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-
______________________________________________________________________________