State of Maine, Department of Inland Fisheries and Wildlife and MSEA, 
No. 95-UCA-01 (Dec. 27, 1994), affirming 93-UC-05, June 9, 1994.

                                      Case No. 95-UCA-01
                                      Issued:  December 27, 1994

                 Appellant,        )
                                   )     DECISION AND ORDER ON
             and                   )   UNIT CLARIFICATION APPEAL
LOCAL 1989, SEIU,                  )
                 Appellee.         )

     This unit clarification appeal was filed by the State of
Maine (State) on June 22, 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 June 9,
1994.  In its appeal the State challenges the hearing examiner's
determination that Chief Accountant Janet Cotnoir is a state
employee within the meaning of 26 M.R.S.A.  979-A(6) (1988 &
Supp. 1993).  The State contends that Cotnoir should 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) or in the alternative as a policy
formulator/effectuator (J-1) within the meaning of 26 M.R.S.A. 
979-A(6)(J) (1988).  The hearing examiner determined that the
chief accountant had not participated directly or indirectly in
collective bargaining negotiations, that the record did not
establish that she had access to the State collective bargaining
strategies, priorities or positions prior to their being revealed
at the bargaining table and that none of the information to which
she was alleged to have access could possibly jeopardize the
State's bargaining positions or strategies.  With regard to the
State's sought-after J-1 exclusionary designation, the hearing
examiner found that the record's one instance of Cotnoir's


participation in the development and effectuation of policy was
not sufficient to mandate her exclusion.

     The parties waived oral argument and mutually agreed to
submit the appeal on written argument alone.  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 filed original, response and reply briefs on 
August 25, September 30 and October 6, 1994, respectively.  
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, Employer Representative
Howard C. Reiche, Jr., and Alternate Employee Representative
Gwendolyn Gatcomb, deliberated this matter on November 30, 1994.

     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) (1988 & Supp. 1993).  The
MSEA is the bargaining agent, within the meaning of 26 M.R.S.A. 
979-A(1) (1988), of Supervisory Services bargaining unit
employees within the State Department of Inland Fisheries and
Wildlife.  The jurisdiction of the Maine Labor Relations Board to
hear this appeal and to render a decision herein lies in 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 June 9, 1994, unit clarifi-
cation 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

     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

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 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 Chief Accountant
Janet Cotnoir and adopt them as our own.  

     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 June 22, 1994, appeal of the State of Maine,
     filed with respect to the June 9, 1994, unit

     clarification report in Case No. 93-UC-05, is denied 
     and the report is affirmed as set forth above.

Dated at Augusta, Maine, this 27th day of December, 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         Howard C. Reiche, Jr.
party must file a complaint        Employer 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        Gwendolyn Gatcomb
the Maine Rules of Civil           Alternate Employee
Procedure.                           Representative