Case No. 96-14
                                      Issued:  September 22, 1997

          and                    )
WILLIAM WASSON,                  )
on behalf of themselves and      )
all similarly situated persons,  )
          and                    )
                 Complainants,   ) 
          v.                     )
EMPLOYEE RELATIONS,              )
                 Respondent.     )

     On January 10 and 30, 1996, respectively, the Maine State
Employees Association (hereinafter referred to as "Union") filed
a prohibited practice complaint and an amended prohibited
practice complaint.  The amended complaint essentially restated
and broadened the scope of the original complaint and is the
basis on which the parties have gone forward in this action. 
On February 9, 1996, the Respondent State of Maine, Bureau of 
Employee Relations ("State"), filed a motion to dismiss the
complaint.  The parties presented written argument on the merits
of the State's motion, the last of which was received on
November 1, 1996.  The Maine Labor Relations Board ("Board"),
Alternate Chair Kathy M. Hooke presiding, with Employee 
Representative Gwendolyn Gatcomb and Alternate Employer
Representative Karl Dornish, Jr., received oral argument from the
parties on January 10, 1997.  The State, the moving party on the
motion, was represented by Peter H. Stewart, Esq., and the Union
was represented by Timothy L. Belcher, Esq.  For the reasons 


stated below, the State's motion to dismiss is denied.


     The Board's authority to consider and rule upon the State's
motion lies in the State Employees Labor Relations Act ("Act"),
26 M.R.S.A. ch. 9-B, and specifically in 26 M.R.S.A.  979-H(2)  


     In considering and ruling on the State's motion to dismiss,
we are guided by the principles which would control in an
analogous judicial proceeding.  The relevant considerations were
recently set forth by the Supreme Judicial Court as follows:

     A motion to dismiss tests the legal sufficiency of the
     complaint.  Plimpton v. Gerrard, 668 A.2d 882, 885 (Me.
     1995).  We review a judgment granting a motion to
     dismiss by treating the material allegations of the
     complaint as true and examining the complaint in the
     light most "favorable to the plaintiff to determine
     whether it alleges the elements of a cause of action
     against the defendant or alleges facts that could
     entitle the plaintiff to relief under some legal
     theory[.]"  Id.  (citing Larrabee v. Penobscot Frozen
     Foods, Inc., 486 A.2d 97, 99 (Me. 1984).

Brown v. Maine State Employees Association, 690 A.2d 956, 958
(Me. 1997).  In the circumstances and for the limited purpose of
ruling on the State's motion, we incorporate herein by reference
the factual allegations set forth in numbered paragraphs 1
through 56 of the amended prohibited practice complaint and
assume such averments as true. 

     Analytically, Counts I and II of the amended prohibited
practice complaint are in the same procedural posture as are
Counts IV and V; therefore, we will discuss Counts I and II
together and Counts IV and V together in the ensuing discussion. 
The arguments relating to Count III are dissimilar from those 
concerning the other counts; hence, it will be discussed



                         Counts I and II
     The State presents two major contentions in support of its
motion to dismiss Counts I and II of the complaint:  (1) the
individuals named complainants are not state employees within the
meaning of the Act; therefore, they do not have any rights under
the Act, and (2) the Act does not authorize the Board to decide
the issues raised in Counts I and II.

State employee status.  

     The State's first argument is that the three individual
complainants are independent contractors performing work for the
State pursuant to written services contracts.  Collective
bargaining by and for state employees is the general rule under
the Act and the several exemptions contained in Section 979-A(6)
were narrowly drawn by the Legislature and must, therefore, be
strictly construed.  State of Maine and Maine State Employees
Association, No. 82-A-02, slip op. at 6, 6 NPER 20-14027, Interim
Order (Me.L.R.B. June 2, 1983).  On the other hand, the coverage
of the Act is limited to state employees and, other than the
listed exclusions, there is no definition of the term "employee"
in the Act.  We agree with the State's basic averment that
persons who are independent contractors are not employees within
the meaning of the Act.  If Mr. and Ms. Buzzell and Mr. Wasson
are shown to be independent contractors, they would not be "state
employees" within the meaning of the Act and would have no rights

     The fundamental issues now before us are whether the three
named complainants are employees or are independent contractors
and how one differentiates between the two types of relation-
ships.  The State urges that we look to and adopt the definition
of "state employee" utilized by the Maine State Retirement System
to determine eligibility for benefits which that agency admin-
isters.  We are not intimately familiar with the nuances of the


retirement laws; therefore, we are wary of adopting the defini-
tion of a term which was developed under those laws and applying
it to the law which we administer.  We would rather look to our
own case law for resolving the employee/independent contractor

     The Municipal Public Employees Labor Relations Law
("MPELRL"), 26 M.R.S.A. ch. 9-A, is similar to the Act in that it
defines covered "public employee[s]" as being any employee of a
public employer, except for any individual who come within one of
several listed exclusions.  The MPELRL goes on to define "public
employer" as an entity fitting within one of several listed types
of entities or "[a]ny . . . other person or body acting on behalf
of" one of the listed types of public employers.  26 M.R.S.A.
 962(7).  Persons or entities who "act on behalf of" another are
either employees of the latter or are independent contractors. 
Baker Bus Service, Inc. v. Keith, 416 A.2d 727, 730 (Me. 1980).

     If an ostensibly private employer acting on behalf of a
public employer is in fact an employee of the latter, its
employees are employees within the scope of the MPELRL.  If, on
the other hand, the person or organization acting on behalf of
the public employer is an independent contractor, the firm's
employees do not have any rights pursuant to the MPELRL.  In
differentiating between entities that are in fact employees of
public employers and those which are bona fide independent
contractors, we look to the common law of agency.  Idem.  

     The traditional common law test that we apply in this
context is as follows:
     By the established law of agency, some agents are
     independent contractors, while there are other agents
     who, if natural persons, are in contrast designated as
     "servants."  The distinction between an agent-servant
     and an agent-independent contractor is whether the
     agent's performance with respect to his physical
     conduct is subject to another's control or right to
     control.  In determining whether Baker Bus was a
     "public employer" under the Act, the tribunals below, 


     in effect, applied that traditional test.

     By expanding the definition of "public employer" beyond
     the municipality itself, the clear legislative
     intendment was to insure that employees, such as the
     school bus drivers in this case, would not be denied
     the benefits and protections guaranteed by the Act when
     the municipality contracted its operations to a
     nominally separate, private business entity that
     actually was, for all practical purposes, the alter ego
     of the municipality.  In order to effectuate the
     purpose of the Act, the Board, in determining the
     rights of employees, must treat a municipality's
     "servant" or alter ego the same as the municipality
     itself.  We must therefore determine whether Baker Bus,
     in providing school bus operations for the city of
     Augusta, acted as a "servant" subject to the City's
     control or right to control.

Id. at 730-731 (footnotes omitted).  The fundamental issue in
Baker Bus was whether the entity in question was an employee or
an independent contractor and our application of the common law
"control or right to control" test to resolve the issue was 
approved by the Law Court.  Since the issue now before us is
essentially the same as that in Baker Bus, we will rely on the
traditional common law test when we ultimately resolve the

     Our decision to use the "control or right to control" test
in this context is consistent with the Law Court's suggestion in
Baker Bus Service v. Keith, 428 A.2d 55, 56 n. 3 (Me. 1981),
that, when interpreting the various Maine public sector labor
relations statutes, one should "look for guidance to parallel
federal law, found in the National Labor Relations Act and 
decisions thereunder."  Like the Act, the National Labor
Relations Act, as amended, 29 U.S.C.  151 et seq., does not
contain a definition of the term "employee" beyond saying that
"[t]he term 'employee' shall include any employee . . . " and
goes on to list several exclusions from the definition of
"employee," including "any individual having the status of an
independent contractor."  29 U.S.C.  152(3).  Our counterpart,
the National Labor Relations Board, uses the traditional common 


law "right of control" test in distinguishing between employees
covered by the NLRA and independent contractors, National
Freight, 146 NLRB 144, 145-146, 55 LRRM 1259 (1964), and the use
of the test for this purpose has been approved by the federal
courts.  Eastern, Inc. v. NLRB, 60 F.3d 855, 858 (D.C. Cir.
1995); Labor Relations Division of Construction Industries of
Massachusetts v. International Brotherhood of Teamsters Local
379, 29 F.3d 742, 748 (1st Cir. 1994).

     The State sought to bolster its argument that the three
named individual complainants are not state employees, within the
meaning of the Act, by pointing out that the employer, the State
itself, does not consider them to be employees.  The State avers
that the three:  were not hired pursuant to the civil service
system, were in neither the classified nor the unclassified 
service, and did not occupy legislatively authorized positions. 
While these facts may have some relevance to whether the three
individual complainants are state employees, as determined by the
traditional common law test, both the Law Court, Wone v. City of
Portland, 466 A.2d 1256, 1257 (Me. 1983), and our Board have held
that we are not bound by the employer's determination of employee
status in determining whether an individual is an employee,
within the meaning of the several Maine labor relations statutes. 
AFSCME Council #93 and State of Maine, No. 89-UC-07, slip op. at
38 (Me.L.R.B. Aug. 10, 1990), aff'd, State of Maine v. AFSCME
Council 93, 91-UCA-02, 13 NPER ME-22005 (Me.L.R.B. Feb. 12,
1991), aff'd on other grounds sub nom., Bureau of Employee
Relations v. Maine Labor Relations Board, 611 A.2d 59 (Me. 1992);
Portland Administrative Employee Association and Portland
Superintending School Committee, No. 86-UD-14, slip op. at 19-21
(Me.L.R.B. Oct. 27, 1986), aff'd on other grounds, Portland
Superintending School Committee v. Portland Administrative
Employee Association, No. 87-A-03 (Me.L.R.B. May 29, 1987).

     Given the comprehensive scope of the coverage of the Act,
State of Maine and Maine State Employees Association, No. 82-A-02,


supra, any individual who is an employee of a public employer is a
covered public employee, unless they fall within one of the
limited statutory exclusions.  It would be inconsistent with the
legislative intent embodied in the definitional section of the Act
for us to hold that the public employer could circumvent the
duties and responsibilities of the Act through the simple
expedient of declaring that its employees are not employees and
have some other relationship with the employer.

     When we apply the traditional common law right to control
test, we will look at and balance all of the factors that bear on
the nature of the relationship between each of the individual
complainants and the State.  National Freight, supra, 146 NLRB 
at 146; see, Lee Academy Education Association v. Lee Academy,
556 A.2d 218, 221-222 (Me. 1989).  The following factual
allegations were contained in the amended complaint:
     1.  The classification of Baxter Park Campground Ranger is
     included in the State employee Operations, Maintenance and
     Support Services bargaining unit.  [Paragraph 6].

     2.  From 1991 to December 20, 1995, the Buzzells performed
     work that was, for all relevant purposes, identical to work
     performed by Baxter Park Campground Rangers elsewhere in
     Baxter Park.  [Paragraph 10].

     3.  During the term of their employment at Baxter Park, the
     Buzzells worked under the control of managerial personnel of
     Baxter Park and were State employees as generally defined by
     law, and as specifically defined in 26 M.R.S.A.  979-A(6).
     [Paragraph 11].

     4.  The classification of Ferry Service Captain is included
     in the State employee Supervisory Services bargaining unit. 
     [Paragraph 20].

     5.  From August 1, 1991, to January 26, 1996, William Wasson
     was employed as a Ferry Captain by the State of Maine, and
     performed all tasks required of persons employed in that
     classification.  [Paragraph 22].

     6.  During his employment, Mr. Wasson performed work that
     was, for all relevant purposes, identical to the work
     performed by Ferry Service Captains elsewhere in the Ferry
     Service.  [Paragraph 24].


     7.  During the term of his employment, Mr. Wasson worked
     under the control of managerial personnel of the Ferry
     Service and was a State employee as generally defined by
     law, and as specifically defined in 26 M.R.S.A.  979-A(6). 
     [Paragraph 25].

Assuming, as we must, that the above factual allegations are
true, we could conclude that, during the time periods mentioned
above, the three individual complainants, Stephen Buzzell, Gladys
Buzzell and William Wasson, performed work for the State of Maine
under the control of state managerial personnel; therefore, the
three were employees of the State of Maine within the meaning of
the Act.  

     The State's final argument is that, if we determine that Mr.
and Ms. Buzzell were employees of the state and not independent
contractors, they did not have any rights under the Act because
they were seasonal employees, excluded by virtue of  979-A(6)(F). 
This section of the Act exempts from the definition of state
employees those who are temporary, seasonal or on-call employees. 
The Union counters that, since their inception, state employee
bargaining units have included "Campground Rangers and hundreds 
of other permanent seasonal employees."  Brief on behalf of
Complainants, at 15.

     The State Bureau of Human Resources has developed and
maintains a comprehensive classification plan for employees in
state service.  5 M.R.S.A.  7061 (1989 & Supp. 1996).  Each
separate classification reflects the type of work being
performed; the duties of the employees in the classification; the
nature and degree of responsibility such employees exercise; the
classification's location within the employer's organizational
structure, including the classification to whom the employees
report and any classifications that the employees supervise; and
the entrance and full performance knowledge, skills and abilities
required of employees in the classification.  State of Maine,
Civil Service Rules, 18-389 CMR ch. 4,  2.  The duties and
responsibilities of each classification are unique to that 


classification and, together with the other elements mentioned
above, define that classification and distinguish it from all
other classifications in state service.  Given the limitations
inherent when considering motions to dismiss and given the
averments contained in numbered paragraphs 1, 2 and 3 of page 7
hereof, we are unable at this juncture to conclude whether the
Buzzells are seasonal employees excluded from the coverage of the
Act.  Were we to ultimately conclude that Mr. and Ms. Buzzell are
state employees, based on their performing work that is identical
with, and that they were subject to the same sort and degree of
supervision as, Baxter Park Campground Rangers, the Buzzells
would be classified as Baxter Park Campground Rangers within the
state's classification plan. [1]  It is unclear when or how the
classification of Baxter Park Campground Ranger became part of
the state employee Operations, Maintenance and Support Services
bargaining unit; however, since it is so included and were we to
conclude that the Buzzells are state employees, such inclusion of
identically situated individuals in the bargaining unit may well
estop the State from challenging the Buzzells' status as state
employees on the grounds that they are exempt "seasonal"

     Second, in the event that we conclude that the Buzzells are
employees of the state performing work identical to that of Baxter
Park Campground Rangers and subject to the same degree of state
managerial control as the latter, the State may be estopped from
challenging the Buzzells' inclusion in the Operations, Maintenance
and Support Services bargaining unit on the grounds that they are
seasonal employees by the terms of the parties' bargaining agree-


     1While the analysis contained in this paragraph is based on
our understanding of the theory of job classification plans, as
embodied in the statute cited and in the State Civil Service
Rules, and in our previous exposure to the State's plan in
particular, Maine State Employees Association v. State of Maine,
Nos. 81-44 & 81-56, 4 NPER 20-12043 (Me.L.R.B. Sept. 21, 1981),
rev'd sub nom. State of Maine v. Maine State Employees
Association, 443 A.2d 948 (Me. 1982), and we believe our
understanding to be accurate, the parties should be prepared to
present evidence and argument relevant to this analysis, during
presentation of their respective cases on the merits.


ment for that unit.  Article I of the parties' 1993-1995
collective bargaining agreement states, in relevant part:

     Employees who are employed on a seasonal basis, i.e.,
     for regularly recurring seasonal periods of three (3)
     months or more, shall be covered by the provisions of
     this Agreement upon the completion of six (6) months
     employment, subject to any special provisions relating
     to their employment.  In order to qualify, such six (6)
     months must be worked in not more than three (3)
     consecutive years and only time in pay status during
     such seasons shall count.  Employment time of persons
     outside State service who are on acting capacity
     assignment to a seasonal position, and employment time
     of persons holding a seasonal intermittent position
     shall not count towards the completion of such six (6)

     In any event, should we determine that the Buzzells are
employees rather than independent contractors, this case may
present us with the opportunity of considering whether the
"seasonal" exclusion contained in  979-A(6)(F) was intended to
apply to permanent seasonal employees who work in a particular
job during the same season each year.  A consideration relevant
to such an inquiry would be whether, in the totality of the
attendant circumstances, the individuals involved have a
reasonable expectation of continued employment from year to year. 
Council 93, AFSCME v. Town of Sanford, No. 90-07, slip op. at 14,
13 NPER ME-21008 (Me.L.R.B. June 15, 1990).

The Board's authority to act.

     The State's second major contention in support of its motion
to dismiss Counts I and II is that the Act does not authorize the
Board to decide the issues raised in those Counts.  The thrust of
the State's position is that  979-E(1) requires the executive
director or the director's designee, rather than the Board, to
determine "whether a supervisory or other position is included in
the bargaining unit."  In addition, the executive director or the
director's designee is authorized by  979-E(3) to modify
existing bargaining units in situations where the circumstances
surrounding the formation of an existing unit have changed 


sufficiently to warrant a change in the composition of the
bargaining unit.  

     The appropriate bargaining unit is the cornerstone of the
labor relations process.  Lewiston Firefighters Association v.
City of Lewiston, 354 A.2d 154, 160-161 (Me. 1976).  We agree
with the State's general contention that the executive director
has the primary responsibility under the Act for determining
bargaining unit status, when units are being created initially or
are being modified.  The executive director and the Board's legal
staff, serving in the capacity as the director's designee, have
developed considerable expertise in fashioning and modifying
appropriate bargaining units, applying the standards which we
have promulgated, in the statutory representation process.  

     On the other hand, as a quasi-judicial body with original
jurisdiction to adjudicate prohibited practice charges,
26 M.R.S.A.  979-H(1), we have the authority and the responsi-
bility to resolve issues concerning the standing of parties to
pursue such complaints.  The issues before us are not whether the
Baxter Park Campground Ranger and Ferry Service Captain classifi-
cations should be assigned to bargaining units and, if so, to
which units they should be assigned.  Those issues--matters of
unit determination--were properly decided by the executive
director years ago with both classifications being assigned to
appropriate bargaining units.  Were we to ultimately conclude
that the Buzzells and Mr. Wasson were state employees, within the
meaning of the Act, we must assume at this stage of the
proceeding that they would be classified as Baxter Park
Campground Rangers and Ferry Service Captain, respectively. 
Their bargaining unit assignment would automatically flow from
such classifications; therefore, we are not intruding into the
executive director's area of statutory jurisdiction by ruling on
the individual complainants' standing to pursue Counts I and II. 
There is no question that we can enforce representation decisions
through the prohibited practice complaint process.  City of 


Bangor v. AFSCME, Council 74, 449 A.2d 1129, 1136 (Me. 1982);
Town of Sanford, supra. 

     The thrust of the bargaining agent's position is that the
public employer has violated the duty to bargain collectively
established by  979-C(1)(E) and engaged in unlawful interfer-
ence, restraint or coercion in violation of  979-C(1)(A) by
failing to treat employees as members of the appropriate
bargaining unit as previously determined by the executive
director.  The executive director or the director's designee has
no authority under the Act to hear and decide charges that anyone
has engaged in any of the prohibited acts enumerated in
 979-C--that authority is vested exclusively in this Board. 
Were we to agree with the State's argument that only the
executive director may determine whether particular individuals
are state employees, since representation decisions have only
prospective effect, the public employer would be insulated from
being found in violation of  979-C for any conduct preceding the
executive director's decision.

                   Count III--The Class Action

     The State objects to our considering Count III of the
amended complaint on the grounds that class actions are neither
contemplated in the Act nor are there any provisions for such
actions in the Board's rules.  The fact that class actions are
not explicitly mentioned in the Act is not significant.  

     Nevertheless, class actions are procedural mechanisms
through which the interests of similarly situated individuals 
may be litigated, without the necessity of joining all such
individuals in the action, subject to certain enumerated
conditions.  Generally, class actions may be maintained pursuant
to the tribunal's procedural rules, which set forth the
conditions necessary for initiating, maintaining and prosecuting
the actions.  See, e.g., Maine Rules of Civil Procedure, Rule 23. 
These rules are detailed and reasonably complex.  In the absence 


of such a rule, we believe that class actions may not be
maintained before this agency; therefore, we will grant the
State's motion as it relates to Count III of the complaint.  The
next time we engage in rule-making, the Union may wish to propose
that we consider adopting a class action rule and we will
evaluate the merits of such a proposal at that time.

                         Counts IV and V

     As noted above, Counts IV and V are in a similar posture,
procedurally.  In each count, the Union is charging that the 
named individual complainants challenged the State's treatment of
them as independent contractors, asserted that they were state
employees within the meaning of the Act and attempted to secure
the rights provided by the Act, and that, because of such actions
by the named complainants, the State terminated its agency        
relationship with them.  During the oral argument, the Union went
on to assert that other individuals, who had enjoyed relation-
ships with the State similar to those of the three named
complainants and who had not challenged their treatment as
independent contractors, were retained by the State and became
regular employees.  The Union urges that the State's actions in
severing the agency relationship with the three named 
complainants violated  979-C(1)(A) and (B), regardless of
whether such individuals are State employees within the meaning 
of the Act.  

     The State argues in response to Count IV that, regardless of
the ruling in connection with the motion to dismiss Count I, the
complainants Stephen and Gladys Buzzell would not be eligible for
state employee status because they are seasonal employees, within
the meaning of  979-A(6)(F), and are thus excluded from the
coverage of the Act.  The State's response to Count V is similar. 
Regardless of the result of the motion to dismiss in connection 
with Count II, Complainant William Wasson could not be a state
employee entitled to any relief pursuant to the Act because he had
been employed for less than six months at the time of his 


termination and was excluded from the coverage of the Act 
pursuant to  979-A(6)(E).  The State urges that these arguments
militate the dismissal of Counts IV and V.

     The State's arguments are unpersuasive.  At least some
provisions of the Act provide protection to persons who are not
state employees, within the meaning of  979-A(6).  We have long
suggested that employees exempt from the coverage of the Act are,
nevertheless, protected by  979-C(1)(D), if the employer
retaliates against them for giving testimony adverse to the 
employer in a proceeding before the Board or during the 
processing of a grievance.  Sewall v. Portland Water District,
No. 86-17, 9 NPER ME-18003, slip op. at 8 (Me.L.R.B. Aug. 19,
1986).  The rationale for Board action in such cases is that the
integrity of the Board's own process as well as that of the
grievance-arbitration procedure depends on the availability of
such protection.  If we were unable to protect exempt employees
such as department heads or confidential employees who give
testimony in prohibited practice or grievance cases from employer
retaliation for their testimony, such individuals would be
reluctant to testify and the best relevant evidence might be

     The Supreme Court of the United States has held that
 8(a)(3) of the National Labor Relations Act, the provision of
that act that is parallel with  979-C(1)(B) and after which the
latter was patterned, extends to applicants for employment as
well as persons who are already employed.  NLRB v. Town and
Country Electric, Inc., ___U.S. ___, 116 S.Ct. 450, 452, 133 
L.Ed.2d 371 (1995), citing Phelps Dodge Corp. v. NLRB, 313 US
177, 185-186, 61 S.Ct. 845, 848-849, 85 L.Ed. 1271 (1941).  This
conclusion is consistent with the plain meaning of the language
in  979-C(1)(B) which states:

     1.  Public Employer Prohibitions.  The public employer,
     its representatives and agents are prohibited from:

          . . .   


         B.  Encouraging or discouraging membership in any        
         employee organization by discrimination in regard to     
         hire or tenure of employment or any term or condition 
         of employment;

(Emphasis added.)  If this section did not extend to job appli-
cants, the word "hire" in the statute would have no effect;
therefore, we hold that the protections embodied in this
provision of the Act do extend to job applicants--individuals who
may or may not be state employees, within the meaning of the Act.
     Finally, we have noted that the law is well settled that, in
some circumstances, a public employer can violate the rights of
its organized employees through actions taken in connection with
exempt individuals.  Maine State Employees Association v. State
of Maine, No. 81-06, 4 NPER 20-12021, slip op. at 8 (Me.L.R.B. 
Apr. 28, 1981).
     As discussed in connection with Counts I and II above, we
are unable to conclude whether Mr. and Ms. Buzzell and Mr. Wasson
are State employees at this juncture of the proceeding, and both
parties will be permitted to develop a factual record on this
issue.  Moreover, since the employer can violate  979-C(1)(A)
and (B) through actions directed against persons who are not
State Employees, within the meaning of the Act, we would be
unable to dismiss Counts IV and V, even were we to conclude that
Mr. and Ms. Buzzell and Mr. Wasson are not State employees.  

     For all of the reasons stated above, we deny the State's
motion to dismiss and we will direct the executive director to
schedule a prehearing conference and a hearing on the merits of
the Union's complaint in the normal course of business.


     On the basis of the foregoing assumptions of fact and
discussion and pursuant to the provisions of 26 M.R.S.A.
 979-H(2) (1988), it is hereby ORDERED:


     1.    That the motion to dismiss filed by the State 
           on February 9, 1996, is denied, except as to Count III.

     2.    The executive director shall, in the normal 
           course of business, schedule a prehearing                  
           conference and evidentiary hearing on the 
           merits of the Union's complaint.

Issued at Augusta, Maine, this 22nd day of September, 1997.

                                 MAINE LABOR RELATIONS BOARD

                                 Kathy M. Hooke
                                 Neutral Chair

                                 Gwendolyn Gatcomb
                                 Employee Representative

                                 Karl Dornish, Jr.
                                 Employer Representative