MSEA v. State of Maine Dept. of Public Safety, 98-UCA-01, Order Dismissing Appeal of 97-UC-02C. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 98-UCA-O1 Issued: February 24, 1998 _____________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Petitioner, ) ) ORDER DISMISSING and ) UNIT CLARIFICATION ) APPEAL STATE OF MAINE, DEPARTMENT OF ) PUBLIC SAFETY ) ) Respondent. ) ____________________________________) The question before us is whether a Notice of Appeal of a unit clarification determination of the executive director was timely filed by the Maine State Employees Association (herein- after "the Association") . The Association has also filed for the Board's consideration a Motion to Enlarge the Time for Filing of Appeal in the event the Board determines that the Notice of Appeal was not filed in a timely fashion. For the reasons set forth below, we find that the Notice of Appeal was not filed in a timely fashion, and we deny the Association's Motion to Enlarge the Time for Filing of Appeal. Accordingly, we dismiss the Association's appeal of the executive director's decision in the underlying unit clarification proceeding. This unit clarification proceeding was initiated by a petition filed by the Association on January 21, 1997. The Association's petition sought to have seven employees in the position of Public Safety Inspector I, who were formerly classified as Fire Inspectors, reassigned from the Administrative Services bargaining unit to the Law Enforcement Services bargaining unit. An evidentiary hearing was conducted on August 14, 1997. The executive director denied the Association's petition for the reasons set forth in a Unit Clarification Report -1- which was issued on November 6, 1997. The Report was mailed to the Association on that same date and hand delivered to the office of the Bureau of Employee Relations the following day. The Association filed a Notice of Appeal on Monday, November 24, 1997. The timeliness of appeals of unit clarification decisions is governed by statute. In unit clarification appeals brought under the State Employees Labor Relations Act, the statute specifically provides that such appeals must be brought "within 15 days of the announcement of the ruling or determination." 26 M.R.S.A. 979 G(2) . The Rules and Procedures of the Board which interpret this statutory provision provide that any party aggrieved by any unit clarification determination of the executive director may appeal, in writing, to the Board "within fifteen calendar days of the date of the ruling or determination." Rule 1.12(A). We conclude from our reading of the statute and Rule 1.12 that the fifteen- day deadline fell on Friday, November 21, 1997. The Association contends that its Notice of Appeal was not due until November 24, 1997, the date on which it was filed. The Association arrives at this deadline by contending that the announcement of the ruling was by mail and, therefore, Board Rule 7.02(D) provided the Association with an additional three calendar days in which to file its Notice of Appeal. According to the Association's calculations, the fifteen days provided for in section 979-G(2) of the statute began to run on November 6, 1997, and the three additional calendar days provided for in Rule 7.02(D) extended the filing deadline to November 24, 1997. 1 ____________________ 1The Association's calculations assume that the ruling was "announced" on the date the Unit Clarification Report was issued, and that the statutory appeal period began to run on that same date. We agree that the phrase "announcement of" in section 979-G(2) is synonymous with the phrase "date of issuance of" in section 979-11(7) The only issue before us is whether the Association may invoke Rule 7.02(D). -2- The Association states that Rule 1.12(A) "should not be presumed to shorten an important procedural right such as the right of appeal." We are not persuaded by the Association's argument. Board Rule 7.02(D) reads: "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, three calendar days shall be added to the prescribed period." (Emphasis added). Because the statutory filing deadline begins to run from the date of announcement of a unit clarification ruling, and not from the date of service of a notice of the ruling on the parties, Rule 7.02(D) is not applicable to unit clarification appeals.2 See City of Lewiston v. Maine State Employees Association, 638 A.2d 739, 742 (Me. 1994) (the three-day extension for mailing provided for in M.R.Civ.P. 6(d) does not apply to appeals from Board decisions to Superior Court, since statute provides that such appeals must be filed "within 15 days of the date of issuance of the decision" and not from the date of service). We find no merit in the Association's suggestion that Rule 1.12(A) "shortens" the statutory right of appeal. Rule 1.12(A) could not be clearer and it is consistent with the statutory appeal period.3 The statute and the rule provide for a 15-day ______________ 2Rule 7.02(D) would apply, for example, to the deadline for filing a response to a unit clarification petition. see Rules 1.16(B), 1.07 and 1.08. 3The Association's representative candidly admits that he went directly to the Board's rule on unit clarification appeals, Rule 1.12(A), and understood it to mean that the appeal period began to run on the day the report was issued and ended 15 calendar days later. He did not apply Rule 7.02(D) to his original calculations, however, in arriving at the November 24, 1997 deadline. The later deadline was reached when he erroneously "skipped over" an intervening holiday (November 11) when calculating the calendar days referred to in Rule 1 .12 (A) -3- appeal period and neither mention additional days when announcement of the ruling is by mail. Our reading of the statute and Rule 7.02(D) is consistent with the Board's rule on the timeliness of a notice of appeal in a unit clarification proceeding. Turning now to the Association's Motion to Enlarge the Time for Filing of Appeal, we are bound to deny the Association's motion without regard to its "excusable neglect" argument. As noted above, the deadline for filing unit clarification appeals is set by statute, not by rule, and it is therefore a jurisdictional time limit (that is, the time limit cannot be enlarged by the Board at its discretion). See MSAD #70 Teachers Association/MTA/NEA v. MSAD #70 School Board, No. 93-13, slip op. at 2 (March 29, 1993) (time limits set by statute are juris- dictional and cannot be enlarged by the Board, unlike time limits set by rule; Rule 7.02(C) permits the Board to extend time limits set by rule). The cases cited by the Association in support of its "excusable neglect" argument involve nonjurisdictional rule violations and are, thus, not applicable to our decision to deny the Association's motion. -4- 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. 979-G(2) (1988 & Supp. 1997) and the Board's Rules and procedures, it is hereby ORDERED: 1. That the Association's Motion to Enlarge the Time for Filing of Appeal is denied; 2. That the Association's appeal of Maine State Employees Association and State of Maine, Department of Public Safety, No. 97-UC-02C (Nov. 6, 1997), is dismissed based on the untimely filing of its Notice of Appeal. Dated at Augusta, Maine, this 24th day of February, 1998. MAINE LABOR RELATIONS BOARD The parties are advised of their right, pursuant to 26 M.R.S.A. 979-G(2) (1988 & /s__________________ Supp. 1997), to seek review of Kathy M. Hooke this Order Dismissing Unit Alternate Chair Clarification Appeal by the Superior Court. To initiate such a review an appealing /s__________________ party must file a complaint Gwendolyn Gatcomb with the Superior Court within Employee Representative fifteen (15) days of the date of the issuance hereof, and otherwise comply with the /s________________ requirements of Rule 8CC of Karl Dornish, Jr. the Maine Rules of Civil Alternate Employer Procedure. Representative