February 6, 1979 Decision and Order Vacating Default Judgment; May 29, 1979 Decision and Order STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-12 _________________________________ ) WATERVILLE TEACHERS ASSOCIATION, ) ) Complainant, ) ) V. ) DECISION AND ORDER ) VACATING DEFAULT JUDGMENT WATERVILLE BOARD OF EDUCATION, ) ) Respondent. ) _________________________________) This case comes to the Maine Labor Relations Board ("Board"), by way of a Prohibited Practice Complaint filed September 1, 1978 by representatives of the Waterville Teachers Association ("Teachers Association"). The Answer to the Complaint was filed on September 20, 1978 by the Waterville Board of Education ("Board of Education"). A pre-hearing conference was held on the case on December 5, 1978 in Augusta, Maine, with Alternate Chairman Donald W. Webber presiding. As a result of this pre-hearing conference, Alternate Chairman Webber issued on December 18, 1978 a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. As stated in the Pre-Hearing Conference Memorandum and Order, no repre- sentative of the Board of Education appeared at the December 5, 1978 pre- hearing conference. After waiting approximately one hour with no communica- tion from the Board of Education, Alternate Chairman Webber granted a motion made by counsel for the Teachers Association that the Board of Education be defaulted for failure to appear at the pre-hearing conference and that the relief prayed for in the Complaint be granted. On December 29, 1978, the Board received a "Stipulation and Request to Set Aside Default Order" signed by counsel for the Teachers Association and for the Board of Education, and an Affidavit signed by counsel for the Board of Education. Among other things, the parties in the Stipulation request that the Board vacate the default order, order that a new pre-hearing conference be scheduled, and permit the parties to proceed in this matter. The Affidavit contains a statement that the Board of Education's failure to appear at the December 5, 1978 pre-hearing conference was not an intentional act, but was instead the result of mistake, inadvertence or neglect in maintaining proper internal lines of communication regarding this matter. The Board considered the parties' requests during a telephone conference on January 11, 1979, Alternate Chairman Donald W. Webber presiding, with Paul Haney, Alternate Employee Representative, and Henry W. Mertens, Second Alternate Employer Representative. -1- ______________________________________________________________________________ JURISDICTION No party has challenged the jurisdiction of the Maine Labor Relations Board in this matter, and we conclude that this Board has jurisdiction to consider and render a decision in this case as provided in 26 M.R.S.A. 968(5). FINDINGS OF FACT Upon review of the Complaint, the Answer, and the Pre-Hearing Conference Memorandum and Order, we find that: 1. Complainant Waterville Teachers Association is the exclusive bargaining agent as defined in 26 M.R.S.A. 962(2) for the teachers employed by the Waterville Board of Education. 2. Respondent Waterville Board of Education, a duly authorized body acting on behalf of the Town of Waterville, Maine, is a public employer within the meaning of 26 M.R.S.A. 962(7). 3. On September 1, 1978, the Teachers Association filed a Prohi- bited Practice Complaint with the Board alleging that the Board of Education failed to bargain in good faith in violation of 26 M.R.S.A. 964(1)(E). The Board of Education on September 20, 1978 filed an Answer to the Complaint denying the allegation that the Board of Education violated 26 M.R.S.A. 964(1)(E). 4. By letter dated October 24, 1978 and sent by certified mail, the Board notified the Chairman of the Board of Education that a pre- hearing conference on the case would be held at 3:00 p.m. on December 5, 1978 in Augusta, Maine. The return receipt for the letter shows that a person at the address for the Chairman of the Board of Education signed the receipt on October 25, 1978. A copy of the letter was also sent to counsel for the Board of Education, by regular mail, on October 24, 1978. 5. No representative for the Board of Education appeared at the pre- hearing conference on December 5, 1978. After waiting approximately one hour with no communication from the Board of Education, the Pre- Hearing Officer granted a motion by counsel for the Teachers Associa- tion that the Board of Education be defaulted for failure to appear at the pre-hearing conference and that the relief prayed for in the Complaint be granted. 6. On December 29, 1978, the parties submitted to the Board a "Stipu- lation and Request to Set Aside Default Order" signed by counsel for the Teachers Association and for the Board of Education. In the Stipulation, the parties stipulate a number of facts regarding the failure of the Board of Education to appear at the December 5, 1978 prehearing conference, and request that the Board vacate the default judgment on the ground that the Board of Education's failure to appear was due to inadvertence or excusable neglect, order that a new pre-hearing conference be scheduled, and permit the parties to proceed in these matters. 7. The Board also received on December 29, 1978 an Affidavit signed by counsel for the Board of Education. The sworn statements contained in the Affidavit establish that the Board of Education's failure to appear at the December 5, 1978 pre-hearing conference was not an intentional act, but was the result of mistake, inadvertence or neglect in maintaining internal lines of communication regarding this case. -2- ______________________________________________________________________________ DECISION After carefully considering this matter, we have decided to grant the parties' request that the default judgment in this case be vacated. Such action is warranted, we believe, because both parties to the case have re- quested that the default be lifted, and because counsel for the Board of Education has sworn that the Board of Education's failure to appear at the December 5, 1978 prehearing conference was not a deliberate act. In light of these circumstances, we believe that it is appropriate to excuse the Board of Education's failure to appear at the prehearing conference, and to permit the parties to proceed with the presentation of their case to the Board. In deciding to vacate the default judgment, we entertain not the slightest doubt that the imposition of the default judgment by the Pre-Hearing Officer was entirely appropriate. If a party was able to refuse to partici- pate in Board procedures with impunity, then the procedures of the Board would be emasculated and the Board's effectiveness undermined. Such emasculation and undermining of effectiveness would mean that the Board could not perform adequately the responsibilities and duties delegated to it by the Legislature in the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq. To help prevent any undermining of the Board's procedures, Rule 4.07 of the Board's Rules and Procedures provides in pertinent part that ". . . failure of a respondent to attend such a . . . (prehearing] conference may be grounds for entry of default judgment against said respondent." In addition, Section 968(5)(B) of the Act provides in part that "Nothing in this paragraph shall restrict the right of the board to require the executive director or his designee to hold a pre-hearing conference on any prohibited practice complaint prior to the hearing before the board and taking whatever action . . . as he may deem appropriate . . ." We have of course found parties in default when the parties have failed to participate in the Board's procedures, see, e.g. George Lord v. M.S.A.D. #41 Bd. of Dirs., M.L.R.B. Case No. 77-24 (1977). In light of our statutory authority and precedent, we encounter no difficulty whatsoever in approving the proposition that a failure to participate in a preheating conference fully warrants an order that the party is in default. In this case, however, we have concluded that the circumstances discussed above justify the lifting of the default judgment. We consequently will order that the default judgment be vacated, that a new pre-hearing conference be scheduled, and that the parties be permitted to proceed in this matter. 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 26 M.R.S.A. 968, it is hereby ORDERED: That the default judgment ordered in this case on December 5, 1978 be vacated, that the Executive Director of the -3- ______________________________________________________________________________ Board schedule a new pre-hearing conference in this case, and that the parties be permitted to proceed in this case. Dated at Augusta, Maine this 6th day of February, 1979. MAINE LABOR RELATIONS BOARD /s/_____________________________________ Donald W. Webber Alternate Chairman /s/_____________________________________ Paul Haney Alternate Employee Representative /s/_____________________________________ Henry W. Mertens Second Alternate Employer Representative -4- ______________________________________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-12 _________________________________ ) WATERVILLE TEACHERS ASSOCIATION, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) WATERVILLE BOARD OF EDUCATION, ) ) Respondent. ) _________________________________) This case comes to the Maine Labor Relations Board ("Board") by way of a prohibited practice complaint filed by F. Stewart Kinley, UniServ Director, Gall W. Smith, President, and Michael E. Gosselin, Chairperson, Grievance Com- mittee, all of the Waterville Teachers Association, said complaint being dated August 29, 1978, and being filed with the Board on September 1, 1978. The answer to the aforesaid complaint was dated September 19, 1978, and was filed with the Board by James F. Millett, Esq., for the Waterville Board of Educa- tion on September 20, 1978. At the pre-hearing conference In this case which was held on Tuesday, March 13, 1979, attorneys for both sides entered the following stipulations: A decree by consent may be issued against the Waterville Board of Education requiring: A. Payment with interest to all teachers denied sick pay for disabilities due to pregnancies and childbirth during the period after the expiration of the 1976-77 contract and prior to the signing of the 1977-78 contract; and B. A cease and desist order with posting. As a result of the foregoing stipulations, it is accordingly ORDERED: 1. That the Waterville Board of Education pay to the said teachers described above an amount of money appropriate in each case for their period of disability, and particularly to Pamela M. Seeley ($2,427.20), Donna Richardson ($2,251.95) and Karlene L. Addition ($1,408.88), with interest at 6% from the date of the withholding to the date of payment. 2. That the Waterville Board of Education, their representatives, servants and agents, cease and desist from engaging in any of the acts prohibited by 26 M.R.S.A. Section 964 (1) and especially from refusing to bargain collectively with the bargaining agent of the employees as required by Section 965 of the Municipal Public Employees Labor Relations Law. 3. That the Waterville Board of Education cease and desist taking unilateral action by changing any of the terms and conditions of employment which are appropriate for negotiation during any period between the end of one contract and the beginning of another. -1- ______________________________________________________________________________ 4. This Order shall be posted on all bulletin boards at the Waterville Board of Education for a period of sixty (60) days after its receipt by the Board. Within thirty (30) days from the date of this Order, the Waterville Board of Education shall notify, in writing, the Maine Labor Relations Board at its office in Augusta, Maine, of the steps they have taken to comply herewith. 5. This decree resolves all questions between the parties raised by the Complaint, except the question of attorneys' fees. Dated at Augusta, Maine this 29th day of May, 1979. MAINE LABOR RELATIONS BOARD /s/____________________________________ Donald W. Webber Alternate Chairman /s/____________________________________ Paul D. Emery Employer Representative /s/____________________________________ Michael Schoonjans Employee Representative -2- ______________________________________________________________________________