STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 84-20
Issued: May 16, 1984
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)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Complainant, )
)
v. )
)
BAXTER STATE PARK AUTHORITY ) DECISION AND ORDER
)
and )
)
STATE OF MAINE, )
)
Respondents. )
______________________________________)
This is a prohibited practices case, filed pursuant to Title 26 M.R.S.A.
Section 979-H(2) on February 24, 1984 by the Maine State Employees Association
("Union"). The Union alleges in its complaint that the Baxter State Park
Authority and the State of Maine ("Employer") unilaterally, without prior notice
and negotiations with the Union, changed some bargaining unit employees' hours
and work schedules and contracted-out services. previously performed by other
bargaining unit employees at Baxter State Park. The Union further alleges that
the Employer failed and refused to meet with the Union for the purpose of nego-
tiating over said alleged unilateral changes. The Employer filed an answer to
the complaint on March 16, 1984, denying that it had violated any section of
the State Employees Labor Relations Act ("Act"), 26 M.R.S.A. Section 979, et
seq., and alleging, as an affirmative defense to the complaint, that the Union's
complaint is barred by the six-month statute of limitations contained in 26 M.R.S.A.
Section 979-H(2) and moving for the dismissal of the complaint.
A pre-hearing conference on the case was held on April 5, 1984, Alternate
Chairman Donald W. Webber presiding. Alternate Chairman Webber issued a
Pre-Hearing Conference Memorandum and Order, on April 5, 1984, the contents of
which are incorporated herein by reference. Said Order dismissed the Union's
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complaint on the grounds that the Union failed to appear at the pre-hearing
conference.
On April 20, 1984, the Union filed a Motion to Vacate Order and Appeal
of Order Dismissing Complaint with the Maine Labor Relations Board ("Board").
Through its motion and appeal, the Union prays that the Board will vacate or
reverse the Order dismissing the complaint and order that the matter be scheduled
for pre-hearing conference and for hearing. A hearing on the motion and appeal
was held on April 24, 1984, Chairman Sidney W. Wernick presiding, with Employer
Representative Thacher E. Turner and Employee Representative Harold S. Noddin.
The Union was represented by John J. Finn, Esq., its Chief,Counsel, and the
Employer was represented by Peter H. Stewart, Esq., Counsel, Governor's Office
of Employee Relations. The parties were given full opportunity to examine and
cross-examine witnesses, introduce evidence, and make argument.
JURISDICTION
The Maine State Employees Association is the exclusive bargaining agent,
within the definition of 26 M.R.S.A. Section 979-A(1), of the state employee
Operations, Maintenance and Support Services and Law Enforcement Services bar-
gaining units. The Baxter State Park Authority is an agency of the State of Maine.
The State of Maine is the public employer, within the meaning of 26 M.R.S.A.
Section 979-A(5). The jurisdiction of the Maine Labor Relations Board to review
the pre-hearing officer's Order lies in 26 M.R.S.A. Section 979-H(2).
FINDINGS OF FACT
Upon review of the entire record, the Maine Labor Relations Board finds:
1. The Maine State Employees Association is the exclusive bargaining agent,
within the definition of 26 M.R.S.A. Section 979-A(1), of the state employee
Operations, Maintenance and Support Services and Law Enforcement Services
bargaining units.
2. The Baxter State Park Authority is an agency of the State of Maine. The
State of Maine is the public employer, within the meaning of 26 M.R.S.A. Section
979-A(5).
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3. On February 24, 1984, the Maine State Employees Association filed a
Prohibited Practice Complaint with the Board alleging that the Baxter State
Park Authority and the State of Maine unilaterally, without prior notice and
negotiations with the Union, changed some bargaining unit employees' hours and
work schedules and contracted-out services previously performed by other bar-
gaining unit employees at Baxter State Park, in violation of Section 979-C(1)(A)
of the Act. The Union's complaint further alleged that the Employer failed and
refused to meet with the Union for the purpose of negotiating over the alleged
unilateral changes, in violation of Section 979-C(1)(E) of the Act.
4. On March 16, 1984, the Employer filed an answer to the complaint denying
that it had violated any section of the Act and alleging, as an affirmative
defense, that the Union's complaint was barred by the six-month statute of limita-
tions contained in Section 979-H(2) of the Act and moved for the dismissal of
the complaint.
5. By letter dated March 9, 1984, and sent by certified mail, return receipt
requested, the Board notified the Chief Counsel of the Maine State Employees
Association that a pre-hearing conference on the case would be held at 9:30 a.m.
on April 5, 1984, in the Bureau of Labor Conference Room, Seventh Floor, State
Office Building, Augusta, Maine, and outlined the purpose of the pre-hearing
conference.
6. The third paragraph of the notice, mentioned in the preceding paragraph,
stated:
"Please note that under Rules 4.06 and 4.07 of the Board's Rules
and Procedures, failure of a party to participate in the pre-hearing
conference may be grounds for dismissal of the complaint or for entry
of a default judgment."
7. The notice of the date, time, location, and purpose of the pre-hearing
conference was received by the Maine State Employees Association and was delivered
to the office of the Union's Chief Counsel.
8. No representative of the Maine State Employees Association appeared at
the pre-hearing conference on April 5, 1984. At 9:55 a.m., after attempting to
locate the Union's Chief Counsel and having been unsuccessful, the pre-hearing
officer granted a motion by counsel for the Employer that the Maine State Employees
Association be defaulted for failure to appear at the pre-hearing conference and
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that the Prohibited Practice Complaint, filed by the Union in this matter on
February 24, 1984, be dismissed.
9. On April 20, 1984, the Union filed a Motion to Vacate Order and Appeal
of Order Dismissing Complaint with the Board praying that the Order dismissing
the complaint be vacated and that the matter be scheduled for pre-hearing
conference and for hearing.
10. On April 24, 1984, the Board received in evidence an Affidavit of
John J. Finn, Chief Counsel of the Maine State Employees Association. After out-
lining the procedural facts noted in paragraphs 3, 5, and 7 hereof, Mr. Finn
stated:
"As far as I have been able to determine, due to my heavy
involvement in other matters at that time, particularly the con-
current interest arbitration hearings and extensive preparation
requirements required for those hearings, I inadvertently set
the notice aside without entering it in my calendar and it became
mingled with other papers.
"On the date in question, April 5, 1984, I checked my calendar
and saw no reference to any hearing and thus I arrived late at my
office on that morning.
"I arrived at my office shortly after 10:00 a.m. on that morning
and, being informed by my secretary that I had been called about a
hearing I was supposed to be attending, I immediately called the
Pre-Hearing Officer, Judge Donald W. Webber, prior to 10:30 a.m.,
told him my mistake and offered to go right over. I was informed
by Judge Webber that he had given me a half-hour to appear, and
not appearing within that time, he entered a default after asking
for the desire of Respondents' attorney.
"On the date in question I was available and the other two
staff attorneys at MSEA would have been available to attend the
hearing if they had been requested.
"The failure to appear, or tardiness in appearance, at the
pre-hearing conference was not an intentional act on behalf of
the Maine State Employees Association but was the result of a
mistake, inadvertence or neglect in failing to properly attend
to notice of this matter."
DECISION
The Union's prayer for relief in this proceeding is based upon the six issues
raised in its Motion to Vacate Order Dismissing Complaint and Appeal of Order
Dismissing Complaint. The first such rationale is the allegation that "[t1he
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order was beyond the authority and jurisdiction of the Alternate Chairman
of the Board." Under the facts before us, the Alternate Chairman was
acting as the designee of the executive director, as the presiding officer for
a pre-hearing conference and in issuing a pre-hearing conference memorandum
and order. Section 979-H(2) of the Act provides the statutory authority for
pre-hearing officers. The relevant portion of Section 979-H(2) provides:
"Nothing in this subsection shall restrict the right of the
board to require the executive director or his designee to hold
a prehearing conference on any prohibited practice complaint prior
to the hearing before the board and taking whatever action, including
dismissal, attempting to resolve disagreements between the parties
or recommending an order to the board, as he may deem appropriate,
subject to review by the board."
The Union's contention raises an issue concerning the interpretation of the
above-cited statutory language. As the quasi-judicial agency empowered by
26 M.R.S.A. Section 979-H with the implementation of the Act, the Board is authorized
to interpret the provisions of the Act. Town of Old Orchard Beach v. Old Orchard
Beach Police Patrolmen's Association, 461 A.2d 1054, 1056 n. 2 (Me. 1983). The
Union's argument is that the cited language authorizes the pre-hearing officer only
to recommend orders of dismissal to the Board for its action thereon. The inter-
pretation proffered by the Union is contrary to our view of the meaning of the
language of the Act.[fn]1 The Act authorizes the pre-hearing officer to take "what-
ever action ... he may deem appropriate, subject to review by the [Bloard."
This broad grant of discretionary power is illustrated by the examples mentioned
in the statute. The pre-hearing officer may: dismiss complaints or attempt to
resolve differences between the parties or recommend an order to the Board. This
list of illustrative examples is in the disjunctive in that each authorized action
mentioned is separate and distinct from the others cited. Recommending an order
to the Board is only one of the alternative actions-listed; another action authorized
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1 The cited portion of Section 979-H(2) is inelegantly drafted in that the
participle "taking," in the fourth line, is grammatically incorrect and should
be replaced by the infinitive "to take." This latter verb form is correct
because the thrust of the sentence is that the Board may require the executive
director to hold a pre-hearing conference and to take appropriate action. Since
the verbs "hold" and "take" are used in parallel, they should be in the same form.
Furthermore, the conjunction "as," in the sixth line, is surplus and it obfuscates
the meaning of the sentence.
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is that the pre-hearing officer may, within the exercise of his discretion and
without intervention of the Board, dismiss prohibited practice complaints. We
hold, therefore, that Section 979-H(2) of the Act expressly authorized the
pre-hearing officer's action herein.
The only case where the Board has addressed the issue now before us is
Waterville Teachers Association v. Waterville Board of Education, MLRB No. 79-12
(Feb. 6, 1979). That case, like this one, involved a pre-hearing officer's
granting of a motion for default, when a party failed to appear at the scheduled
pre-hearing conference. The Board, upon the joint request of the parties,
vacated the default and stated:
"In deciding to vacate the default judgment, we entertain
not the slightest doubt that the imposition of the default judg-
ment by the Pre-Hearing Officer was entirely appropriate. If a
party was able to refuse to participate 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. Section 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 ...
[pre-hearing] conference may be grounds for entry of default judg-
ment 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 pro-
hibited 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. Georqe 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 pre-hearing
conference fully warrants an order that the party is in default."
Waterville Teachers Association, supra, at 3 [Additions and deletions in original].
While the Board may not have definitively interpreted the language of the Municipal
Public Employees Labor Relations Act, which is identical to the relevant portion
of Section 979-H(2), in the above quotation, the discussion cited was consistent
with and supports our foregoing-interpretation of Section 979-H(2) as it relates
to this case.
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The Rule, duly adopted by the Board to implement the pre-hearing procedures
contained in Section 979-H(2) of the Act, is Rule 4.07 of the Board's Rules and
Procedures. That Rule states:
"Setting of Notice and Hearing. The Board may cause a pre-
hearing conference or a hearing to be held and a notice of
hearing to be served on the parties by registered or certified
mail with return receipt requested. The notice shall include
the time, date, and place of the hearing or conference. Failure
of a complainant to attend such a hearing or conference may be
grounds for dismissal of the complaint and failure of a res-
pondent to attend such a hearing or conference may be grounds for
entry of default judgment against said respondent.",
The Board referred to this Rule, in Waterville Teachers Association, supra, with-
out defining the relevant language thereof. In order to resolve the instant
controversy and to avoid future confusion and misunderstandings we will define
the relevant portion of Rule 4.07 herein. We hold that, once the notice require-
ments specified in the first two sentences of the Rule have been satisfied, the
third sentence authorizes the pre-hearing officer, in the case of a pre-hearing
conference, or the Board, in the case of a hearing, to dismiss the complaint,
if the complainant fails to appear at either the pre-hearing conference or at
the hearing, the pre-hearing officer, in the case of the pre-hearing conference,
or the Board, in the case of a hearing, may enter a default judgment against
the respondent. Whenever a party fails to appear at a pre-hearing conference,
the pre-hearing officer's exercise of discretion, in dismissing a complaint or
in entering a default judgment, is subject to review by the Board, under the
provisions of Section 979-H(2) of the Act. Our holding is derived from the natural
meaning of the language used in the Rule in light of our interpretation of the
statutory language empowering the pre-hearing officer to take the dismissal action
on his own without the need for Board intervention.
The Union's second averment is that "[tlhe order was granted ex parte on
motion of the Respondents without notice of and hearing on the motion and thereby
constituted a denial of due process to the Complainant." At the hearing, the
Union made clear that it was not challenging the constitutionality of either
26 M.R.S.A. Section 979-H(2) or of Rule 4.07 of the Board's Rules and Procedures.
The Union's contention is that the aforementioned section and rule were applied
in an unconstitutional manner in this case. The crux of the Union's position is
that procedural due process, under the Constitutions of the United States and of
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the State of Maine, requires, at a minimum, ihat a party receive advanced notice
of an impending governmental action and that the party be accorded an opportunity
to be heard thereon before the action is taken.
The Supreme Judicial Court, referring specifically to the Due Process Clauses
of Article I, Section 6-A of the Constitution of the State of Maine and of Amend-
ment XIV of the United States Constitution, has stated that both notice and an
opportunity to be heard are "the essence" of due process. Board of Bar Overseers
v. Lee, 422 A.2d 998, 1003 (Me. 1980). Focusing on the "opportunity to be
heard" portion of the procedural due process requirement, the Court has stated:
"Third, appellant claims that holding the hearing on the
merits in the absence of appellant's counsel deprived appellant
of property without due process. Due process requires that before
a party can be deprived of property the party must have notice
and an opportunity to be heard. Ginsberg v. Epstein, 118 Me. 487,
105 A.854 (1919). In this case, appellant's counsel was notified
of the date of the hearing and failed to appear. Counsel did not
even appear to argue for a continuance. The referee had no duty
to postpone the hearing merely because he had received a letter
from appellant's counsel stating that one of his witnesses could
not attend on the date that had been set for the hearing."
Peaslee v. Pedco, Inc., 388 A.2d 103, 106 (Me. 1978). The Law Court has, there-
fore, distinguished between according a party an opportunity to be heard and
requiring that the party actually have been heard, in evaluating whether the party
has received its full procedural due process rights. So long as a party is allowed
a reasonable opportunity to be heard, after having been given proper notice, the
requirements of procedural due process have been met.
The Union, in the present case, was sent a notice of the date, time, and
location of the pre-hearing conference by the Board's staff, certified mail with
return receipt requested, on March 9, 1984. In addition to the above-mentioned
information, the notice outlined the purpose of the scheduled conference and con-
cluded with the following paragraph:
"Please note that under Rules 4.06 and 4.07 of the Board's
Rules and Procedures, failure of a party to participate in the
pre-hearing conference may be grounds for dismissal of the
complaint or for entry of a default judgment."
The evidence established that the Union received the above notice and that it
was delivered to the Union's Chief Counsel. The Union was, therefore, made aware
of the possible consequences of its failure to attend the pre-hearing conference.
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The Union was afforded the opportunity to be heard at the conference. The Law
Court's holding in Peaslee v. Pedco., Inc., cited above, might well support a
conclusion that the Union was accorded its full due process rights and that
dismissal of its complaint, without further opportunity for hearing on the propriety
of said dismissal, passed constitutional muster. We do not, however, end our in-
quiry at this point. As we have held above, Section 979-H(2) of the Act expressly
authorized the pre-hearing officer to dismiss the prohibited practice complaint,
because of the complainant's failure to appear at the conference, subject to re-
view by this Board. Normally when the Board, pursuant to the authority in Section
979-H(2) of the Act, is reviewing the pre-hearing officer's exercise of discretion,
in "attempting to resolve disagreements between the parties or recommending an
order to the [B]oard" on the merits, such review is in cases where the parties
have appeared and been heard at the pre-hearing conference. While reserving
judgment on the nature of the Board's review of the pre-hearing officer's con-
duct and/or recommended orders under the latter circumstances, the Board
herein, of necessity, conducted a de novo hearing on the propriety of the dismissal
order. A de novo hearing was held, under the circumstances of the instant case,
because the non-appearing party clearly did not present its views before the
pre-hearing officer. The Board promptly, upon receipt of the Union's appeal,
met and conducted an evidentiary hearing to review the pre-hearing officer's order.
At the hearing, the Union was allowed to submit all relevant evidence and to argue
the pertinent legal issues. We believe that the procedure followed herein is
that required by the Act, at least in cases where a party has failed to appear
at the pre-hearing conference, and we hold that this practice afforded the Union
an ample opportunity for hearing on the dismissal order, in satisfaction of its
procedural due process rights. In sum, therefore, we must reject the Union's
second averment.
The third contention, proffered by the Union in support of its prayer for
relief, is that "[t]he order was an arbitrary abuse of discretion and lacked a
rational basis." The argument offered by the Union at the hearing in substantiation
of this position was the same as that made in support of its fourth premise. That
latter averment is that "[t]he order was based upon an erroneous determination of
default." Since the Union's argument in furtherance of both of these contentions
was identical and because the two are very closely related, we will consider them
together herein.
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A correct determination of default would constitute a rational basis for the
pre-hearing officer's order, therefore, we will first consider the Union's fourth
averment. The Supreme Judicial Court has defined "default" as follows:
"But the term 'default' has a broader application than to
encompass solely the situation where a party fails to plead by
answer, reply to a counterclaim or other permissable pleading
under the rules. In its broad sense, it takes in the failure,
notwithstanding the answer, of a party to further assert his
rights by non-appearance for trial. In the instant case,
the defendant had a right to proceed to try her case at the
time set for hearing. The court must dispense justice between
the parties, but it must also perform its own duty to make it-
self available to others. If a trial court is powerless to
insist upon a prompt disposal of a case when called for
trial, then the business before the trial courts would be
interminably prolonged. Public policy requires the use
of default judgments under such circumstances. Vaux v.
Hensal, 224 Iowa 1055, 277, N.W. 718 (1938); Diamond
v. Marwell., 57 R.I. 477, 190 A.683 (1937)."
Sheepscot Land Corp. v. Gregory, 383 A.2d 16, 22 (Me. 1978). Subsequently, the
Law Court applied the above reasoning as justification for upholding the Superior
Court's dismissal of an action, on the grounds that the plaintiff had failed to
comply with a pre-trial order. Lerman v. Inhabitants of the City of Portland,
406 A.2d 903, 904 (Me. 1979), Cert. Den., 446 U. S. 937, 100 S. Ct. 2156, 64 L.
Ed. 2d 790 (1980). The Union's failure to appear at the scheduled pre-hearing
conference, like the plaintiff's failure to appear for trial in Sheepscot Land
Corp., clearly constitutes a default situation. We must, therefore, reject the
Union's fourth contention and also that portion of the Union's third averment
alleging that the order of dismissal lacked a rational basis.
As to the Union's third contention, the heart of the Union's position
is that, unlike the situation in Waterville Teachers Association, supra,where
the pre-hearing officer waited one hour before holding the non-appearing party
in default, the pre-hearing officer waited only twenty-five minutes before doing
so in this case. The pre-hearing officer's conduct was, allegedly, an arbitrary
abuse of discretion. Rule 16(d) of the Maine Rules of Civil Procedure is, to an
extent, analogous to Section 979-H(2) of the Act and Rule 4.07 of the Board's
Rules and Procedures. Rule 16(d) outlines various sanctions which the Superior
Court may apply if a party fails to comply with the provisions of Rule 16; one
of which is a requirement that the parties appear and participate in a pre-trial
conference. Rule 16(c)(4), M.R.Civ.P. As we have held above, Section 979-H
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(2) of the Act authorizes the pre-hearing officer, within the exercise of his
discretion, to dismiss a prohibited practice complaint if the complainant fails
to appear at the pre-hearing conference. Rule 16(d) states:
"If a party fails to comply with the requirements of this
rule or any order made hereunder, the court shall impose upon the
party or his attorney, or both, such sanctions as the circumstances
warrant, which may include the dismissal of the action or any
part thereof with or without prejudice, the default of a party,
the exclusion of evidence at the trial, and the imposition of costs
including attorney's fees and travel.
"The court may expressly order, where appropriate in its
discretion, that the costs of such sanctions be borne by counsel
and that they shall not be passed on to counsel's client."
The Superior Court Justice, like the pre-hearing officer in the instant case,
exercises discretion in deciding on whether to impose sanctions and if so,
on the nature thereof. The Supreme Judicial Court has described the character
of the Superior Court's discretion under Rule 16(d) as follows:
"In exercising its discretion under Rule 16(d) or 37(b)(2),
the trial court must answer three questions: (1) whether to
impose a sanction; (2) upon whom - party or counsel or both -
to impose the sanction; and (3) what sanction to impose. The
answers to those questions depend upon the circumstances of the
particular case, viewed in the light of the functions intended to
be served by sanctions. In addition to penalizing non-compliance
with a court order and trying to remedy the effect of the non-
compliance by compensating the innocent party for the costs
incurred therefrom or by exacting compliance from the recalcitrant
party, the sanction selected should also serve as a deterrent
to similar conduct by the same offender or others. See Note,
'The Emerging Deterrence Orientation in the Imposition of
Discovery Sanctions,' 91 Harv. L. Rev. 1033, 1034 (1978). The
ultimate goal of any pretrial sanction is to promote fair and
efficient litigation, both in the pending case and in the
court system generally."
Reeves v. Travelers Insurance Co.'s, 421 A.2d 47, 50 (Me. 1980). The necessity
of sanctions for a party's failure to appear for a pre-hearing conference is
similar to that noted above in relation to Superior Court procedure. As
we stated in Waterville Teachers Association, supra, at 3: "[i]f a party was
able to refuse to participate in Board procedures with impunity, then the pro-
cedures of the Board would be emasculated and the Board's effectiveness under-
mined." We will, therefore, use the standard set forth by the Law Court in
Reeves in measuring the reasonableness of the pre-hearing officer's exercise
of discretion herein.
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We will now examine the Union's specific allegation in light of the above
discussion. The Union's position is that it was proper for a pre-hearing officer
to hold a party in default, for non-appearance at the conference after waiting
for one hour, but doing so after waiting for twenty-five minutes was an abuse
of discretion. The memorandum portion of the Pre-Hearing Conference Memorandum
and Order in Waterville Teachers Association, supra, in its entirety, stated:
"A pretrial conference in the above-captioned matter was
assigned to be held at 3:00 p.m. on December 5, 1978, and
written notice of such time and place was given by the Board
to all parties. The conference was attended by Donald F. Fontaine,
Esquire, representing Complainant and Donald W. Webber, Alternate
Chairman, representing the Board. No one appeared representing
Respondent.
"At 4:00 p.m. the Alternate Chairman, having received no
communication from Respondent, entertained a motion made by
Complainant that Respondent be defaulted and that the relief
prayed for by the complaint be granted."
The facts now before us are that, although the pre-hearing officer waited only
about twenty-five minutes before entertaining the State's motion for default,
the default was entered and the complaint dismissed only after attempts to
locate counsel for the Union had been unsuccessful. The Union Chief Counsel's
Affidavit makes clear that the attempts to reach Union counsel consisted of at
least one telephone call to the Union attorney's office, informing the office
staff that the Chief Counsel was late in appearing at a scheduled conference.
The Chief Counsel's Affidavit went on to state that "two staff attorneys at
MSEA would have been available to attend the hearing if they had been requested."
We believe that it is incumbent upon an attorney to organize his office in
such a manner that a message - that one of the firm's attorneys has failed to
appear for a scheduled proceeding - is transmitted to other available counsel
who might then substitute for the absent attorney. State v. One 1977 Blue Ford
Pick-Up Truck, 447 A.2d 1226, 1231 (Me. 1982). Although the pre-hearing officer
waited for one hour before defaulting the non-appearing party in Waterville
Teachers Association, supra, there is no evidence that any effort, like the one
in the instant case, was made to reach the absent party's counsel therein. In
light of the foregoing facts and discussion, we must conclude that the pre-hearing
officer was well within the sound exercise of discretion in dismissing the
complaint in this case.
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The Union's fifth allegation is that the order dismissing the complaint
should be reversed because "[t]he order was issued without a determination that
the cause of the Complainant's error was other than excusable neglect as required
by MLRB Rules." As was discussed above within the context of our evaluation of
the procedural due process issue herein, the Union's failure to appear at the
pre-hearing conference inherently precluded its being heard on the propriety of
the dismissal order by the pre-hearing officer. The Pre-Hearing Conference
Memorandum and Order does not purport to address the issue of excusable neglect
and, indeed, it would have been impossible for the pre-hearing officer to rule
on the question without hearing from the Union thereon. Clearly, the Union's
allegation is correct; however, where, as here, a party fails to appear at
the pre-hearing conference, the forum in which to present evidence and legal
reasoning relevant to the issue of excusable neglect is before this Board.
We will now consider the Union's sixth and final argument: "Complainant's
error was due to excusable neglect." Rule 4.06 of the Board's Rules and
Procedures states:
"Investigation and Action on Charge. The Board may cause its
Executive Director to investigate the complaint and take
appropriate action thereon, which may include convening of a
pre-hearing conference, dismissal of the complaint in whole
or in part, entry of an uncontested order, or the issuance
of the notice of hearing. Failure of a complainant to parti-
cipate in a pre-hearing conference as provided herein may be
grounds for dismissing its complaint, and failure of a res-
pondent to participate in a pre-hearing conference as hereby
authorized may be grounds for entry of a default judgment
against said respondent, if in either instance said failure
to participate in the pre-hearing conference is due to other
than excusable neglect."
The parties have argued and the Board agrees that excusable neglect, as embodied
in Rule 4.06, is analogous to the concept of the same name mentioned in Rule 60
(b)(1) of the Maine Rules of Civil Procedure. The Board's decision herein will,
therefore, be guided by the Supreme Juducial Court's interpretation of the latter
principle. The Law Court has outlined the nature of excusable neglect as
follows:
"Failure to obtain knowledge of entry of judgment in
time to file a timely notice of appeal will almost always
occur as the result of some act of neglect. The essential
injustice that results from such a lack of knowledge is that
a procedural remedy is barred before one has the information
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requisite to protect one's entitlement to that remedy.
Where the neglect causing such lack of knowledge is beyond
the control of the party or counsel charged to act for that
purpose, simple justice requires that the 'neglect' be
'excused.' Where, as here, however, the neglect is that
of the party charged to act, some extraordinary circumstance
must be proven to justify excuse of such neglect. See
Reynolds, 407 A.2d at 314; Begin, 435 A.2d at 1082; Young,
441 A.2d at 321. We find nothing in the nature of an event
or circumstance so extraordinary in this case as to excuse
the neglect of appellant's counsel to provide suitable office
procedures to cause the judgment to be brought to counsel's
attention once it was delivered into the custody and control
of counsel's office. It is incumbent upon any attorney to
institute internal office procedures sufficient to assure
that judgments are properly dealt with once they are delivered
into the custody of office personnel subject to the control
of counsel. The failure to take necessary steps, to that end,
even during periods of unusual circumstances in an attorney's
office, is not an acceptable excuse for any resulting failure
to obtain personal knowledge of the entry of judgment on the
part of counsel. The finding of excusable neglect was in error."
State v. One 1977 Blue Ford Pick-Up Truck, 447 A.2d 1226, 1230-31 (Me. 1982).
The facts in the instant case are: (1) the Union office received the notice of
the scheduled pre-hearing conference; (2) the notice was delivered to the office
of the Union's Chief Counsel; (3) the Chief Counsel set the notice aside without
entering it in his calendar; (4) the notice became mingled with other papers;
(5) neither the Chief Counsel nor any other representative appeared on behalf of
the Union at the pre-hearing conference. The neglect which occurred clearly was
not beyond the control of the Union or of its counsel. Applying the standard
outlined in One 1977 Blue Ford Pick-Up Truck to the facts before us, some extra-
ordinary event or circumstances would be required to madate a conclusion of
excusable neglect. The Union's Chief Counsel seeks to establish such a condition
when he states that the notice was set aside, without being entered in his
calendar, "due to [his] heavy involvement in other matters at that time, parti-
cularly the concurrent interest arbitration hearings and extensive preparation
requirements required for those hearings." In Begin v. Jerry's Sunoco, Inc.,
435 A.2d 1079 (Me. 1981), the Court addressed a situation where counsel argued
that filing a notice of appeal late, due to the crush of other business, con-
stituted excusable neglect. In rejecting that contention, the Court stated:
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"Nor do we find any allegation in counsel's affidavit
sufficient to sustain, on any other basis, a finding of
'excusable neglect.' Under F.R. App. 4(a) ('Court, upon
a showing of excusable neglect or good cause, may extend
the time for filing a notice of appeal ...'), the First
Circuit Court of Appeals held that the district court
erred by finding excusable neglect where counsel alleged
that he was busy for two months negotiating a collective
bargaining agreement. We believe the First Circuit's
response is appropriate here:
'We do not consider the fact that an attorney is busy on other
matters to fall within the definition of excusable neglect. Most
attorneys are busy most of the time and they must organize
their work so as to be able to meet the time requirements of
matters they are handling or suffer the consequences. [Citation
omitted.] Filing a notice of appeal does not require much time
or deliberation.'
Pinero Schroeder v. Federal National Mortgage Association, 574
F.2d 1117, 1118 (1st Cir. 1978)(per curiam); see Maryland
Casualty Co. v. Conner, 382 F.2d 13, 17 (10th Cir. 1967); Stern,
[Changes in the Federal Appellate Rules, 41 F.R.D. 297].
"Nor does a mere palpable mistake by counsel or by
counsel's staff constitute excusable neglect. Such an inter-
pretation would render the requirement meaningless. Spound,
534 F.2d at 411 (counsel); Airline Pilots in the Service of
Executive Airlines, Inc. v. Executive Airlines, Inc., 569
F.2d 1174, 1175 Ust Cir. 1978) (staff)(per curiam).
"Counsel here allege merely that due to the press of other
business they failed to timely file a notice of appeal. Thus,
they failed to allege grounds upon which the trial court could
base a finding of excusable neglect."
435 A.2d at 1082-1083. The reason given by the Union for its failure to properly
note the date of the pre-hearing conference and, hence, the cause for its non-
appearance thereat was "heavy involvement in other matters." In light of the
above-quoted analysis, this rationale does not rise to the level of an extra-
ordinary event or unusual circumstances. We must, therefore, hold that the
Union's failure to attend the pre-hearing conference of April 5, 1984, was due
to other than excusable neglect, within the meaning of that term in Rule 4.06
of the Board's Rules and Procedures.
The Pre-Hearing Conference Memorandum and Order, dated April 5, 1984, and
dismissing the Union's prohibited practice complaint, was issued pursuant to
and within the authority and jurisdiction conferred upon the pre-hearing officer
by 26 M.R.S.A. Section 979-H(2). The Union was afforded its full procedural due
process rights through the Board's review of the dismissal order. The Pre-Hearing
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Conference Memorandum and Order was issued within the proper exercise of the
pre-hearing officer's discretion and said order had a rational basis. The
order was grounded upon a correct determination.of default. Although the order
was issued without a determination that the cause of the Union's error was other
than excusable neglect, such situation was an inherent result of the Union's
failure to appear at the pre-hearing conference and, under such circumstances,
the proper forum for airing the excusable neglect issue is before the Board.
The Union's error in failing, after receipt of timely and proper notice, to appear
at the scheduled pre-hearing conference was due to other than excusable neglect,
within the meaning of that term in Rule 4.06 of the Board's Rules and Procedures.
The Pre-Hearing Conference Order of April 5, 1984 will, therefore, be affirmed.
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. Section 979-H(2), it is hereby ORDERED:
1. The appeal filed by the Maine State Employees Association
on April 20, 1984 is hereby denied.
2. The Pre-Hearing Conference Order of April 5, 1984 in
M.L.R.B. Case No. 84-20 is hereby affirmed.
3. The prohibited practice complaint, in M.L.R.B. Case
No. 84-20 which was filed on February 24, 1984, is
hereby dismissed.
Dated at Augusta, Maine, this 16th day of May, 1984.
MAINE LABOR RELATIONS BOARD
/s/_____________________________
Sidney W. Wernick, Chairman
The parties are advised of their
right, pursuant to 26 M.R.S.A.
Section 979-H(7)(Supp. 1982),
to seek a review by the Superior /s/_____________________________
Court of this decision by filing Thacher E. Turner
a complaint in accordance with Employer Representative
Rule 80B of the Rules of Civil
Procedure within 15 days of the
date of this decision.
/s/_____________________________
Harold S. Noddin
Employee Representative Employee Representative
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