Labor Relations Commission

WORCESTER SCHOOL COMMITTEE and DISTRICT 65, UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), AFL-CIO AND TEAMSTERS, LOCAL 170 AND EDUCATIONAL ASSOCIATION OF WORCESTER/MTA/NEA, Case No. MCR-3597, February 17, 1987, 13 MLC 1471

The issues in this case are whether the Worcester School Committee (School Committee) is the public employer as defined by G.L. c.150E, s.1 for employees of the Worcester Child Development-Head Start Program, and if so, what is the scope of the appropriate bargaining unit(s)?

On November 14, 1985, District 65, United Automobile,Aerospace and Agricultural Implement Workers of America (UAW) filed a petition with the Massachusetts Labor Relations Commission (Commission) seeking to represent an approximately 109-member
bargaining unit composed of both professional and non-professional employees of the Worcester Child Development-Head Start Program. Subsequently, Teamsters, Local 170 (Teamsters) and the Educational Association of Worcester/MTA/NEA (EAW) moved to intervene. The Commission allowed their motions to intervene in February 1986.

Following an investigation and pursuant to notice, an expedited hearing was held on March 25, March 26, and April 23, 1986 before Charles Maguire, Jr., a duly designated hearing officer of the Commission. On April 29, 1986, the Commission redesignated the hearing as a formal hearing, and a final day of hearing was held on May 7, 1986. Full opportunity to be heard and examine and cross-examine witnesses was afforded to each party. On June 5, 1986, all parties entered into stipulations covering the facts for determining the scope of the unit(s). The parties seek to establish either one overall unit or, if this is found to be inappropriate, a separate unit of professional employees and a separate unit for nonprofessional employees in the Head Start Program. The School Committee and the EAW submitted post-hearing briefs on July 28, 1986, and the UAW submitted its post-hearing brief on July 30, 1986. The Teamsters, Local 170 did not file a post-hearing brief.

Based on the record as a whole, we determine that the School Committee is the public employer as defined by G.L. c.150E, s.1 for the employees of the Worcester Child Development - Head Start Program. Furthermore, we find that an overall unit of all Head Start employees is an appropriate unit for collective bargaining. We also find that, should a majority of the professional employees wish to be separately represented, separate units of professional employees and non-professional employees are appropriate.

The Worcester School Committee, by the Worcester Public School Department, is the grantee agency with the U.S. Department of Health and Human Services for the Worcester Child Development-Head Start Program. The term "grantee" means the public or private nonprofit organization or agency which has been granted assistanceto carry on a Head Start Program by the Agency for Children, Youth and Families (A.C.Y.F.), within the Office of Human Development Services, U.S. Department of Health and Human Services (H.H.S.). 45 CFR s.1304.1-2(d) (1985) Federal regulations 45 CFR s.s.1301-1305 (1985), inclusive, cover the creation, administration and performance standards for Head Start programs.

Head Start is a program of child development for children who are three or four years old from low income families for preparation for entry to kindergarten. The program is family centered, and focuses on social services, education and health needs.

To establish a He-ad Start Program, the Worcester Public Schools, as the grantee agency, submits a grant application to A.C.Y.F. for a one year duration, May 1 - April 30. A new grant application is submitted annually. The Head Start Program has been in existence in Worcester since 1966. The U.S. Department of Health and Human Services provides 100% of the funding costs for the Head Start Program. Twenty percent of the total Head Start budget is covered by non-federal "in kind services".[1]

To administer the grant, the "grantee agency" works through the Worcester School Committee which is considered the "Board of Directors" for the purposes of the federal regulations. In turn, the School Committee delegates certain of its responsibilities to the Superintendent of Schools as the "Executive Director" for the Head Start programs.[2] Once a year the Superintendent is empowered by the School Committee to act on its behalf on all matters of funding. In addition, the School Committee employs an Administrative Assistant for Governmental Relations for the Worcester Public Schools.[3] Mr. Simoncini administers the governmentally funded programs: Head Start; Chapter I; Occupational Education Program; and two special education programs, Public Law 94-142 and Public Law 89-313.

Pursuant to federal regulations, 45 CFR s.1304, App. B, (1985), the grantee must ensure that a Head Start Policy Council (Policy Council) is established. The members of the Policy Council participate in policy making and the operation of the Head Start Program. At least fifty percent (50%) of the Policy Council must be composed of parents of Head Start children presently enrolled in that grantee's program. The rest of the Policy Council is made up of representatives of the community. The "representatives of the community" are to be representatives of public or private major agencies, community, civic or professional organizations which have a concern for children of low income families and can contribute to the program. The applicant agency determines the composition of the Policy Council and the methods to be used in selecting representatives of the community. However, all community representatives selected by the grantee must be approved by the elected parent members of the Policy Council. No member of the Policy Council can exceed a three year term. See 45 CFR 1304, App. B (1985).

The Policy Council at issue in this case, the Worcester Child Development-Head Start Council (Council), has a total of 15 parent representatives and 15 alternates who are elected by the center committees to serve a term of one year. The number of parents to be elected from each center is to be determined by the number of enrollees at that center.[4] There are six centers: five represent the center-based programs and one represents the home-based program. The Council is also composed of 12 community representatives. The Council by-laws state that the community representatives shall be approved by newly-elected parents on the Council from a list submitted by the grantee agency for a term of one year. There is no automatic eligibility for reelection. A list must be submitted by the grantee to the Council each year for its approval or disapproval. In practice, the Head Start Coordinator/Director makes recommendations of agencies deemed appropriate to the Superintendent, who can veto the representatives of certain agencies.

The Council is run by an Executive Committee composed of the chairperson, vice-chairperson, secretary and co-treasurers. The officers must be parents with children currently enrolled in the program. The Council also has two working committees: Personnel and Program/Budget. The Personnel Committee is comprised of six parent members and two community representatives to be elected by the Council. The Personnel Committee screens applicants for Head Start staff positions, interviews candidates and makes recommendations to the Council for approval or disapproval. The Program/Budget Committee consists of six parent members (one from each center committee and one from the home-based committee) and two community representatives elected by the Council. The Program/Budget Committee assists the Head Start Coordinator/Director in the preparation of the budget and work program.

In addition to the Council, the Head Start Program has a Head Start Coordinator/Director (Head Start Director), who oversees the day-to-day administration of the program.[5] The Head Start Coordinator/Director reports directly to the Administrative Assistant for Governmental Relations for the Worcester Public Schools. The federal regulations require the Council to approve the hiring or firing of the Head Start Director.[6] The grantee Executive Director, the Superintendent, is responsible for hiring or firing the Head Start Director under the general guidance of the Board, i.e., the School Committee. The School Committee is charged with the legal and fiscal responsibility for the hiring and firing of the Head Start Coordinator/Director. Pursuant to the Head Start Personnel Policies and Procedures,[7] in order to dismiss the Head Start Coordinator/Director, the grantee must supply to the Head Start Director and Policy Council written notice of dismissal stating the reasons for the action. If the Policy Council approves, the decision is final. However, if the Policy Council disapproves, all documentation and supporting evidence from the Policy Council and grantee are to be submitted to the School Committee for resolution.

The Head Start Coordinator/Director supervises and oversees the staff of the Head Start Program. The supervisor of each component of the Head Start Program reports directly to the Head Start Coordinator/ Director, except for the educational supervisor. The component supervisors include the dental and nutritional supervisor, who supervises a dental hygienist and a nutrition assistant; the health supervisor, who supervises nurses and a health assistant; the special needs coordinator, who supervises the resource teacher, speech therapist and a clerk; and the social services supervisor, who supervises the parent involvement coordinator, social workers, outreach workers and neighborhood workers. The educational supervisor, who supervises the head teacher, home based coordinator, teachers, assistant teachers and an education clerk, reports to the Head Start assistant coordinator who, in turn, reports to the Head Start Coordinator/Director. The Head Start staff also includes a head clerk, bookkeeper, driver and driver/general handyman/carpenter, who report to the Head Start Director.

When identifying child development needs in the area to be served, the Council and Head Start Coordinator/Director must be consulted before any decision is made. The Executive Director is responsible for implementation consistent with the general guidance of the Board (School Committee). In turn, the School Committee has overall legal and fiscal responsibility. The Council and the Executive Director must approve or disapprove the establishment of goals for the Head Start Program and the development of ways to meet them within H.H.S. guidelines before the decision is finalized or action taken. This means that the Council and Executive Director must also be consulted in the decision making process prior to the point of seeking approval. If they do not approve, the proposal can not be adopted, or the proposed action taken, until agreement is reached between the disagreeing groups. The School Committee retains overall legal and fiscal responsibility for this function, and the Head Start Coordinator/Director is responsible for
implementation with the School Committee's guidance. The Council and the Executive Director must approve or disapprove the establishment of criteria for the selection of children according to the applicable law and H.H.S. guidelines. This is another area in which the School Committee retains overall legal and fiscal responsibility, and the Head Start Coordinator/Director is responsible for implementation in accordance with the School Committee's guidelines.

The Council must approve or disapprove the determination of what services should be provided to Head Start by the grantee and neighborhood centers. The School Committee has overall legal and fiscal responsibility for determining what services are to be provided to Head Start, and the Executive Director is responsible for implementation. The Head Start Coordinator/Director must be consulted to determine what services should be provided by the grantee. The Head Start Coordinator/Director is responsible for directing the Head Start staff in its day to day operations. The Executive Director retains overall legal and fiscal responsibility for the day to day operations. The Council and School Committee may be consulted on these matters, but it is not required. The Head Start Coordinator/Director is also responsible for ensuring compliance with the federal standards for acquiring space, equipment and supplies in accordance with the guidance of the School Committee. The Council and Executive Director must be consulted on these matters during the decision making process.

The Head Start Coordinator/Director is responsible for carrying out the hiring or firing of Head Start staff. The Executive Director retains overall legal and fiscal responsibility for this duty. The Council must approve or disapprove of all hiring and firing, and must be involved in the decision making process before the decision is finalized or action is taken. The School Committee may be consulted, but this is not mandated. Procedurally, in the Worcester program, the Head Start Coordinator/Director and the Personnel Committee, a subcommittee of the Council, interview candidates and submit their recommendations to the Council for approval or disapproval, and Mr. Simoncini is consulted on the Council's actions.

The Head Start Personnel Policies and Procedures provide for a five-step grievance procedure for the handling of grievances and disciplinary actions, including discharge, for all Head Start staff.[8] After denial of a grievance presented to one's immediate supervisor, the unresolved grievance is presented to the supervisor of the component. If the grievance remains unresolved, the employee can submit an appeal to the Head Start Coordinator/Director and to the Personnel Committee of the Policy Council. However, the final level of review is to the grantee.

If an employee believes that federal regulations were not followed by either the School Committee or the Council in a hiring or termination, the individual can appeal to A.C.Y.F.. When an individual grieves the violation of a federal regulation, A.C.Y.F. will investigate the agency. If A.C.Y.F. finds that a violation of the federal regulations has occurred, it issues a notice to the grantee that it has been found in non-compliance with the regulations and needs to take corrective action. Corrective action can entail reinstatement of an employee with backpay. However, A.C.Y.F. itself does not have the power to hire. It has the power to fund or not fund a particular grant application.

The Council and the Executive Director must approve or disapprove and participate in the determination of Head Start personnel policies. Federal regulations require Head Start agencies to establish personnel policies which, at a minimum, must govern the following: staff qualifications; recruitment and selection; classification of positions; salaries; employee benefits including leave, holidays, overtime and fringe benefits; conflicts of interest; official travel; career development; performance evaluations; and employee management relations, including employee grievances and adverse action.[9] The policies are required to be in writing, approved by the Council and made available to all Head Start employees. 45 CFR s.1301.31 (1985) The School Committee has overall legal and fiscal responsibility for determining personnel policies, and the Head Start Coordinator/Director is responsible for implementation with guidance from the School Committee.

In the Worcester Head Start Program, the School Committee delegated its role in the establishment of personnel policies to the Superintendent of Schools, who in turn delegated the responsibility to the Administrative Assistant for Governmental Relations and the Head Start Coordinator/Director and her staff. Procedurally, the Head Start Coordinator/Director meets with her staff to consider changes in the personnel policy. Next, the Head Start Coordinator/Director meets with the Personnel Committee to discuss the recommended changes. The Personnel Committee presents agreed-upon personnel policy changes to the Council for a vote.[10] The Administrative Assistant for Governmental Relations reviews all changes in personnel policy, and is often invited to Council meetings when these matters are being considered.

In the City of Worcester, fringe benefits must equal fifteen percent (15%) of personnel costs to entitle employees to participate in the City's health and life insurance programs, workers' compensation and retirement plan. Although the Head Start employees' medical insurance program is paid with federal funds, the Head Start grant establishes fringe benefits at fifteen percent (15%) of personnel costs to allow Head Start employees to be covered by the City's medical insurance and workers' compensation programs. Head Start employees are covered under the same medical insurance policy as other School Committee employees. Head Start employees may also participate in the City's credit union.

The grant application is developed by the Head Start Coordinator/Director with the approval of the Council. The grant application includes: a federal assistance application; budget information for three accounts, the general operating expenses for the program (PA 22), the handicap services budget (PA 26), and training expenses (PA 20); the non-federal share contributions; the program narrative; and the statement of accounting certification (OS-193).

The application is reviewed by the Administrative Assistant for Governmental Relations for the Worcester Public Schools before it is accepted by the School Committee and signed by the Superintendent. The application is submitted to A.C.Y.F., U.S. Department of Health and Human Services. A.C.Y.F. may put a special condition on a grant before funding, or seek justification for certain line items in the budget.[11] To make major changes in the budget and work program while the program is in operation, the Council and the Executive Director must approve or disapprove the changes, and must be involved in the decision making process prior to the point of seeking approval. The Head Start Coordinator/Director is responsible for implementation with the general guidance of the School Committee, which has overall responsibility. 45 CFR s.1304, App. B, Chart C (1985)

The overall goal of the Head Start Program is to achieve a greater degree of social competence in children of low income families. To accomplish this goal, each grantee is required to develop a plan for implementing the performance standards prescribed in 45 CFR s.1304 for use in the operation of its Head Start Program. The plan must be in writing and must be developed by the professional Head Start staff with the advice and concurrenceof the Council. The plan must be reviewed by the grantee and the Council at least annually, and revised and updated as necessary. 45 CFR s.1304.1-4 (1985) If the responsible H.H.S. official, as a result of the information from on-site program monitoring (In-Depth Validation, I.D.V.), or self-evaluation, is aware that the Head Start Program is not in compliance with the performance standards, the grantee is notified in writing of the deficiencies. If the grantee has not complied with the performance standards within the period stated in the notice, the grantee is notified by the responsible H.H.S. official of commencement of grant suspension or termination proceedings or of the intention to deny refunding. 45 CFR s.1304.1-5 (1985)

The Department of Health and Human Services does not approve or disapprove collective bargaining agreements. However, H.H.S. can require modification of an agreement as a condition of further funding if the agreement contained a provision which violated the Head Start regulations.

The Administrative Assistant for Governmental Relations for the Worcester Public Schools, in addition to the Head Start Program, oversees Chapter I (formerly known as Title I),[12] the Occupational Education Program,[13] and two special education programs, Public Law 94-142 and Public Law 89-313. In contrast with the Head Start Program, all of these programs have Parent Advisory Councils whose authority is purely advisory. The Parent Advisory Councils have no authority to approve either personnel hiring or firing or personnel policies and procedures.

1. The Worcester Head Start Program provides social, educational, health, dental, and nutritional services to children ages three to five years and their parents pursuant to federal income eligibility guidelines. The Head Start Program's educational component is not regulated by Worcester Public School Department (School Department) curriculum guidelines. All Head Start Program components must satisfy federal Head Start Program Performance Standards. 45 CFR s.1304 (1985) The Head Start Program is not subject to G.L. c.71, s.s.1 et seq. (including certification requirements, s.38G) or Massachusetts Department of Education regulations.

2. Pursuant to federal regulations, 45 CFR s.1301.30 et seq. (1985), the Head Start Program must establish personnel policies. Such personnel policies have been established by the School Department (grantee agency) and the Head Start Policy Council. Changes in such personnel policies must be approved by the Policy Council, a parent/community agency membership body mandated by federal law and regulations. Such personnel policies and procedures do not apply to non-Head Start employees of the School Department.

3. Head Start employees are supervised and evaluated exclusively by the Head Start Director and the Head Start component supervisors. The Head Start Director and the component supervisorsdo not supervise any non-Head Start employees.

4. Head Start employees do not perform any functions performed by non-Head Start employees of the School Department. Non-Head Start employees do not perform any functions performed by Head Start employees. There is no history of employee transfers between Head Start and other School Department programs during the 19-year existence of the Head Start Program.

5. Head Start has existed as a program in Worcester since 1967 and has no collective bargaining history. School Department employees have been represented in bargaining units continuously since dates prior to 1967. Collective bargaining agreements have been negotiated by labor organizations representing non-Head Start employees since 1967 and such agreements (and negotiations therefor) have never applied to Head Start employees.

6. Head Start employees are paid wages and salaries which are inferior (and were historically so) to salaries, hourly rates and/or wages paid to other School Department employees. Head Start employees are not subject to G.L. c.31 s.s.1 et seq. or, as noted in paragraph 1 of the stipulations, to other state statutes regulating content, position qualification and personnel certification in the statutory public elementary and secondary education program. Head Start employees have a separate grievance procedure and a separate termination procedure from the grievance and termination procedures for non-Head Start employees. Head Start employees do not have access to grievance procedures available to non-Head Start employees. Head Start employees are subject to federal restrictions and limitations on their political activities as a condition of their employment in a Head Start Program which do not apply to non-Head Start employees.

7. Salaries, hourly rates, and wages paid to non-Head Start employees of the School Department are contained in the Worcester Public Schools salary schedule.

8. Head Start employees working at sites where non-Head Start employees also work do not attend meetings of non-Head Start employees at these sites. Head Start employees also work at sites where no non-Head Start employees work. All Head Start employees attend meetings of Head Start employees open to all Head Start employees only.

9. Head Start employees attend in-service training programs in early childhood education and related areas arranged by Head Start which non-Head Start employees cannot attend. Head Start employees are not eligible to attend in-service training programs available to non-Head Start employees. Any in-service training programs available to non-Head Start employees of the School Department differ in subject matter and purpose.

10. Head Start employees cannot displace to non-Head Start positions, by bumping into or transfer to open non-Head Start positions, and non-Head Start employees cannot displace to Head Start positions by bumping into or transfer to open Head Start
positions.

11. Head Start employees work different hours than non-Head Start employees and for a program year shorter than the school year worked by non-Head Start employees. The different hours are:

The program year worked by Head Start employees is three weeks shorter than the Chapter 71 public education school year.

12. Except for the EAW, employee organizations representing non-Head Start employees have not sought to represent Head Start employees in existing bargaining units.

13. All Head Start employees in all positions in the proposed units have substantial work contacts with the child and parent population served by Head Start or with other Head Start staff. Read Start employees do not have work contacts with students, parents or non-Head Start staff involved in Chapter 71 public education.

14. Accomplishment of Head Start objectives and compliance with H.H.S. standards require integration of the job activities of Head Start employees in all positions and integration of the operations of all Head Start components on a daily basis. As noted in paragraph 4 of the stipulations, Head Start component functions are not performed by non-Head Start employees.

15. Personnel records of Head Start employees are maintained separately from personnel records of non-Head Start employees.

16. Head Start is a separate and autonomous organization in which the lines of authority and function/mission do not overlap any other lines of authority and function/mission of the School Department in structure and operation.

17. Head Start employees possess a distinct, cohesive program-wide community of interest which warrants establishment of collective bargaining units co-extensive with the Head Start Program itself.

18. The Head Start assistant coordinator, education supervisor, head teachers, home based coordinator, social workers, social work supervisors, resource teachers, health supervisors, social service-parent involvement supervisors, speech therapist, special needs coordinator, supervisor of nurses and nurses are employees required to have an advanced degree acquired by a prolonged course of study in an institution of higher learning, and are engaged in work predominantly intellectual in character, and not routine, that involves consistent exercise of discretion and judgment, of a character that cannot be standardized in relation to a given period of time.

19. The parties stipulated that the preferred appropriate unit for purposes of collective bargaining is a unit including all full-time and regular part-time Head Start employees excluding the Head Start Director, or, in the alternative, a unit of professional employees and a unit of nonprofessional employees in the Head Start Program.

The issues presented in this case are whether the Worcester School Committee is the public employer as defined by G.L. c.150E, s.1 for employees of the Worcester Child Development Head Start Program, and if so, what is the scope of the appropriate bargaining unit(s)? The unions assert that the School Committee is the employer of the contested employees. The School Committee argues that it is not. Instead, it maintains that the Head Start Program is a private entity which is the employer of the disputed employees We disagree with the School Committee.

G.L. c.150E defines "public employee" as "any person in the executive or judicial branch of a government unit employed by a public employer..." c.150E, s.1 (emphasis added). Under the Law, "public employer" is defined in pertinent part as

The Commission's jurisdiction over an employer stems solely from its statutory authority. St. Luke's Hospital v. Labor Relations Commission, 320 Mass. 467 (1946). Whether an employee is a public employee within the meaning of c.150E is determined by whether the individual is actually "employed by" a public employer.

The Commission determines the identity of an employer for a group of employees by examining whether the state, or its political subdivision, exercises"substantial control" over the disputed employees so that the individuals are actually employees of the state or its political subdivision. See Hudson Bus Lines, 4 MLC 1630, 1635 (1977). The questions asked to establish an entity's control over employees include the following: 1) does the entity hire the employees; 2) does the entity have authority unilaterally to discipline, transfer and discharge employees; 3) does the entity set wage rates; 4) does the entity determine job assignments; 5) does the entity pay the employees; and 6) is the entity liable for reporting and remitting deductions for social security, unemployment taxes, federal and state taxes. Id.

The Commission has applied this standard to determine who is a "public employer" under c.150E[15] in Franklin Institute of Boston, 12 MLC 1063 (1985). In that case, the Commission examined whether a technical college, established pursuant to Benjamin Franklin's will, came within the c.150E definition of "public employer." The Commission considered: 1) the identity and control of the employer's board of managers; 2) the nature of the employer's corporate structure; 3) the identity of the titleholder to the employer's real property; 4) the identity of the titleholder to the corporation's endowment; 5) the basis of the employer's tax-exempt status; 6) an opinion by the Massachusetts Attorney General concerning the employer's public nature; and 7) various court decisions suggesting that the employer was a public entity. The Commission held that the Institute was a "public employer," noting that it had been created for the purpose of administering Franklin's bequest as an agent for the City of Boston and, by statute, was subject to all statutes and ordinances applicable to the City. The Institute was found to be a "political subdivision" within the meaning of Section 1 of the Law. 12 MLC at 1068.

The Commission has also considered whether employees of municipal boards or commissions which have specific statutory hiring and firing authority, means of funding, and authority to direct, are employees of the municipality or the statutory board or commission only where the facts have indicated a substantial and well-established degree of control over employees, and a history of separation and autonomy, have we found employees to be employees of the board or commission rather than the municipality. Town of Marblehead, 7 MLC 1240 (1980). In most cases, we have found the employees to be employees of the municipality. Town of Cohasset, 1 MLC 1184 (1974); Town of Harwich, 1 MLC 1376 (1975); Town of Uxbridge, 6 MLC 1471 (1979). In City of Malden, 9 MLC 1073, 1078-1079 (1982), the Commission found two clerical employees who worked for a municipal retirement board to be employees of the City for the purposes of collective bargaining. The Commission held that the board's statutory authority under Chapter 32, section 20(4)(a) to hire and terminate employees did not conclusively establish employer status. The board failed to establish any tradition of independent action which would negate the total application of the City's employment policies to their employees. The Commission held that the fact that the board's budgetary processes were unique was not controlling on the issue of the identity of the public employer.[16]

The federal funding of salaries is also not determinative of the question whether substantial control is exercised by the state or its political subdivision. See Walpole School Committee, 12 MLC 1015, 1018 (1985), where the Commission held that the federal funding of Chapter One tutors does not destroy the community of interest these positions have with instructional assistants paid by local and state funds. The Commission has consistently found participants of the federally funded CETA program to be public employees. The Commission has held that persons working under CETA are "public employees" and are not precluded from bargaining collectively under c.150E because their salaries are derived from federal funds or because of the "transitional nature" of their employment. Town of Pepperell, 3 MLC 1164 (H.O. 1976), aff'd, 4 MLC 1003 (1977); City of Newton, 7 MLC 1262 (1980); City of Springfield, 2 MLC 1233 (1975); City of Boston, 7 MLC 2005 (1981).

In the case now before us, we need to analyze whether the School Committee exercises substantial control over the Head Start employees to determine whether they are actually employees of the School Committee. See Franklin Institute of Boston, 12 MLC 1063 (1985); Hudson Bus Lines, 4 MLC 1630, 1635 (1977). We begin the inquiry with the following questions: 1) does the School Committee hire the Head Start employees, 2) does the School Committee have authority unilaterally to discipline, transfer and discharge Head Start employees; 3) does the School Committee set wage rates for and have responsibility for paying the disputed employees; 4) does the School Committee determine job assignments for the Head Start employees; 5) is the School Committee liable for reporting and remitting deductions for social security, unemployment taxes,federal and state taxes.

The School Committee has overall legal and fiscal responsibility for hiring and firing all Read Start personnel. Although the Policy Council has the authority to approve or disapprove the hiring and firing of the Head Start Coordinator/Director, pursuant to the personnel policies and procedures agreed to by the Policy Council and the School Committee, the grantee has the final authority to terminate the Head Start Coordinator/Director. Furthermore, the Head Start Coordinator/Director is accountable directly to the Administrative Assistant for Governmental Relations for the Worcester Public Schools, a representative of the School Committee. The Superintendent as Executive Director is empowered with the overall legal and fiscal responsibility for the hiring and firing of all Head Start staff. The Head Start Coordinator/Director is responsible for carrying cut the hiring and firing of Head Start staff, which must be executed with the approval of the Policy Council. In addition, the Head Start Personnel Policies and Procedures provide for a five-step grievance procedure for the handling of grievances and disciplinary actions, including discharge, for all Head Start Staff. The School Committee further exercises control over the terminations and disciplinary actions of the Head Start staff as the final level of review under this grievance procedure.

The School Committee also retains the overall legal and fiscal responsibility for determining personnel policies. The Policy Council and the Executive Director, a representative of the School Committee, must approve or disapprove, and participate in the decision-making process for determining Head start personnel policies enumerated by the federal regulations. As long as the personnel policies required by the regulations are created with the Council's approval, the grantee is empowered to create additional personnel policies without approval of the Council. Moreover, although the Head Start employees' medical insurance program is paid for with federal funds, these employees, like all other School Committee employees, are covered by the City's medical insurance and workers' compensation coverage, and may participate in the City's credit union.

The wages and all economic benefits for the Head Start employees must be agreed to by the School Committee in their final form as part of the total budget before the annual grant is submitted by the School Committee to the Department of H.H.S. for funding. The School Committee's authority to approve the Head Start employees' wages and economic benefits in their final form creates a direct limit on employee compensation which constitutes substantial control of employment relations.

The funding of 80% of the cost of the Head Start Program through a federal grant, without more, does not destroy the substantial control of the School Committee. The Commission has held that persons working under CETA or as Chapter One tutors are "public employees" and are not precluded from bargaining collectively under c.150E because their salaries are derived from federal funds or because of the "transitional nature" of their employment. Walpole School Committee, 12 MLC 1015 (1985); City of Newton, 7 MLC 1262 (1980); City of Springfield, 2 MLC 1233 (1975).

There is no policy on the part of the Health and Human Services Department which is opposed to collective bargaining. There was no evidence that H.H.S. would become involved in any collective bargaining engaged in by the grantee. H.H.S. does not approve or disapprove collective bargaining agreements. That H.H.S. could require modification of an agreement as a condition of further funding, if the agreement contained a provision which violated the Head Start regulations, would not significantly diminish the School Committee's control over the collective bargaining process.

The School Committee argued that the employees of the Worcester Head Start Program are not "public employees" of a "public employer" under G.L. c.150E because they are employed by the Policy Council which is a private emit:, not subject to the control of the School Committee. Based on the facts discussed above, we find that the Head Start staff is subject to the substantial control of the School Committee, and the Policy Council is not a private employing entity. However, because of the Policy Council's federally mandated role in the establishment of and changes in the wages, hours and other terms and conditions of employment of Head Start staff, if the Head Start employees are engaged in collective bargaining, the Policy Council must be part of the decision-making process in negotiations, with the right to approve or disapprove any changes in wages and personnel policies. The fact that collective bargaining in such a situation may be difficult does not destroy the substantial control of the School Committee over conditions of employment for the Head Start employees or convince us that bargaining rights should be denied to these employees. Compare South Shore Educational Collaborative, 7 MLC 1356, 1357 (1980), in which the Commission found that the participating school committees which formed a joint educational collaborative were the public employers for the purposes of enforcing collective bargaining responsibilities imposed by Chapter 150E. Although the Policy Council here is an integral part of the governing structure of the Head Start Program, it is similarly the creation of the grantee agency, which retains substantial control over its existence as well as over the budgetary and personnel decisions of the Head Start Program.

Consequently, we find that the School Committee is a public employer since it retains substantial control over the Head Start employees as a result of its authority to approve or disapprove all wages, benefits, hiring and firing, and personnel policies recommended by the Policy Council, its final authority to resolve all grievances and disciplinary action, and its ultimate authority to decide whether or not to continue as a grantee with the H.H.S. for the purposes of maintaining a Head Start Program. Having determined that the School Committee is the public employer pursuant to c.150E, s.1 of the employees of the Head Start Program, the next consideration is the scope of the appropriate bargaining
unit(s).

G.L. c.150E, s.3 mandates that the commission establish bargaining units that are:

The Commission requires that employees sought to be represented in the same bargaining unit share sufficiently common working conditions and interests to warrant separate representation. See Board of Regents of Higher Education, 12 MLC 1643, 1648 (1986). Community of interest is based upon common supervision, similar work environment, similar job requirements, education, training and experience. Id. at 1650-1652. The Commission favors the establishment of the largest and most comprehensive units that meet the community of interest test. However, this practice is balanced against the need to safeguard the right of employees to effective representation. Id. at 1651.

In the present case, the parties have stipulated to the appropriateness of alternative bargaining units: first, an overall unit of all Head Start employees or, if that is found to be inappropriate, a unit of professional Head Start employees and a unit of non-professional Head Start employees. Then both an employer and an employee organization agree on the composition of a bargaining unit, the Commission will generally adopt their agreement. Board of Trustees, State Colleges, 4 MLC 1428 (1977). An agreement of the parties may be rejected by the Commission if the stipulated unit is contrary to law or policy. City of Lowell, 3 MLC 1260 (H.O., 1976), aff'd, 3 MLC 1510 (1977).

Based on the stipulation of the parties, we find that a single overall unit of Head Start employees, as described in the parties' stipulation, is an appropriate unit for collective bargaining. The Head Start Program has existed as an autonomous program in Worcester since 1967. In contrast with other School Committee employees, the Head Start employees are subject to their own personnel policies, which must be established by both the School Department and the Read Start Policy Council. Head Start employees are supervised exclusively by the Head Start Director, who does not supervise any non-Head Start employees. Head Start employees must attend in-service training programs in early childhood education which non-Head Start employees cannot attend. Head Start employees are not eligible to attend in-service training programs available to non-Head Start employees, which differ in subject matter and purpose. The hours of work and length of the work year of Head Start employees differ from the hours and work year of other School Committee employees. There is no transfer or bumping rights between Head Start and non-Head Start positions. Many of the Head Start employees work at sites where no other School Committee employees work. Furthermore, the Head Start Program is a separate and autonomous organization in which lines of authority and function/mission do not overlap any other lines of authority and function/mission of the School Committee in structure and operation. Based on the aforementioned reasons, the Commission finds that the petitioned-for unit is an appropriate unit for collective bargaining.

The remaining issue is which, if any, of the Head Start employees entitled to collective bargaining rights are "professional employees" within the meaning of Sections 1 and 3 of the Law.[17] Employees who are found to be "professional" must be given a choice of placement with the non-professional employees in an overall unit or placement in a separate professional unit. We adopt the parties' stipulated list of professional employees and will provide the professional employees with a separate ballot which will offer the choice of placement within the overall unit or in a separate professional unit.

On the basis of the foregoing, we conclude that a question has arisen concerning the representation of certain employees of the Worcester School Committee. The following unit is appropriate for collective bargaining:

All full-time and regular part-time employees of the Worcester Child Development-Head Start Program, excluding the Head Start Coordinator/Director, all managerial and confidential employees and all other employees of the Worcester School Committee.

IT IS HEREBY DIRECTED that an election shall be held for the purpose of determining whether a majority of the employees in the above-described unit desire to be represented by District 65, UAW, or Teamsters, Local 170, or EAW/MTA/NEA.

Inasmuch as the above-described unit includes the positions of assistant coordinator, education supervisor, head teachers, home-based coordinator, supervisor of nurses, nurses, social workers, social work supervisors, resource teachers, health supervisors, social service-parent involvement supervisors, speech therapists and special needs coordinator found to be professional within the meaning of Sections 1 and 3 of the Law, employees who hold those positions shall be given a separate ballot which will offer them the choice of placement within the above-described unit or representation by District 65, UAW, or Teamsters, Local 170, or EAW/MTA/NEA in a separate unit.

The eligible voters shall include all those persons within the above-described unit whose names appear on the payroll of the Worcester Child Development-Head Start Program of the Worcester School Committee for the payroll period immediately preceding this decision, and who have not since quit or been discharged for cause.

In order to ensure that all eligible voters shall have the opportunity to be informed of the issues and their statutory right to vote, all parties to this election shall have access to a list of voters and their addresses which may be used to communicate with them.

Accordingly, IT IS HEREBY FURTHER DIRECTED that three (3) copies of an election eligibility list containing the names and addresses of all eligible voters must be filed by the Employer with the Executive Secretary of the Commission, Leverett Saltonstall Building, 100 Cambridge Street, Room 1604, Boston, Massachusetts, 02202, not later than fourteen (14) days from the date of this decision.

The Executive Secretary shall make the list available to all the parties to the election. Failure to make timely submission of this list may result in substantial prejudice to the rights of the employees and the parties, no extension of time for the filing thereof will be granted except under extraordinary circumstances. Failure to comply with this direction may be grounds for setting aside the election should proper and timely objections be filed.

[1] These "in kind services" include classroom space at three Worcester Public Schools, two churches and a temple, utilities, dental and health exams, consultants, lab work and supplies, offices, classroom supplies and equipment, gyms, parking lots, outdoor play space, postage and the services of volunteers.

[2] John E. Durkin held the position of Superintendent of Schools as of the date of the hearing.

[3] John Simoncini, appointed to this position in 1977, held this position as of the date of the hearing.

[4] The standard Head Start model is a five day per week, center-based classroom format. A center is a facility outside the home for Head Start classes and related activities. Head Start grantees may elect to develop a home-based model which focuses on the parent as the primary factor in the child's development and the home as the central facility.

[5] Adrienne Hughes held the Head Start Coordinator/Director position as of the date of the hearing.

[6] In 1978, the Council prevented the discharge of the then Head Start Director, Paul Nieminen, over the wishes of the School Committee.

[7] Head Start Personnel Policies and Procedures, Article VIII, Grievance Procedure, Termination and Resignation, part D(3), (August 30, 1985).

[8] Head Start Personnel Policies and Procedures, Article VIII, Grievance Procedure, Termination and Resignation, part A (August 30, 1985).

[9] The grantee can create additional personnel policies without approval of the Council in areas not specified by these regulations.

[10] One example of the procedure employed in changing personnel policies occurred on or about February 28, 1985. The Head Start Director convened the Personnel Committee to update the policies concerning sick leave, maternity leave, disciplinary action and funeral leave. The Personnel Committee reviewed the policies and recommended minor changes to the Council. The Council approved the changes by vote, and these changes are reflected in the August 30, 1985 Head Start Personnel Policies and Procedures.

[11] In 1982 a clerical position was eliminated from the Worcester Head Start Program as a result of discussions with federal officials.

[12] Chapter I is regulated by the U.S. Office of Education 1 through the Massachusetts State Department of Education.

[13] The Occupational Education Program is overseen by the U.S. Office of Education through the Massachusetts State Department of Education. The goal of the program is to provide high school students with entry level skills in a chosen field of work.

[14] These stipulations are presented in summary form.

[15] The same standard is applied to determine the employer of a group of employees under c.150A. In Old Colony Elderly Services, 6 MLC 1254 (H.O. 1979), aff'd 6 MLC 1893 (1980), the Commission held that a home care service for the elderly, closely involved with the Massachusetts Department of Elder Affairs, is an employer subject to c.150A. The Commission affirmed the hearing officer's findings that: 1) Old Colony sets wages, hours, working conditions of its employees; 2) Old Colony's board of directors formulates labor relations policies and procedures; 3) Old Colony is exclusively responsible for disciplining and discharging its employees; and 4) Old Colony has primary authority in regard to hiring. Thus, the Commission found that despite DEA's regulations and contract, Old Colony retains sufficient independent discretion in determining labor relations policies to enable it to bargain effectively. See also Hudson Bus Lines, supra.

[16] In Massachusetts Board of Regents of Higher Education, 13 MLC 1173 (1986), the Commission found the faculty teaching in the Division of Continuing Education at community colleges operated by the Board of Regents, properly included in a bargaining unit separate from the existing day division faculty unit. The Commission considered the DCE faculty to be employees of the Board of Regents despite the fact that the DCE budget is self-supporting, not integrated into the Board of Regents' higher education budget, and thus not subject to the legislative appropriation.

[17] G.L. c.150E, Section 1 defines "Professional employees" as

WORCESTER SCHOOL COMMITTEE --