State of Maine v. AFSCME Council 93, MLRB No. 91-UCA-02, (Feb. 12, 1991), appeal of 89-UC-07 (Aug. 10, 1990), aff'd No. CV-91-143 (Me. Super. Ct., Ken. Cty., Aug. 6, 1991), aff'd sub nom Bureau of Employee Relations v. Maine Labor Relations Board, 611 A.2d 59 (Me. 1992) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 91-UCA-02 Issued: February 12, 1991 _______________________________ ) STATE OF MAINE, ) ) Appellant, ) ) DECISION AND ORDER v. ) ON UNIT CLARIFICATION APPEAL ) AFSCME Council 93, ) ) Appellee. ) _______________________________) This is an appeal of a unit clarification report filed by the State of Maine, on August 22, 1990, pursuant to 26 M.R.S.A. 979-G(2) (1988) and Rule 1.12 of the Rules and Procedures of the Maine Labor Relations Board (hereinafter referred to as "Board"). The unit clarification report which is the subject of this appeal was issued on August 10, 1990. The hearing examiner below held that: (1) time spent in temporary State employment as an "acting capacity," "project" or "intermittent" employee in job classifi- cations included in the Institutional Services Bargaining Unit ("ISU") shall be counted toward satisfication of the six-month requirement in 26 M.R.S.A. 979-A(6)(E) (1988); (2) time spent either in temporary or non-temporary State employment as an "acting capacity," "project" or "intermittent" employee need not be consecutive time to satisfy the six-month requirement of section 979-A(6)(E), where the breaks in service are not due to resigna- tion or dismissal of the employee; and (3) in certain limited circumstances, persons working as "acting capacity," "project" or "intermittent" employees in job classifications included in the ISU are not temporary employees, within the meaning of 26 M.R.S.A. 979-A(6)(F) (1988). A hearing on this matter was conducted on October 15, 1990, Public Chair Peter T. Dawson presiding, with Employer Representative Thacher E. Turner and Employee Representative George W. Lambertson. The Appellant State of Maine was represented by Sandra S. Carraher, Esq., and the Appellee's attorney, Stephen P. Sunenblick, waived the right to appear and present oral argument at the hearing. The State was afforded full oppor- tunity to present oral argument at the hearing. Both parties filed post- -1- hearing briefs, the last of which was received on December 21, 1990. The parties' arguments were considered by the Board in reaching its decision in this appeal. The Board deliberated this matter on January 31, 1991. JURISDICTION The Appellant, the State of Maine, is an aggrieved party, within the meaning of 26 M.R.S.A. 979-G(2) (1988), and is the public employer, within the meaning of 26 M.R.S.A. 979-A(5) (1988). AFSCME Council 93 is the bargaining agent, within the meaning of 26 M.R.S.A. 979-A(1) (1988), for the State employee Institutional Services Bargaining Unit. The juris- diction 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) (1988). FINDINGS OF FACT AND CONCLUSIONS OF LAW The parties reached agreement on a complete stipulation of relevant facts, together with some legal stipulations, in the proceeding below. The pertinent facts are not in dispute in this appeal; therefore, we adopt as our own these legal and factual stipulations. These stipulations, paragraphs numbered 1 through 93 on pages 11 through 25 of the unit clari- fication report, are incorporated herein by reference with the same force and effect as if they were fully set forth herein. We have often set forth the standard which we apply in reviewing the decisions of the executive director, or the director's designee, in repre- sentation proceedings. The applicable standard of review 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. Portland Superintending School Committee v. Portland Administrative Employee Association, No. 87-A-03, slip op. at 6 (Me.L.R.B. May 29, 1987), citing, MSAD No. 43 v. MSAD No. 43 Teachers Association, No. 84-A-05, slip op. at 3, 7 NPER 20-15915 (Me.L.R.B. May 30, 1984). This standard also applies to representation appeals arising under the State Employees Labor Relations -2- Act. State of Maine and Maine State Employees Association, No. 82-A-02, slip op. at 4, 6 NPER 20-14027 (Me.L.R.B. June 2, 1983) (Interim Order). We have reviewed the unit clarification report in light of the above standard of review and the Appellant's arguments. Each of the latter is addressed in the unit report and we hold that the hearing examiner's rulings are lawful, reasonable and are supported by the evidence in the record. Pursuant to 26 M.R.S.A. 979-G(2), we hereby affirm the unit clarification report in its entirety and we adopt the analysis and reason- ing that resulted in the decision on each issue presented. The Board incorporates herein by reference the unit clarification report dated August 10, 1990, in Case No. 89-UC-07 with the same force and effect as if said report were fully set forth herein. 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) (1988), it is ORDERED: That the appeal of the State of Maine, filed on August 22, 1990, from the unit clarification report dated August 10, 1990, in Case No. 89-UC-07 is denied and said report is affirmed. Dated at Augusta, Maine, this 12th day of February, 1991. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 __________________________________ M.R.S.A. 979-G(2) (1988), to Peter T. Dawson seek review of this Decision Public Chair and Order on Unit Clarification Appeal by the Superior Court To initiate such a review an appealing party must file a __________________________________ complaint with the Superior Thacher E. Turner Court within thirty (30) days Employer Representative of the date of receipt hereof, and otherwise comply with the requirements of Rule 80C of the Maine Rules of Civil Procedure. __________________________________ George W. Lambertson Employee Representative -3-