Appeal of 04-UD-04

                                      Case No. 04-UDA-01
                                      Issued:  October 8, 2004 

YORK COUNTY,                       )
                    Appellant,     )
          and                      )     DECISION AND ORDER ON
                                   )       UNIT DETERMINATION
SEIU Local 1989,                   )
                    Appellee.      )

     This unit determination appeal was filed by York County on
April 12, 2004, pursuant to 26 M.R.S.A. 968(4) and Chapter 11,
30 of the Rules and Procedures of the Maine Labor Relations
Board (Board).  The unit determination report which is the
subject of this appeal was issued on March 30, 2004.  York County
objects to the hearing examiner's conclusion that the bargaining
unit petitioned for by the Maine State Employees Association,
consisting of the deputy register of probate and the deputy
register of deeds, was an appropriate bargaining unit within the
meaning of 26 M.R.S.A. 966.  On appeal, the County raises
essentially the same arguments that were made to the hearing
examiner, that is, that both positions are excluded from coverage
of the Act because they are confidential employees or department
heads within the meaning of 26 M.R.S.A. 962(6)(C) and (D).  The
County also disputes the Hearing Examiner's conclusion that the
two positions share a community of interest.  
     Throughout this proceeding, Timothy O'Brien, Esq., has
represented York County and Timothy Belcher, Esq., has represent-
ed the Maine State Employees Association.  Both parties waived
their right to present oral argument to the Board.  The County
filed a written brief to the Board on May 4, 2004, while the 


Union elected not to do so.  The Board reviewed the unit deter-
mination report, the evidentiary record, the briefs submitted to 
the hearing examiner and the County's appeal brief.  The Board
met on June 8, 2004, to deliberate this matter.  As explained
below, we affirm the hearing examiner's conclusion that the
petitioned-for unit is an appropriate bargaining unit and that
neither of the positions are excluded from coverage of the Act.


     York County is an aggrieved party within the meaning
of 26 M.R.S.A. 968(4), and is a public employer within the
meaning of 26 M.R.S.A. 962(7).  The Maine State Employees
Association is a bargaining agent within the meaning of 26
M.R.S.A. 962(2).  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. 968(4). 

     The standard of review for bargaining unit determinations by
a hearing examiner is well established:

     We will overturn a hearing examiner's rulings and
     determinations if they are 'unlawful, unreasonable, or 
     lacking in any rational factual basis.'"  Council 74,
     AFSCME and Teamsters Local 48, MLRB No. 84-A-04 at 10 
     (Apr. 25, 1984), quoting Teamsters Local 48 and City of
     Portland, MLRB Report of Appellate Review at 6
     [78-A-10] (Feb. 20, 1979).  It thus is 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.

MSAD #43 and SAD #43 Teachers Assoc., 84-A-05, at 3 (May 30,
1984), affirming No. 84-UC-05.  


    The bulk of the County's brief to this Board presents the
same arguments that it presented to the Hearing Examiner below. 
The only new legal argument on appeal is the County's claim that
the Hearing Examiner created a new threshold regarding access to 
confidential information that is not found in the statutory
exclusion for confidential employee.  The County also claims that
the Hearing Examiner applied a higher standard on the appointment
process for department heads than the statute requires and erred
in her factual finding that the involvement of the County
Commissioners in the appointment of the deputy registers was not
sufficient to meet the requirements of the statutory exclusion
for department heads.  

     We have reviewed the record and the hearing examiner's
decision and conclude that her legal analysis was sound in all
respects.  The hearing examiner properly applied the existing
case law for both the statutory exclusion for confidential
employees and the exclusion for department heads.  Furthermore,
the hearing examiner's factual conclusions are logical and are
rationally supported by the evidence.  Accordingly, we conclude
that the hearing examiner's determinations were not unlawful,
unreasonable, or lacking in any rational factual basis.  Pursuant
to 26 M.R.S.A.  968(4), we hereby deny the appeal and affirm the
unit determination report in its entirety.


     On the basis of the foregoing 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.  968(4), it is ORDERED:

     1.  That the appeal of York County filed on April 12,
     2004, is denied and that the hearing examiner's    


     March 30, 2004, unit determination report is affirmed
     in its entirety.

     2.  That the Executive Director shall, as soon as is
     possible, schedule and conduct a secret ballot
     bargaining agent election in the new bargaining unit.
Dated at Augusta, Maine, this 8th day of October, 2004.

                                  MAINE LABOR RELATIONS BOARD

The parties are advised of        Jared S. des Rosiers
their right to week review        Alternate Chair
of this decision and order  
by the Superior Court by
filing a complaint pursuant       /s/___________________________
to 26 M.R.S.A. 968(4) and in     Edwin S. Hamm
accordance with Rule 80C of       Alternate Employer
the Rules of Civil Procedure      Representative
within 15 days of the date of
this decision.               
                                  Wayne W. Whitney
                                  Alternate Employee