Lee Academy Educ. Assoc. v. MLRB and Lee  Academy Board of Trustees, 
CV-87-338, affirming 87-A-07, reversing 87-UD-05.
Affirmed, 556 A.2d 218 (Me. 1989). STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION DOCKET NO. CV-87-338 LEE ACADEMY EDUCATION ASSOCIATION/MTA/NEA, Plaintiff vs. ORDER LEE ACADEMY BOARD OF TRUSTEES, and MAINE LABOR RELATIONS BOARD, Defendants This matter is before the court on Lee Academy Education Association's ("Association") appeal of the Maine Labor Relations Board's ("Board") determination that Lee Academy ("Academy") is not a public employer as defined in 26 M.R.S.A. 962(7) (Pamph. 1987). All three parties have submitted memoranda and oral arguments were heard on July 7, 1988. FACTS: The facts of this matter are not disputed and are set forth in detail in the Board's decision dated August 17, 1987. The court therefore limits the factual summary here only to those facts which are necessary to set forth the procedural history of this appeal. On December 1, 1986, the Association filed a petition with the Board pursuant to 26 M.R.S.A. 966 for a determination as to [-1-] _________________________________________________________________ what constituted an appropriate collective bargaining unit of professional and non-professional employees of the Academy. The Academy objected to the petition on the ground that the Board lacked jurisdiction to make a unit determination because the Academy was not a public employer within the scope of 26 M.R.S.A 962(7). On April 14, 1987, a Board hearing examiner found that the Academy was a public employer. The Academy appealed the hearing examiner's decision to the Board pursuant to 26 M.R.S.A. 968(4) and on August 17, 1987 the Board reviewed the decision of the hearing examiner and reversed it. Shortly thereafter, the Association's appeal to this court ensued. DISCUSSION: Based on the record before it, the Board made a determination that the Academy is not a public employer and does not act "on behalf of" a public employer as defined in 26 M.R.S.A. 962(7).[fn]1 The Superior Court's review of the Board's factual determinations is a limited one. 26 M.R.S.A. 968(4) states that decisions of the Board "shall be subject to review by the Superior Court in the manner specified in 972." The standard set forth in 972 provides that the reviewing court shall treat questions of fact as final in the absence of fraud. The Law Court has approved __________________ 1 26 M.R.S.A. 962(7) (Pamph. 1987) defines "public employer" as "any officer, board, commission, council, committee or other persons or body acting on behalf of any municipality or town or any subdivision thereof, or of any school, water, sewer or other district, or of the Maine Turnpike Authority, or of any county or any subdivision thereof." (emphasis added) [-2-] _________________________________________________________________ 3 this standard of review of factual findings in unit determination proceedings. Baker Bus Service, Inc. v. Keith, 416 A.2d 727, 730 (Me. 1980).[fn]2 The Association contends that notwithstanding the scope of review provided by 972, the Board's findings of fact should not be treated as final because the Board improperly took additional evidence and because it failed to modify or affirm the ruling of the hearing examiner as required by 26 M.R.S.A. 968(4) .[fn]3 The court is not persuaded by either of these arguments. Rule 1.10 of the Maine Labor Relations Board provides that on appeal to the Board from a determination by a hearing examiner "any party to the __________________ 2 The fact that a previous ruling by the Superior Court established that this matter is to proceed in accordance with M.R. Civ. P. 8OC does not affect the standard of review of the Board's factual determinations. As the Law Court noted in an 8OB case in which the standard of review of factual findings was in question: "Rule 8OB does not itself provide a standard of review; it merely proscribes the procedure by which the Superior Court reviews governmental action ... . [T]he reference in section 972 to Rule 8OB imparts no standard of review contrary to that expressly provided by the statute's language -- final in the absence of fraud." Baker Bus Service. Inc. v. Keith, 416 A.2d 727, 730 (Me. 1980). 3 26 M.R.S.A. 968(4) (Pamph. 1987) provides in part that: "[T]he board shall make a written decision which shall include findings of fact and shall either affirm or modify the ruling or determination of the executive director and specify the reasons for such action." (emphasis added) [-3-] _________________________________________________________________ hearing, as determined by the Board, shall have the right ... to offer documentary and other evidence." Rule 1.10(C). Although the rule also provides that the "proceeding shall not be a de novo hearing" and that "the scope of admissible evidence shall normally be limited to that offered at the original unit hearing", the Board is not barred from considering new evidence and in this matter the court finds that the new evidence presented to the Board was properly admitted. Neither is the court persuaded by the Association's argument that the Board can not claim the standard of review set forth in 972 when it reversed rather than affirming or modifying the hearing examiner's determination. Regardless of whether or not 968(4) implicitly permits the Board to reverse a hearing officer's decision, 972 clearly establishes the standard of review of factual findings. In this matter no evidence of fraud has been elicited and thus pursuant to 972 this court treats the Board's factual determinations as final. The Association also contends that the Board's determination that the Academy is not a public employer and does not act on behalf of a public employer was premised on an incorrect ruling of law. If the Board's decision was based on an erroneous ruling or finding of law, the Superior Court is authorized to overrule it. 26 M.R.S.A. 968(4); 26 M.R.S.A. 972. In order to determine whether the Board's decision was in error, this court is guided by the Law Court's decision in Baker Bus in which the Court addressed the issue of whether an entity was a public employer pursuant to [-4-] 26 M.R.S.A. 962(7). 416 A.2d at 731. In their examination of the scope of the phrase "acting on behalf off" a public employer, the Baker Bus Court invoked general agency principles and focused their attention on whether the plaintiff, Baker Bus Service, Inc., was subject to the control of the City of Augusta. Id.[fn]4 On the record presented here, the court can not say, as a matter of law, that the Board's legal determination of the Academy's status was based on an erroneous finding or ruling of law. Evidence, or the Association's lack of evidence to the contrary, on the record supports the Board's determination that the Academy is not subject to the control of, and therefore does not act on behalf of, MSAD #30. In reaching this conclusion, the Board relied on the absence of evidence supporting the Association's claim of control and on the testimony of the Chairman of the Academy's Board of Directors. The court, finding no error, declines to reverse or modify the Board's determination that the Academy is not a public employer within the meaning of 962(7). Therefore it is hereby ORDERED that the Board's determination is affirmed and the Association's appeal is DENIED. Dated: July 19, 1988 /s/________________________________ MORTON A. BRODY CHIEF JUSTICE, SUPERIOR COURT ____________________ 4 Although the Association maintains that traditional rules of agency may not adequately describe a public employer pursuant to the Maine Public Labor Relations Act, the court is persuaded that the test set forth in Baker Bus is properly applied here to evaluate the Academy's status. [-5-] _________________________________________________________________