STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-31 ______________________________________ ) M.S.A.D. NO. 43 BOARD OF DIRECTORS, ) ) Complainant, ) ) v. ) INTERIM DECISION AND ORDER ) M.S.A.D. NO. 43 TEACHERS ASSOCIATION,) ) Respondent. ) ______________________________________) M.S.A.D. No. 43 Board of Directors ("Directors") filed this prohibited practice complaint with the Maine Labor Relations Board on October 23, 1978. Respondent M.S.A.D. No. 43 Teachers Association ("Association") filed an answer and motion to dismiss on November 15, 1978. The Directors filed an amended prohibited practice complaint on November 30, 1978 and a motion for default on December 15, 1978. The Association filed a second motion to dismiss on December 28, 1978. Pre-hearing conferences were held by Alternate Chairman Donald W. Webber on December 5, 1978 and on March 20, 1979. Alternate Chairman Webber issued a pre-hearing conference memorandum and order on December 18, 1978 and a second order on March 22, 1979. The contents of both are incorporated herein by reference. At the second pre-hearing conference the Association requested that the Board defer its action on this case pending the disposition of a civil action now pending in the Superior Court. The Directors opposed this request. We conclude that the motion for default and motions to dismiss should be denied, but that the motion for deferral should be granted to the extent that proceedings on this case should be stayed. DISCUSSION I Complainant's Motion for Default The Association's answer was due to be filed with the Board and served on the Directors on or before November 14, 1978. The Association filed an answer with the Board on November 15, 1978. There is no proof of service on the Directors as required by Board Rule 4.05. On December 5, 1978, the complaint and answer were reviewed at a pre-hearing conference. The motion for default was filed on December 15, 1978. The motion does not allege that there was no actual service of the complaint or that there was any resulting prejudice. The Association argues on this basis that the motion is frivolous. Under Rule 4.05 the Board has discretion to render a default judgment if it believes that a failure to answer is due to other than excusable neglect. We are not prone to exercise such in a case where the claim is merely a technical one, as here. The motion is therefore denied. This is not to say that we condone noncompliance with the Rules; however, we do not. -1- ______________________________________________________________________________ II Respondent's Motions to Dismiss Respondent's first motion to dismiss is based on the allegation that the complaint does not contain a clear and concise statement of facts which constitute the complaint as required by Rule 4.03(4). We find it plainly adequate and therefore deny the motion. Respondent's second motion is based on the failure of the complaint to comply with the specific declaration contained in Rule 4.02 as to truth and correctness. We find that the complaint complies with the spirit of the rule, if not the letter, and therefore deny the motion. III Respondent's Motion for Deferral The Association points out that the same facts of this prohibited practice complaint are involved in a civil suit in Superior Court, Richard J. Plante, et al v. M.S.A.D. No. 43, et al, Oxford County Super. Ct., No. CV-79-10, and that the Board should defer to the court proceeding. The Directors, the complainant here, and the counterclaimant in the court proceeding, argue that the Association is not a respondent in the court case and therefore deferral is not appropriate. We reject the Directors' argument both legally and factually. First, the facts. The bases of the two actions are the same. In both, M.S.A.D. No. 43 claims that certain conduct on October 6 and November 28, 1978 was unlawful as a work stoppage, slowdown, or strike. With respect to the identify of parties, it is plain that the charging party, M.S.A.D. No. 43, is the same in both cases. That alone would be sufficient to allow the use of the rule of collateral estoppel and thus whether the Association is also involved in both cases would not be determinative. Moreover, the respondent in the prohibited practice proceeding is in fact involved as a defendant to the Superior Court counterclaim in any event. Richard J. Plante, President of the M.S.A.D. No. 43 Teachers Associa- tion, is a named defendant in the Superior Court proceeding. He appears "for himself and on behalf of said organization." We therefore reject the Directors' argument. Since nearly identical questions of fact are involved in both actions, the Court apparently could have applied the doctrine of primary jurisdiction. See Churchill v. S.A.D. No. 49 Teachers Association, 380 A.2d 186, 190 (Me. 1977); 3 Davis, Administrative Law Treatise 19.01 (1958). Thus it could have stayed its proceeding pending the outcome of the matter before the Board. See Davis, Administrative Law of the Seventies 19.07 (1976). This would be so even if the Association were not a party to the civil action. The Superior Court, however, has denied a motion to dismiss. Since a court determination of both legal and factual issues might override this Board's determinations on the same issues, it is appropriate to stay the instant proceeding pending disposition of the court counterclaim. The interests of avoiding duplication and possible fruitless effort, and of saving time and resources clamor for this result. -2- ______________________________________________________________________________ This Board has previously employed this approach in Greater Portland Transit District v. Division 714, Amalgamated Transit Union, M.L.R.B. No. 78-29 (1978). In that case the Board stayed its proceeding pending final judgment in a case before the First Circuit Court of Appeals. In the instant case, the Board stays its action pending action by a different court, but one which wields the power of review of the very decisions of this Board. See 5 M.R.S.A. 11001 et seq. ORDER On the basis of the foregoing and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 968(5), it is ORDERED: That proceedings on this prohibited practice complaint be stayed pending the disposition by the Superior Court for Oxford County of the counterclaims by M.S.A.D. No. 43 in Richard J. Plante, et al v. M.S.A.D. No. 43, et al, CV-79-10. Dated at Augusta, Maine this 1Oth day of April, 1979. MAINE LABOR RELATIONS BOARD /s/____________________________________ Edward H. Keith Chairman /s/____________________________________ Michael Schoonjans Employee Representative /s/____________________________________ Kenneth T. Winters Alternate Employer Representative -3- ______________________________________________________________________________