STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                                Case No. 79-31

                       Complainant,   )
  v.                                  )           INTERIM DECISION AND ORDER
                       Respondent.    )

     M.S.A.D. No. 43 Board of Directors ("Directors") filed this prohibited
practice complaint with the Maine Labor Relations Board on October 23, 1978.
Respondent M.S.A.D. No. 43 Teachers Association ("Association") filed an
answer and motion to dismiss on November 15, 1978.  The Directors filed an
amended prohibited practice complaint on November 30, 1978 and a motion for
default on December 15, 1978.  The Association filed a second motion to
dismiss on December 28, 1978.

     Pre-hearing conferences were held by Alternate Chairman Donald W. Webber
on December 5, 1978 and on March 20, 1979.  Alternate Chairman Webber issued
a pre-hearing conference memorandum and order on December 18, 1978 and a
second order on March 22, 1979.  The contents of both are incorporated herein
by reference.

     At the second pre-hearing conference the Association requested that the
Board defer its action on this case pending the disposition of a civil action
now pending in the Superior Court.  The Directors opposed this request.

     We conclude that the motion for default and motions to dismiss should be
denied, but that the motion for deferral should be granted to the extent that
proceedings on this case should be stayed.


                      I  Complainant's Motion for Default

     The Association's answer was due to be filed with the Board and served on
the Directors on or before November 14, 1978.  The Association filed an answer
with the Board on November 15, 1978.  There is no proof of service on the
Directors as required by Board Rule 4.05.  On December 5, 1978, the complaint
and answer were reviewed at a pre-hearing conference.  The motion for default
was filed on December 15, 1978.

     The motion does not allege that there was no actual service of the
complaint or that there was any resulting prejudice.  The Association argues
on this basis that the motion is frivolous.  Under Rule 4.05 the Board has
discretion to render a default judgment if it believes that a failure to
answer is due to other than excusable neglect.  We are not prone to exercise
such in a case where the claim is merely a technical one, as here.  The motion
is therefore denied.  This is not to say that we condone noncompliance with
the Rules; however, we do not.


                       II  Respondent's Motions to Dismiss

     Respondent's first motion to dismiss is based on the allegation that the
complaint does not contain a clear and concise statement of facts which
constitute the complaint as required by Rule 4.03(4).  We find it plainly
adequate and therefore deny the motion.

     Respondent's second motion is based on the failure of the complaint to
comply with the specific declaration contained in Rule 4.02 as to truth and
correctness.  We find that the complaint complies with the spirit of the rule,
if not the letter, and therefore deny the motion.

                       III  Respondent's Motion for Deferral

     The Association points out that the same facts of this prohibited
practice complaint are involved in a civil suit in Superior Court, Richard J.
Plante, et al v. M.S.A.D. No. 43, et al, Oxford County Super. Ct., No.
CV-79-10, and that the Board should defer to the court proceeding.  The
Directors, the complainant here, and the counterclaimant in the court
proceeding, argue that the Association is not a respondent in the court case
and therefore deferral is not appropriate.  We reject the Directors' argument
both legally and factually.

     First, the facts.  The bases of the two actions are the same.  In both,
M.S.A.D. No. 43 claims that certain conduct on October 6 and November 28, 1978
was unlawful as a work stoppage, slowdown, or strike.

     With respect to the identify of parties, it is plain that the charging
party, M.S.A.D. No. 43, is the same in both cases.  That alone would be
sufficient to allow the use of the rule of collateral estoppel and thus
whether the Association is also involved in both cases would not be
determinative.  Moreover, the respondent in the prohibited practice proceeding
is in fact involved as a defendant to the Superior Court counterclaim in any
event.  Richard J. Plante, President of the M.S.A.D. No. 43 Teachers Associa-
tion, is a named defendant in the Superior Court proceeding.  He appears "for
himself and on behalf of said organization."

     We therefore reject the Directors' argument.

     Since nearly identical questions of fact are involved in both actions,
the Court apparently could have applied the doctrine of primary jurisdiction.
See Churchill v. S.A.D. No. 49 Teachers Association, 380 A.2d 186, 190 (Me.
1977); 3 Davis, Administrative Law Treatise  19.01 (1958).  Thus it could
have stayed its proceeding pending the outcome of the matter before the Board.
See Davis, Administrative Law of the Seventies  19.07 (1976).  This would be
so even if the Association were not a party to the civil action.

     The Superior Court, however, has denied a motion to dismiss.  Since a
court determination of both legal and factual issues might override this
Board's determinations on the same issues, it is appropriate to stay the
instant proceeding pending disposition of the court counterclaim.  The
interests of avoiding duplication and possible fruitless effort, and of saving 
time and resources clamor for this result.


     This Board has previously employed this approach in Greater Portland
Transit District v. Division 714, Amalgamated Transit Union, M.L.R.B. No.
78-29 (1978).  In that case the Board stayed its proceeding pending final
judgment in a case before the First Circuit Court of Appeals.  In the instant
case, the Board stays its action pending action by a different court, but one
which wields the power of review of the very decisions of this Board.  See
5 M.R.S.A.  11001 et seq.


     On the basis of the foregoing and pursuant to the powers granted to the
Maine Labor Relations Board by 26 M.R.S.A.  968(5), it is ORDERED:

      That proceedings on this prohibited practice complaint be stayed
      pending the disposition by the Superior Court for Oxford County
      of the counterclaims by M.S.A.D. No. 43 in Richard J. Plante, et
      al v. M.S.A.D. No. 43, et al, CV-79-10.

Dated at Augusta, Maine this 1Oth day of April, 1979.

                                       MAINE LABOR RELATIONS BOARD

                                       Edward H. Keith

                                       Michael Schoonjans
                                       Employee Representative

                                       Kenneth T. Winters
                                       Alternate Employer Representative