The prohibited practice complaint filed on November 3, 2009,
by Christopher E. Roy alleges that the Town of Frye Island
violated the Municipal Public Employees Labor Relations Law (the
"Act") by discharging him for trying to organize a union, in
violation of 26 M.R.S.A. 964(1)(B).  The complaint further
alleges that the Town's action interfered with, restrained or
coerced him in the exercise of his rights protected by 26
M.R.S.A. 963 in violation of 964(1)(A).  The Town argues that
because the Complainant is not a public employee within the
meaning of the Act, he does not have standing to file a
prohibited practice complaint with the Board and his complaint
must therefore be dismissed.       

     Throughout this proceeding, Complainant Roy has represented
himself, while Marshall J. Tinkle, Esq., has represented the Town
of Frye Island.  The Town's Response to the complaint was filed
on November 25, 2009, and included a request for a deferral of
any further action until May 1, 2010.  The grounds for this
request were, as stated in the response:
                                        
     The Town of Frye Island is a seasonal community which
     is closed down from November until May of each year. 
     This fact is conceded by Claimant (see "Interesting

[end of page 1]

Island Facts"[fn]1).  Key witnesses will be out-of-state until
approximately May 1, 2010.  Consequently, Respondent will not be
in a position to participate in any testimonial hearing before
May 1, 2010. Under these circumstances, a brief delay until May
of 2010 is in order. 

After consulting with the Complainant, the Executive Director
granted this request.  

     In due course, a prehearing conference was held on April 26,
2010, with Board Chair Peter T. Dawson presiding.  As required by
MLRB Rule Ch. 12, 10, the parties presented the documentary
evidence they intended to introduce at the hearing, identified
witnesses, and discussed various issues related to the presen-
tation of their cases.  The Complainant stated that he had
requested a number of documents from the Town which had not been
provided to him.  The Prehearing Order issued on April 29, 2010,
authorized the Complainant to request a subpoena for those
documents that the Town was unwilling to provide voluntarily.  
In addition, the Prehearing Order indicated that the Town would
review the issue of whether the Complainant was excluded from the
definition of public employee under the Act and would inform the
Board of its position in a timely fashion.  

     On May 19, 2010, the Board received the Complainant's
request for a subpoena for an extensive list of documents from
the Town.  The Executive Director arranged with the parties to
hold a telephone conference call to develop an orderly procedure
for considering the request.  Three conference calls were held 
     1  Complainant's prohibited practice complaint consisted of the
PPC form and the required concise statement of facts. Attached to the
complaint was a 4-page document written by the complainant with
headings of "Work History" (half page), "Interesting Island Facts"
(half page), and "Narrative of What Happened" (3 pages).

[end of page 2]

between May 25, 2010, and June 14, 2010.  As requested during the
second conference call, the Complainant specified what he
intended to establish through each of the requested documents. 
From there, the parties were able to make stipulations, the
Complainant's request was narrowed somewhat, and the Town
provided the remaining information.  In the final conference call
of June 14, 2010, the Complainant stated that the Town had
provided sufficient information to satisfy his request for the
production of documents so a subpoena was no longer necessary.

     During the June 14, 2010, conference call, the parties also
agreed that the threshold issue of whether Mr. Roy is a public
employee within the meaning of the Municipal Public Employee
Labor Relations Law should be presented to the Board as a
preliminary matter.  A schedule was established in which the Town
would frame the issue as a Motion to Dismiss to be submitted,
with supporting argument, by June 29, 2010.  The Complainant
would be permitted the opportunity to submit a response, and the
Town could then submit a reply.  

     The Motion to Dismiss submitted by the Town included an
incorporated memorandum of law, a copy of a 1990 MLRB decision,
two affidavits and three exhibits all purporting to deal with the
questions of seasonal employment status.  Complainant Roy
submitted a Response to the Motion to Dismiss on July 21, 2010,
with four exhibits.  The Complainant's Response disputed a number
of the factual assertions made in the Town's affidavits and made
various legal arguments concerning the seasonal employment
question.  The Town filed a Reply on August 2, 2010, which
included three exhibits and two supplemental affidavits
addressing factual assertions made by the Complainant regarding 

[end of page 3]

his employment history with the Town.[fn]2             
     
                         
                            DISCUSSION
                         
     Procedurally, the Board is now presented with a purely legal
question to resolve:  Is Complainant Roy a seasonal employee
excluded from the definition of public employee under 26 M.R.S.A.
962(6)(G), and therefore without standing to file a complaint
with this Board?  Chapter 12, section 10(7) of the Board's Rules
and Procedures is a flexible rule allowing the Board to answer
this limited question of standing.  Section 10 establishes the
procedures for all aspects of the prehearing conference and
includes a mechanism to address purely legal matters.
     
     7. Dispositive Legal Issue. If it appears to the
     prehearing officer that the determination of a legal
     issue will resolve the dispute and render a fact
     hearing unnecessary, the prehearing officer may order a
     severance and fix a briefing schedule to enable the
     Board to first determine the legal issue. If the date
     for a fact hearing has already been set by the
     executive director, the prehearing officer may order
     that the hearing be rescheduled.

MLRB Rule, Ch. 12 10(7).

     This particular rule enables the Board to decide a case
strictly on the basis of the factual assertions of the complaint,
which the Board does in the same manner that a court would decide
a motion to dismiss for failure to state a claim upon which
relief may be granted under Rule 12(b)(6) Maine Rules of Civil 

     2  After receiving the Town's Reply, the Complainant contacted
the Executive Director of the Board asking if he could submit further
argument to contest factual assertions made in the Town's Reply. The
Executive Director told the Complainant that he would be allowed to
submit material to the Board (with a copy to the Town), but there was
no assurance that the Board would consider it.  The Board was informed
of the submission, but chose not to review it.  This final submission
addressed factual assertions made regarding Mr. Roy's rate of pay and
job duties, but did not dispute any of the facts we have listed below.

[end of page 4]

Procedure.  See, e.g., MSAD #46 Educ. Assoc./MEA/NEA v. MSAD #46,
No. 02-09 at 3-4 (July 3, 2002)(dismissing the complaint for
failure to allege facts that would be a violation of the Act); 
Wood v. Maine Education Assoc. and Maine Technical College
System, No. 03-06 at 18-19 (June 14, 2004)(holding that the facts
alleged a potential violation and an evidentiary hearing was
needed).  In addition, the MLRB Rule 10(7) allows the Board to
rule on a case when the parties have agreed to present a stipu-
lated record and their respective legal arguments to the Board. 
Duren v. Maine Education Association, No. 09-06 (June 25, 2009). 
     
     In the present case, we are faced with factual allegations
in the sworn complaint, admissions in the Town's response to the
complaint, stipulations, and various assertions made in
affidavits and briefs supplied to the Board as part of the
present Motion to Dismiss.  Nevertheless, the bulk of the
material submitted to the Board has no bearing on the legal issue
of whether complainant is a seasonal employee.  

      We will treat the present Motion to Dismiss in the same
manner as a Motion to Dismiss for failure to state a claim upon
which relief may be granted.  Thus, we will assume the material
allegations of the complaint are true and consider the complaint
in the light most favorable to the complainant to determine
whether the complainant has standing to file a prohibited
practice complaint.  See, e.g., Buzzell, Wasson and MSEA v. State
of Maine, No. 96-14 (MLRB Sept. 22, 1997), citing Brown v. MSEA,
690 A.2d 956, 958 (Me. 1997).  Another way of describing this
standard is to ask if, consistent with those facts alleged in the
complaint, there is any set of facts that the Complainant could
prove in an evidentiary hearing that would demonstrate that the 

[end of page 5]

seasonal employee exclusion does not apply to him.[fn]3  When
the allegations in the complaint are more than simply factual
allegations but are legal conclusions, however, we are not bound
to accept those legal conclusions as true.  See, Bowen v.
Eastman, 645 A.2d 5, 6 (Me. 1994). 

     A typical motion to dismiss for failure to state a claim
involves an analysis that considers only the allegations in the
complaint.  In this particular case, we will take a hybrid
approach and also consider a limited number of undisputed facts
that are apparent from the various submissions accompanying the
present motion.  Our objective is to focus our analysis on only
those undisputed facts that are material to the legal issue
presented of whether the Complainant has standing to file a
prohibited practice complaint.  The undisputed facts are:
     
     1. The Town of Frye Island is a seasonal community that
     is closed down from November to May of each year. (See
     PPC Facts #3, Response to PPC p. 2)

     2. The Town's Ferry Service runs from late April to the
     beginning of November of each year.  Some ferry service
     employees and public works employees work from mid-
     April to mid-November to facilitate opening and closing
     of the Island. (See PPC Facts #3, PPC Work History and
     Interesting Island Facts, Town Motion to Dismiss pp. 1-
     2)                  

     3. The Town Office is moved to the ferry trailer on the 


     3  The Board has described this point further with:
     "It is not enough to make an assertion that additional facts
     to be proved at hearing will support a claim.  The complaint
     must allege facts which state a claim for relief.  While we
     do not demand excruciating detail or the use of any
     particular magic words, there must be at least a general
     statement of facts which, if true, would entitle the
     complainant to relief." MSAD #46 Educ. Assoc. v. MSAD #46,
     No. 02-09 at 10 (July 23, 2003).

[end of page 6]

     mainland when the ferry service stops. Only a small
     number of town employees work year-round, one of which
     is the Comptroller/ Accountant who handles the Town's
     finances from the trailer office. (See PPC Interesting
     Island Facts, Town Mgr. Affidavit dated July 28, 2010)

     4. Mr. Roy worked for the Town's ferry service through
     an employment agency from August through October of
     2006. (See PPC Work History, Town Reply Memorandum
     dated July 30, 2010)

     5. Mr. Roy was hired directly by Frye Island in 2007 to
     work for the ferry service and worked from April 10
     through November 13, which included a few days before
     and after the official opening and closing of the
     Island. (See PPC Work History, Town Reply Memorandum
     dated July 30, 2010)

     6. Mr. Roy was hired directly by Frye Island in 2008 to
     work for the ferry service and worked from April 14
     through November 7, which included a few days before
     and after the official opening and closing of the
     Island. (See PPC Work History, Town Reply Memorandum
     dated July 30, 2010)

     7. Mr. Roy was hired directly by Frye Island in 2009 to
     work for the ferry service and worked from April 13
     until his termination on July 6, 2009.  (See PPC Work
     History, Town Reply Memorandum dated July 30, 2010)
            
     Turning to the issue before us, the question presented is
whether the Complainant is authorized by the Municipal Public
Employees Labor Relations Law to file a prohibited practice
complaint with the Board.  Section  968, sub-5 of the Act is
the Board's only statutory authority to hear and decide
prohibited practice complaints.  Paragraph B of that subsection
begins:
          B. Any public employer, any public employee, any
     public employee organization or any bargaining agent
     which believes that any person, any public employer,
     any public employee, any public employee organization
     or any bargaining agent has engaged in or is engaging
     in any such prohibited practice may file a complaint
     with the executive director of the board stating the
     charges in that regard. . . .
     
[end of page 7]

     As the Complainant is not a public employer, a public
employee organization or a bargaining agent[fn]4, the only way
the prohibited practice complaint can be heard by this Board is
if the Complainant is a "public employee."

     The definition of public employee does not mean simply any
person employed by a public employer.  Section 962, sub-section 6
of the Act expressly excludes a number of categories of employees
from the definition of "public employee."

     6. Public employee.  "Public employee" means any
     employee of a public employer, except any person:

          A. Elected by popular vote; 

          B. Appointed to office pursuant to statute,
          ordinance or resolution for a specified term of
          office by the executive head or body of the public
          employer, except that appointees to county offices
          shall not be excluded under this paragraph unless
          defined as a county commissioner under Title 30-A,
          section 1302; or 

          C. Whose duties as deputy, administrative
          assistant or secretary necessarily imply a
          confidential relationship to the executive head,
          body, department head or division head; or 

          D. Who is a department head or division head
          appointed to office pursuant to statute, ordinance
          or resolution for an unspecified term by the
          executive head or body of the public employer; or 

          E. Who is a superintendent or assistant
          superintendent of a school system; or 


     4  26 M.R.S.A. 962(2) defines this term: "'Bargaining agent'
means any lawful organization, association or individual
representative of such organization or association which has as its
primary purpose the representation of employees in their employment
relations with employers, and which has been determined by the public
employer or by the executive director of the board to be the choice of
the majority of the unit as their representative."

[end of page 8]


          F. Who has been employed less than 6 months. 

          G. Who is a temporary, seasonal or on-call
          employee; or 

          H. Who is a prisoner employed by a public employer
          during the prisoner's term of imprisonment, except
          for prisoners who are in a work release program or
          on intensive supervision under Title 17-A, section
          1261 or supervised community confinement pursuant
          to Title 34-A, section 3036-A.
     
     Consequently, if the Complainant is a seasonal employee,
then the prohibited practice complaint must be dismissed pursuant
to 968, sub-5(B), because, by definition, he is not a public
employee.  In a comparable case filed with this Board under the
State Employee Labor Relations Act, the Board dismissed an
employee as a complainant because that employee was excluded from
the definition of "state employee" under that Act because she had
less than six months of employment.  MSEA and Elizabeth McKenney
v. Maine State Library, No. 01-21 at 3 (August 16, 2001).  The
ability to file a complaint under the State Act is limited in the
same manner as 968(5)(B), so the same analysis should apply
under the Municipal Act.  See 26 M.R.S.A. 979-H(2).

     The statute does not define the word "seasonal", nor has the
Board specifically focused on the meaning of this term in any
decision.  The Board has, however, shed light on the meaning of
"seasonal" in dicta.  In AFSCME v. Town of Sanford, the Board
observed that it is the nature of the employment, not simply the
duration of employment, that determines whether an individual is
a temporary, seasonal or on-call employee.  AFSCME v. Town of
Sanford, No. 90-07, at 14-15 (June 15, 1990).  In that case, the
union argued that an employee who had been employed for a total
of 12 months over a 15-month span was a public employee because
his total employment had exceeded six months.  The individual had
been employed first as a seasonal employee, then a temporary 

[end of page 9]

employee, then again as seasonal after a 3-month break.  The
Board rejected the union's argument:    
     
     [W]e will not ordinarily find a truly seasonal,
     temporary or on-call employee whose tenure with a
     public employer exceeds six months to be a public
     employee within the meaning of the MPELRL solely on the
     basis of the completion of six months' employment. [fn] 
     On the other hand, we have in appropriate circumstances
     determined that otherwise covered employees who have
     not accumulated six months of employment because of a
     public employer's prohibited practices are not
     appropriately excluded from the MPELRL's coverage. 

No. 90-07 at 14-15.[fn]5  Thus, whether an employee is a
seasonal employee, a temporary employee, an on-call employee, or
has been employed less than six months are distinct questions
that must be asked and answered independent of each other.[fn]6
          
     Other Board decisions suggest that the plain meaning of
"seasonal" should apply in defining seasonal employment.  The
plain meaning of seasonal is that the employment must have some 

     5  In the present case there is no allegation that the Employer
was trying to circumvent the Act by classifying Mr. Roy or any other
employee as a seasonal employee so as to deny him any rights under the
Act.

     6  We note that during the 1970's this Board considered the
completion of six months of service to be enough to demonstrate that
an employee should not be excluded as a temporary employee. See, e.g.,
AFSCME and City of Bangor, No. 79-A-02 (Oct. 17, 1979), affirming No.
79-UC-05.  The Board subsequently realized that seasonal, temporary
and on-call are each separate from 6 month exclusion. "By use of the
disjunctive conjunction 'or' the MPELRL separately and distinctly
excludes from statutory coverage each of the status groups mentioned
in 26 M.R.S.A.  962 (G)(1988), in addition to employees who have
achieved less than six months of employment."  Council 93, AFSCME, et
al. v. Town of Sanford, No. 90-07, at 14-15 (June 15, 1990); AFSCME
and State of Maine, 89-UC-07 (Aug. 10, 1990), aff'd State of Maine v.
AFSCME Council 93, MLRB No. 91-UCA-02, (Feb. 12, 1991), 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.2d59 (Me. 1992).

[end of page 10] 

aspect of seasonality, that is, be tied to some period of the
year, whether it be an astronomical season, a crop, a sport, an
activity, or some other feature beyond the control of the
employer.[fn]7  In an early appeal of a unit clarification
matter, the Board addressed this issue in determining whether
various temporary and seasonal employees who had been employed
for extended periods should be included in an existing bargaining
unit.  AFSCME and City of Bangor, No. 79-A-02 (Oct. 17, 1979) at
2, affirming No. 79-UC-05.  In discussing two facts the Board
considered important in its analysis, the Board indicates that it
used the plain meaning of seasonal that we have identified above. 
First, the Board states, 

     The record does not indicate that employees holding the
     "Temporary" or "Seasonal" classification have ever been
     hired on a temporary or seasonal basis, i.e., hired
     only to work on a particular project or to work during
     a particular season of the year, with the understanding
     that employment would be terminated when the project
     was completed or the season over.

79-A-02 at 2.  Later, the Board discusses the employer's misuse
of these terms with, 
     
     After the last contract was executed in late 1976,
     however, the employer's use of "Seasonal" employees
     changed dramatically:  the titles "Temporary" and
     "Seasonal" sometimes became factually misleading since
     for the first time many employees in these categories
     became long term.  In addition, many employees began
     working through the winter from year to year and
     essentially year-round. Finally, the increased use of
     "Seasonal" employees as long-term employees, plus the
     new use of these employees throughout the year
     coexisted with a decrease in the number of year-round 

     7  This element of control is important, as it precludes a school
from claiming that school-year employees should be excluded because
they are employed only during the school "season."  The school
calendar is controlled by the school committee.

[end of page 11]

     "permanent" employees in the unit.      
79-A-02 at 3-4.
     
     We conclude that the undisputed facts in this case
demonstrate that the Complainant was a truly seasonal employee
and therefore lacks standing to file a complaint with the Board. 
Applying the plain meaning of the term seasonal, there is no
question that the Complainant was, in fact, a seasonal employee. 
The Complainant was employed to work for the ferry service on a
seasonal basis, and that season was the ferry season.  The season
was dictated by the limitations imposed by Mother Nature and was
an understood condition of employment.  The fact that the ferry
season was longer than just the summer is not significant, as
there is nothing in the statute suggesting that the term seasonal
was intended to have such a restrictive meaning.
  
     The Complainant argues that his status is not seasonal
because he was employed in consecutive years and that he had a
reasonable expectation of being re-hired each spring.  "Reason-
able expectation of continued employment" is a concept that is
relevant in distinguishing a truly temporary employee from one
employed as a permanent or non-temporary employee.  See AFSCME v.
Town of Sanford, No. 90-07 at 14 (June 15, 1990)(concluding
employee who was at different times a temporary and seasonal
employee had no reasonable expectation of continued employment)
and Teamsters Union Local 340 and City of Presque Isle, No.
92-UD-10 (August 18, 1992)(employee working in a temporary
assignment was not excluded as a temporary employee because she
was promised that when the project was completed she would be
able to return to her former position).  If "reasonable
expectation of continued employment" were expanded to also
include "reasonable expectation of recurring employment", the
test would swallow up the seasonal employee exclusion entirely.  

[end of page 12]

Furthermore, if reasonable expectation of continued employment
were used to determine the status of a seasonal employee, we
would essentially be making two categories out of one- a seasonal
employee who would be excluded and an employee regularly employed
on a seasonal basis who would not be excluded.  There is no basis
in the statute for making such a distinction.     

     In summary, we conclude that the Complainant was a seasonal
employee within the meaning of 26 M.R.S.A. 962(6)(F) and is
therefore not a "public employee" authorized to file a complaint
under 26 M.R.S.A. 968(5).  The Complainant does not have
standing to file a prohibited practice complaint with the Board
and the Complaint must be dismissed.
     
                              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.
968(5), it is hereby ORDERED that the complaint is dismissed.
                         
Dated at Augusta, Maine, this 13th day of September 2010.
                                 

        

MAINE LABOR RELATIONS BOARD


                                 
_____________________________
Peter T. Dawson
Chair



______________________________
Karl Dornish, Jr.
Employer Representative



____________________________
Carol B. Gilmore
Employee Representative

[end of page 13]