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-


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.


     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).


     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


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.


     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.


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