MSAD 14 and East Grand Teachers Assoc., No. 83-A-09, reversing in part and affirming in part 83-UC-13 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 83-A-09 Issued: August 24, 1983 ___________________________ ) MAINE SCHOOL ADMINISTRATIVE ) DISTRICT NO. 14 ) ) and ) REPORT OF APPELLATE REVIEW ) OF UNIT CLARIFICATION REPORT EAST GRAND TEACHERS ) ASSOCIATION ) ____________________________) This is an appeal of a unit clarification report, filed pursuant to 26 M.R.S.A. Section 968(4) on June 15, 1983, by Maine School Administrative District No. 14 ("Employer"). The hearing examiner, in his decision dated June 1, 1983, determined that the changes in the duties of the high school principal employed by the Dis- trict, since the formation of the bargaining unit in question, did not constitute sufficient changes to warrant modification of the composition of said unit, within the meaning of 26 M.R.S.A. Section 966(3). The hearing examiner also held that projected future duties of the high school principal, involving collective bargain- ing, cannot be relied upon to establish that the principal is a confidential em- ployee, within the definition of 26 M.R.S.A. Section 962(6)(C). The Employer con- tends, on appeal, that the hearing examiner erred as a matter of both law and fact in denying the unit clarification petition. A hearing on this matter was held on July 12, 1983, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Harold S. Noddin. The Appellant District was represented by Harry R. Pringle, Esq., and the East Grand Teachers Association ("Union") was represented by Mr. Harold B. Dickinson, Northern Maine UniServ District Director, Maine Teachers Association. The parties were given full opportunity to examine and cross-examine witnesses, introduce evidence, and make argument, within the strictures applicable to this appellate proceeding. Both parties filed post-hearing briefs, which have been con- sidered by the Maine Labor Relations Board. JURISDICTION Maine School Administrative District No. 14, the original petitioner in the unit clarification proceeding and the Appellant herein, is a public employer, within [-1-] ____________________________________________________________________________________ the definition of 26 M.R.S.A. Section 962(7). Maine School Administrative District No. 14 is an aggrieved party, within the meaning of 26 M.R.S.A. Section 968(4). The East Grand Teachers Association is the recognized exclusive bargaining agent for the certified professional employees, excluding the Superintendent, of Maine School Administrative District No. 14, within the definition of 26 M.R.S.A. Sec- tion 962(2). The jurisdiction of the Maine Labor Relations Board ("Board") to hear this appeal and render a decision and order lies in 26 M.R.S.A. Section 968(4). FINDINGS OF FACT Upon review of the entire record, the Board adopts, as modified below, the following findings of fact made by the hearing examiner: 1. Maine School Administrative District No. 14 is a public employer, as defined in 26 M.R.S.A. Section 962(7). 2. The East Grand Teachers Association is the recognized exclusive bargain- ing agent for the certified professional employees, including the high school prin- cipal and excluding the Superintendent, of Maine School Administrative District No. 14, within the meaning of 26 M.R.S.A. Section 962(2). 3. The bargaining unit, mentioned in the preceding paragraph, was formed on November 12, 1970, when Maine School Administrative District No. 14 and the East Grand Teachers Association agreed upon a unit composed of the "Classroom Teachers and Principals" of Maine School Administrative District No. 14. 4. The current description of the unit, outlined in paragraph 2 hereof, is contained in Article I of the 1982-1983 collective bargaining agreement between Maine School Administrative District No. 14 and the East Grand Teachers Associa- tion. 5. The bargaining unit, described in paragraph 2 above, presently includes approximately 23 employees, including the high school and elementary school principals. 6. George Davis served as the high school principal from August, 1966, to March 1983, when he resigned to take a position in another school district. 7. From November 12, 1970, the date of formation of the relevant bargaining unit, to June 15, 1983, the date on which the petition for unit clarification herein was filed, the duties of the high school principal have change significantly. -2- ____________________________________________________________________________________ 8. Of the seven instructional periods of the school day in 1970, the princi- pal taught civics or driver's education for four periods each day. In 1983, the principal taught only one period, per school day, for part of each academic semes- ter, and no longer taught civics. 9. The principal now uses the time, formerly spent teaching, in performing supervisory duties. 10. In 1970, the principal did not conduct performance evaluations of the high school teachers. Such evaluations are now performed regularly by the princi- pal. 11. In 1970, the principal had no input on the content of the high school curriculum. Since that time, the number of students enrolled at the high school has risen, allowing the school to offer a greater variety of courses. As a result of the academic diversification at the high school, the principal now has a sig- nificant involvement in the course offerings and curriculum development at the school. 12. The principal is now involved in the hiring process for high school teachers by screening applicants, interviewing candidates, and making hiring recommenda- tions to the Superintendent. The principal was not involved in the hiring process in 1970. 13. Under the collective bargaining agreement, mentioned in paragraph 4 hereof, the principal serves as the first level of the grievance procedure for high school teachers. 14. The principal has never been a member of the Maine School Administrative District No. 14 negotiating team during collective bargaining nor has he in any way ever participated, on behalf of the employer, in such bargaining. 15. In the area of collective bargaining, Maine School Administrative District No. 14 intends that the new, yet to be hired, principal will be used as a resource person for the District's negotiators. The Employer does not intend to have the new principal sit at the bargaining table on behalf of the District. 16. The high school principal schedules, assigns, oversees and reviews the work of the high school teachers. 17. The duties performed by the high school principal, noted in paragraphs 10, -3- ____________________________________________________________________________________ 11, 12, and 13 above, are distinct and dissimilar from those performed by the high school teachers. 18. In addition to exercising judgment in adjusting grievances, cited in paragraph 13 hereof, the principal applies established personnel policies and procedures, in the case of the high school teachers. DECISION This unit clarification appeal is being conducted under the authority granted to the Board by the relevant provisions of the Municipal Public Employees Labor Relations Act ("Act"), Title 26 M.R.S.A. Section 961, et seq. The hearing, which preceded this order and upon which our decision herein is based, was an appellate proceeding and not a hearing de novo on the facts in dispute. We have often discussed the limits placed on the introduction of evidence during such a proceeding and the nature of the hearing itself. In Teamsters Local Union No. 48 and City of Portland, Report of Appellate Review of Unit Determination Hearing, at 5-6 (February 20, 1979), we stated: " . . . Section 968(4) of the Act provides the right to appeal a hearing examiner's report to a party aggrieved by the report. That section states that upon the receipt of an appeal, the Board shall conduct a hearing in the manner specified in Section 968(5) (B), which provides that the parties to a hearing have the right to give testimony. Section 968(4) also provides that after the hearing, the Board shall issue a decision which 'shall either affirm or modify the ruling or determination of the executive director and specify the reasons for such action.' The appellate hearing con- ducted by the Board pursuant to Section 968(4) thus is for the purpose of reviewing the hearing examiner's rulings and determina- tions, and either affirming or modifying these rulings and determ- inations. "In ascertaining whether the hearing examiner's rulings and determinations should be affirmed or modified, the Board's task is to review the evidence upon which the hearing examiner based his decision. New evidence not offered to the hearing examiner clearly is inadmissable for purposes of this review. There is nothing in Section 968(4) or (5) or in any other provision of the Act which suggests that the Board when hearing an appeal of a unit determination report may conduct a de novo hearing and admit new evidence not offered at the unit determinaUon hearing. Such new evidence obviously could distort our review of the hearing examiner's report. Since the unit determination hearing is the only evidentiary hearing on unit matters provided for in the Act, it would obviously offend both the provisions of the Act, and common sense to suppose that a party was entitled to two evidentiary hearings on a bargaining unit dispute - one before the hearing examiner and the second before the full Board. Thus, as -4- ____________________________________________________________________________________ we held in our Report of Appellate Review of Unit Determination Hearing, in Brunswick Ass'n of Paraprofessionals and Non-Teaching Personnel and Brunswick Superintending School Comm. (1975): ' . . . we believe that the appeal procedure, authorized in 968, 4, of the Act, should be based on a clear and thorough review of the evidence adduced at the hearing before the Executive Director. To hold otherwise would open the appeal procedure to a continuous and never-ending flow of new allegations. Our charge is to review the Unit Determination Report of the Executive Director pursuant to the provisions of 968, 4, of the Public Employees Labor Relations Act and, under that authority, we must look at the facts and evi- dence made available to the Executive Director when he acted as a hearing examiner pursuant to 966 of the Act.' "An important policy consideration which supports the procedures for determining bargaining unit questions set forth in the Act is that it would be a waste of time and resources for the Board to be primarily responsible for determining each and every bargaining unit question which arises. In terms of expediency and efficiency, such determinations are best made at the the administrative level, subject to limited review by the full Board. This is the procedure followed by the National Labor Relations Board and by most public sector labor boards in the country. If the full Board were primarily responsible for making these determinations, resolution of our already over- burdened prohibited practice complaint docket would become hopelessly delayed. "In addition, the procedures set forth in the Act also have the benefi- cial effect of establishing a time certain at which the parties must be pre- pared to present their complete case regarding a dispute over a unit matter, i.e., at the unit determination hearing. Because the Board will not admit new evidence not offered at the unit determination hearing, there should be no incentive for the parties to use the unit determination hearing to 'feel out' the opposing party's case or, subsequent to the unit determination hearing, to attempt to 'create a record' for use on appeal to fill gaps made evident at the evidentiary hearing. "The record which we review on an appeal pursuant to Section 968(4) of the Act is the unit determination report itself, any documentary evi- dence offered to the hearing examiner, any admissible testimony introduced at the appellate hearing, and any briefs filed by the parties on appeal. It is standard procedure for the unit determination report to contain the names of the witnesses who testified at the hearing, a description of the documents offered into evidence, and a discussion of the relevant facts and the issues of the case as perceived by the hearing examiner. We thus are able to determine by examining the unit determination report the wit- nesses who appeared at the hearing, the documents which were offered as exhibits, and the issues which were raised by the parties." We subsequently held that the foregoing rule and analysis also applied to appellate reviews of unit clarification reports. City of Bath and Council 74, AFSCME, MLRB No. 81-A-01, at 6 (Dec. 15, 1980). In this case, the Employer argued that, at -5- ____________________________________________________________________________________ the hearing before the Board, it should be allowed to introduce evidence not presen- ted to the hearing examiner, in order to amplify and expand the record herein. The Employer averred that it should be allowed to do so because the Employer was not represented by counsel, in the proceeding before the hearing examiner, and because the Board should consider all relevant evidence in discharging its statutory obli- gation on bargaining unit questions. We hold that neither proffered rationale is persua- sive for abandoning our long-standing rule. First, the Employer, at its option, could have been represented by an attorney or other labor relations advisor at the hearing below. The decision not to be so represented was made by the Employer and the Employer must now accept the consequences of its decision. To hold otherwise would provide an incentive for parties to appear pro se at unit hearings, discover the other party's case, and then, on appeal, appear with counsel and present their full position on the unit question at issue. Such practice is contrary to the in- tent of the Act and would totally subvert the authority of the Board's hearing ex- aminers over bargaining unit questions. The Employer's alternate rationale also fails. As was noted in City of Portland, supra, the Act, in Section 966(3) incor- porating the provisions of Section 966(1), places the primary jurisdiction and responsibility for determining bargaining unit questions on the Board's hearing ex- aminers. The Board's role, in the bargaining unit context, is to review the hear- ing examiner's findings of fact and determinations, through appellate proceedings. While it is important that bargaining unit determinations be made on the basis of all available relevant evidence, the time and place for the introduction of said evidence is before the hearing examiner. The Board, upon invocation of its appel- late jurisidction in unit matters, will review the hearing examiners' findings of fact and rulings with reference to the record before the hearing examiner. Since this appellate proceeding concerns the hearing examiner's findings of fact and conclusions of law, we will set forth the applicable standard of review used by this Board to evaluate the correctness of the hearing examiner's actions. We have often stated that "[w]e will overturn a hearing examiner's rulings and determinations if they are 'unlawful, unreasonable, or lacking in any rational factual basis.'" City of Bath and Council 74, AFSCME, supra, at 6. See also, Town of Yarmouth and Teamsters Local Union No. 48, MLRB No. 80-A-04, at 5 (June 16, 1980). The first contention made by the Employer is that the hearing examiner erred, as a matter of fact and of law, in determining that the threshhold requirement for a unit clarification, a sufficient change in the circumstances surrounding the -6- ____________________________________________________________________________________ formation of an existing bargaining unit to warrant modification in the composition of that bargaining unit, had not been met. Although, under Rule 1.09(D) of our Rules and Procedures, the hearing before the hearing examiner is "investigatory and not adversary" and "[t]here are no burdens of proof," we have held that the "substantial change" requirement is a threshhold question on which the petitioner, in a unit clarification proceeding, "bears the burden of alleging the requisite change and, further, of establishing the occurrence of said change in the unit then at issue. " State of Maine and Maine State Employees Association, MLRB No. 82-A-02, Interim Order, at 15-16 (June 2, 1983). Applying the foregoing standard of review to the hearing examiner's determination that no substantial change had been established in this case, Maine School Administrative District No. 14 and East Grand Teachers Association, Unit Clarification Report, at 3 (June 1, 1983), we must reverse the hearing examiner's holding in this regard. Paragraphs numbered 7, 8, 9, 10, 11, 12 and 13, of our foregoing findings of fact, clearly establish the occurrence of the requisite substantial change, in the circumstances surrounding the formation of the bargaining unit in question, to warrant consideration of modi- fication of the composition thereof. Having reversed the hearing examiner on this threshhold question, we must now examine the remaining issues raised by the Employer, both before the hearing examiner and before this Board. The Employer alleges that the high school principal should be excluded from the collective bargaining coverage of the Act, because the Employer intends to use the principal, in the future, as a resource person for the purpose of collective bargaining. In the alternative, the Employer avers that, as a supervisory employee, the Act requires that the principal be removed from inclusion in the same bargain- ing unit with teachers who do not exercise supervisory authority. We will discuss each of the Employer's contentions, in detail, below. Although holding that the Employer had failed to establish the necessary thresh- hold change, the hearing examiner, at pages 4 through 6 of his decision, went on to discuss the Employer's averment that the principal be excluded from collective bargaining coverage as a "confidential" employee, within the meaning of Section 962(6)(C) of the Act. Since this issue was raised before the hearing examiner, we may review the same at this juncture. The test applied to determine whether an em- ployee is "confidential," as defined in Section 962(6)(C) of the Act, has recently been amplified and clarified in our decision in the case of State of Maine and Maine State Employees Association, supra. Although that case was decided under the parallel provisions of the State Employees Labor Relations Act, 26 M.R.S.A. Section -7- ____________________________________________________________________________________ 979, et seq., the analysis discussed therein is equally applicable hereto. In State of Maine and Maine State Employees Association, we stated: "Our previously announced standard, defining 'confidential' employees under Section 979-A(6)(C) of the Act, continues to have validity and vitality. We believe that our standard is consistent with that enunciated by the United States Supreme Court in [NLRB v.1 Hendricks County, [454 U.S. 170, 102 S.Ct. 216, 70 L.Ed.2d 323 (1981]. The latter decision, when read within the context of the State Act, serves to further clarify the definition of 'confidential' employees. Our standard for the exclusion of 'confidential' employees is that those per- sons affected are employees who are 'permanently assigned to collective bargaining or to render advice on a regularly assigned basis to management personnel on labor relations matters.' State of Maine and Maine -State Employees Association, [Report of Appellate Review of Unit Clarifiation Report (Mar. 2, 1979)], at 8. As we have noted above, the 'labor relations' matters, in the foregoing context, do not include contract administration ac- tions or duties. Applying Hendricks County to this context, those employees who have, as part of their work responsibilities access to the employer's negotiations positions, in advance of said posi- tions being disclosed at the bargaining table, and who, as an integral part of their job duties, assist and act in a confidential capacity with respect to persons who formulate or determine the employer's bargaining positions or bargaining strategy are 'confidential' em- ployees, under Section 979-A(6)(C) of the Act." Case No. 82-A-02, Interim Order, at 10. In the same decision, we further elucidated the above standard by discussing its application by the Board's hearing examiners. We held as follows: "The State's second argument is that the hearing examiner erred by requiring that an employee's involvement in collective bargaining matters be significant as well as necessary to warrant exclusion on 'confidential employee' grounds. We hold that the hearing examiner has correctly interpreted our long-standing policy in this regard. We have often stated that, to be a 'confidential employee,' one must be 'permanently involved in collective bargaining matters on behalf of the public employer or that the duties performed by the employee involve the formulation, determination and effectuation of the employer's employee relations policies.' Waterville Police Department and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Hearing, at 3 (10/4/78). This requirement, that the employee's parti- cipation in collective bargaining matters be significant, does not set out a strict empirical formula mandating the inclusion or exclusion of employees from collective bargaining. That determination must be made on an ad hoc basis by the hearing examiner on the facts developed through the unit hearing process. The requirement of significance of an employee participation in collective bargaining matters may be satisfied either when the individual's involvement is substantial, although it is performed -8- ____________________________________________________________________________________ rarely, or when the activity is relatively minor but is undertaken on a regular basis as part of the employee's job functions. The signifi- cance of the employee's involvement turns on the nature of his or her access to information which could, if revealed to the bargaining agent, jeopardize the employer's collective bargaining position, Town of Fair- field [and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Hearing (11/27/78)] at 3, and also on what the employee does with such information. The employee must use said information in the formulation and determination of the employer's labor relations policies or collective bargaining proposals in order to be found to be a confiden- tial employee. Waterville Police Department, supra, at 3." Ibid., at 18. In applying the above criteria, the hearing examiner below looked at the duties which the principal was performing or had performed in the past. In doing so, the hearing examiner determined that the principal was not a confi- dential employee, within the meaning of Section 962(6)(C) of the Act. We must affirm the hearing examiner's holding. The evidence before both the hearing examiner and the Board clearly established that the high school principal has never participated in any way in the collective bargaining process on behalf of the Employer. The Employer's allegation of confi- dentiality is based exclusively on its intention to involve the principal in col- lective bargaining matters, on behalf of the Employer, in the future. In Water- ville Police Department, supra, at 4 we held: "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 partici- pate 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 con- sider the duties currently being performed by the alleged confidential employee. We cannot base a finding of confidentiality upon testimony which projects what an employee's duties may be in the future. In the event that a public employee's duties change so as to imply a confiden- tial relationship under Section 962[6], the correct procedure is for the public employer to file a Petition for Unit Clarification pursuant to 26 M.R.S.A. 966(3) and in accordance with Rule 1.13 of the Board's Rules and Procedures. At the unit clarification hearing, the employer is afforded the opportunity to show that the employee's changed duties involve collective bargaining functions or employee relations matters." The Employer has argued that the above holding, in a unit determination appeal, is inapposite in the unit clarification context. The latter application was described as "draconian" and "a classic catch-22 situation." Employer's Brief, at 13, n.1. We disagree for two reasons. First, the Employer's contention, that a bargaining unit employee can never perform confidential collective bargaining duties, is based on inaccurate assumptions. These premises are that (1) all bargaining unit -9- ____________________________________________________________________________________ employees are union members and (2) that any confidential collective bargaining in- formation shared by an Employer with a unit employee, as an integral part of the latter's job duties, will be transmitted to the union. The first assumption is not only incorrect because of the provisions of Section 963 of the Act but was also clearly demonstrated in this case. The high' school principal was not a union member during the last year of his service with the Employer. The second, and more critical assump- tion, is equally erroneous. Some bargaining unit supervisory employees, such as the principal in this case, may, through the evolution of the collective bargaining process, be assigned, as natural outgrowths of their job responsibilities, confi- dential collective bargaining duties, on behalf of the public employer. In making such assignments, the public employer may admonish the affected employee that the duties are confidential and are not to be discussed with the union. An employee ignoring said warning and relating the confidential information to the union would be subject to discipline by the employer. So long as such assignments are inherently related to the employees' work duties and the decision to involve them is not made with the subjective intent to, thereby, deprive employees of collective bargaining coverage, the assignments are permitted under the Act. The second reason that the Employer's contention, that a bargaining unit em- ployee can never perform confidential collective bargaining duties, is erroneous is that the same does not inherently occur in reality. An example of the lack of inherency in the Employer's argument is the situation which has developed concern- ing several employees of the State of Maine and which was the subject of our recent decisions in State of Maine and Maine State Employees Association, MLRB No. 82-A-02, Interim Orders (June 2, 1983 and August 9, 1983). From 1976, the date when the State employee bargaining units were first created, to 1980, the date of the petition for unit clarification in the above case, several State bargaining unit employees had assumed and were performing confidential collective bargaining duties. As a result of a petition for unit clarification filed by the State, as the public employer, those employees were excluded from collective bargaining coverage as con- fidential employees. In light of the foregoing analysis, we hold, as did the hearing examiner be- low, that employees must actually perform confidential collective bargaining duties before they can be considered to be confidential employees, within the meaning of Section 962(6)(C) of the Act. If the new principal hired by the Employer actually discharges confidential collective bargaining responsibilities, as defined above, on behalf of the Employer, the Employer should then file a petition for bargaining -10- ____________________________________________________________________________________ unit clarification in the manner provided in Rule 1.13 of the Board's Rules and Pro- cedures. The hearing examiner, at that time, will consider the principal's actual duties and will rule on the petition accordingly. There is no dispute in this case that the high school principal, employed by Maine School Administrative District No. 14, is a supervisory employee, within the meaning of Section 966(1) of the Act, The second major issue raised by the Employer is whether, as a supervisory employee, the principal may be included in the same bargaining unit as teachers who do not exercise supervisory responsibilities. Sec- tion 966(1) of the Act states: "In the event of a dispute between the public employer and an employee or employees as to the appropriateness of a unit for pur- poses of collective bargaining or between the public employer and an employee or employees as to whether a supervisory or other posi- tion is included in the bargaining unit, the executive director or his designee shall make the determination, except that anyone excepted from the definition of public employee under section 962 may not be included in a bargaining unit. The executive director or his designee conducting unit determination proceedings shall have the power to administer oaths and to require by subpoena the attendance and testimony of witnesses, the production of books, records and other evidence relative or pertinent to the issues represented to them. In determining whether a supervisory position should be ex- cluded 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 manage- ment control duties as scheduling, assigning, overseeing and review- ing the work of subordinate employees, or performing such duties as are distinct and dissimilar from those performed by the employees supervised, or exercising judgment in adjusting grievances, applying other established personnel policies and procedures and in enforcing a collective bargaining agreement or establishing or participating in the establishment of performance standards for subordinate employees and taking corrective measures to implement those standards. Nothing in this chapter is intended to require the exclusion of principals, assistant principals, other supervisory employees from school system bargaining units which include teachers and nurses in supervisory posi- tions." The Employer, at pages 7 through 10 of its Brief, has argued that the legislative history of the last sentence of Section 966(1) and the intent of the Legislature, in enacting said sentence, mandate the exclusion of principals from bargaining units composed of classroom teachers. We, like the Employer, at page 7 of its Brief, have examined the two alternate interpretations of said sentence suggested by McGuire and Dench in Public Employee Bargaining Under the Maine Municipal Public Employees -11- ____________________________________________________________________________________ Labor Relations Law: The First Five Years, 27 Me. L. Rev. 29, 70, n.2O7 (1975). Unlike the Employer, we reject the authors' interpretation of the last sentence of Section 966(1). The Board believes that the Legislature, in enacting Section 966(1) as a whole intended that the executive director or his designee exercise discretion in determining the composition of bargaining units which are appropriate for the purposes of collective bargaining. The assignment of discretion to the executive director is recognized explicitly in the use of the word "should," in the introductory phrase of the next-to-last sentence of Section 966(1). Said dis- cretion has also been recognized by this Board in Town of Yarmouth and Teamsters, Local Union No. 48, supra, at 4, where we stated: "The Town misconceives the nature of the hearing examiner's responsibilities under 26 M.R.S.A. 966. As the hearing examiner correctly stated, it is his duty to determine whether the unit proposed by the petitioner is an appropriate one, not whether the proposed unit is the most appropriate unit. In this determination the hearing examiner has broad discretion, particularly in deciding community of interest questions. See, e.g., AFSCME, Pine Tree Council No. 74 and City of Brewer, Case No. 79-A-01 at 3-4 (Oct. 13, 1979)." We believe that, in enacting the last sentence to Section 966(1), the Legislature intended that, if the executive director, in the exercise of his discretion, de- cides that a separate supervisory employees bargaining unit is appropriate, in the context of a school district or department, then principals and assistant principals may be included in said supervisory employees bargaining unit. Without the last sentence of Section 966(1), the same rationale that motivated the executive director to constitute the supervisory employees' bargaining unit would, by logical extension, require the creation of a separate bargaining unit for assistant princi- pals and, under some circumstances, for principals. By enacting the last sentence of Section 966(1) of the Act, the Legislature sought to avoid the proliferation of small bargaining units, in school system bargaining units. We believe that the foregoing interpretation of 26 M.R.S.A. Section 966(1) is reasonable and is con- sistent with the intent of the Legislature and, therefore, we adopt the same. The hearing examiner below, at page 6 of his decision, determined, tacitly, that the high school principal was a supervisory employee. Despite this holding, however, the hearing examiner decided that creating a separate single-position bar- gaining unit for the principal would "fly in the face of the Board's policy of 'discouraging the proliferation of small bargaining units in a single department.'" Idem., citing Town of Yarmouth, supra, at 4. Section 966(1) of the Act clearly provides that non-confidential supervisory employees are entitled to collective -12- ____________________________________________________________________________________ bargaining coverage under the Act. The same Section of the Act provides that the executive director, in making bargaining unit determinations, shall consider, in addition to the standards outlined therein, "other criteria." Among such "other criteria" is the Board's policy cited by the hearing examiner. Town of Yarmouth, supra, at 4: City of Bath, supra, at 5. One of the Board's hearing examiners has, previously, outlined the rationale underlying our non-prolifera- tion rule. In Teamsters Local Union No. 48 and Bucksport School Department, Unit Determination Report, at 3 (Mar. 13, 1980), the hearing examiner stated: "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 ar- bitration 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." We expressly adopt said rationale herein. Furthermore, the creation of a single- member bargaining unit may well impede the individual, placed therein, from secur- ing the free exercise of his collective bargaining rights, in contravention of the spirit and intent of Section 963 of the Act. Town of Sabattus and Teamsters Local Union No. 48, MLRB No. 82-A-01, at 4 (Sept. 17, 1981). Considering the above criterion, we affirm the hearing examiner's decision to keep the high school principal in the existing comprehensive bargaining unit and we will so order. ORDER On the basis of the foregoing findings of fact and decision and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. Section 968(4), it is ORDERED: 1. The hearing examiner's finding of fact and conclusion of law, that no substantial change in the circumstances surrounding the formation of the Certified Professional Employees Bargaining Unit in Maine School Administrative District No. 14, between November 12, 1970 and April 20, 1983, contained in the Unit Clarification Report of June 1, 1983, be and hereby is reversed. 2. That the balance of the Unit Clarification Appeal, filed by Maine School Administrative District No. 14 on June 15, 1983, be and hereby is denied. 3. The hearing examiner's decision of June 1, 1983, in all respects other than that mentioned in paragraph 1 of this Order, be and hereby is affirmed. -13- ____________________________________________________________________________________ 4. The high school principal employed by Maine School Administrative District No. 14 shall remain in the existing bargaining unit com- posed of all certified professional employees, except for the Superintendent, of Maine School Administrative District No. 14. Dated at Augusta, Maine, this 24th day of August, 1983. MAINE LABOR RELATIONS BOARD /s/_________________________________________ Edward H. Keith, Chairman /s/_________________________________________ Don R. Ziegenbein, Employer Representative /s/_________________________________________ Harold S. Noddin, Employee Representative The parties are advised of their right, pursuant to Title 26 M.R.S.A. Sections 968(4) and 972, to seek review of this decision by the Superior Court by filing a complaint in accordance with Rule 80B of the Rules of Civil Pro- cedure within 15 days of the date of this decision. -14- ____________________________________________________________________________________