Appeal affirming 10-UD-04, MSEA and Maine Community College System
Unit Determination Report (Feb. 23, 2010).

 

This unit determination appeal was filed by the Maine
Community College System on March 10, 2010, pursuant to 26
M.R.S.A. 1028(2) and Chapter 11, 30 of the Rules and Procedures
of the Maine Labor Relations Board (Board).  The Unit Determin-

ation Report which is the subject of this appeal was issued by
the Board's Hearing Examiner on February 23, 2010, pursuant to
1024-A of the University of Maine System Labor Relations Act. 
26 M.R.S.A. 1021 et seq.  The Maine Community College System
(MCCS or Employer) objects to the Hearing Examiner's conclusion
that the bargaining unit petitioned for by the Maine State
Employees Association (MSEA), consisting of "all adjunct faculty
members employed by the Maine Community College System who teach
credit courses" was an appropriate bargaining unit within the
meaning of 26 M.R.S.A. 1024-A.  On appeal, the MCCS raises
essentially the same arguments that were made to the Hearing
Examiner, that is, that adjunct faculty are not "regular
employees" covered by the Act, and that the creation of an
additional bargaining unit is not permitted by the Act in this
case.
     Throughout this proceeding, Linda D. McGill, Esq., and Lori
Londis Dwyer, Esq., represented the Maine Community College
[end of page 1]

System while Roberta de Araujo, Esq., and Alison Mann, Esq.,
represented the Maine State Employees Association.  The Board met
on March 19, 2010, to hear argument on this appeal and the
related appeal of the Election Order.  On April 1, 2010, the
Board met to deliberate both of these matters.  The Board denied
the appeal of the Election Order on April 8, 2010.
               
                           JURISDICTION

     The Maine Community College System is an aggrieved party
within the meaning of 26 M.R.S.A. 1028(2).  The Maine State
Employees Association is a bargaining agent within the meaning of
26 M.R.S.A. 1022(1-B).  The jurisdiction of the Maine Labor
Relations Board to hear this appeal and to render a decision lies
in 26 M.R.S.A. 1028(2). 
                                 
                           DISCUSSION  
     
I. Introduction     
                    
     The standard of review this Board uses to evaluate a hearing
examiner's findings of facts and conclusions of law is that they
will be overturned if they are "unlawful, unreasonable, or
lacking in any rational factual basis." Maine Maritime Academy
and MSEA, No. 03-UCA-01 (May 15, 2003), at 2, citing City of Bath
and Council 74, AFSCME, No. 81-A-01 (Dec. 15, 1980), at 6; Penob-

scot Valley Hospital and Maine Fed. of Nurses and Health Care
Prof'ls, AFT, No. 85-A-01 (Feb. 6, 1985), at 2; Topsham and Local
S/89 District Lodge #4, IAMAW, No. 02-UCA-01 (Aug. 29, 2002). 
The questions presented in this appeal are primarily matters of
statutory interpretation.
 
     The two legal issues presented in this case are both matters
of first impression.  The first issue is whether adjunct faculty
are "regular employees" within the meaning of 1022(8) of the 

[end of page 2]

Act.  If so, the second issue to be addressed is whether the
Hearing Examiner's decision to create an additional unit was
consistent with the intent of 1024-A.  Neither of these
questions have been addressed by the Board before, nor is there
any comparable language in the other collective bargaining
statutes this Board administers and enforces.  Thus, our review
of the case must start with our own legal interpretation of the
statute.  As the administrative agency responsible for the
enforcement of the Act, we must independently determine the
meaning of the statute and its application in light of the
factual findings of the Hearing Examiner. 
     
II. The Definition of "Regular Employee" in 1022(8).
     
     The statutory protections and rights established by the
University of Maine System Labor Relations Act extend to the
employees of various public sector higher education institutions
in Maine.  Subsection 11 of the definitions section of the Act
provides, in full:  
     
     11. "University, academy or community college employee"
     means any regular employee of the University of Maine
     System, the Maine Maritime Academy or the Maine
     Community College System performing services within a
     campus or unit, except any person:

          A. Appointed to office pursuant to law; 

          B. Appointed by the Board of Trustees as a
          vice-president, dean, director or member of the
          chancellor's, superintendent's or Maine Community
          College System executive director's immediate
          staff; or 

          C. Whose duties necessarily imply a confidential
          relationship with respect to matters subject to
          collective bargaining as between such person and
          the university, the academy or the Maine Community
          College System.

[end of page 3]
26 M.R.S.A. 1022, sub-11.  In turn, sub-8 of the definitions
section states: 

     8. "Regular employee" means any professional or
     classified employee who occupies a position that exists
     on a continual basis.

26 M.R.S.A. 1022, sub-8.  The construction of the University
Act is unique in that the definition of employee, with its
exclusions, only applies to those individuals already determined
to be "regular employees."  The other collective bargaining
statutes do not include anything comparable to sub-8.

     This definition of "regular employee" found in sub-8 has
not changed since the University Act was enacted in 1976.  P.L.
1975, c. 603.  At that time, the Act's protection was limited to
employees of the University of Maine System.  The Legislature
extended the Act's protections to employees of other higher
education institutions on two occasions since then, each time
amending 1022(11) to add the reference to the institutional
employer, but never changing the definition of "regular employee"
found in 1022(8).  See P.L. 1975, c. 671, (extending the Act to
include the Maine Maritime Academy); P.L. 1977, c. 581 (extending
the Act to include employees of the state schools of nursing and
the vocational technical institutes)[fn]1.  The definition has
also 
remained constant through a number of organizational changes,
such as when the technical institutes became technical colleges,
P.L. 1989, c. 443, and when the Maine Technical College System
became the Maine Community College System, P.L. 2003, ch. 20
OO2.  Although the present dispute is limited to adjunct faculty
at the MCCS, the definition of regular employee is central to 

     1  The vocational technical institutes were a part of the Maine
Department of Education until 1985 when the Vocational-Technical
Institute System was created.

[end of page 4]

determining whether an individual is provided the benefits and
protections of the Act whether they are employed by the
University System, Maine Maritime Academy or the Maine Community
College System.     
  
     It is noteworthy that unlike all of the other public sector
collective bargaining statutes in Maine, the University Act does
not contain an exclusion from the definition of employee for any
person who is a "temporary, seasonal, or on-call employee." 
Compare 1024(11) to 26 M.R.S.A. 962(6)(G)(Act covering
municipal and county employees), 26 M.R.S.A. 979A(6)(F)(Act
covering state employees), and 26 M.R.S.A. 1282(5)(F)(Act
covering judicial employees).  This exclusion, which has been
part of the other three Acts since their enactment, has never
been part of the University Act.  The University Act is also the
only one of the four collective bargaining acts enforced by this
Board that does not exclude employees with less than six months
of employment.[fn]2  See 962(6)(F), 979A(6)(E), and
1282(5)(G).
  
     In examining the statutory language of any "employee who
occupies a position that exists on a continual basis", we
conclude that the requirement of "existing on a continual basis"
applies to the position, and not to the employee who occupies
that position.  This is a reasonable interpretation of the
language from a grammatical perspective, as the restrictive
clause following "that" defines the word "position", not the
employee.
  
     Our conclusion that the focus must be on the position and
not the employee is consistent with the use of the term 

     2  The University Act did contain this exclusion from its
enactment in 1976 until 2003, when the exclusion was repealed.  There
is no argument or legislative history that this repeal had anything to
do with adjunct faculty.

[end of page 5]

"position" elsewhere in Maine's collective bargaining statutes. 
Bargaining units are made up of positions, not employees. 
Section 1024-A of the University Act establishes the statutory
framework for bargaining units.  Subsection 4 states:

     4.  In the event of a dispute over the assignment of
     jobs or positions to a unit, the executive director
     shall examine the community of interest, including work
     tasks among other factors, and make an assignment to
     the appropriate statutory bargaining unit set forth in
     subsection 1, 2 or 3.    
26 M.R.S.A. 1024-A, sub-4 (emphasis added).
  
     Similarly, this statutory directive to consider the
positions rather than the employee holding the position is stated
explicitly in Maine's other three collective bargaining statutes
in the sections authorizing the executive director to determine
the composition of the bargaining unit.  For example, the
relevant section in the Municipal Public Employees Labor
Relations Act starts:
 
     1.  In the event of a dispute between the public
     employer and an employee or employees as to the
     appropriateness of a unit for purposes of collective
     bargaining or between the public employer and an
     employee or employees as to whether a supervisory or
     other position is included in the bargaining unit, the
     executive director or his designee shall make the
     determination, except that anyone excepted from the
     definition of public employee under section 962 may not
     be included in a bargaining unit. . . . 
     

26 M.R.S.A. 966(1)(emphasis added).  Identical language is found
in the statute covering state employees at 26 M.R.S.A. 979-E(1),
and in the statute covering judicial employees at 26 M.R.S.A.
1286(1).  These same sections direct the executive director to
consider the "principal functions of the position" when deciding
whether a "supervisory position" should be included in a unit 

[end of page 6]

with subordinate employees.[fn]3
     
     This emphasis on the position or job when creating bargain-

ing units is distinct from the analysis that necessarily occurs
when the question is whether a person is excluded from the
definition of employee by the specific terms of the statute. 
Within the University Act, 1024-A(11) contains three exclusions
that require a focus on the individual.  With respect to the
Maine Community College System, the definition of employee is
"any person" (A) "Appointed to office pursuant to law",
(B)"Appointed by the Board of Trustees... as [the MCCS] executive
director's immediate staff" or, (C) "Whose duties necessarily
imply a confidential relationship with respect to ... collective
bargaining" 26 M.R.S.A. 1024-A(11)(C).  This same construction
for exclusions from the definition of employee is found in
Maine's other collective bargaining statutes.
 
     These basic principles of unit composition are readily
apparent in practice.  For example, if a bargaining unit contains
the position of secretary, all employees who occupy the position
of secretary are included in the bargaining unit.  An individual
employee would only be excluded by a specific statutory exclusion
or by virtue of a limitation in the definition of the bargaining
unit.  Even when the position of "secretary" is included in the
unit, a particular secretary may be excluded as a confidential
employee because that secretary's duties "necessarily imply a
confidential relationship" with respect to collective bargaining
matters.  See, e.g., 26 M.R.S.A. 1022(11)(C).  

     3  See also the provisions for voluntary recognition at 1025(1),
967(1), 979-F(1), and 1286(1). A request for recognition must state
the "grouping of jobs or positions which constitute the unit claimed
to be appropriate."

     4 Sometimes bargaining units are organized along departmental
lines. 

[end of page 7]
               
     We emphasize this point because we think the Employer and
the Hearing Examiner incorrectly focused on the situations of the
employees and the patterns of their employment while trying to
interpret the definition of "regular employee".  The Hearing
Examiner considered evidence of the adjuncts' actual continuity
of employment from semester to semester as a basis for her
conclusion that they were regular employees.  The Employer argues
both that the "position" of adjunct faculty does not exist and
that adjuncts do not "occupy a position on a continual basis". 
Memorandum of Appeal, at 5.  As we noted above, the focus should
be on the position and not the circumstances and experiences of
the individuals occupying that position.  
 
     The Employer argues that adjunct faculty do not occupy a
"position" because they are paid out of a salary pool and there
is no "discrete and identifiable slot" or "position" to be
budgeted, funded, or tracked.  Memorandum of Appeal, at pp. 5-6. 
The Employer points to no legal authority or evidence in the
record that the use of the term "position" in 1022(8) refers to
an identifiable budgetary slot or defined post.  We agree with
the Hearing Examiner that the Employer's argument is without
merit.
 
     The Employer also argues that the contingent and fluctuating
nature of adjunct employment means that the position does not
exist on a continual basis.  To quote from the Employers
Memorandum of Appeal, 
 
     The record evidence is clear that at least some adjunct
     positions are temporary and do not exist on a continual
     basis by any measure.  Some individuals teach a single
     adjunct course for a single semester and never work at
     MCCS again. ... Some teach more than one semester over
     a span of time, but their employment is interrupted 
     sometimes for a period of years or episodic,... [S]ome 


[end of page 8]

     adjuncts do teach one or more classes fairly regularly
     over the course of numerous semesters.

Memorandum of Appeal, at 3 (citations to record omitted).  When
the Employer argues that because "some adjunct positions are
temporary" those positions "do not exist on a continual basis by
any measure", the Employer is confusing the word "position" with
the teaching assignment of the individual employee.  The position
at issue is Adjunct Faculty Member, not "Instructor of Early
American History, Plymouth Rock to 1789" or "Instructor of
Introductory Sociology".  Whether a particular adjunct faculty is
employed from semester to semester or whether a particular course
is offered from semester to semester has nothing to do with
whether the position of "adjunct faculty member" exists on a
continual basis -it merely reflects the needs of the college and
the number of individuals who are employed and in the bargaining
unit during any given semester. 
 
     To summarize, given our analysis of the use of the word
"position" throughout the Act, its meaning in 1022(8) refers to
a job or position without reference to its occupants.  We agree
with the Hearing Examiner's rejection of the Employer's argument
on the meaning of "position", but disagree with her conclusion
that the term position "means nothing more specific or unusual
than 'employment,' 'work'" or a 'job'".  Instead, we must analyze
the totality of circumstances in each case.  
 
     We also agree with the Hearing Examiner's conclusion that
adjunct faculty members occupy "a position that exists on a
continual basis", but our analysis differs from that of the
Hearing Examiner.  In making her conclusion, the Hearing Examiner
stated, 
  . . . The Union has made a very strong case that
  adjuncts as a class of employees or as a pool of
  employees exist on a continual basis in the Community
  College System; their use is too large and consistent 

[end of page 9]

  to conclude otherwise.  The fact that the position of
  adjunct truly exists on a continual basis within the
  System may be sufficient, without more, to support a
  conclusion that they are "regular employees" within the
  meaning of  1022(8). . . .
 
Report at 17.  The Hearing Examiner went on to consider the
continuity of the employment of individual adjuncts as an
additional basis for concluding that the adjuncts occupy a
"position that exists on a continual basis."  Report at 17-19. 
We consider the use of wording "class of employees" or "pool of
employees" above, like the analysis of individual employees'
continuity of employment, to be problematic because it has the
wrong focus.
 
  Upon review, we find that the Hearing Examiner's factual
finding that "the position of adjunct truly exists on a continual
basis with the System" is supported by substantial evidence in
the record.  The record supports the Hearing Examiner's
conclusion that the MCCS offers courses every semester that are
taught by adjunct faculty, and that they are a large and
indispensable part of the teaching faculty.  Of the 1650 MCCS
employees, about 340 are regular faculty members and 750-800 are
adjunct faculty.  Enrollment has nearly doubled since 2002, but
there has not been a corresponding increase in regular faculty
members.  There is ample evidence to support the finding that on
average, 40 to 45 percent of all course sections across the
system in the Fall of 2009 were taught by adjuncts.  At Southern
Maine Community College, which offers twice the number of courses
as any other college, the percent of courses taught by adjuncts
since 2007 ranges from 48% to 57%.  The regular faculty have a
"right of first refusal" to teach any course for which they are
qualified before that course is offered to an adjunct.  Thus,
there is not a defined group of courses for the adjunct to teach
and another set of courses for regular faculty to teach, although

[end of page 10]

the adjuncts are used heavily in teaching general education
courses such as English and math.  What particular courses or
sections will be available for adjuncts to teach depend on
enrollment figures and department needs.  The terms of the
contract of employment signed by the adjunct reflect the
assignment to teach a particular course or section, but sections
are cancelled if enrollment is too low.  We conclude that these
facts demonstrate that the position of adjunct faculty exists
independent of a specific course offering.
  
  The Hearing Examiner's factual findings on the continual
existence of the adjunct faculty position at the various system
campuses is supported by substantial evidence in the record.  The
Legislature's choice of using the word "continual" in sub-8 at
the same time that it chose not to mandate an exclusion for
temporary, seasonal and on-call employees, in our opinion
supports our conclusion that the Legislature did not want to
exclude employees who are employed on something other than a
continuous, year-round basis.
     
  We hold that the Hearing Examiner's factual findings are
supported by the substantial evidence in the record and that her
conclusion that adjunct faculty members are "regular employees"
under 1022(8) is correct.  We hold that the adjunct faculty
employees do, in fact, "occupy a position that exists on a
continual basis" and consequently are covered employees protected
by the University Act. 
  
III. Section 1024-A and Creating an Additional Bargaining Unit.
  
  The Employer contends that even if the adjunct faculty
members are "regular employees" and therefore covered by the Act,
1024-A precludes the Board from creating a new bargaining unit
in this case.  Section 1024-A, sub-1, 2, and 3 structure 

[end of page 11]

bargaining units based on occupational groups for the University
System, the Maine Maritime Academy, and the community colleges. 
Subsection 3 states:

  3. Community colleges.  It is the express legislative
  intent to foster meaningful collective bargaining for
  employees of the community colleges. Therefore, in
  accordance with this policy, the bargaining units shall
  be structured with one unit in each of the following
  occupational groups:

       A. Faculty and instructors; 
       B. Administrative staff;
       C. Supervisory;
       D. Support services;
       E. Institutional services; and
       F. Police. 

26 M.R.S.A. 1024-A, sub-3.

  Sub-section 5 addresses the possibility of creating
additional bargaining units.
  
  5. Additional bargaining units.  Notwithstanding
  subsection 1, 2 or 3, the Legislature recognizes that
  additional or modified university system-wide units,
  academy units or community college units may be
  appropriate in the future. The employer or employee
  organizations may petition the executive director for
  the establishment of additional or modified university
  system-wide units, academy units or community college
  units. The executive director or a designee shall
  determine the appropriateness of those petitions,
  taking into consideration the community of interest and
  the declared legislative intent to avoid fragmentation
  whenever possible and to insure employees the fullest
  freedom in exercising the rights guaranteed by this
  chapter. The executive director or a designee
  conducting unit determination proceedings may
  administer oaths and require by subpoena the attendance
  and testimony of witnesses, the production of books,
  records and other evidence relative or pertinent to the
  issues represented to them.          
                                 
26 M.R.S.A. 1024-A, sub-5 (emphasis added).


[end of page 12]

  The question of the circumstances under which the Board may
create an additional or modified bargaining unit under 1024-A,
sub-5 is a matter of first impression.  We note at the outset
that, contrary to the assertions of the Employer, there is no
outright ban on creating an additional unit simply because the
word "instructor" is in one of the statutorily-established units.
If that were the case, the introductory clause in sub-5
authorizing the creation of additional or modified bargaining
units would use more restrictive language than the broad
allowance of "Notwithstanding subsection 1, 2 or 3."  Similarly,
experience has shown that even though the statute specifies
occupational groups in each particular unit, the statute does not
preclude a specified occupational group from becoming part of
another unit.  As the Hearing Examiner pointed out, the MCCS
"police" (security) unit was never organized as a separate unit
but has always been part of the support services bargaining unit. 
Report at 23.
  
  The Employer argues that the Hearing Examiner's decision was
improper because she was "heavily influenced by the immediate
lack of options for [the adjuncts] to be represented." Memorandum
of Appeal, at 9.[fn]5  The Employer misconstrues the Hearing
Examiner's decision.  The Hearing Examiner's discussion related
to the lack of options available to her in responding to the 
petition, not any lack of options for the employees.  The Hearing
Examiner simply stated that she must address the petition as
presented, and not try to fashion an alternative.[fn]6  The
petition 

  5  We also note that the Employer's assertion that new or changed
circumstances are required for the creation a new bargaining unit is
without merit.  That requirement only applies in unit clarification
petitions under 26 M.R.S.A. 1024-A(7).

  6  The parties did not argue or present evidence in the record
for an alternative.  We express no opinion on the authority of the
Hearing Examiner to explore or fashion an alternative in an
appropriate case.

[end of page 13]

for unit determination was supported by a sufficient showing of
interest by the adjunct faculty members who expressed a desire to
be represented by MSEA.  The existing unit of regular faculty is 
represented by the Maine Education Association which has not
expressed an interest in representing the adjuncts and did not
intervene in the unit determination proceeding.  There was
nothing improper about the Hearing Examiner's recitation of the
facts. 
  
  The Hearing Examiner was correct to note that the plain
language of the Act includes the Legislature's explicit 
recognition that additional bargaining units "may be appropriate
in the future".  We agree with the Hearing Examiner that the
facts of the case justify her decision creating the unit.  In
reaching her conclusion, the Hearing Examiner assessed the three
factors that must be considered in determining the appropriate-

ness of an additional or modified unit under sub- 5:  the
community of interest, the legislative intent to avoid fragment-

ation, and the legislative intent to insure employees the fullest
freedom in exercising their rights.  26 M.R.S.A. 1024-A (5).
  
  The Hearing Examiner noted in a separate section of her
decision that the Employer did not dispute that the adjunct
faculty as a group share a community of interest.  Report at 19. 
Nonetheless, the Hearing Examiner examined the factors required
in any analysis of the community of interest, and concluded that
the adjuncts clearly do share a community of interest with each
other and are an appropriate unit based on those factors.  Report
at 19-20.  The Hearing Examiner referred to that conclusion as
part of her analysis of the three factors identified in 1024-A
(5).  Report at 23.
 
  The Employer argues that the Hearing Examiner should have
concluded that the adjunct faculty share a community of interest 

[end of page 14]

with the regular faculty because the nature of their classroom
teaching responsibilities is the same.  The Employer contends
that this community-of-interest examination is required as one of
the three factors identified in sub- 5.  We recognize that some
minimal level of review of community of interest with respect to
existing units must take place to ensure that the proposed unit
is not, as the Employer argues, "duplicative".  
 
  We have reviewed the Hearing Examiner's factual findings as
presented in the Unit Determination Report.  We conclude that
there are very significant differences between adjunct faculty
and regular faculty with respect to their terms and conditions of
employment, their employment status from semester to semester,
and their involvement with college governance.  Given these
substantial differences, the fact that their classroom teaching
responsibilities are the same is not very compelling.  While some
of the differences are attributable to collective bargaining, the
differences we find most significant are those that lead to
differing and potentially opposing priorities for collective
bargaining.[fn]7  Thus, there is substantial evidence in the
record 
to support our conclusion that there is no community of interest
issue that justifies denial of the pending petition.
 
  We hold that the significant differences in interests
between the proposed unit of adjuncts and the existing unit of
regular faculty means that there is no fragmentation.[fn]8 
Fragment-

  7  We note the large increase in the number of courses taught by
adjunct faculty since the MCCS starting offering associate degrees,
which may create a real or perceived conflict of interest between the
two groups of employees. 

  8  If the Employer were correct that the unit is "duplicative",
which we expressly conclude it is not, then two units would constitute
"fragmentation" thereby diluting the collective voice of the
employees.  The concepts of finding a community of interest and
avoiding fragmentation are both directly related to the concept of  

[end of page 15]

ation occurs when a class or group of employees with the same
interests is fragmented into separate groups.  UPIU and MSAD #33,
No. 77-A-01 at 2 (Dec. 14, 1976), affirming No. 77-UD-06
(separate unit for CETA employees creates fragmentation which
would deprive employees of the fullest freedom in exercising
their rights); Teamsters and State Institutional Services Unit
and AFSCME and MSEA, No. 84-A-02 at 4 (April 2, 1984), affirming
83-UD-25 (severing a corrections unit out of a larger unit would
create excessive fragmentation among the State employee bargain-

ing units).  There is no fragmentation occurring in this case. 
We also agree with the Hearing Examiner that creation of a
system-wide unit of adjunct faculty precludes fragmentation of
that large group of employees.  Report at 24.

  The Hearing Examiner addressed the declared legislative
intent to insure employees the fullest freedom in exercising
their rights under the Act by considering 1) the adjuncts desire
to be in a separate unit, 2) the adjuncts interest in being
represented by MSEA and not the Maine Education Association, the
bargaining agent for the faculty unit.  We agree that these
factors are important in determining the appropriateness of the
unit because, as the Hearing Examiner pointed out, the Act
protects the right of employees to join labor organizations "of
their own choosing".  For all of the foregoing reasons, we
conclude that the creation of the adjunct faculty bargaining unit
was permissible under 1024-A of the Act.

  [fn 8 cont'd.]  insuring employees the fullest freedom in
exercising rights under the Act.  For a full discussion of this see
Lewiston Firefighters Ass'n, Local 785, IAFF v. City of Lewiston, 354
A.2d 154, 160 (Me. 1976) ("The institutional purpose of the bargaining
unit . . . is to strengthen the bargaining position of the employees
as a group.")

[end of page 16]

                             ORDER

     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.  1028(2), it is ORDERED:

  1.  That the appeal of the Maine Community College
  System filed on March 10, 2010, is DENIED and that the
  Hearing Examiner's Decision of February 23, 2010,
  establishing that the petitioned for unit is
  appropriate is hereby AFFIRMED for the reasons set
  forth herein. 

  2.  That the ballot count scheduled to occur on 
  Monday, May 3, 2010 will proceed as scheduled.
  
 
Dated at Augusta, Maine, this 23rd day of April, 2010.