This Law Court case is not an appeal of an MLRB decision.
It has been placed on the Board's website because it is a 
noteworthy case involving Maine's public sector collective 
bargaining laws.

                                            Law Docket No. Cum-83-67 

                           JOHN WONE
                        CITY OF PORTLAND

                   Argued September 20, 1983
                    Decided October 20, 1983

     Before McKusick, C.J., and Nichols, Roberts, Violette, Wathen, 
Glassman and Scolnik, JJ. 

Scolnik, J.

     The plaintiff, John Wone, appeals from an order of the Superior
Court, Cumberland County, dismissing his complaint against the defendant, City
of Portland, seeking relief for an unfair labor practice resulting from his
misclassification as a temporary, part time employee.

     At the time this litigation began, Wone had been employed by the City of
Portland for six years.  Although he was working thirty-five to forty hours per
week, fifty weeks per year, the City classified him as a "temporary-part time"
employee.  The plaintiff complains that this constitutes an erroneous
classification which denies him certain rights and benefits to which a public
employee would be entitled under the Municipal Public Employees Labor Relations
Law. 26 M.R.S.A.  961-972 (1974 & Supp. 1982-1983).  Believing that a formal
complaint filed with the  Maine Labor Relations Board ("Board") would be
dismissed on jurisdictional grounds because of his classification by defendant
as a temporary employee, n1 plaintiff bypassed the administrative agency and
sought judicial relief.

     The Superior Court dismissed the plaintiff's complaint on the ground that it
should have been brought to the Board in the first instance.

     We agree with the Superior Court and affirm the judgment.

     As a matter of judicial policy, we decline to decide an issue concerning
which the Board has authority to decide until the administrative agency has
considered the issue. n2

     Wone may be entitled to administrative relief under the statute if he is a
"public employee," which term excludes "temporary, seasonal or on-call
employees." 26 M.R.S.A.  962(6)(G).  The Board previously has decided similar
questions regarding the status of the parties.  See City of Bangor v. 
A.F.S.C.M.E., Council 74, 449 A.2d 1129 (Me. 1982) (whether persons hired as
seasonal laborers who worked on a permanent  

1.  Appellant states that he "approached" the Board and was told that he was
not within its purview due to his classification but nowhere in the record does
this appear.

2.  See Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74 (Me. 1980)
and cases cited therein; See also Drayton v. Poretsky Management, Inc., 462 A.2d
1115 (D.C. App. 1983).

full time basis were "temporary" employees under section 962(6)(G)); Baker Bus Service, Inc. v.
Keith, 416 A.2d 727 (Me. 1980) (whether a private bus company operating under a contract with
a school board was a "public employer" under section 962(7)).

     Although the status issues in City of Bangor and Baker Bus Service, Inc. were
not addressed in a jurisdictional context, no valid reason has been suggested
for divesting the Board of its authority to determine whether it has
jurisdiction in a given case.  In making such a determination, the Board would
not be bound by the classification used by the City of Portland.

     In the absence of a prior consideration of this matter by the Board, we
decline to decide the issue.

     The entry is:

     Judgment affirmed. 

     All concurring.