, while the relevant collective bargaining agreement provides that the Athletic Director, subject to certain conditions and restrictions, is to receive release time of one period per school day to perform his/her duties. The Athletic Director is now and has, in fact, been a year-round position. The other athletic coaches serve only during their respective "seasons" and the other extracurricular positions serve only during the school year. 24. There are no minimum qualifications, skills, or training required by the Maine Department of Education and Cultural Services for any of the non-academic extracurricular positions in the District. As noted in paragraph 14 above, the Board of Directors now requires the Athletic Director to hold administrative certification. This requirement and the inherent nature of the position indicate that -6- _____________________________________________________________________ the position requires labor relations supervisory skills which are not needed in the other extracurricular positions. 25. The Athletic Director is in constant professional contact with the other non-academic extracurricular employees. 26. The Athletic Director has an office at the high school where the athletic files are kept. The Athletic Director's telephone is answered in the main office, at the high school. 27. The Athletic Director position has been in the bargaining unit and its stipend and release time have been bargained for at least the last 10 years. 28. The School Administrative District No. 43 Teachers Association currently represents, at least to the extent of negotiating salaries therefor, all extracurricular positions, including the Athletic Director. 29. The Employer's organizational structure is as follows: the Board of Directors sets policies, the Superintendent reports to the Board of Directors and executes policy, the Principals report to the Superintendent and supervise the teachers and the Athletic Director. 30. Except as noted in paragraph 14 through 18 above, the facts contained in paragraphs 20 through 29 have applied to Maine School Administrative District No. 43 for the past several years. 31. Other employees in the District who exercise supervisory authority over other employees, such as the Principals and high school Assistant Principal, are not organized into a bargaining unit. 32. The Maine School Administrative District No. 43 Board of Directors and the School Administrative District No. 43 Teachers Association have attempted and were unable to agree on the modifi- cation in the composition of the bargaining unit, mentioned in para- graph 1, supra, which was sought in this proceeding and there was no question concerning representation involved herein. DECISION Unit clarification proceedings are authorized by and are con- ducted pursuant to 26 M.R.S.A. Section 966(3). Section 966(3) of the -7- _____________________________________________________________________ Act reads: "Unit clarification. 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 bar- gaining 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." The four procedural prerequisites to the hearing examiner's proper exercise of jurisdiction in unit clarification proceedings, which are set forth in the above section, have been met herein. The Union is the currently recognized bargaining agent for the unit in contention, the Employer is the petitioner herein, the parties attempted and failed to reach agreement on the unit modification sought, and there is no question concerning representation. Section 966(3) of the Act raises, as a threshold issue, the question of whether the circumstances surrounding the formation of the bargaining unit at issue have changed enough to mandate making a change in the composition of the unit. The Labor Relations Board has held that the petitioner, in unit clarification proceedings, bears the burden of alleging that a change has transpired, in the factual basis upon which the unit was originally constituted, since the creation thereof. The petitioner must also establish the occurrence of said change through relevant evidence. State of Maine and Maine State Employees Association, Interim Order, MLRB No. 82-A-02, p. 16 (June 2, 1983). Since the language in the unit clarification sections of the State Employees Labor Relations Act, 26 M.R.S.A. 979-E(3), is identical to that in the Municipal Act cited above, the Board's interpretation thereof is adapted herein. Once the petitioner has alleged and established that a change, in the circumstances surrounding the formation of the bargaining unit being examined, has occurred, the hearing examiner will determine whether said change, within the context of all of the relevant evidence, is sufficient to warrant the change sought in the petition. -8- _____________________________________________________________________ The Employer has alleged that certain changes have been made in the Athletic Director's duties, since the bargaining unit was created. The changes involved an increased emphasis on the managerial and supervisory aspects of the position. The Employer satisfied its threshold burden and substantiated the alleged change by establishing that: (1) the extracurricular position performance evaluation process has become formalized and said evaluations, for the non-academic extracurricular positions, are now done by the Athletic Director, (2) the Athletic Director now has express authority to discipline the athletic coaches, and (3) the Athletic Director presently has authority to adjust the grievances of the athletic coaches. Further- more, the minimum standards for the Athletic Director position have been changed to include a requirement that the employee in that classification hold administrative certification. These changes have been implemented by the Employer, as established through rele- vant evidence at the hearing, and, therefore, the Employer has met its burden in connection with the threshold issue noted above. Since the threshold requirement has been met herein, the hearing examiner will procede to analyze and decide the remaining issues. The first issue raised by the Employer's petition is whether the Athletic Director's changed duties have transformed the position into a confidential classification, within the meaning of Section 962(6)(C) of the Act. That section excludes any employer "[w]hose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head, body, department head or division head" from the collective bargaining aegis of the Act. Employees who are confidential may not, under Section 966(1) of the Act, be included in any bargaining unit. The Employer bases the alleged confidential exclusion in this case on the following language in the Athletic Director's new job description: "DUTIES: . . . 3. Participate in the planning of negotiations strategies with the Administrative team." Despite this duty assignment, the evidence produced at the hearing clearly demonstrated that the Athletic Director has never actually -9- _____________________________________________________________________ been involved in any collective bargaining or labor negotiations- related activities on behalf of management. The Labor Relations Board, in an analogous case, stated: "The City Administrator's testimony that since the subordinate officers in the Detective Division have recently been included in a bargaining unit, the Captain of the Detective Division will participate in future negotiations on behalf of the City, does not establish that the Captain is a confidential employee within the meaning of Section 962[6]. In determining confidential employee status, we consider the duties currently being performed by the alleged confidential employee. We can- not base a finding of confidentiality upon testimony which projects what an employee's duties may be in the future. In the event that a public employee's duties change so as to imply a confidential relationship under Section 962[6], the correct procedure is for the public employer to file a Petition for Unit Clarification pur- suant to 26 M.R.S.A. 966(3) and in accordance with Rule 1.13 of the Board's Rules and Procedures." Waterville Police Department and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Hearing, p. 4 (Oct. 4, 1978), cited with approval in Maine School Administrative District No. 14 and East Grand Teachers Association, MLRB No. 83-A-09, p. 9 (Aug. 24, 1983). The hearing examiner is bound to follow the legal precedent set by the Board and must, therefore, hold that the Athletic Director is not a confidential employee at the present time. If at some future time the Athletic Director does indeed participate in collective bargaining activities on behalf of management and said participation does con- stitute confidential conduct, the Employer may file a new petition for bargaining unit clarification. The hearing examiner, at that time, will consider the actual duties performed by the Athletic Director and will rule on the petition accordingly. The Employer has alleged that the Athletic Director position no longer shares a clear and identifiable community of interest with the other classifications in the current bargaining unit and, therefore, should be excluded therefrom on that basis. Section 966(2) of the Act provides that positions within the same bargaining unit should share such a community of interest. The Labor Relations Board has outlined eleven factors for evaluating the presence or absence of community of interest. Those factors are: -10- _____________________________________________________________________ "(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 public employer's organizational structure." Council 74, AFSCME and City of Bangor, MLRB No. 79-A-01, pp. 3-4 (Oct. 17, 1979). At the hearing, evidence was received concerning ten of the above eleven factors. The facts relevant thereto are reported in paragraphs numbered 20 through 29 of the foregoing findings of fact. The Athletic Director's work is different from that performed by the other bargaining unit employees and the Athletic Director posi- tion requires different skills from those involved in the other unit classifications. On the other hand, the Athletic Director: shares common supervision and determination of labor relations policy with the other unit employees; has the earnings for the position determined in the same manner as the other extracurricular classifications; has no employment benefits, like the other extracurricular employees; is in constant professional contact with the other non-academic extra- curricular employees; is in close geographic proximity with all of the unit employees; has been represented by the Union, within the current bargaining unit, for at least the last ten years; and falls in the same position as the full time teachers in the Employer's organizational structure, in that both classifications report to the Principals. Weighing all of these factors, the hearing examiner holds that the Athletic Director classification continues to share a clear and identifiable community of interest with the other posi- tions in the current bargaining unit. The final issue raised by the Employer's petition for unit clarification is whether, as a supervisory position, the Athletic Director classification should be excluded from the current bargaining unit, since said unit includes several positions supervised by the Athletic Director. Section 966(1) of the Act sets forth a tripartite -11- _____________________________________________________________________ test for determining whether allegedly supervisory employees should be excluded from the same bargaining unit containing employees whom they supervise. This test is outlined as follows: "In determining whether a supervisory position should be excluded from the proposed bargaining unit, the executive director or his designee shall consider, among other criteria, if the principal functions of the position are characterized by performing such management control duties as scheduling, assigning, overseeing and reviewing the work of subordinate employees, or performing such duties as are distinct and dissimilar from those performed by the employees supervised, or exercising judgment in adjusting grievances, applying other established per- sonnel policies and procedures and in enforcing a col- lective bargaining agreement or establishing or parti- cipating in the establishment of performance standards for subordinate employees and taking corrective measures to implement those standards." Applying the above standard to the facts herein, the Athletic Director is clearly a supervisory employee. The position satisfies the first tine of the above test in that the Athletic Director oversees and reviews the work of subordinate employees, through evaluating the job performance of the athletic coaches. The classification meets the criteria set by the second prong of the test, since the Athletic Director is the only bargaining unit employee who has no direct student supervisory duties and who supervises other unit employees. The latter responsibility is distinct and different from the duties of the other unit employees, since only the Athletic Director performs such functions and because labor relations supervisory functions are very different from teaching and supervising students. Finally, the position rises to the level envisioned in the third prong of the above test because the Athletic Director does exercise independent judgment in adjusting the coaches' grievances and takes corrective measures to implement performance standards by rating the performance of subordinate employees. The above analysis, if literally adopted, would mandate the creation of a separate supervisory employee bargaining unit, consisting of only one employee. This result occurs because, although the Athletic Director is a supervisory employee, he is also a non- confidential public employee, within the meaning of Section 962(6) of the Act. As a public employee, the Athletic Director is entitled -12- _____________________________________________________________________ to participate in and to be covered by the collective bargaining protections of the Act. Although it might be most appropriate to place the Athletic Director in a bargaining unit composed of the District's non-confidential supervisory employees, no such unit exists. The creation of a single-employee bargaining unit would be contrary to the Labor Relations Board's policy "of discouraging the proliferation of small bargaining units in a single department." Town of Yarmouth and Teamsters Local Union No. 48, MLRB No. 80-A-04, p. 4 (June 16, 1980); accord, City of Bath and Council 74, AFSCME, MLRB No. 81-A-01 (Dec. 15, 1980). The rationale for avoiding such fragmentation is as follows: "Small bargaining units must be bargained for and serviced just as do large bargaining units. The State is obligated to provide under 26 M.R.S.A. Section 965 the same mediation and arbitration services for small units as are provided for large units. The formation of small bargaining units among employees in the same department can thus result in the employer, the union, and the State expending an amount of time, energy and money all out of proportion to the number of persons served." Teamsters Local Union No. 48 and Bucksport School Department, Unit Determination Report, p. 3 (Mar. 13, 1980); cited with approval in Maine School Administrative District No. 14 and East Grand Teachers Association, supra, at 13. The Board's non-proliferation policy is one of the "other criteria" to be considered in deciding whether to exclude a supervisory employee from the same bargaining unit as the employees supervised thereby. Idem. In light of the Board's policy and considering that the Athletic Director does share a clear and identifiable community of interest with the other positions in the current bargaining unit, said position will remain in the current unit. The current bargaining unit remains appropriate for the purpose of collective bargaining. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted in 26 M.R.S.A. Section 966, it is ORDERED: -13- _____________________________________________________________________ The Petition for Unit Clarification filed by the Maine School Administrative District No. 43 Board of Directors, on January 17, 1984, be and hereby is dismissed. Dated at Augusta, Maine, this 23rd day of April, 1984. MAINE LABOR RELATIONS BOARD /s/________________________________ Marc P. Ayotte Hearing Examiner The parties are advised of their right, pursuant to 26 M.R.S.A. Section 968(4), to appeal this report to the full Labor Relations Board by filing a notice of appeal with the Board within 15 days of the date of this report. -14- _____________________________________________________________________