STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 94-14 Issued: August 22, 1994 ________________________________ ) KAIWI KELII, ) ) Complainant, ) ) DECISION AND ORDER v. ) (SUMMARY DISMISSAL) ) PORTLAND SCHOOL COMMITTEE, ) ) Respondent. ) ________________________________) On September 30, 1993, the Benefit Association of School Employees (BASE) filed a prohibited practices complaint with the Maine Labor Relations Board (Board), alleging that the Portland School Committee (School Committee) had 1) engaged in a pattern of discipline and threatened discipline of two custodial employees for lawful union activities, in violation of section 964(1)(A) of the Municipal Public Employees Labor Relations Law (MPELRL), 26 M.R.S.A. 964(1)(A) (1988); 2) discriminated against those two employees in transfers, shift assignments, hours and tenure of employment, in violation of section 964(1)(B); and 3) influenced the outcome of an election for union representative, in violation of section 964(1)(C). In its answer, the School Committee denied the allegations and requested deferral to then-pending grievances. Just prior to the prehearing conference scheduled for December 20, 1993, BASE notified the Board of its decision to withdraw the complaint. Pursuant to Board Rule 4.09(C), by letter dated December 22, 1993, the executive director informed one of the employees, Mr. Kaiwi Kelii, of his right to refrain from joining in the settlement of the complaint that had been reached between BASE and the School Committee, assume party -1- status and prosecute that portion of the complaint alleging discrimination. On January 5, 1994, the Board received a letter from Mr. Kelii and Mr. Richard Rand, the other employee who was the subject of the complaint, stating that they refrained from joining in the settlement agreement and making additional allegations against the School Committee. Accordingly, the prehearing conference was rescheduled for February 25, 1994, and the parties were billed for the estimated costs of one day of hearing and one day of deliberation. On January 25, 1994, the School Committee filed a motion for summary dismissal, based in part on Mr. Rand's having already signed a settlement agreement, and in part on the alleged lack of jurisdiction of the Board over Mr. Kelii's new allegations. On February 23rd Mr. Kelii orally requested a postponement of the prehearing conference (a written request was received on February 25th), on the ground that discussions at the Human Rights Commission might result in a settlement of the prohibited practices complaint. Over the objection of the School Committee, the prehearing conference was postponed. When no settlement resulted, the prehearing conference was once again rescheduled, for April 28th, and Mr. Kelii was rebilled for his share of estimated costs. On April 26, 1994, Mr. Kelii requested another continuance, on the ground that he had been attempting to obtain legal representation and that the attorney whom he had contacted had been unable to fit a meeting with Mr. Kelii into his schedule. The continuance was granted over the objection of the School Committee, on the condition that no further continuances would be granted without the consent of the School Committee and the Board. Mr. Kelii was also given until June 1st to inform the Board and the School Committee as to whether he had secured legal representation, and if so, the identity of his attorney. The prehearing conference was set for June 9th. -2- At the prehearing conference on June 9th, Mr. Kelii moved to amend his complaint to include, among other things, an allegation that he had been terminated on January 31, 1994, in retaliation for his refusal to join the settlement of the original complaint. The Prehearing Conference Memorandum and Order, which granted that motion, is incorporated into and made a part of this decision and order. With the consent of the School Committee, the prehearing officer also set a deadline of June 23, 1994, for submission to the Board of five copies of Mr. Kelii's proposed exhibits and service of a copy of those exhibits on the School Committee. On June 24, 1994, Mr. Kelii called the offices of the Board to say that he would be submitting copies of his proposed exhibits shortly. No documents arrived. On July 6, 1994, the School Committee filed a second motion for summary dismissal, based in part on Mr. Kelii's failure to provide copies of exhibits. Attached to the motion was a copy of a letter from Mr. Kelii to Prehearing Officer Hooke stating that he could not afford to pay for copies of "exhibits A-Q." On that same date, the executive director informed Mr. Kelii in writing that his failure to provide copies of exhibits on or before July 13, 1994, would result in a recommendation to the Board that his complaint be dismissed. Mr. Kelii was also informed that he could contact the Board's offices to arrange a payment schedule for estimated costs of pursuing his complaint. On July 13, 1994, Mr. Kelii requested that he be permitted to submit copies of his exhibits at the end of the month, due to the fact that he moved to Vermont on July 9th and did not receive the July 6th letter setting the July 13th deadline until July 11th. Mr. Kelii advanced his indigency as further grounds for the extension. He also expressed interest in paying by install- ment his share of Board costs. -3- By certified letter dated July 14th, Prehearing Officer Hooke granted Mr. Kelii an extension until August 1, 1994, to provide copies of his exhibits. A request by the School Committee to postpone the evidentiary hearing until after September 5th (due to the unavailability of a witness) was also granted. Both parties were given until July 28th to inform the Board in writing of all days, between September 5th and September 30th, on which they, their representatives and their witnesses would be available for hearing. As of August 3rd, neither party had complied with the deadlines set out in the July 14th letter. Mr. Kelii has paid no installments on his share of Board costs. JURISDICTION The Portland School Committee is a public employer, within the meaning of 26 M.R.S.A. 962(7) (Supp. 1993). Mr. Kaiwi Kelii was a public employee, within the meaning of 26 M.R.S.A. 962(6) (Supp. 1993), at all times relevant to this complaint. The jurisdiction of the Board to render a decision and order lies in 26 M.R.S.A. 968(5) (1988 & Supp. 1993). DISCUSSION It is clear to us that Mr. Kelii is caught between the proverbial rock and a hard place. He has been terminated from his employment, and apparently does not have the funds to pursue this matter on his own, in spite of the fact that Board Rule 4.09(C) expressly authorizes him to do so. The Board too is in a difficult position. We do not take lightly an employee's allegations of discrimination, yet exhibits must be provided if we are to hold an evidentiary hearing that is fair to the participants, including Mr. Kelii. Beyond that immediate problem, the agency is not authorized by the Maine Legislature either to excuse the payment of the costs of pursuing his complaint or to pay those costs for him. In these circumstances, we have no choice but to dismiss the complaint for failure to satisfy the requirement of the Prehearing Conference Memorandum -4- and Order that copies of proposed exhibits be provided to the Board and to the School Committee. 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. 1993) and the Board's Rules and Procedures, it is hereby ORDERED: That the complaint of Mr. Kaiwi Kelii against the Portland School Committee is dismissed. Issued at Augusta, Maine, this 22nd day of August, 1994. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(5)(F) (Supp. /s/________________________ 1993), to seek review of this Peter T. Dawson decision and order by the Chair Superior Court. To initiate such a review, an appealing party must file a complaint /s/________________________ with the Superior Court within Howard Reiche, Jr. fifteen (15) days of the date Employer Representative of issuance of this decision and order, and otherwise comply with the requirements /s/________________________ of Rule 80C of the Maine Rules George W. Lambertson of Civil Procedure. Employee Representative -5-