STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 93-36 Issued: November 3, 1993 _______________________________ ) PORTLAND PROFESSIONAL AND ) TECHNICAL CITY EMPLOYEES ) ASSOCIATION, MAINE TEACHERS ) ASSOCIATION, ) ) Complainant, ) DECISION AND ORDER ) v. ) ) CITY OF PORTLAND, ) ) Respondent. ) _______________________________) This case was commenced on May 20, 1993, when the Portland Professional and Technical City Employees Association, Maine Teachers Association (Association) filed a prohibited practice complaint with the Maine Labor Relations Board (Board) alleging that the City of Portland has violated 26 M.R.S.A. 964(1)(A), (B) and (E) (1988). More specifically, the complaint alleges that because the City's efforts to negotiate removal of the Employee Health Nurse position from the existing Professional and Technical Employees bargaining unit were unsuccessful the City has determined not to fill the Employee Health Nurse position and has, instead, established and advertised a non-unit Occupational Health Nurse position. The Association contends that the City's actions have interfered with, restrained and coerced unit employees in the exercise of protected rights, have discouraged Association membership through discrimination in regard to hire and other terms and conditions of employment and constitute an unlawful refusal to bargain with the Association. On May 24,1993, the Board's Executive Director issued a notice of insufficiency to the Association pursuant to review in accordance with 26 M.R.S.A. 968(5)(3) and Board Rule 4.06(A). The insufficiency letter states, in pertinent part: -1- The above-captioned prohibited practice complaint has been reviewed pursuant to 26 M.R.S.A. 968(5)(B) and Board Rule 4.06(A). The complaint is insufficient for the following reason: Rule 4.03(4) provides that the complaint must contain "[a] clear and concise statement of the facts constituting the complaint, including the date . . . of each act alleged . . . ." Section 968(5)(B) of the law provides, in relevant part, " . . . that no hearing shall be held based upon any alleged prohibited practice occurring more than 6 months prior to the filing of the complaint with the executive director." The complaint does not state the date on which the charged conduct occurred. In the circumstances, I am unable to determine whether the complaint was filed within the Board's six-month statute of limitations. The Board has held that "the 6 month statute of limitations period begins to run when the complainant knew, or reasonably should have known, of the occurrence of the event which allegedly violated the Act." Coulombe v. City of South Portland, No. 86- 11, 9 NPER ME-18008, slip op. at 8 (Me.L.R.B. Dec. 29, 1986). You need to provide further detail so that a timeliness determination can be made. If you desire to amend the complaint to cure this defect, please refer to Board Rule 4.06(B). Nothing was received from the Association to supplement the complaint. On June 10, 1993, the Executive Director wrote the Association summarily dismissing the Association's complaint pursuant to 26 M.R.S.A. 968(5)(B) (1988) and Rule 4.06(C). The June 10, 1993, letter states, in pertinent part: On May 24, 1993, I wrote you a letter which outlined the statutory six-month limitations period applicable herein and pointed out that the complaint in this matter was deficient in that, contrary to the requirement of Board Rule 4.03(4), the complaint failed to state the date on which the charged conduct allegedly occurred. I further indicated that, in the -2- absence of such date(s), I was unable to determine whether the complaint was timely filed within the period of limitations contained in 26 M.R.S.A. 968(5)(B). Finally, I asked you to file an amended complaint curing the deficiency on or before June 8, 1993; otherwise, I would be required to dismiss the complaint. Section 968(5)(B) of the Act provides, in relevant part, " . . . that no hearing shall be held based upon any alleged prohibited practice occurring more than 6 months prior to the filing of the complaint with the executive director." Since the six-month limitations period is jurisdictional, it is incumbent upon the complainant to allege sufficient facts in the complaint to bring the matter within the Board's jurisdiction. To date, no amended complaint, containing the date(s) on which the charged conduct allegedly occurred, has been filed with this office. In the circumstances, I am unable to determine whether the complaint was filed within the Bcard's six-month statute of limitations; therefore, the complaint must be and hereby is dismissed. On June 24, 1993, the Association filed a motion for review of the Executive Director's dismissal which states: NOW COMES the Petitioner and moves the Board to review the dismissal by the Executive Director of the Complaint in this matter and, in support thereof, states as follows: 1. Complainant has alleged in its Complaint a continuing violation of the Municipal Employees Labor Relations Act such that each day of the continuing violation constitutes a discrete event. WHEREFORE, Complainant requests that the Board reverse the dismissal of the Complaint and set this matter by hearing. The Board, consisting of Chair Peter T. Dawson, Employer Representative Howard Reiche, Jr., and Employee Representative George W. Lambertson, reviewed the summary dismissal, in light of the June 24 submission, on September 30 and October 22, 1993. -3- DISCUSSION In accordance with Rule 4.06(C), we have "examine[d] the complaint as it existed when summarily dismissed[,] in light of the averments in the motion," that the complaint alleges a "continuing violation . . . such that each day of the continuing violation constitutes a discrete event." We conclude that the Executive Director's action was correct. The prohibited practice complaint alleges that the City determined not to fill the Employee Health Nurse position, that the City created an identical position retitled Occupational Health Nurse and that the City has advertised and continues to advertise the position as a non-union position. These unamended allegations are fatally lacking based on the omission of the dates of occurrence of the events complained of. See Rule 4.03(4). That deficiency was pointed out to the Association and sufficient opportunity to amend was provided. The Association failed to respond to the insufficiencies notice of the Executive Director prior to a stated deadline of 15 days from the date of the notice of insufficiency. We have previously rejected use of the "continuing violation" theory as a means of avoiding the limitations period contained in 26 M.R.S.A. 968(5)(B) (1988). See Teamsters Local Union No. 48 v. City of Waterville, No. 80- 14, slip op. at 4 (Me.L.R.B. Apr. 23, 1980). The facts in this case do not convince us that our prior holding in this regard should be modified. Based on our review of the complaint in -4- light of the Complainant's June 24, 1993, motion, we affirm the Executive Director's summary dismissal and supporting rationale. Dated at Augusta, Maine, this 3rd day of November, 1993. MAINE LABOR RELATIONS BOARD The parties are hereby advised /s/___________________________ of their right, pursuant to 26 Peter T. Dawson M.R.S.A. 968(5)(F) (Supp. Chair 1992), to seek review of this decision and order by the Superior Court. To initiate such a review, an appealing /s/___________________________ party must file a complaint George W. Lambertson with the Superior Court within Employee Representative fifteen (15) days of the date of issuance of this decision and order, and otherwise comply with the requirements /s/___________________________ of Rule 80C of the Maine Rules Howard Reiche, Jr. of Civil Procedure. Employer Representative -5-