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. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 95-UCA-01 Issued: December 27, 1994 ___________________________________ ) STATE OF MAINE, DEPARTMENT OF ) INLAND FISHERIES AND WILDLIFE, ) ) Appellant, ) ) DECISION AND ORDER ON and ) UNIT CLARIFICATION APPEAL ) MAINE STATE EMPLOYEES ASSOCIATION, ) 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 -1- 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. 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) (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. -2- DISCUSSION 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 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. 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 June 22, 1994, appeal of the State of Maine, filed with respect to the June 9, 1994, unit -3- 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 -4-