AFSCME, Council 93 v. Town of Rumford, No. 95-09 (Apr. 27, 1995);
aff'd sub nom.  AFSCME, Council 93 v. Maine Labor Relations Board
and Town of Rumford, No. CV-95-221 (Me. Super. Ct., Ken. Cty.,
Oct. 5, 1995); aff'd, 678 A.2d 591 (Me. 1996)

MAINE SUPREME JUDICIAL COURT                 Reporter of Decisions
                                             Decision No. 7722
                                             Law Docket No. Ken-95-687
                            AFSCME COUNCIL 93


                      MAINE LABOR RELATIONS BOARD


                            TOWN OF RUMFORD

                           Argued April 4, 1996
                           Decided June 21, 1996



     AFSCME, Council 93 (AFSCME) appeals from a judgment entered in
the Superior Court (Kennebec County, Alexander, J.) affirming a decision of
the Maine Labor Relations Board (the Board) that rejected its claim against
the Town of Rumford (the Town).  At issue is a Board rule pertaining to the
amendment of a complaint.  The Board concluded that the amendment did
not relate back to the filing date of the original complaint because that
complaint was dismissed as frivolous.  Finding no error in the Board's
interpretation or application of its rule, we agree with the Superior Court
and affirm the judgment.


     In 1994, AFSCME filed a prohibited practice complaint against the
Town alleging violations of the Maine Public Employees Labor Relations Law
(MPELRL).  Specifically, the complaint alleged that the Town violated 26
M.R.S.A.  964(1)(E) (1988) by directly negotiating a labor dispute with an
employee in the absence of a union representative.  The Town denied the
allegations, and, in addition, asserted that the complaint was time-barred
because the incident occurred more than six months prior to the filing of
the complaint.  See 26 M.R.S.A.  968(5)(B) (1988).

     When the Board held an evidentiary hearing in 1995, AFSCME filed an
amended complaint, adding an allegation that the Town violated 26 M.R.S.A.
Section 963 (1995) which states:

      No one shall directly or indirectly interfere with, intimidate,
      restrain, coerce or discriminate against public employees or a
      group of public employees in the free exercise of their rights,
      hereby given, voluntarily to join, form and participate in the
      activities of organizations of their own choosing for the purposes
      of representation and collective bargaining, or in the free
      exercise of any other right under this chapter.

The amendment alleged that the Town violated the above provision by falsely
informing the employee's union representative that the employee had
already been terminated by the Town; that the union representative
(unknowingly) relayed this false information to the employee; and that the
employee agreed to a demotion and released all claims in the false belief
that he had already been terminated.  The Town objected to the amended
complaint and once again raised the statute of limitations as an affirmative

     After an evidentiary hearing on the original complaint that continued


over the course of three separate days, the Board issued an order containing
the following rulings and conclusions of law:

             AFSCME's amended complaint, offered on February 15,
        1995 was admitted by the Board on February 24, 1995.

             AFSCME's original complaint is frivolous: the record amply
        demonstrates that there was no attempt to directly deal with
        employee Richards and no refusal to negotiate with the union
        representatives.  Accordingly, the original complaint is

             The amended complaint may not relate back to the filing
        of the original complaint: "because the original complaint has
        been dismissed there is nothing left to amend."  See Geroux v.
        City of Old Town, No. 84-24, 7 NPER 20-15016 (Me.L.R.B. June
        18, 1984).

             Accordingly, the amended complaint must be considered
        to have been filed on January 15, 1995, which is more than 6
        months after the alleged wrongful acts, and more than 6 months
        after the union was made aware of the alleged wrongful acts.
        Therefore, the amended complaint was not timely filed and
        must be dismissed.

     The Superior Court denied AFSCME's appeal, finding that "the . . .
Board was correct in its decision that the prohibited practice complaints
which are the subject of the appeal were not timely . . . . [and that] the . . .
Board's analysis of the 'relation back issue' was correct . . . ."  From this
order, AFSCME appeals.

     AFSCME argues that the Board erred in ruling that the amendment
could not relate back to the original complaint.  The Board argues that
there is nothing to relate back to when the original complaint has been
dismissed.  In addition, the Board contends it is irrelevant that the original
complaint was dismissed after the Board granted leave to amend:  the order
could have been vacated by the Board at any time, and the grant of leave to


amend was interlocutory.

     If this case were controlled by the Maine Rules of Civil Procedure, the
Board's reasoning would be incorrect.  To rule that an amended complaint
may not relate back to the filing date of the original complaint, when the
original complaint must be dismissed, defeats the very purpose of allowing
amended complaints pursuant to M.R.Civ.P. 15.  See, e.g., Nadeau v. State of
Maine, 395 A.2d 107, 117 (Me. 1978) ("Had the tribunal granted the State's
12(b)(6) motion, Nadeau would typically have been granted leave to amend
his complaint.").[fn]1

     This case, however, is not a matter within the original jurisdiction of
Maine's courts.  It falls within the exclusive jurisdiction of the Maine Labor
Relations Board and is subject only to judicial review.  We have stated on


     l The following commentary on M.R.Civ.P. 15 is instructive:
     Section 15. 1 Purpose and Scope
          The purpose of Rule 15 is to facilitate the disposition of litigation on the
     merits and to subordinate the importance of pleadings.  The philosophy of the
     rules is that pleadings are not an end in themselves but only a means of bringing
     into focus the area of actual controversy.  Leave to amend should be freely
     granted when justice so requires.  A party should not be precluded by the
     technicalities of pleading from presenting his claim or defense on its merits
     unless the pleadings have misled the opposing party to his prejudice.

     Section 15.3 Amendment after Dismissal of Complaint
          After judgment on dismissal of a complaint for failure to state a claim,
     the right to amend depends upon leave of court, but the admonition to allow
     amendment "freely" still applies.  Amendment is ordinarily permitted as a
     routine matter, at least the first time, if it appears that the defect can be
          In fact, the United States Supreme Court has held that "[i]n the absence of
     any apparent or declared reason--such as undue delay, bad faith or dilatory
     motive on the part of the movant, repeated failure to cure deficiencies by
     amendments previously allowed, undue prejudice to the opposing party by virtue
     of allowance of the amendment, etc.", denial of an amendment after judgment is
     an abuse of discretion.
Maine Civil Practice, Field, McKusick and Wroth.  West 1970, pp. 301-303.


numerous occasions that when the Legislature enacts a statute and entrusts
its administration to a particular agency, we defer to the agency's
interpretation and application of the statute.  See, e.g., Imagineering, Inc. v.
Superintendent of Insurance, 593 A.2d 1050, 1053 (Me. 1991).  When, as
here, the agency's own internal rules and procedures are at issue, the level
of deference is heightened.[fn]2  The Board's long-standing interpretation of its
own rules, stated previously in Geroux and repeated here in the present

     2 It is noteworthy that the National Labor Relaction Act specifically incorporates the
Federal Rules of Civil Procedure, thereby incorporating F.R.C.P. 15(c).  29 U.S.C.A. Sec. 160(b)
(1996).  The MPELRL, on the other hand, states that prohibited practice complaints are to be
handled by the Board in accordance with its own rules of procedure.  26 M.R.S.A. Sec. 968(3)
(1995).  Despite an ambiguous reference in an explanatory note, the Board's rule makes no
expicit reference to "relating back", except with respect to an amendmente offered before a
responsive pleading is filed and an amendment made in response to notice from the Board.  In
pertinent part, the rule provides as follows:

     (B) A party may amend its complaint once as a matter of course at any time
     before a responsive pleading is served.  Amendments made in response to a
     notice from the Board of errors and insufficiencies shall be filed within fifteen
     calendar days of service of the notice.  Amendments must be served on all other
     parties.  When the claim asserted in an amended complaint arises out of the
     conduct, transaction, or occurrence set forth or attempted to be set forth in the
     original pleading, the permitted amendment shall relate back to the date of the
     original pleading.

     (C) If, after the opportunity for amendment has expired, the allegations in the
     complaint do not constitute a prima facie violation of the applicable prohibited
     act provision(s), the complaint may be summarily dismissed in whole or in part
     by the Executive Director or the Director's designee and the parties shall be
     notified in writing of the determination.  A party whose complaint is
     summarily dismissed in whole or in part may appeal to the Board, within
     fifteen calendar days after the issuacne of the dismissal, by filing a motion
     requesting review of the dismissal.  The motion shall clearly and concisely set
     forth the points of fact and law which are contended to be sufficient to establish
     a prima facie violation of the applicable prohibited act provision(s).  Upon the
     filing of a timely motion for review the Board shall examine the complaint as it
     existed when summarily dismissed in light fo the averments contained in the
     motion.  If upon such examination the Board finds the complaint insufficient it
     shall affirm the summary dismissal of the charge and the parties shall be
     notified in writing of the determination.  If the Board finds the complaint to be
     sufficient it shall reinstate the complaint and shall so notify the parties.

     (D) A party shall file a response to an amended complaint within ten calendar
     days after service of the amended complaint, in conformity with the
     requirements of Rule 4.05.


case. will not be disturbed.

     The entry is:

                       Judgment affirmed.
All concurring.