State of Maine, Department of Inland Fisheries and Wildlife and Maine State 
Employees Association, MLRB No. 91-UCA-01 (Sept. 13, 1990), vacating The 
State of Maine and Maine State Employees Association, MLRB Nos. 83-UC-15 -
83-UC-35 & 83-UC-37 - 83-UC-48, Interim Order (June 12, 1990)

STATE OF MAINE                                  MAINE LABOR RELATIONS BOARD
						Case No. 91-UCA-01
						Issued:  September 13, 1990

		       Petitioner, )
				   )             APPELLATE REVIEW OF
     and                           )      HEARING EXAMINER'S INTERIM ORDER
		  Public Employer. )

     This appeal was commenced on June 26, 1990, pursuant to 26 M.R.S.A.
 979-G(2) (1989) when Timothy L. Belcher, an attorney for the Maine State
Employees Association (MSEA), filed a Notice of Appeal of a Hearing
Examiner's Interim Order issued June 12, 1990.  In that Interim Order the
Hearing Examiner required the parties to participate in procedures per-
taining to supervisory questionnaires concerning the job duties and activi-
ties of employees requested by the State to be excluded from the coverage
of the State Employees Labor Relations Act.

     The order requires the parties to develop, within thirty days,
separate questionnaires for each class of exclusion proposed and for super-
visors of employees requested to be excluded.  The order further requires
the parties to exchange questionnaires for review and to meet with the
hearing examiner to develop a final set of questionnaires.  The interim
order then requires the State to provide, upon issuance of the final
questionnaires, both an updated list of the names, addresses and telephone
numbers of employees requested to be excluded and updated documentary evi-
dence intended to be used in support of the State's position.

     The interim order's procedure requires the return of finalized
questionnaires by employees within thirty days of their distribution.
Twenty days after receipt of completed questionnaires from the Board the
State is, under the interim order, to provide a statement of specific


grounds for each requested exclusion, in addition to unanticipated addi-
tional documentary evidence.  Within twenty days thereafter the MSEA is to
provide the specific grounds of any opposition to requested exclusions
along with additional unanticipated documentary evidence.  Ten days later
the parties are required to meet with the hearing examiner to resolve docu-
mentary issues, to review the parties' legal arguments regarding each posi-
tion and to attempt to reach stipulations of fact.  The interim order's
procedure also anticipates discussion at this meeting respecting the
mechanics of further proceedings.  The final steps of the elaborate proce-
dure anticipate evidentiary hearings commencing within fifteen days and
continuing from day to day thereafter until complete, with simultaneous
initial and reply briefs tendered within thirty and ten days, respectively.

     On August 9, 1990, the Maine Labor Relations Board, consisting of
Peter T. Dawson, presiding Public Chair, Thacher E. Turner, Employer
Representative, and George W. Lambertson, Employee Representative, convened
a hearing in this matter at the Board's offices in Augusta, Maine.  The
MSEA and the Maine Department of Inland Fisheries and Wildlife are
represented in this appeal, respectively, by Timothy L. Belcher, Esquire,
and Julie M. Armstrong, Esquire.  Neither party elicited the testimony of
any witness or tendered any other evidence.  Both parties presented oral
argument and legal memoranda addressing the issues raised by the appeal.
The last memorandum was received August 16, 1990.  The Board deliberated
the issues in the case on Thursday, September 6, 1990.


     The MSEA contends that the Interim Order "goes far beyond the limited
powers conferred on hearing examiners, and on the Board itself, by the
relevant statutes or rules."  The MSEA also contends that the interim order
is unlawful under even the Board's revised rules.  The MSEA alleges that it
is entitled to present its evidence only after the State's evidence and
positions are disclosed and states that an appearance of partiality would
be occasioned by the Board's distribution and collection of questionnaires
directly to and from employees.  Finally, the MSEA argues that the
questionnaires improperly deprive it of its right to hearing "by forcing it


to disclose the questions it will ask live witnesses."  The MSEA concludes
on the basis of these contentions that enforcement of the interim order
would deny unit members of their due process rights by potentially
depriving them of the statutory right to bargain collectively without
providing a fair hearing.

     The State contends that the Rules appropriately applied in review of
the hearing examiner's interim order are the rules in effect prior to
July 23, 1990.  The State further contends that neither the Board rules in
effect prior to July 23, 1990, nor the revised rules effective on that
date authorize the hearing examiner to require that the "parties . . .
develop a questionnaire or . . . participate in the dissemination and
collection of such a questionnaire."


     The Board possesses jurisdiction to hear and decide this appeal pur-
suant to 26 M.R.S.A.  979-G(2) (1988).  Neither party has contested the
Board's jurisdiction to review the Hearing Examiner's Interim Report.


     The basic issue in this appeal is whether the hearing examiner had or
has the authority under the old or new rules to issue an order requiring
the parties to participate in developing and disseminating employee and
supervisory questionnaires aimed at drawing out the material facts con-
cerning the job duties and activities of employees requested by the State
to be excluded from the coverage of the State Employees Labor Relations
Act.  The appeal arises out of proceedings conducted in response to a
petition for exclusionary designations within the Department of Inland
Fisheries & Wildlife, one of thirty-four original petitions filed in
November and December of 1982.  Only one other of those original petitions
has ever gone to hearing.  That hearing concerned employees of the Depart-
ment of Transportation.  A Board hearing examiner convened an evidentiary
hearing in that case in March of 1983 and held hearings on over thirty
separate days.  There are thirty-two still-pending petitions, other than
Inland Fish, which request over 600 exclusionary designations.


     The potential of interminable hearings on the large number of pending
exclusionary designations and the need to develop a prototypical method for
expeditiously disposing of the requests prompted the hearing examiner
to issue an interim order.  That order directs the parties to participate
in procedures tantamount to fact-finding respecting the job duties of
individuals requested to be excluded to the end of revealing facts suf-
ficient to enable the parties to more realistically determine which posi-
tions proposed for exclusion should actually be the subject of evidentiary
hearing.  The hearing examiner apparently reasoned that the parties might
be able to reach agreement on the appropriateness, or lack thereof, of many
of the requested exclusions if they knew the material facts concerning each
position.  In light of the fact that the total remaining exclusions number
over 600, resolution of the requests for exclusion exclusively through evi-
dentiary hearing and potential appellate reviews by the Board and the
Courts could be excessively costly for the Board and the parties, in both
time and money.

     We think it was entirely reasonable for the hearing examiner to
explore every mutually satisfactory method of narrowing the inquiry to
those exclusionary designations over which there is credible dispute.
However, upon consideration we find no authority in the examiner, under
either the present rules or the rules in effect on June 12, 1990, for
requiring the parties to participate in the preparation and completion of
the objected-to questionnaires.  The June 12, 1990, Interim Order must,
therefore, be VACATED.

     The Board's rules and procedures have been comprehensively revised
since the issuance of the interim order and have enlarged the procedural
latitude of hearing examiners.  More specifically, Board Rule 1.16(D) pro-
vides that the "hearing and appeal procedures set forth in Rules 1.11 and
1.12 shall apply to hearings conducted in response to petitions for unit
clarification."  Rule 1.11(D) provides that:

     [T]he Executive Director or the Director's designee as hearing
     examiner may require by subpoena the attendance and testimony of
     witnesses, the production of books, records and other evidence
     relevant to issues raised by a unit determination petition or
     responses thereto.  The hearing examiner may also require the
     submission of written statements of fact, position or law prior
     to hearing.


Accordingly, we hereby remand the case to the hearing examiner for further
proceedings consistent with this order and the Board's present rules.


     On the basis of the foregoing and by virtue of and pursuant to the
powers granted to the Maine Labor Relations Board by 26 M.R.S.A.  979-G(2)
(1988), it is hereby ordered that the appeal of the Maine State Employees
Association be GRANTED.  The Interim Report dated June 12, 1990, is hereby
VACATED and the case REMANDED to the Hearing Examiner for further pro-
ceedings consistent with both the Board's July 23, 1990, rules and the
foregoing discussion.

Dated at Augusta, Maine, this 13th day of September, 1990.


					Peter T. Dawson
					Public Chair

					Thacher E. Turner
					Employero Representative

					Georqe W. Lambertson
					Employee Representative