STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 84-24
Issued: June 18, 1984
_____________________________________
)
Bruce J. Geroux, )
member of INTERNATIONAL ASSOCIATION )
OF FIREFIGHTERS, AFL-CIO, CLC )
LOCAL 1655, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
CITY OF OLD TOWN, MAINE, and its )
CITY MANAGER, STANTON McGOWEN, )
)
Respondents. )
_____________________________________)
At issue in this prohibited practices case are several motions
to dismiss filed by Respondents City of old Town, et al. (City).
We find merit in two of the motions because Complainant Bruce J.
Geroux (Geroux) did not serve a complete copy of his complaint on
the City and because, in any event, the complaint fails to state
a claim. We will grant these motions and dismiss the complaint.
Geroux filed his prohibited practices complaint on March 22,
1984, alleging that the City violated 26 M.R.S.A. 964(1)(A), (C)
and (D)(1974) when the City Manager failed to send a copy of a
letter concerning a grievance filed by Geroux to the union president.
Attached to the complaint were a number of exhibits to which the
complaint referred. The City filed a response to the complaint and
its motions to dismiss on April 12, 1984.
A pre-hearing conference on the case was held on May 15, 1984,
Alternate Chairman Donald W. Webber presiding. Alternate Chairman
Webber issued on May 17 a Pre-Hearing Conference Memorandum and
Order, the contents of which are incorporated herein by reference.
As reflected in the pre-hearing conference memorandum, the parties
agreed at the pre-hearing conference that the Labor Relations Board
should decide the various motions to dismiss before conducting a
hearing on the merits of the complaint.
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A hearing on the motions was held on May 29, 1984, Chairman
Sidney W. Wernick presiding, with Employer Representative Thacher E.
Turner and Employee Representative Harold S. Noddin. Geroux was
represented by labor representative Rodney Pierce, and the City by
Thomas Johnston, Esquire.
JURISDICTION
Geroux is an employee of the Old Town Fire Department and is a
"public employee" entitled to file a prohibited practices complaint
pursuant to 26 M.R.S.A. 968(5)(B)(Supp. 1983-84). The City of Old
Town and its City Manager are "public employers" as defined in 26
M.R.S.A. 962(7)(Supp. 1983-84). The jurisdiction of the Maine
Labor Relations Board to hear this case and render a decision and
order on the motions to dismiss lies in Section 968(5)(B).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board
finds:
1. Geroux served a copy of his prohibited practices complaint
on the City Manager prior to filing the complaint with the Labor
Relations Board. Several allegations in the complaint refer to a
collective bargaining agreement and to letters which purportedly
were included with the complaint as exhibits. None of these exhibits
were included with the complaint served on the City Manager, however,
although the exhibits were attached to copies of the complaint filed
with the Labor Relations Board. Geroux made no effort to serve
the exhibits on the City subsequent either to the filing of the
complaint or the motions to dismiss.
2. Geroux's complaint alleges that the City violated Section
964(1)(A), (C) and (D) when the City Manager sent copies of a letter
addressed to the union president to the members of the union griev-
ance committee but not to the union president. The letter, signed
by the City Manager, referred to a grievance filed by Geroux.
Nothing in the complaint or in the record suggests any reason why
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the failure to send a copy of the letter to the union president has
any significance whatsoever to resolution of the grievance.
3. During the hearing of this case on May 29, Geroux filed a
purported amendment to his complaint which raises a new allegation.
As was the case with the original complaint, the amendment refers
to attached exhibits which were not included with the amendment when
it was served on the City.
DECISION
Among the motions to dismiss filed by the City is one alleging
failure to serve a complete copy of the complaint on the City and
another asserting failure to state a claim. We will grant these two
motions. We will also dismiss the amendment to the complaint.
1. Failure to serve a complete copy of the complaint. Several
allegations in Geroux's complaint refer to exhibits, including a
collective bargaining agreement and several pieces of correspondence,
supposedly attached to the complaint. These exhibits were not
included with the complaint served on the City, however, and Geroux
made no effort to cure this deficiency during the period between
the filing of his complaint and the hearing on the City's motions.
The exhibits were included with all copies of the complaint filed
with this agency. Service of the prohibited practices complaint on
the respondent is of fundamental importance because service is the
basis on which our jurisdiction is acquired. Failure to serve the
complaint thus means that we have no power to act on the complaint.
See, e.g., Pennoyer v. Neff, 95 U.S. 714, 732-33 (1877).[fn]1 Section
968(5)(B) incorporates the service requirement, stating in pertinent
part: "No such complaint shall be filed with the executive director
until the complaining party shall have served a copy thereof upon
_______________
1 Another purpose of the service requirement is to give parties
whose rights or interests might be affected notice of the pendency
of the proceeding and an opportunity to defend themselves. See, e.g.,
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
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the party complained of."[fn]2 Since Geroux did serve a copy of the
complaint itself on the City Manager, the question we must decide
is whether his failure to serve the exhibits annexed to the com-
plaint constitutes a failure to serve the complaint.
We find that such a failure has occurred. Because several
allegations in the complaint refer to and are based on the exhibits,
the exhibits are incorporated in and are an integral part of the
complaint. The failure to serve the exhibits thus means that only
part of the complaint was served, a deficiency which precludes us
from acting on the matter. We will grant the City's motion to
dismiss for failure to serve the complaint.
2. Failure to state a claim. Although in light of our previous
decision we need not reach the question, we will also decide the
City's motion to dismiss for failure to state a claim. We do this
in order to provide guidance to the parties with respect to any
future filings in this matter. The complaint alleges that the City
violated Section 964(1)(A), (C) and (D) when the City Manager failed
to send a copy of a letter concerning a grievance filed by Geroux
to the union president. Instead of sending a copy of the letter to
the union president, the complaint alleges, the City Manager sent
copies to the members of the union grievance committee.
We find that the complaint clearly does not state a claim action-
able under the labor relations statute. The thrust of Section 964(1)
(D),[fn]3 one of the sections alleged to have been violated, is to "pro-
tect employees involved in any stage of a Labor Relations Board pro-
ceeding from a wide variety of discriminatory actions by the employer."
Southern Aroostook Teachers Association v. Southern Aroostook Community
_______________
2 Rule 4.04 of our Rules and Procedures likewise requires service
of the complaint and also requires that proof of service "shall be
furnished to the Board." 12-180 CMR Chapt. 4, Sec. 4.04 (1978).
3 Section 964(1)(D) prohibits a public employer from:
"Discharging or otherwise discriminating against
an employee because he has signed or filed any
affidavit, petition or complaint or given any
information or testimony under this chapter."
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School Committee, MLRB Nos. 80-35, et al., at 24 (April 14, 1982);
see also, NLRB v. Scrivener, 405 U.S. 117, 121-125 (1972). Nothing
in the complaint suggests that Geroux was involved in a Labor Relations
Board proceeding at the time the alleged unfair labor practice occurred,
nor is there an allegation that the City took any discriminatory action
against him. Section 964(l(C),[fn]4 on the other hand, "is directed at
the evil of too much financial or other support of, encouraging the
formation of, or actually participating in, the affairs of the union
and thereby potentially dominating it." Northern Aroostook Teachers
Association v. MSAD #27 Board of Directors, MLRB No. 81-52 at 7
(Nov. 19, 1981). Since the complaint does not allege that the City
was supporting, participating in the affairs of, or otherwise domi-
nating the union, no claim of a Section 964(1)(C) violation has been
made. Finally, Section 964(1)(A) prohibits public employers from
interfering with, restraining or coercing public employees in the
free exercise of their rights to engage in labor activities.[fn]5 Again
there is no allegation that the City has interfered with or restrained
Geroux in the exercise of his labor rights. There is no claim that
the fact the City Manager sent the letter to the union grievance
committee instead of the union president had any effect on resolution
of the grievance or otherwise harmed or prejudiced Geroux in the
exercise of his rights. The collective bargaining agreement gives
the authority to process grievances to the union grievance committee,
not the union president, so the City Manager appears to have been
acting in accordance with the agreement.
In short, we conclude that Geroux has not alleged facts which
could constitute violations of any of the statutory provisions upon
which he relies. His complaint therefore must be dismissed for
failure to state a claim.
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4 Section 964(1)(C) prohibits public employers from "[d]ominating
or interfering with the formation, existence or administration of any
employee organization."
5 Section 964(1)(A) states that public employers are prohibited
from "[i]nterfering with, restraining or coercing employees in the
exercise of rights guaranteed in section 963." Section 963 sets forth
the rights of public employees to engage in various labor activities.
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3. The amendment to the prohibited practices complaint.
During the hearing on these motions Geroux proffered an amendment
to the complaint which raises a new allegation. The amendment itself
was served on the City but again exhibits referred to and incorporated
in the amendment were not served. Since we have decided to dismiss
the original complaint, there is nothing left to amend, so the amend-
ment must also be dismissed. In addition, since a complete copy of
the amendment was not served on the City, the amendment must also be
dismissed for that reason.
ORDER
On the basis of the foregoing findings of fact and discussion,
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. Sec. 968(5)(C)
(1974), it is hereby ORDERED:
1. The City of Old Town's motions to dismiss for
failure to serve the complaint and for failure
to state a claim both are granted. Bruce J.
Geroux's prohibited practices complaint filed
on March 22, 1984 is dismissed.
2. Geroux's May 29, 1984 amendment to his pro-
hibited practices complaint is dismissed for
failure to serve the amendment on the City.
Dated at Augusta, Maine this 18th day of June, 1984.
MAINE LABOR RELATIONS BOARD
/s/_________________________
Sidney W. Wernick
The parties are advised of Chair
their right pursuant to 26
M.R.S.A. Sec. 968(5)(F)(Supp.
1983-84) to seek review of
this decision and order by /s/_________________________
the Superior Court by filing Thacher E. Turner
a complaint in accordance Employer Representative
with Rule SOB of the Rules
of Civil Procedure within
15 days of the date of
this decision. /s/________________________
Harold S. Noddin
Employee Representative
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