STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 84-28
Issued: July 23, 1984
____________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Complainant, )
)
v. )
)
BAXTER STATE PARK AUTHORITY ) INTERIM 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 May 11, 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") uni-
laterally, without prior notice to 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
negotiating over said alleged unilateral changes.
Pursuant to Rule 4.06 of the Maine Labor Relations Board's
("Board's") Rules and Procedures, the Executive Director of the Board
dismissed the Union's complaint, on May 17, 1984. The grounds for
the dismissal were that the Union's complaint was substantively
identical to that dismissed by the Board in Case No. 84-20, that the
Board's dismissal constituted an adjudication on the merits and, there-
fore, the Union's complaint was barred by application of the doctrine
of res Judicata.
On May 25, 1984, the Union filed an Appeal of order Dismissing
Complaint with the Board. Through its appeal, the Union prays that
the Board will reverse the order of the Executive Director dismissing
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the complaint and, by implication, order that the matter be scheduled
for pre-hearing conference and for hearing. A hearing on the appeal
was held on June 20, 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 Attorney Susan
Farnsworth, Chief Counsel of the Govenor's Office of Employee Relations.
The parties were given full opportunity to examine and cross-examine
witnesses and to introduce evidence. Upon the Union's motion and over
the Employer's objection, the record remained open for the introduction
into evidence of the deposition of the Pre-Hearing officer in Case No.
84-20. The parties submitted post-hearing briefs which-were considered
by the Board.
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 bargaining 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 Executive
Director'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. As a result of the Union's failure to appear at the scheduled
pre-hearing conference, the Pre-Hearing Conference order in Case No.
84-20 dismissed the Union's prohibited practice complaint.
2. The Union's complaint, filed on May 11, 1984, is, except for
the date on which it was signed, identical to that dismissed in Case
No. 84-20.
3. On May 16, 1984, the Board issued its decision affirming the
Pre-Hearing Conference order in Case No. 84-20.
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4. On May 17, 1984, the Executive Director issued an Order dis-
missing the Union's complaint in this case. The Executive Director's
Order stated:
"The prohibited practice complaint in the above-
captioned matter was filed with the Board on May 11, 1984.
Pursuant to Rule 4.06 of the Board's Rules and Procedures,
I have reviewed the complaint. This examination revealed
that, other than the date on which it was signed, the
complaint is identical to that which was dismissed by the
Board in Case No. 84-20. The re-filing of this complaint
raised the issue of whether the Board's dismissal in Case
No. 84-20 was with or without prejudice. An examination
of past Board cases is not helpful in resolving this
question. Reference was made to Rule 41(b) of the Maine
Rules of Civil Procedure as an aid in answering the query.
That Rule provides that, unless specified otherwise in the
dismissal order, a dismissal operates as an adjudication
on the merits. Although not controlling herein, Rule 41(b)
does provide guidance concerning the Courts' reaction in
analogous circumstances and its principle will be applied
hereto. Since the Board dismissed a virtually identical
complaint in Case No. 84-20, with no mention that the
dismissal was without prejudice, and since said dismissal
is deemed to be an adjudication on the merits, the com-
plaint in this case is barred by application of the doc-
trine of res ludicata. The prohibited practice complaint,
filed by the Raine SEate Employees Association in Case No.
84-28 on May 11, 1984, is hereby dismissed."
5. On May 26, 1984, the Union filed an Appeal of order Dismissing
Complaint with the Board.
6. At the time that he issued the Order mentioned in paragraph I
above, the Pre-Hearing Officer neither considered nor expressed an
intent as to whether the dismissal was to be with or without prejudice.
DECISION
This interim decision is limited to consideration of the Union's
appeal from the Executive Director's Order of May 17, 1984. The issue
presented by the appeal is whether the dismissal of the prohibited
practices complaint by the Pre-Hearing Officer in Case No. 84-20 was
with or without prejudice. Although the Pre-Hearing Conference Order
in question was affirmed by the Board in Case No. 84-20, the present
question was neither raised nor considered in that proceeding.
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Relying on Rule 41(b)(3) of the Maine Rules of Civil Procedure
as persuasive authority, the Executive Director deemed the word
"dismissed," in the Pre-Hearing Conference order of April 5, 1984,
to constitute an adjudication on the merits of the Union's February 24,
1984 complaint. Since the Union's complaints of February 24, 1984 and
May 11, 1984 are identical in substance and since the former complaint
was dismissed, the Executive Director concluded that application of the
doctrine of res judicata precluded consideration of the latter complaint.
Although correct within the analogous judicial context, we decline to
affirm the Executive Director's Order, for the purpose of this case.
Resolution of the issue presented will turn on the meaning of the
word "dismissed" in the Pre-Hearing Conference Order in Case No. 84-20.
If the word was intended to mean that the complaint was disposed of
with prejudice, subsequent consideration of a complaint, based on the
same facts alleged, would be barred by the doctrine of res judicata.
If, on the other hand, the dismissal was without prejudice, an identical
complaint, which was in compliance with the requirements of Section
979-H of the Act, could be considered by the Board. The first step,
in attempting to interpret the critical term, is to ascertain the
writer's intent in using it. We have examined the Pre-Hearing Con-
ference Order and have found that it is silent on the issue now before
us. Secondly, we attempted to learn the Pre-Hearing Officer's intent
by reviewing the transcript of his deposition. At page 4 of the depo-
sition, the Pre-Hearing officer is recorded as testifying that, at the
time the order was issued, he "hadn't thought at all in terms of pre-
judice or non-prejudice . . . ." The Union has argued that the Pre-
Hearing Officer's statement, that the Union probably could refile the
complaint, is dispositive of the issue now before us. We disagree.
As the Pre-Hearing Officer stated, at pages 7-8 of the deposition, the
statement was not made as an order or other ruling but rather was stated
in appreciation of and in sympathy for the Union attorney's embarrassing
predicament. More importantly, however, the statement was made after
the Order was issued and is not an expression defining the intent of
the order. We find that the Pre-Hearing Officer did not consider the
question of prejudice or non-prejudice in issuing the dismissal order.
In the absence of any evidence of the intent thereof, we will interpret
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the order as a matter of setting policy for practice before the Board.
A word has meaning and conveys intent because, prior to its use,
there has been general agreement or understanding of the thought which
it expresses. In this case the word "dismissed" was used without any
sort of intent in connection with the prejudice issue; therefore, we
are left to interpret the word according to its common usage. Within
the context of a judicial or quasi-judicial order, the word "dismissed,"
without further expression of intent, is ambiguous because it gives
rise to the very issue which is now before us. The inherent ambiguity
may be avoided by adding the words "with prejudice" or "without pre-
judice" to orders of dismissal. In the alternative, a convention may
be developed to avoid the confusion and misunderstanding. The courts
of the State of Maine have developed such a convention through Rule
41(b)(3) of the Rules of Civil Procedure. Whenever a judge uses the
word "dismissed" in an order, it is deemed, through operation of the
Rule, to mean that the matter has been fully adjudicated. No similar
convention exists in practice before the Board. Neither the State
Employees Labor Relations Act nor the Board's Rules and Procedures
address this question
The Board is well aware that a dismissal with prejudice is a
harsh sanction for failure to appear at a pre-hearing conference.
This is particularly true because, although such failure is usually
due solely to the error of a party's representative, the order serves
as an adjudication on the merits of the party's complaint and, there-
fore, precludes litigation before the Board on the facts which gave
rise to said complaint. In light of the severity of the dismissal
with prejudice sanction and because there was no established convention
on the meaning of the unmodified word "dismissed" in a pre-hearing
conference order, the Board feels that it would be unfair to apply a
"with prejudice" definition to the ambiguous order in Case No. 84-20.
We further hold and establish as a matter of practice before this
Board that, whenever a prohibited practices complaint is dismissed
in a pre-hearing conference order in the future, such dismissal shall
be with prejudice unless otherwise stated in the order.
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INTERIM 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. S 979-H(2), it is
ORDERED:
1. That the decision of the Executive Director,
dated May 17, 1984 and dismissing the Union's
prohibited practices complaint in Case No.
84-28, be and hereby is reversed.
2. The Executive Director is ordered to schedule
the Union's complaint in Case No. 84-28 for
pre-hearing conference.
Dated at Augusta, Maine, this 23rd day of July, 1984.
MAINE LABOR RELATIONS BOARD
/s/________________________________
Sidney W. Wernick
Chairman
/s/________________________________
Thacher E. Turner
Employer Representative
/s/_______________________________
Harold S. Noddin
Employee Representative
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