Maine State Employees Association v. City of Lewiston and Lewiston School
Committee, MLRB Nos. 92-17 & -18 (Sept. 11, 1992), Order Denying Respondents'
Motion to Dismiss, No. CV-92-400 (Me. Super. Ct., And. Cty., Nov. 30, 1992), 
Order Granting Motion for Temporary Restraining Order, Nos. CV-92-480 & -400
(Jan. 21, 1993), Decision Vacating Board Order, Nos. CV-92-400 & -480 (Feb. 25, 
1993), Law Court Decision Vacating Superior Court Decision for Lack of 
Jurisdiction, sub nom, City of Lewiston v. Maine State Employees Association,
638 A.2d 739 (Me. 1994)


STATE OF MAINE                                               SUPERIOR COURT
ANDROSCOGGIN, SS.                                              CIVIL ACTION
						       Docket No. CV-92-400

CITY OF LEWISTON                )
     and                        )
LEWISTON SCHOOL COMMITTEE       )
				)
	       Plaintiffs       )
				)
     v.                         )                ORDER
				)
MAINE STATE EMPLOYEES           )
     ASSOCIATION                )
     and the                    )
MAINE LABOR RELATIONS BOARD     )
				)
	       Defendants.      )
 

     This case is an appeal, pursuant to M.R. Civ. P. 80C, from a
decision of the Maine Labor Relations Board in favor of the Maine
State Employees Association, the union representing city employees
in Lewiston.  Currently pending is respondents' motion to dismiss
for lack of timely filing.  The sole issue before the court is
whether the filing of the petition for review on September 29,
1992, can be accepted by the court in light of the fact that the
time for filing, as computed pursuant to 26 M.R.S.A.  968(5)(F)
(Supp. 1991) and M.R. Civ. P. 6(a), expired one day before the
petition was received by the court.  For the reasons which follow,
this court denies the motion to dismiss and will allow the appeal.

     This motion is before the court only because the United
States Mail deviated in this case from its usual practice of
delivering mail from Lewiston to the clerk's office across the
river in Auburn in one day, that delivery in this instance
requiring four days.  Rule 80C appeals "shall be governed by [the]
Rules of Civil Procedure as modified by" Rule 80C, "except to the

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extent inconsistent with the provisions of a statute."  M.R. Civ.
P. 80C.  Rule 80C does nothing to modify the usual handling of
filing requirements, which are governed by M.R. Civ. P. 6.

     The general intent of the rules is "to secure the just,
speedy and inexpensive determination of every action."  M.R. Civ.
P. 1.  Rule 6(b) allows for enlargement of the time for filing
"upon motion made after the expiration of the specified period" if
the delay in filing was caused by "excusable neglect."  M.R. Civ.
P. 6(b).  In this case, the only action that could be construed as
neglect is petitioners' reliance on the U.S. Mail's published
delivery schedule, followed by a failure to telephone the clerk's
office to double-check on the clerk's timely receipt of the
petition.  This court is hesitant to conclude that standard
practice requires attorneys to either telephone the clerk's office
regarding each filing or to hand deliver items that are within
three days of their filing deadline.  Any possible neglect on the
part of petitioners, therefore, is excusable and is hereby
excused.

     The entry will be:

     The motion for enlargement of time for filing by one day
     is granted.
				    
Dated:  November 30, 1992

				       /s/________________________________
				       Roland A. Cole
				       Justice, Superior Court

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STATE OF MAINE                                      SUPERIOR COURT
ANDROSCOGGIN, SS.                                   CIVIL ACTION
					     Docket Nos. CV-92-480
							 CV-92-400

				)
MAINE STATE EMPLOYEES           )
ASSOCIATION, LOCAL 1989, SEIU,  )
				)
	       Plaintiffs       )
				)
	   v.                   )
				)
CITY OF LEWISTON and LEWISTON   )
SCHOOL COMMITTEE                )
				)
	       Defendants       )
________________________________)                
				)       ORDER GRANTING MOTION FOR
CITY OF LEWISTON and LEWISTON   )      TEMPORARY RESTRAINING ORDER
SCHOOL COMMITTEE                )
				)
	       Petitioners      )
				)
	   v.                   )
				)
MAINE STATE EMPLOYEES           )
ASSOCIATION, LOCAL 1989, SEIU   )
and MAINE LABOR RELATIONS       )
BOARD                           )
				)
		Respondents     )


     Plaintiff Maine State Employees Association (MSEA) has moved,
pursuant to 26 M.R.S.A.  968(5)(D), for a temporary restraining
order to enforce a decision of the Maine Labor Relations Board
(MLRB) in Maine State Employees Association v. City of Lewiston
and Lewiston School Committee, Case No. 92-17 and 18 (M.L.R.B.,
Sept. 11, 1992).  The initial petition in this consolidated action
was filed on September 29, 1992, appealing the underlying decision
of the MLRB.  MSEA filed a complaint seeking enforcement of the
MLRB decision on or about December 3, 1992, after the court denied
its Motion to Dismiss the City's appeal in Case No. CV-92-400.
The City answered that complaint on or about December 22, 1992,

			       -1-

requesting for the first time that the MLRB decision be stayed
pending appeal.

     The City of Lewiston and the School Committee for the City of
Lewiston (City) have not complied with the MLRB order and have
failed to present sufficient facts to clearly show that "...
substantial and irreparable injury [will] be sustained."  28
M.R.S.A.  968 (5)(D).

     IT IS ORDERED that the City of Lewiston and the Lewiston
School Committee comply fully and immediately with the MLRB order
in Maine State Employees Association v. City of Lewiston and
Lewiston School Committee, Case No. 92-17 and 18 (M.L.R.B., Sept.
11, 1992); however provided, that this Order is conditioned upon
MSEA executing a bond in favor of the City in an amount not less
than One Hundred Thousand Dollars ($100,000.00), said bond to be
filed with the clerk of this court and to be in favor of the City
in the event it prevails in this action and is required to recoup
sums paid to employees.  This Order is further conditioned upon
MSEA entering into an agreement on behalf of its members and all
persons who obtain any benefit from this Order to repay all sums
received hereunder within a period not to exceed the time for
which payments are made pursuant to this Order.

     It is further Ordered that MSEA notify, at its cost, all
persons affected hereby of the terms of this Order, that it is
temporary and that if the City ultimately prevails, sums received
under this Order must be repaid within a time certain.
      
			       -2-

     The clerk shall incorporate this order into the docket by
reference.

     So Ordered.
     
Dated:  January 21, 1993.
				  /s/______________________________
				  Thomas E. Delahanty, II
				  Chief Justice, Superior Court
							    
			       -3-
------------------------



STATE OF MAINE                                      SUPERIOR COURT
ANDROSCOGGIN, SS.                                     CIVIL ACTION
					      DOCKET NO. CV-92-400
							XCV-92-480

			       
CITY OF LEWISTON and           )
LEWISTON SCHOOL COMMITTEE,     )
			       )
	    Petitioners        )
			       )
	v.                     )                DECISION AND ORDER
			       )                    ON APPEAL
MAINE STATE EMPLOYEES          )
ASSOCIATION, LOCAL             )
1989 SEIU, and                 )
MAINE LABOR RELATIONS BOARD,   )
			       )
	    Respondents        )


     This case is an appeal, pursuant to M.R. Civ. P. 80C, of a
decision by the Maine Labor Relations Board (MLRB) requiring
petitioners to implement pay increases according to an expired
employment contract.  Petitioners had a contract with the MSEA for
two years which provided for periodic raises every six months.
Upon expiration of the contract in June 1991 the petitioners
continued the salaries, wages, and benefits at the level then in
effect.  This was in accordance with existing MLRB policy.
Approximately four months later, the MLRB changed its policy to
require continuation of the contract provision for periodic salary
increases and raises during negotiation.  The city and its school
committee have appealed.  For the reasons which follow, this court
concludes that the MLRB exceeded its statutory authority in
ordering the freezing of the wage formula rather than the wage
itself.

     The Law Court has held that the MLRB "exceed[s] its powers in

			       -1-

imposing upon employers against (their] will the duty of paying
a wage increase during [a period for which] [tlhe [employer]
had never, directly or indirectly, agreed to any change in wages.
. . ."  Caribou School Department v. Caribou Teachers Association,
402 A.2d 1279, 1285-86 (Me. 1979).  Likewise, the Municipal Public
Employees Labor Relations Law explicitly states that "neither side
shall be compelled to agree to a proposal or be required to make a
concession."  26 M.R.S.A.  965(1)(C).  In this case, the parties
agreed to specific pay rates and rates of increase (measured by
length of service) for a defined period, and for no longer.  This
case is therefore like the Caribou case, in that "[t]here simply
never was any meeting of minds on any wage increase to go into
effect" after the expiration of the contract.  Caribou, 402 A.2d
at 1286.  Requiring petitioners to abide by the entire wage
formula in the expired contract therefore is requiring them to do
something they have never agreed to do.  Petitioners agreed to pay
respondents particular wages, escalating over time, until they
reached a given point in June 1991.  The parties explicitly agreed
on nothing more, and given the state of the law in 1989, could
implicitly have agreed only to freeze wages upon the expiration of
the contract in absolute dollar terms.  See M.S.A.D. No. 43
Teachers Association v. M.S.A.D. No. 43 Board of Directors, 432
A.2d 395 (Me. 1981).

			       -2-

     The entry will be:
     
	  Appeal sustained.  The order of the Maine
	  Labor Relations Board is vacated.

     So ordered.

Dated:  February 25, 1993

				  /s/____________________________
				  Thomas E. Delahanty, II
				  Chief Justice, Superior Court
		


		  
STATE OF MAINE                                           SUPERIOR COURT
ANDROSCOGGIN, SS.                                          CIVIL ACTION
						   Docket No. CV-92-400
							     XCV-92-480 


CITY OF LEWISTON and            )
LEWISTON SCHOOL COMMITTEE       )
				)
	       Petitioners      )
				)
	  v.                    )              ORDER ON REMAND
				)
MAINE STATE EMPLOYEES           )
ASSOCIATION, LOCAL 1989 SEIU,   )
and MAINE LABOR RELATIONS       )
BOARD                           )
				)
	       Respondents      )


     On February 25, 1993, this court entered judgment vacating an
order of the Maine Labor Relations Board.

     An appeal was subsequently taken to the Law Court by the
Maine State Employees Association and the Maine Labor Relations
Board.  On March 16, 1994, the Supreme Judicial Court, sitting as
the Law Court, issued a mandate vacating the judgment of this
court.

     Pursuant to the mandate, it is Ordered that the appeal to the
Superior Court by the Petitioner City of Lewiston is dismissed.
	       
     So Ordered.

Dated:  July 25, 1994
				       /s/___________________________________
				       Thomas E. Delahanty, II  
				       Chief Justice, Superior Court

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