STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case #77-32
___________________________________
)
GREATER PORTLAND TRANSIT DISTRICT )
P. O. Box 1097, Portland, Maine )
)
Complainant )
)
vs. ) DECISION AND ORDER
)
DIVISION 714, AMALGAMATED TRANSIT )
UNION, 124 St. Johns Street, )
Portland, Maine 04102 )
)
Respondent )
___________________________________)
This case comes to the Maine Labor Relations Board by way of a prohibited prac-
tice complaint dated March 17, 1977, and filed by Dean A. Hetrick, General Manager,
Greater Portland Transit District on March 18, 1977. The response to the aforesaid
complaint was March 28, 1977, and filed by Richard Nye, President, Division 714,
Amalgamated Transit Union, on March 31, 1977. The response contained three motions,
a Motion to Dismiss, a Motion for Stay of Proceedings, and a Motion to Dismiss for
Lack of Jurisdiction. A pre-hearing conference was held in this matter in Augusta,
Maine, on July 19, 1977, at 9:30 a.m. with Alternate Chairman Donald W. Webber pre-
siding. As a result of the pre-hearing conference, a Pre-Hearing Conference Memo-
randum and Order was issued by Mr. Webber on July 23, 1977, the contents of which are
incorporated here by reference.
The Maine Labor Relations Board, meeting on Friday, September 16, 1977, pro-
ceeded to deliberate on this case, Alternate Chairman Donald W. Webber presiding,
with Michael Schoonjans, Employee Representative, and Kenneth Winters, Employer Repre-
sentative.
FINDINGS OF FACT
Upon review of the testimony given at the hearing, as well as the Pre-Hearing
Conference Memorandum and Order and the pleadings, the Board finds:
1. That the Complaint was filed with the Board on March 18, 1977.
2. That no receipt of certified mail notice to Respondent has been
filed with the Board by Complainant.
3. That on March 17, 1977, Complainant sent to Mr. Nye, Respondent's
Agent, a notice with copy of complaint enclosed by certified mail
with return receipt requested.
4. That on March 17, 1977, Complainant sent to Mr. Zuckerman a copy of
the Complaint which the latter received on March 18, 1977.
5. That Mr. Zuckerman has never been given express authority by Respondent
to accept service of any complaints brought before the Board.
6. That Mr. Zuckerman has at all relevant times been counsel for Respondent
and on March 9, 1977, initiated for Respondent an action in the United
States District Court in a related matter.
[-1-]
_____________________________________________________________________________________
7. That Mr. Nye has perused the Complaint sent to Mr. Zuckermen.
8. That Mr. Nye never received by mail the Complaint in this matter.
9. That Mr. Nye never signed a return receipt request for an item of
mail sent by Mr. Frinsko dealing with the complaint in this matter.
DECISION
The Respondent has moved to dismiss the Complaint of the Greater Portland
Transit District for its failure to serve said Complaint upon the Respondent in
conformance with Rule 4.04 of the Rules and Procedures of the Maine Labor Relations
Board. Title 26, M.R.S.A. Section 968(5)(B) provides that:
"Any public employer, any public employee, any public employer
organization or any bargaining agent which believes that any
person, any public employer, any public employee, any publc
employer 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. No such complaint shall be filed
with the executive director until the complaining party shall
have served a copy thereof upon the party complained of."
Rule 4.04 of the Rules and Procedures of the Maine Labor Relations Board provides
that:
No party shall file a prohibited practice complaint with the
Executive Director under the provisions of the Municipal Public
Employees Labor Relations Act, the State Employees Labor Relations
Act or the University of Maine Labor Relations Act until the com-
plaining parties shall have served a copy thereof upon the party
against whom such charge is made. Proof of service in the form of
either a certified mail receipt or other appropriate form shall be
furnished to the Board.
A notice, with a copy of the Complaint enclosed, was sent on March 17, 1977, to
Mr. Nye, Respondent's agent, by Complainant, certified mail with return receipt re-
quested. A copy of the Complaint was sent to Mr. Zuckerman on March 17, 1977, and
received by Mr. Zuckerman on March 18, 1977. Mr. Zuckerman has never been given ex-
press authority by Respondent to accept service of any complaints brought before the
Board. The Complaint in this matter was filed with the Maine Labor Relations Board
on March 18, 1977, and no receipt of certified mail notice to Respondent has been
filed with the Board by Complainant. The uncontradicted testimony at the hearing in-
dicated that the Complaint mailed to Mr. Nye was never received by Mr. Nye. Generally,
service of a document is completed when the document is deposited in the United States
mails, postage prepaid, properly addressed to the recipient. Kittery Teachers Associa-
tion v. Kittery School Comittee (MLRB Case No. 75-21). However, due process requires
that service of a prohibited practice complaint be made by either mail service or per-
sonal service. If service is made by mail, then either a signed returned receipt or a
statement that acceptance was refused must be provided to the Maine Labor Relations
Board in accordance with Rule 4.04 of the Rules and Procedures of the Board. In this
case, the Complainant attempted to serve a copy of the Complaint upon the agent of the
Respondent by certified mail. However, neither a signed returned receipt or a state-
ment that acceptance was refused has been provided to the Board and, in fact, the
-2-
_____________________________________________________________________________________
testimony of the Respondent indicates that a copy of the Complaint was not re-
ceived in the mail by the Respondent. We conclude that the prohibited practice
complaint in this case was not served in accordance with due process and Rule 4.04
of the Rules and Procedures of the Maine Labor, Relations Board and the Motion to
Dismiss filed by Mr. Nye March 31, 1977 should be and hereby is granted.
ORDER
On the basis of the foregoing Findings of Fact and by virtue of and pursuant to
the powers granted to the Maine Labor Relations Board by the provisions of Section
968 of the Municipal Public Employees Labor Relations Act, it is ORDERED:
1. That the Complaint filed by Dean A. Hetrick, General Manager, Greater
Portland Transit District on March 18, 1977, is hereby DISMISSED.
Dated at Augusta, Maine this 29th day of December, 1977.
MAINE LABOR RELATIONS BOARD
/s/________________________________________
Donald W. Webber, Alternate Chairman
/s/________________________________________
Kenneth T. Winters, Employer Representative
/s/________________________________________
Michael Schoonjans, Employee Representative
-3-
_____________________________________________________________________________________