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
                                Petitioner,  )
                                             )    	ORDER DISMISSING
              and                     	     ) 		UNIT CLARIFICATION
                                             )		APPEAL
         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
              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


         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,
              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

         The Association states that Rule 1.12(A) "should not be presumed
         to shorten an important procedural right such as the right of
              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)

         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
              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.

              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
             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