STATE OF MAINE                                          MAINE LABOR RELATIONS BOARD
                                                        MLRB No. 78-A-07
                                                        [Issued:  August 7, 1978]
IN RE:                           )                           
     PROCEEDINGS, MAINE STATE    )                     DENIAL OF APPEAL
     THE STATE OF MAINE          )


     This matter comes to the Maine Labor Relations Board ("Board") by way of a
Motion to Stay Fact-Finding Proceedings, filed by John J. Sears, Esquire, Counsel
for the State of Maine, on July 11, 1978.  The Motion alleges seven reasons why
fact-finding proceedings initiated by the Maine State Employees Association ("MSEA")
should be stayed pending this Board's decision on the allegations contained in a
Prohibited Practice Complaint filed by MSEA against the State on July 10, 1978.
     By letter dated July 12, 1978, the contents of which are incorporated herein by
reference, the Executive Director of the Maine Labor Relations Board denied the
Motion to Stay Fact-Finding Proceedings.  The Executive Director in his letter con-
sidered each of the reasons alleged in the Motion for staying the fact-finding pro-
ceedings, and concluded that the Motion must be denied in light of our Decision and
Order Relating to Plaintiff's Motion to Stay Fact Finding Proceeding in Southern
Aroostook Community School Committee v. Southern Aroostook Teachers Ass'n, M.L.R.B.
Case No. 75-05 (1974).
     On July 14, 1978, Counsel for the State filed a letter with the Board stating
that the State "hereby appeals to the Maine Labor Relations Board from the denial by
the Executive Director of its Motion to Stay Fact-Finding Proceedings."  Counsel
requested in the letter that a hearing on the matter be scheduled at the Board's
earliest possible convenience.  The letter does not cite any statutory provision by
which the State purports to appeal the denial of the Motion.  In a letter dated July
14, 1978 to Counsel for the State, the Executive Director stated that this matter
would be forwarded to the members of the Board for our consideration.
     After carefully considering the nature of this appeal and the pertinent statutory
provisions contained in the State Employees Labor Relations Act, 26 M.R.S.A.  979,
et seq., ("Act"), we conclude that this Board is without Jurisdiction to hear an
appeal from a denial by the Executive Director of a Motion to Stay Fact-Finding Pro-
ceedings.  Consequently, we have no authority to schedule a hearing on this matter.
     The right to appeal from a decision by the Executive Director is provided in
26 M.R.S.A.  979-G(2).  Section 979-G(2) provides in pertinent part that "Any person
aggrieved by any ruling or determination of the executive director under sections
979-E and 979-F may appeal . . . to the Maine Labor Relations Board."  Sections
979-E and 979-F of the Act respectively provide the methods by which bargaining units
and bargaining agents are determined.  Neither of these Sections involve the fact-
finding process established by the Act, which process is set forth in 26 M.R.S.A.
 979-D(3).  In short, the legislature has not provided the right to appeal from
a determination by the Executive Director made pursuant to 26 M.R.S.A.  979-D.
In light of the lack of any right under the Act to appeal a determination made
under Section 979-D, this Board does not have jurisdiction to consider a purported
"appeal" of a denial of a Motion to Stay Fact-Finding Proceedings.
     We believe that one obvious reason why the legislature has not provided the
right to appeal from a determination made pursuant to Section 979-D is that the
authority granted to the Executive Director in Section 979-D is ministerial and
not discretionary.  Unlike Sections 979-E and 979-F, Section 979-D does not empower
the Executive Director to perform discretionary acts or to make discretionary de-
terminations.  For example, Section 979-D(3) (B) provides that if the Executive
Director is requested by either party to a controversy to assign a fact-finding
panel to the controversy, "the executive director shall appoint a fact-finding
panel . . ." (emphasis supplied).  Section 979-D(3) thus merely provides that the
Executive Director shall perform the ministerial duty of assigning the fact-finding
panel; the Executive Director is not authorized to perform discretionary activities
such as ordering that fact-finding proceedings be stayed, although the Board might
in very unusual circumstances order such a stay upon a showing of a clear and un-
equivocal abuse of the obligation to bargain in good faith and participate in the
procedures and obligations set forth in  979-D of the Act, see Southern Aroostook
Community School Committee, supra.  In short, the Executive Director had no choice under
Section 979-D but to deny the State's Motion to Stay.  Had the Executive Director
granted the Motion, he clearly would have exceeded his authority under Section
979-D.  Because the legislature has not authorized the Executive Director to perform
discretionary duties in regard to the dispute resolution procedures established in
Section 979-D, we believe that the legislature recognized that there is no need to
establish the right to appeal from actions by the Executive Director under Section

     Having found that we have no jurisdiction to hear the State's attempted appeal
from the Executive Director's denial of the Motion to Stay Fact-Finding Proceedings,
we conclude that the appeal must be and hereby is DENIED.
Dated at Augusta, Maine, this 7th day of August, 1978.
                                         MAINE LABOR RELATIONS BOARD

                                         Edward H. Keith

                                         Paul D. Emery
                                         Employer Representative
                                         Michael Schoonjans
                                         Employee Representative