State of Maine, Department of Public Safety and Maine State Employees Association, Local 1989, SEUI, MLRB No. 94-UCA-01 (July 1, 1994) Affirming MLRB Nos. 83-UC-45 & 91-UC-45 (Feb. 4, 1994) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 94-UCA-01 Issued: July 1, 1994 ____________________________________ ) STATE OF MAINE, DEPARTMENT OF ) PUBLIC SAFETY, ) ) Appellant, ) ) DECISION AND ORDER ON and ) UNIT CLARIFICATION APPEAL ) MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Appellee. ) ____________________________________) This is an appeal of a unit clarification report filed by the State of Maine (State) on February 18, 1994, pursuant to 26 M.R.S.A. 979-G(2) (Supp. 1993) and Rule 1.12 of the Rules and Procedures of the Maine Labor Relations Board (Board). The unit clarification report which is the subject of this appeal was issued on February 4, 1994. The single aspect of the unit clarification report which is appealed by the State is the hearing examiner's determination that Clerk Stenographer III Joan Butler[fn]1 should not be excluded from the coverages of the State Employees Labor Relations Act (SELRA) as a confidential employee within the meaning of 26 M.R.S.A. 979-A(6)(C) (1988). The hearing examiner determined that the record did not establish a sufficient amount of "confidential" work on the part of Butler or excluded confidential Administrative Secretary Sophie Welsh[fn]2 _____________________ 1 Butler was alleged by the State to perform necessary confidential duties for the Chief of the Maine State Police. 2 Welsh is Administrative Secretary both to the Commissioner of Public Safety and to the Deputy Chief of the Maine State Police. -1- to necessitate the exclusion of a total of three[fn]3 clerical employees. The hearing examiner found that although Butler had performed confidential duties within the meaning of the SELRA, her exclusion could "be avoided through a reasonable reassignment of some duties." The parties waived oral argument and mutually agreed to submit the appeal on written argument alone. By agreement no transcript of the underlying evidentiary proceeding was produced and the parties stipulated that no additional facts--beyond those contained in the unit clarification report--were needed for full litigation of the appeal. A briefing schedule was agreed upon, pursuant to which the parties' main briefs were both filed on April 27, 1994. The State filed a reply brief on May 9, 1994. The Appellant/State is represented in this matter by Attorney Sandra S. Carraher and the Appellee/Maine State Employees Association (MSEA) by Attorney Timothy L. Belcher. The Board, comprised of Chair Peter T. Dawson, Employee Representative George W. Lambertson and Alternate Employer Representative Eben B. Marsh, deliberated this matter on June 21, 1994. JURISDICTION The State is an aggrieved party within the meaning of 26 M.R.S.A. 979-G(2) (Supp. 1993), and is a public employer within the meaning of 26 M.R.S.A. 979-A(5) (Supp. 1993). The MSEA is the bargaining agent, within the meaning of 26 M.R.S.A. 979- A(1) (1988), of Joan Butler and other Law Enforcement Services bargaining unit employees within the State Department of Public Safety. The jurisdiction of the Maine Labor Relations Board to hear this appeal and to render a decision herein lies in ____________________ 3 The hearing officer also excluded as confidential, within the meaning of the SELRA, Clerk Typist Priscilla Martin, secretary to the Department Personnel Manager. -2- 26 M.R.S.A. 979-G(2) (Supp. 1993). FINDINGS OF FACT Neither party has taken exception with any finding of fact contained in the hearing examiner's February 4, 1994, unit clarification report. Those findings of fact are hereby incorporated in and made a part hereof. We have often stated the standard applicable to our review of hearing examiners' unit clarification reports. It is as follows: We will overturn a hearing examiner's rulings and determinations if they are "unlawful, unreasonable, or lacking in any rational factual basis." It is thus not proper for us to substitute our judgment for the hearing examiner's; our function is to review the facts to determine whether the hearing examiner's decisions are logical and are rationally supported by the evidence. AFSCME, Council 93 and Town of Sanford, No. 92-UDA-03, slip op. at 4 (Me.L.R.B. May 7, 1992); State of Maine and AFSCME Council 93, No. 91-UCA-02, slip op. at 2 (Me.L.R.B. Feb. 12, 1991); Portland Superintending School Committee v. Portland Administrative Employees Association, No. 87-A-03, slip op. at 6 (Me.L.R.B. May 29, 1987). We have reviewed the contested portions of the unit clarification report in light of the above standard of review and the arguments of the parties. We hold that the hearing examiner's rulings are lawful, reasonable and are supported by competent substantial record evidence. Pursuant to 26 M.R.S.A. 979-G(2) (Supp. 1993), we hereby AFFIRM the hearing examiner's factual findings and legal analysis with respect to the unit placement of Clerk Stenographer III Joan Butler, and adopt them as our own. -3- ORDER On the basis of the foregoing findings of fact and discussion and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 979-G(2) (Supp. 1993), it is ORDERED: that the February 18, 1994, appeal of the State of Maine, filed with respect to the February 4, 1994, unit clarification report in Case No. 83-UC-45 and 91-UC-45, is denied and the report is affirmed, in part, as is set forth above. Dated at Augusta, Maine, this 1st day of July, 1994. MAINE LABOR RELATIONS BOARD The parties are hereby advised /s/___________________________ of their right, pursuant to 26 Peter T. Dawson M.R.S.A. 979-G(2) (Supp. Chair 1993), to seek review of this Decision and Order on Unit Clarification Appeal by the Superior Court. To initiate /s/___________________________ such a review an appealing George W. Lambertson party must file a complaint Employee Representative with the Superior Court within fifteen (15) days of the date of announcement hereof, and otherwise comply with the /s/___________________________ requirements of Rule 80C of Eben B. Marsh the Maine Rules of Civil Alternate Employer Procedure. Representative -4-