STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 93-13
Issued: March 29, 1993
_______________________________________
)
MSAD #70 Teachers Association/MTA/NEA )
)
Complainant, )
)
v. ) INTERIM ORDER
)
MSAD #70 School Board, )
)
Respondent. )
_______________________________________)
On December 2, 1992, MSAD #70 Teachers Association/MTA/NEA
("Association") filed a prohibited practice complaint with the
Maine Labor Relations Board ("Board") alleging that the MSAD #70
School Board ("School Board"), by various actions, had violated
section 964(1)(A) and (E) of the Municipal Public Employees Labor
Relations Law ("MPELRL"), 26 M.R.S.A. 964(1)(A) and (E) (1988).
By letter dated December 3, 1992, the School Board was notified
that the complaint had been filed and that its response to the
complaint was due on or before Wednesday, December 23, 1992.
The notice letter included a warning that failure to file a
timely response could result in a default judgment.
By letter dated December 21, 1992, the School Board, through
its representative Annalee Z. Rosenblatt, responded to the
Association's complaint and made a counterclaim against the
Association.1 The response was properly served on the Associ-
ation, but did not reach the Board until Tuesday, December 29,
1992, six days late. In its response to the amended counter-
_________________________
1The postmark on the envelope verifies that the response was
mailed on December 21st.
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claim,2 the Association, inter alia, requested that a default
order be entered against the School Board pursuant to Rule
4.05(B) of the Board's Rules and Procedures, and that the School
Board's counterclaim be dismissed.
At the prehearing conference on February 26, 1993, the
Association again raised the issue of the timeliness of the
School Board's response, and the parties were ordered to submit
memoranda on the issue.3 The Board met to deliberate this matter
on March 18, 1993.
DISCUSSION
While the time limits for filing a prohibited practice
complaint with the Board and for appealing a Board order to
Superior Court are set by statute and are therefore juris-
dictional (that is, cannot be enlarged by the Board or a court),
that is not the case for the response to a complaint. The time
limit for filing of a response is set by Rule 4.05 of the Board's
Rules and Procedures; furthermore, Rule 7.02(C) provides that the
Board may, upon motion made after the expiration of the time
limit, "permit the act to be done where the failure to act was
the result of excusable neglect."
The School Board argues that there was no neglect on its
part, since the response was mailed two days before it was due in
the offices of the Board. That the response did not even reach
the Board by Monday, December 28th, the School Board argues, may
be due to the fact that most State offices, including the Board,
were closed for two days in addition to the weekend -- December
24th was a State "shutdown" day, and December 25th was a holiday.
_________________________
2Due to a series of deficiencies in the counterclaim as
filed, it was amended on January 6, 1993.
3The prehearing officer also scheduled an evidentiary
hearing on the issue; subsequently, when that hearing was
cancelled due to the last-minute unavailability of one Board
member, the parties agreed to waive the hearing and have the
matter determined on the basis of the written submissions.
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The Association responds that the School Board should reasonably
have foreseen the delay and mailed its response earlier, since
"[i]f there is any time of year when one may count on postal
delays, it is during [this] holiday season. . . "
The Board does not look lightly upon the failure of a party
to act when required to do so. Lord v. MSAD #41 Board of
Directors, No. 77-02 (Me.L.R.B. Oct. 29, 1976) (default judgment
entered for failure to file brief ordered by prehearing officer,
even after warning given); Lord v. MSAD #41 Board of Directors,
No. 77-24 (Me.L.R.B. Mar. 25, 1977) (default judgment entered
for failure to file memorandum of law as ordered by prehearing
officer). Failure to act in a timely fashion is somewhat
different, particularly when the failure is not intentional.
Kittery Teachers Association v. Kittery School Committee,
No. 75-21 (Me.L.R.B. June 26, 1975) (motion for default denied
where respondent was unaware of requirement to file response to
complaint, and response was filed one day after respondent
learned of said requirement).
In the matter now before us, the School Board made what we
view as a reasonable attempt to comply with the time requirement
of Rule 4.05. While mailing the response earlier would have been
prudent, we decline to impose the harsh penalty of default in
these circumstances. The Association's request for a default
judgment will be denied.
That does not quite end the matter. As we pointed out
earlier, the Board may grant an enlargement of time after the
fact (that is, once a deadline has passed) upon motion. Rule
7.02(C)(2). No such motion or request has been filed by the
School Committee, although from the argument in its memorandum,
we assume that that is, in effect, what the School Committee
desires. Since the facts and argument necessary to make such a
motion appear in the School Committee's memorandum, we will treat
the memorandum as a motion for enlargement of time. We do so
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with some reluctance, since it is inappropriate for the Board to
manage a party's case. Accordingly, we admonish the School
Committee's representative to read the Board's Rules and
Procedures carefully and to comply with them in the future.
ORDER
On the basis of the foregoing facts 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. 968(5) (1988
& Supp. 1992) and the Board's Rules and Procedures, it is hereby
ORDERED:
1. That the Association's motion for a default judgment
is denied and the School Committee is granted an
enlargement of time of 6 days within which to file its
response to the complaint;
2. That the Executive Director shall set this matter for
prehearing and hearing as soon as is practicable.
Issued at Augusta, Maine, this 29th day of March, 1993.
MAINE LABOR RELATIONS BOARD
/s/________________________
Peter T. Dawson
Chair
/s/________________________
Howard Reiche, Jr.
Employer Representative
/s/________________________
George W. Lambertson
Employee Representative
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