STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 93-36
Issued: November 3, 1993
_______________________________
)
PORTLAND PROFESSIONAL AND )
TECHNICAL CITY EMPLOYEES )
ASSOCIATION, MAINE TEACHERS )
ASSOCIATION, )
)
Complainant, ) DECISION AND ORDER
)
v. )
)
CITY OF PORTLAND, )
)
Respondent. )
_______________________________)
This case was commenced on May 20, 1993, when the Portland
Professional and Technical City Employees Association, Maine
Teachers Association (Association) filed a prohibited practice
complaint with the Maine Labor Relations Board (Board) alleging
that the City of Portland has violated 26 M.R.S.A. 964(1)(A),
(B) and (E) (1988). More specifically, the complaint alleges
that because the City's efforts to negotiate removal of the
Employee Health Nurse position from the existing Professional and
Technical Employees bargaining unit were unsuccessful the City
has determined not to fill the Employee Health Nurse position and
has, instead, established and advertised a non-unit Occupational
Health Nurse position. The Association contends that the City's
actions have interfered with, restrained and coerced unit
employees in the exercise of protected rights, have discouraged
Association membership through discrimination in regard to hire
and other terms and conditions of employment and constitute an
unlawful refusal to bargain with the Association.
On May 24,1993, the Board's Executive Director issued a
notice of insufficiency to the Association pursuant to review in
accordance with 26 M.R.S.A. 968(5)(3) and Board Rule 4.06(A).
The insufficiency letter states, in pertinent part:
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The above-captioned prohibited practice complaint has
been reviewed pursuant to 26 M.R.S.A. 968(5)(B) and
Board Rule 4.06(A). The complaint is insufficient for
the following reason:
Rule 4.03(4) provides that the complaint must
contain "[a] clear and concise statement of
the facts constituting the complaint,
including the date . . . of each act alleged
. . . ." Section 968(5)(B) of the law
provides, in relevant part, " . . . that no
hearing shall be held based upon any alleged
prohibited practice occurring more than 6
months prior to the filing of the complaint
with the executive director." The complaint
does not state the date on which the charged
conduct occurred. In the circumstances, I am
unable to determine whether the complaint was
filed within the Board's six-month statute of
limitations. The Board has held that "the 6
month statute of limitations period begins to
run when the complainant knew, or reasonably
should have known, of the occurrence of the
event which allegedly violated the Act."
Coulombe v. City of South Portland, No. 86-
11, 9 NPER ME-18008, slip op. at 8 (Me.L.R.B.
Dec. 29, 1986). You need to provide further
detail so that a timeliness determination can
be made.
If you desire to amend the complaint to cure this
defect, please refer to Board Rule 4.06(B).
Nothing was received from the Association to supplement the
complaint.
On June 10, 1993, the Executive Director wrote the
Association summarily dismissing the Association's complaint
pursuant to 26 M.R.S.A. 968(5)(B) (1988) and Rule 4.06(C). The
June 10, 1993, letter states, in pertinent part:
On May 24, 1993, I wrote you a letter which outlined
the statutory six-month limitations period applicable
herein and pointed out that the complaint in this
matter was deficient in that, contrary to the
requirement of Board Rule 4.03(4), the complaint failed
to state the date on which the charged conduct
allegedly occurred. I further indicated that, in the
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absence of such date(s), I was unable to determine
whether the complaint was timely filed within the
period of limitations contained in 26 M.R.S.A.
968(5)(B). Finally, I asked you to file an amended
complaint curing the deficiency on or before June 8,
1993; otherwise, I would be required to dismiss the
complaint.
Section 968(5)(B) of the Act provides, in relevant
part, " . . . that no hearing shall be held based upon
any alleged prohibited practice occurring more than 6
months prior to the filing of the complaint with the
executive director." Since the six-month limitations
period is jurisdictional, it is incumbent upon the
complainant to allege sufficient facts in the complaint
to bring the matter within the Board's jurisdiction.
To date, no amended complaint, containing the date(s)
on which the charged conduct allegedly occurred, has
been filed with this office. In the circumstances, I
am unable to determine whether the complaint was filed
within the Bcard's six-month statute of limitations;
therefore, the complaint must be and hereby is
dismissed.
On June 24, 1993, the Association filed a motion for review
of the Executive Director's dismissal which states:
NOW COMES the Petitioner and moves the Board to review
the dismissal by the Executive Director of the
Complaint in this matter and, in support thereof,
states as follows:
1. Complainant has alleged in its Complaint a
continuing violation of the Municipal Employees Labor
Relations Act such that each day of the continuing
violation constitutes a discrete event.
WHEREFORE, Complainant requests that the Board
reverse the dismissal of the Complaint and set this
matter by hearing.
The Board, consisting of Chair Peter T. Dawson, Employer
Representative Howard Reiche, Jr., and Employee Representative
George W. Lambertson, reviewed the summary dismissal, in light of
the June 24 submission, on September 30 and October 22, 1993.
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DISCUSSION
In accordance with Rule 4.06(C), we have "examine[d] the
complaint as it existed when summarily dismissed[,] in light of
the averments in the motion," that the complaint alleges a
"continuing violation . . . such that each day of the continuing
violation constitutes a discrete event." We conclude that the
Executive Director's action was correct.
The prohibited practice complaint alleges that the City
determined not to fill the Employee Health Nurse position, that
the City created an identical position retitled Occupational
Health Nurse and that the City has advertised and continues to
advertise the position as a non-union position. These unamended
allegations are fatally lacking based on the omission of the
dates of occurrence of the events complained of. See Rule
4.03(4). That deficiency was pointed out to the Association and
sufficient opportunity to amend was provided. The Association
failed to respond to the insufficiencies notice of the Executive
Director prior to a stated deadline of 15 days from the date of
the notice of insufficiency. We have previously rejected use of
the "continuing violation" theory as a means of avoiding the
limitations period contained in 26 M.R.S.A. 968(5)(B) (1988).
See Teamsters Local Union No. 48 v. City of Waterville, No. 80-
14, slip op. at 4 (Me.L.R.B. Apr. 23, 1980). The facts in this
case do not convince us that our prior holding in this regard
should be modified. Based on our review of the complaint in
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light of the Complainant's June 24, 1993, motion, we affirm the
Executive Director's summary dismissal and supporting rationale.
Dated at Augusta, Maine, this 3rd day of November, 1993.
MAINE LABOR RELATIONS BOARD
The parties are hereby advised /s/___________________________
of their right, pursuant to 26 Peter T. Dawson
M.R.S.A. 968(5)(F) (Supp. Chair
1992), to seek review of this
decision and order by the
Superior Court. To initiate
such a review, an appealing /s/___________________________
party must file a complaint George W. Lambertson
with the Superior Court within Employee Representative
fifteen (15) days of the date
of issuance of this decision
and order, and otherwise
comply with the requirements /s/___________________________
of Rule 80C of the Maine Rules Howard Reiche, Jr.
of Civil Procedure. Employer Representative
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