AFSCME v. Town of Gorham, No. 93-22

STATE OF MAINE                      MAINE LABOR RELATIONS BOARD
                                    Case No. 93-22
                                    Issued:  March 29, 1993


_______________________________________
                                       )
AFSCME, COUNCIL 93                     )
                                       )
                    Complainant,       )
                                       )
                  v.                   )     REINSTATEMENT 
                                       )     OF COMPLAINT
TOWN OF GORHAM,                        )
                                       )
                    Respondent.        )
_______________________________________)


     On January 14, 1993, AFSCME, Council 93 ("AFSCME") filed a
prohibited practice complaint with the Maine Labor Relations
Board ("Board") alleging that the Town of Gorham ("Town"), by
letter dated December 22, 1992, and received by AFSCME on
Decembre 24, 1992, refused to bargain changes in conditions of
employment categorized as work rules by the employer, in
violation of section 964(1)(E) of the Municipal Public Employees
Labor Relations Law ("MPELRL"), 26 M.R.S.A.  964(1)(E) (1988).1 
The Executive Director reviewed the complaint for sufficiency
pursuant to section 968(5)(B) of the MPELRL and Board Rule
4.06(A).  By letter he then notified AFSCME that although its
complaint was not insufficient, it should consider clarifying the
violation citation at the prehearing conference.  The Executive
Director also notified the Town that the complaint and been filed
and that an answer was due on or before February 8, 1993.   

     On February 5, 1993, the Town filed its response to the
complaint, alleging, among other things, that the complaint was
untimely due to the fact that the alleged prohibited practice had
occurred in May of 1992.  In light of the Town's response, the
_________________________

     1The complaint alleges a violation of section "964-E."  It
is section 964(1)(E) of the MPELRL that makes the refusal to
bargain a prohibited practice.

                               -1-

Executive Director notified AFSCME that the complaint was
insufficient for its failure to indicate when, if ever, the work
rules had been implemented.  AFSCME was given until February 22,
1993, to file an amended complaint, pursuant to Board Rule
4.06(B).  On February 24, 1993, the Executive Director dismissed
the complaint on the ground that no amended complaint had been
filed.  On March 10, 1993, AFSCME filed a timely appeal of the
dismissal, stating also that it had attempted, without success,
to get information relevant to a possible amendment.  (AFSCME had
not sought an extension of time within which to amend.)  On March
15, 1993, the Town filed documentation with the Board in
connection with its claim of untimeliness.  After receiving and
reviewing all relevant materials, the Board met to deliberate
this matter on March 18, 1993.

                           DISCUSSION

     Although AFSCME could, prior to the amendment deadline, have
sought an extension of time within which to file an amendment
under Rule 7.02(C)(1), it is entitled to stand on its original
complaint and to appeal the summary dismissal.  In effect, that
is what it has done.  When a complaint is reviewed for
sufficiency, it may be summarily dismissed by the Executive
Director if the "allegations in the complaint do not constitute a
prima facie violation of the the applicable prohibited act
provision(s)."  Rule 4.06(C).  Thus, the complaint is sufficient
if on its face it alleges facts that, if true, would constitute a
violation of the applicable statute. 

     We have reviewed the complaint and agree with the Executive
Director's original determination that on its face, the complaint
is sufficient.  It alleges a specific occurrence, on a specific
date, by a particular person.  We decline to attempt to evaluate
the allegations made by the Town in response to the complaint,
since only after a full evidentiary record is developed can we
make an informed decision regarding whether a violation of the

                               -2-

MPELRL has occurred.  Accordingly, the complaint will be
reinstated.      

                              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 AFSCME's complaint filed on January 14, 1993,       
         against the Town of Gorham is reinstated.  

     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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