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 ___________________________________ ) STATE OF MAINE, DEPARTMENT OF ) INLAND FISHERIES AND WILDLIFE, ) ) Petitioner, ) ) APPELLATE REVIEW OF and ) HEARING EXAMINER'S INTERIM ORDER ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) 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 -1- 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. POSITIONS OF THE PARTIES 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 -2- 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." JURISDICTION 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. DISCUSSION 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. -3- 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. -4- Accordingly, we hereby remand the case to the hearing examiner for further proceedings consistent with this order and the Board's present rules. ORDER 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. MAINE LABOR RELATIONS BOARD /s/___________________________ Peter T. Dawson Public Chair /s/___________________________ Thacher E. Turner Employero Representative /s/___________________________ Georqe W. Lambertson Employee Representative -5-