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
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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.
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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.
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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
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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
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