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. -1- 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. -2- 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 -3- 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 -4-