§1289. Prevention of prohibited acts

Link to law: http://legislature.maine.gov/legis/statutes/26/title26sec1289.html
Published: 2015

§1289. Prevention of prohibited acts








1. Prevention of prohibited acts; board powers. 
The board may prevent any person, the public employer, any judicial employee, any
judicial employee organization or any bargaining agent from engaging in any of the
prohibited acts enumerated in section 1284. This power shall not be affected by any
other means of adjustment or prevention that has been or may be established by agreement,
law or otherwise.


[
1983, c. 702, (NEW)
.]








2. Complaints. 
The public employer, any judicial employee, any judicial employee organization or
any bargaining agent which believes that any person, the public employer, any judicial
employee, any judicial employee organization or any bargaining agent has engaged in
or is engaging in any such prohibited practice may file a complaint with the executive
director of the board stating the charges in that regard. No such complaint may be
filed with the executive director until the complaining party has served a copy thereof
upon the party complained of. Upon receipt of the complaint, the executive director
or his designee shall review the charge to determine whether the facts as alleged
may constitute a prohibited act and shall forthwith cause an investigation to be conducted.
The executive director shall attempt to obtain and evaluate sworn affidavits from
persons having knowledge of the facts. If it is determined that the sworn facts do
not, as a matter of law, constitute a violation, the charge shall be dismissed by
the executive director, subject to review by the board. If it is determined from
the sworn facts that the complaint is meritorious, the executive director shall recommend
a proposed settlement. The parties have 30 days after the recommendations are made
to resolve their dispute. If the parties have not resolved their dispute by the end
of the 30-day period, either party or the executive director may make the recommendations
public, but not until the expiration of the 30-day period, unless the parties otherwise
agree. If a formal hearing is deemed necessary by the executive director or by the
board, the executive director shall serve upon the parties to the complaint a notice
of the prehearing conference and of the hearing before the board, that notice to designate
the time and place of the hearing for the prehearing conference or the hearing, as
appropriate, provided that a hearing shall not 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 party complained of shall have the right to file a written
answer to the complaint and to appear in person or otherwise and give testimony at
the place and time fixed for the hearing. In the discretion of the board, any other
person or organization may be allowed to intervene in that proceeding and to present
testimony. Nothing in this subsection may restrict the right of the board to require
the executive director or his designee to hold a prehearing conference on any prohibited
practice complaint prior to the hearing before the board and taking whatever action,
including dismissal, attempting to resolve disagreements between the parties or recommending
an order to the board, as he may deem appropriate, subject to review by the board.


[
1983, c. 702, (NEW)
.]








3. Cease and desist order. 
After hearing and argument, if, upon a preponderance of the evidence received, the
board shall be of the opinion that any party named in the complaint has engaged in
or is engaging in any such prohibited practice, the board shall in writing state its
findings of fact and the reasons for its conclusions and shall issue and cause to
be served upon the party an order requiring the party to cease and desist from that
prohibited practice and to take such affirmative action, including reinstatement of
employees with or without back pay, as will effectuate the policies of this Act.
No order of the board may require the reinstatement of any individual as an employee
who has been suspended or discharged, or the payment to him of any back pay, if that
individual was suspended or discharged for cause.


[
1983, c. 702, (NEW)
.]








4. Dismissal of complaint. 
After hearing and argument, if the board is not persuaded by a preponderance of
the evidence received that the party named in the complaint has engaged in or is engaging
in any prohibited practice, the board shall in writing state its findings of fact
and the reasons for its conclusions and shall issue an order dismissing the complaint.


[
1983, c. 702, (NEW)
.]








5. Action to compel compliance. 
If, after the issuance of an order by the board requiring any party to cease and
desist or to take any other affirmative action, that party fails to comply with the
order of the board, the party in whose favor the order operates or the board may file
a civil action in the Superior Court in Kennebec County to compel compliance with
the order of the board. In such action to compel compliance, the Superior Court shall
not review the action of the board other than to determine questions of law. If an
action to review the decision of the board is pending at the time of the commencement
of an action for enforcement pursuant to this subsection or is thereafter filed, the
2 actions shall be consolidated.


[
1983, c. 702, (NEW)
.]








6. Interim injunctive relief. 
Whenever a complaint is filed with the executive director of the board, alleging
that the public employer has violated section 1284, subsection 1, paragraph F, or
alleging that a judicial employee or judicial employee organization or bargaining
agent has violated section 1284, subsection 2, paragraph C, the party making the complaint
may simultaneously seek interim injunctive relief from the Superior Court in the county
in which the prohibited practice is alleged to have occurred pending the final adjudication
of the board with respect to that matter.


[
1983, c. 702, (NEW)
.]








7. Court review. 
Either party may seek a review by the Superior Court in Kennebec County of a decision
or order of the Maine Labor Relations Board by filing a complaint in accordance with
the Maine Rules of Civil Procedure, Rule 80C, if the complaint is filed within 15 days of the date of issuance of the decision. The complaint must
be served upon the board and all parties to the board proceeding by certified mail,
return receipt requested. Upon the filing of the complaint, the court shall set the
complaint down for hearing and shall cause all interested parties and the board to be notified. The hearing may be advanced on the docket and receive priority over other cases when
the court determines that the interests of justice so require. Pending review and upon application of any party in interest, the court may grant
such temporary relief or restraining order and may impose such terms and conditions
as it determines just and proper; except that the board's decision or order is not
stayed except when it is clearly shown to the satisfaction of the court that substantial
and irreparable injury will be sustained or that there is a substantial risk of danger
to the public health, safety or welfare or interference with the exercise of the judicial
power. The executive director shall forthwith file in the court the record in the
proceeding certified by the executive director or a member of the board. The record
must include all documents filed in the proceeding and the transcript, if any. After
hearing, the court may enforce, modify, enforce as so modified or set aside in whole or in
part the decision of the board, except that the finding of the board on questions
of fact is final unless shown to be clearly erroneous. Any appeal to the Law Court
must be the same as an appeal from an interlocutory order under section 6.


[
2011, c. 559, Pt. A, §29 (AMD)
.]








8. Privileges seeking injunctive relief. 
In any judicial proceeding authorized by this subsection in which injunctive relief
is sought, sections 5 and 6 shall apply, except that neither an allegation nor proof
of unavoidable substantial and irreparable injury to the complainant's property may
be required to obtain a temporary restraining order or injunction.


[
1983, c. 702, (NEW)
.]








9. Interference with exercise of judicial power. 
The Maine Labor Relations Board shall not have power to interfere with the exercise
of the judicial power.


[
1983, c. 702, (NEW)
.]





SECTION HISTORY

1983, c. 702, (NEW).
1991, c. 143, §9 (AMD).
1993, c. 90, §9 (AMD).
2011, c. 559, Pt. A, §29 (AMD).
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