STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 87-09 [87-A-06]
Issued: January 27, 1987
___________________________________
)
GARY QUINTAL, )
)
Complainant, )
)
v. )
) DECISION AND ORDER
STATE OF MAINE DEPARTMENT OF )
TRANSPORTATION, BECKY LUCE, )
FRANK BARKLEY, JOHN WHITTEN, )
SI LAWRENCE, MERLE DOUGLAS )
and ROBERT LARSEN, )
)
Respondents. )
___________________________________)
On December 4, 1986, the Complainant, Gary Quintal, was defaulted
with prejudice for failure to appear at a prehearing conference.
This appeal is undertaken by Quintal for the purpose of having the
default vacated and the prehearing conference rescheduled. Upon due
notice the Maine Labor Relations Board (Board), consisting of Chairman
Edward S. Godfrey, presiding, Thacher E. Turner, Employer Represen-
tative, and George W. Lambertson, Employee Representative, convened an
evidentiary hearing in the cause on Wednesday, January 7, 1987.
Quintal represented himself at hearing and the State was represented
by Sandra S. Carraher, Esq. The parties were provided the opportunity
at hearing to appear, submit evidence, cross-examine witnesses and
orally argue. Quintal testified in his own behalf and the State pre-
sented no witnesses. Neither party expressed a desire to file post-
hearing briefs and the Board deliberated the appeal immediately upon
adjourning the hearing.
JURISDICTION
The jurisdiction of the Board to hear and decide this appeal is
conferred by 26 M.R.S.A. [Sec.] 979-H(2) (Pamph. 1986). Neither party has
contested the Board's jurisdiction in this matter.
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FINDINGS OF FACT
On November 4, 1986, Gary Quintal, pro se, filed a prohibited
practice complaint with the Maine Labor Relations Board. The Board
notified the Respondents of the filing of the complaint by letter
dated November 7, 1986. Also, on November 7, 1986, a member of the
Board's staff confirmed the text of a telephonic communication with
Quintal which had revealed that "the MSEA (had] filed grievances for
[Quintal] with regard to all the matters complained of in [Quintal's]
prohibited practice complaint..... that the MSEA [was] actively
pursuing those grievances..... [and] that the MSEA [would] not be
representing [Quintal] in the processing of [his] prohibited practice
complaint." This letter further requested, unavailingly, that
Quintal file copies of such grievances with the Board.
On November 13, 1986, the Board notified Quintal and the other
parties to the cause, by certified mail, that a prehearing conference
would be held on December 4, 1986. The full text of this prehearing
notice letter is as follows:
The prehearing conference in the above-captioned pro-
hibited practice complaint case will be held on Thursday,
December 4, 1986, at 11:00 a.m., in Room 436, located on
the fourth floor of the State Capitol Building in Augusta,
Maine. The purpose of the prehearing conference will be
to clarify issues of material fact remaining for resolution
at the subsequent evidentiary hearing. Please bring to the
prehearing conference five (5) copies of each document or
exhibit which you wish to have admitted into evidence and
a list of the names of the witnesses which you intend to
call during the evidentiary hearing.
Please note that under Board Prohibited Practice
Complaint Rules 4.06 and 4.07, failure of a party to
participate in the prehearing conference may be grounds
for dismissal of the complaint or for entry of a default
judgment.
On November 17, 1986, the Board changed the location of the pre-
hearing conference from Room 436 in the State Capitol Building to Room
124 in the State Office Building. This letter reiterates the date and
time of the prehearing and requests that the parties "refer to the
letter of November 13, 1986, for the purpose of the prehearing and
for other pertinent information."
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On November 18, 1986, before the evidentiary hearing had been
scheduled, Carraher contacted Quintal for the purpose of securing his
consent to the postponement of the prehearing conference. Quintal
would not agree to Carraher's request for postponement.
On November 18, 1986, the Board notified the parties, by cer-
tified mail, of the time and location of an evidentiary hearing in the
cause scheduled to be conducted on December 9, 1986. Quintal received
this letter on November 19, 1986. The Board's hearing notice letter
states, inter alia, that:
The purpose of the hearing will be to receive evidence
regarding the allegation of the Complainant that the
Respondents have violated 26 M.R.S.A. [Secs.] 979-C(1)(A), (B),
(D)-(F), 979-C(2)(A), (B) & (C)(4) and 979-C(3) (Pamph.
1986). The parties must be prepared at the commencement
of the hearing to present all evidence pertinent to these
allegations. The Board requires five (5) copies of any
document or exhibit not previously marked for identifica-
tion at the prehearing conference, which meets the require-
ments of Board Prohibited Practice Complaint Rule 4.07, that
is intended to be offered into evidence at the hearing.
At the close of the hearing, the Board will allow oral
argument and may require that the parties file briefs.
Quintal assumed that all of the correspondence which he received
referred to one single hearing and that the "subsequent evidentiary
hearing" referred to in the Board's November 13, 1986 letter referred
to a hearing which would be scheduled after the conduct of the one
initial hearing to which all the Board's correspondence had referred.
The testimony of Quintal in this regard is, "a subsequent hearing to
me meant that after the first one the second one would be scheduled if
the evidence showed reason to go on." Quintal informed the Board, on
November 25, 1986, that he had previously been scheduled to appear at
a Workers' Compensation hearing on December 9, 1986. On November 26,
1986, the Board notified the parties, by certified mail, that because
of Quintal's scheduling conflict the Board hearing previously
scheduled for December 9, 1986, would be conducted on Thursday,
January 18, 1987.
Quintal testified that when he received the Board's November 18
letter, which scheduled a December 9 evidentiary hearing date (though
it made explicit reference also to a prehearing), he mistakenly
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assumed that the purpose of the letter was to effect a postponement of
the December 4 prehearing conference date. He testified further that
he made that assumption partly as a result of the fact that he
received the letter scheduling the hearing soon after being contacted
by Carraher regarding the rescheduling of the prehearing. Quintal
said he assumed that the Board had granted Carraher's request for
postponement over his objection.
At 11:00 a.m., on December 4, 1986, Board Alternate Chairman
Donald W. Webber convened the prehearing conference in the cause, as
scheduled. Quintal did not appear. After a delay of thirty minutes
the Alternate Chairman issued a Prehearing Conference Memorandum and
Order, the contents of which are incorporated herein by reference,
directing, pursuant to 26 M.R.S.A. [Sec.] 979-H(2) (Pamph. 1986) and Board
Prohibited Practice Complaint Rule 4.07(A), that Quintal be defaulted
with prejudice. The Prehearing Conference Memorandum and order
states, inter alia, that:
It may be noted that Complainant has three grievances
in progress which address the matters as to which his com-
plaint indicates his concern. It may be further noted that
the matters alleged in the complaint are more appropriate
for grievance procedure than for a prohibited practice
complaint.
On December 8, 1986, Quintal filed a notice of appeal, the full
text of which is as follows:
[I, Gary Quintal, a lay person representing myself, would
like to appeal the Order in Case #87-09. Given all mail
recieved was certified but some confusion came when Sandra
S. Carraher Esq. call to change the meeting for December 4
Dated 11/13. The next certified letter mailed was for a
hearing on 12/9 Dated 11/18 which I felt the Dec 4 Date
was change to. I Pray for a new Date for Prehearing.]
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DISCUSSION
The Board's rules and procedures set forth the standard appli-
cable to requests for relief from default such as that involved in
the instant case. Board Prohibited Practice Complaint Rule 4.07(A)
states, in pertinent part:
Failure of a complainant to attend such a conference or
hearing may be grounds for dismissal of the complaint and
failure of a respondent to attend such a conference or
hearing may be grounds for entry of a default order against
said respondent. Such dismissal or default shall be with
prejudice unless otherwise stated in the order of dismissal
or default and shall be final unless the Board finds that
such failure to participate in the prehearing conference
or hearing is the result of excusable neglect.
The determination of the existence of excusable neglect is an inquiry
which is properly before the Board for resolution. Council 93, AFSCME
v. City of Bath Board of Education, No. 86-21 (Me.L.R.B. Aug. 5,
1986). See MSEA v. Baxter State Park Authority, No. 84-20 (Me.L.R.B.
May 16, 1984). Upon consideration we conclude that Quintal's failure
to attend the scheduled prehearing conference was not the result of
excusable neglect. The chronology of Board notices above leaves no
doubt that separate prehearing conference and evidentiary hearing
dates had been scheduled by the Board and that notice thereof was duly
given to Quintal. Moreover, the possible consequences of failure to
attend the prehearing conference were clearly relayed to Quintal in
the Board's November 13, 1986 letter.
We decide that Quintal's unexcused absence was attributable to
assumptions on his part that were not reasonable. The most that can
be said in his favor is that the sequence of events might have created
some doubt in his mind about the date of the prehearing. He could
have entertained no reasonable doubt that a separate prehearing was
required, and any doubt he might have had about the date of the pre-
hearing could have been resolved easily by a telephone call to the
Board office. We find therefore, that Quintal's neglect was unreason-
able and his appeal must accordingly be denied. Quintal's appeal must
therefore be dismissed.
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ORDER
On the basis of the foregoing findings of fact, 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. [Sec.] 968(5)(B) (Pamph. 1986), it is
hereby ORDERED:
1. The appeal filed by Gary Quintal on December 8, 1986,
is hereby DENIED.
2. The dismissal of the complaint in the Prehearing Con-
ference memorandum and order of December 4, 1986, in
Board Case No. 87-09 is hereby AFFIRMED.
3. The Prohibited Practice Complaint in Board Case
No. 87-09 which was filed on November 4, 1986, is
hereby DISMISSED.
Dated at Augusta, Maine, this 27th day of January, 1987.
MAINE LABOR RELATIONS BOARD
/s/_____________________________
The parties are advised Edward S. Godfrey
of their right pursuant Chairman
to 26 M.R.S.A. [Sec.] 968(5)(F)
(Pamph. 1986) to seek review
of this decision and order
by the Superior Court by /s/_____________________________
filing a complaint in Thacher E. Turner
accordance with Rule 80B Employer Representative
of the Rules of Civil
Procedure within 15 days
of the date of this
decision. /s/_____________________________
George W. Lambertson
Employee epresentative
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