26 §1329. Prevention of prohibited acts
Title 26: LABOR AND INDUSTRY
Chapter 16: AGRICULTURAL EMPLOYEES LABOR RELATIONS ACT HEADING: PL 1997, C. 472, §1 (NEW)
§1329. Prevention of prohibited acts
1. Prevention of prohibited acts; board powers. The board may prevent a person, an agricultural employer, an agricultural employee, an agricultural employee organization or a bargaining agent from engaging in a prohibited act under section 1324. This subsection is not affected by any other adjustment or prevention that has been or may be established by agreement, law or otherwise.
[ 1997, c. 472, §1 (NEW) .]
2. Complaints. An agricultural employer, an agricultural employee, an agricultural employee organization or a bargaining agent that believes that a person, an agricultural employer, an agricultural employee, an agricultural employee organization or a bargaining agent has engaged in or is engaging in a prohibited practice may file a complaint with the executive director stating the charges. The complaint may not be filed with the executive director until the complaining party has served a copy of it upon the party named in the complaint. Upon receipt of a complaint, the executive director or the executive director's designee must review the charge to determine whether the facts as alleged constitute a prohibited act. If it is determined that the facts do not, as a matter of law, constitute a violation, the charge must be dismissed by the executive director, subject to review by the board. If the executive director or the board determines that a formal hearing is necessary, the executive director must serve upon the parties to the complaint a notice of the prehearing conference and of the hearing before the board. The notice must include the time and place of hearing for the prehearing conference or the hearing, as appropriate. A hearing may not be held based upon an alleged prohibited practice occurring more than 6 months before the filing of the complaint with the executive director. The party named in the complaint has 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. Through the discretion of the board, any other person or organization may be allowed to intervene in the proceeding and to present testimony. This subsection does not restrict the right of the board to require the executive director or the executive director's designee to hold a prehearing conference on any prohibited practice complaint prior to the hearing before the board and to take an action, including dismissal, to attempt to resolve disagreements between the parties or to recommend an order to the board, when the executive director determines appropriate, subject to review by the board.
[ 1997, c. 472, §1 (NEW) .]
3. Cease and desist order. After hearing and argument if, upon a preponderance of the evidence received, the board is of the opinion that a party named in the complaint has engaged in or is engaging in a prohibited practice, the board must state in writing its findings of fact and the reasons for its conclusions and issue and cause to be served upon that party an order requiring the party to cease and desist from the prohibited practice and to take affirmative action, including reinstatement of employees with or without back pay, and making employees whole, when the board considers relief appropriate, for the loss of pay resulting from the employer's refusal to bargain and to provide other relief, including payment of attorney's fees and costs. An order of the board may not require the reinstatement of an individual as an employee who has been suspended or discharged or the payment to the employee of any back pay if the individual was suspended or discharged for cause.
[ 1997, c. 472, §1 (NEW) .]
4. Dismissal of complaint. After hearing and argument if, upon a preponderance of the evidence received, the board is not of the opinion that the party named in the complaint has engaged in or is engaging in any prohibited practice, the board shall state in writing its findings of fact and the reasons for its conclusions and issue an order dismissing the complaint.
[ 1997, c. 472, §1 (NEW) .]
5. Enforcement action; scope of review; consolidation of actions. If, after the issuance of an order by the board requiring a party to cease and desist or to take any other affirmative action, the 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 Superior Court to compel compliance with the order of the board. Upon application of a party in interest or the board, the court may grant temporary relief or a restraining order and may impose terms and conditions as determined just and proper. The board's decision may not be 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 or safety. In an action to compel compliance, the Superior Court may not review the action of the board other than to determine whether the board has acted in excess of its jurisdiction. 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 filed later, the 2 actions must be consolidated.
[ 1997, c. 472, §1 (NEW) .]
6. Review. Either party may seek a review by the Superior Court of a decision or order of the 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 schedule the hearing at the earliest possible time and notify all interested parties and the board. Pending review and upon application of an interested party, the court may grant temporary relief or a restraining order and impose terms and conditions that the court determines just and proper, except that the board's decision is not stayed unless 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 or safety. The executive director shall immediately 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, which must be held not less than 7 days after notice, the court may enforce, modify, enforce as modified or set aside in whole or in part the decision of the board, except that the findings of the board on questions of fact are final unless shown to be clearly erroneous. An appeal to the Law Court must be the same as an appeal from an interlocutory order under section 6.
[ 1997, c. 472, §1 (NEW) .]
7. Privileges seeking injunctive relief. In a judicial proceeding authorized by this section in which injunctive relief is sought, sections 5 and 6 apply, except that neither an allegation nor proof of unavoidable substantial and irreparable injury to the complainant's property is required to obtain a temporary restraining order or injunction.
[ 1997, c. 472, §1 (NEW) .]
SECTION HISTORY
1997, c. 472, §1 (NEW).