STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 85-16
Issued: May 31, 1985
__________________________________
)
WILLIAM H. SLAVICK, )
)
Complainant, )
)
v. ) ORDER OF EXECUTIVE DIRECTOR
) DISMISSING COMPLAINT
THE ASSOCIATED FACULTIES OF THE )
UNIVERSITY OF MAINE, )
)
Respondent. )
__________________________________)
On April 15, 1985, William H. Slavick, a Professor of English at
the University of Southern Maine, filed a prohibited practice com-
plaint with the Maine Labor Relations Board (Board) alleging that the
Associated Faculties of the University of Maine (Union) had violated
26 M.R.S.A. 1025(2)(B) and 1027(2)(A) (Supp. 1984-85) by refusing
to comply with his request that it file a grievance against the
University of Southern Maine. Slavick's complaint alleges that the
Union twice refused to file a grievance contesting a faculty appoint-
ment which Slavick contends was made without a "competitive search,"
allegedly required by University Faculty Appointment and Equal
Employment Opportunity (EEO) Policies. Slavick contends that the
method of recruitment used in the appointment violates the collective
bargaining agreement because the agreement requires faculty appoint-
ment recommendations to be "in compliance with applicable 'equal
opportunity' and/or 'affirmative action' laws, policies and/or
procedures."
The complaint states that the Union owes Slavick "the duty of
fair representation enforcing all relevant provisions of the collec-
tive bargaining agreement without regard to his membership in the
Association, including such grievance procedures as set forth in
Article 14 of said agreement." Additionally, the complaint states
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that the Union "is responsible for representing individuals and groups
of individuals who file grievances and for entering grievances regard-
ing application of the agreement where the interest of the Association
is involved and a grievance would not otherwise be entered . . . ."
Slavick alleges that the Union's refusal to press a grievance con-
cerning the University's allegedly improper recruitment procedure
constitutes a violation of the Union's "duty of fair representation,"
and unlawful interference with, or restraint or coercion of employees
in the exercise of rights guaranteed by 26 M.R.S.A. 1023 (Supp.
1984-85).
Those portions of the complaint which refer to the alleged
requirement for a "competitive search" state:
5. On or around June 1, 1984, the Complainant learned
from a member of the Philosophy Department at the Univer-
sity of Southern Maine that a search to fill a temporary or
non-tenure track faculty position in that department had,
after a female had been selected for recommendation, been
cancelled, a tenure-track faculty position in the depart-
ment requested and authorized, and the same female candi-
date appointed without any search for the tenure-track
position having been conducted. The reasons for this
violation of theretofore established Equal Employment
opportunity/Affirmative Action principles and policies at
the University of Southern Maine requiring a tenure-track
search to fill a tenure-track position was that the individ-
ual who had prevailed in the non-tenure-track search was a
good candidate and a female. The Acting Provost had made
the decision in full knowledge that the University was
obliged to advertise the tenure-track position before
filling it.
6. A telephone call to Kathleen Bouchard, University
of Southern Maine EEO Officer, revealed that a revised
faculty appointment policy dated March 11, 1983, but never
promulgated even to departments then conducting searches,
continued to require a search for any tenure-track faculty
position: the first sentence of "Competitive Filling of
Faculty Position Vacancies" states, "All full-time regular
faculty positions are filled through a competitive search."
In the course of that conversation, Ms. Bouchard acknowl-
edged that switching the position from non-tenure-track to
tenure-track was unfair to candidates who would have
applied for the latter but not the former--why EEO policies
attach a search to a precise job description. She also
acknowledged that what was done in the Philosophy appoint-
ment was similar to what a former temporary appointee in
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the Complainant's department had claimed as a right in
suing the University of Maine and the Complainant, a case
awaiting trial in Federal court, and so might have a
bearing on that trial.
. . . .
. . . [T]he Complainant reviewed all University poli-
cies in the area and confirmed that Board of Trustees
Policy on EEO dated November 18, 1971, the University of
Southern Maine Affirmative Action Plan of November 1, 1973,
Recruitment Guidelines approved by the Board of Trustees,
and the University of Southern Maine Faculty Appointment
Policy of November 19, 1973, as well as the 1983 Competi-
tive Filling of Faculty Position Vacancies of March 11,
1983, all require EEO conformity--proper advertising and no
sex discrimination in faculty appointments. The Complainant
also learned that the collective bargaining agreement,
Article 7, A, 1, obliges faculty appointment recommendations
to be "in compliance with applicable 'equal opportunity'
and/or 'affirmative action' laws, policies, and/or
procedures."
Initially, it must be noted that as nearly as can be determined
from the face of the complaint only the provisions of the March 11,
1983 faculty appointment policy require a "competitive search" for
"full-time regular faculty positions." Additionally, although the
complaint states that the Board of Trustees' Policy on EEO and the
University of Maine Affirmative Action Plan both require EEO conform-
ity, it is not ascertainable on the face on the complaint that the
complained-of events constitute a violation of the cited plan and
policy or merely a violation of what Slavick construes EEO policy to
be.
Moreover, the Board has not been provided with the terms of the
EEO plans, policies and guidelines to which Slavick refers. Where an
alleged prohibited practice is predicated upon a violation of policies
or plans extrinsic to but incorporated by the parties' collective
bargaining agreement, those plans and policies or copies of their per-
tinent parts must be filed with the complaint. In light of these
deficiencies the prohibited practice complaint does not comply with
Board Prohibited Practice Complaint Rule 4.03(A)(4), which requires
that the complaint contain, inter alia, a "clear and concise statement
of the facts constituting the complaint."
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The following events and their critical dates, as related in the
complaint, cause it to be barred by the statute of limitations: 1)
on October 7, 1984, Slavick knew of the Union's conclusion that the
appointment procedure did not contravene EEO regulations; 2) Slavick
first heard that the Union's Executive Committee was "ducking the
issue" on October 8, 1984; 3) on October 9, 1984, Slavick filed a
written request with the Union attempting to rebut the Union's excuses
for not filing the requested grievance; 4) one week before October 16,
1984, after receiving Slavick's written request, Union President Smith
informed Slavick that he could not discuss Union matters with him; and
5) by October 10, 1984, Slavick was soliciting guidance from various
sources regarding the Union's failure to file the requested grievance.
By October 10, 1984, at the latest, Slavick knew or should have
known that the Union was not going to comply with his request.
Because all of the acts constituting the alleged prohibited practice
occurred more than six months prior to the filing of the complaint,
the complaint is barred under the provisions of 26 M.R.S.A. 1029(2)
(Supp. 1984-85), and may not be entertained. See Council No. 74,
AFSCME v. City of Bangor, No. 80-41, slip op. at 5-6 (Me.L.R.B. Sept. 24,
1980), aff'd, 449 A.2d 1129 (Me. 1982).
Upon consideration, it is also my conclusion that the complaint
does not sufficiently allege or establish that the Union's refusal to
take up Slavick's cause was arbitrary, discriminatory, or made in bad
faith. I therefore conclude that the complaint fails to allege a
prima facie violation of the duty of fair representation. The Board
has previously opined that the central inquiry in duty of fair repre-
sentation cases is whether the Union's conduct toward the unit member
was, "'arbitrary, discriminatory, or [taken] in bad faith' or whether
[the Union] processed his grievance in a 'perfunctory fashion.'"
Whitzell v. Merrymeeting Educators' Association, No. 80-15, slip op.
at 9 (Me.L.R.B. Nov. 6, 1980), aff'd, No. CV-80-124 (Me. Super. Ct.
Sag. Cty., Dec. 28, 1982). Employing this standard, the Board has
stated that although the relative merit of the grievance itself, as
distinct from the way it was handled by the Union, is generally not
controlling,
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this does not mean that the merits of the grievance are
not relevant to the determination. Rather, an understanding
of the merits will be necessary or at least helpful both in
understanding the various actions being contested and in
placing them in proper context. At the extremes, the merits
of a grievance would be very important. For example, a
clearly meritorious grievance would definitely be an influen-
tial factor. Similarly, a clearly frivolous grievance
should dictate the dismissal of the complaint.
Id. I conclude that the grievance requested by Slavick is frivolous
because it is barred as untimely on the face of the parties' collec-
tive bargaining agreement. The Union's refusal to file such cannot,
ipso facto, constitute a violation of the duty of fair representation.
The collective bargaining agreement in effect between the Univer-
sity of Maine and the Union at all times material to the complaint
specifies in Article 14, GRIEVANCE PROCEDURES, Section C, Formal
Procedure, Step 1, that:
In the event satisfactory resolution is not achieved through
informal discussions the grievant, within twenty (20) days
following the act or omission giving rise to the grievance
or the date on which the grievant reasonably should have
known of such act or omission if that date is later, shall
complete and forward to the administrator whose action or
decision is being contested the written signed grievance
form (Appendix A). The Administrator shall respond in
writing within ten (10) days of receipt of the grievance.
(Emphasis added).
Furthermore, Section E, Rights and Responsibilities of the Grievant,
subsection 11, provides:
All grievances shall be filed within the time limits set
forth or the grievance will be deemed to have been resolved
by the decision at the prior step. The time limits in this
Article may be extended by mutual agreement of the grievant
and the appropriate University administrator at any step of
the grievance procedure except that the time limits for the
initial filing of a grievance may be extended only by agree-
ment between the Chancellor or designee and the Association.
Any mutual agreement shall be confirmed in writing as soon
as practicable.
Paragraph five of the complaint states that on June 1, 1984,
Slavick knew all of the facts and circumstances concerning the appoint-
ment decision at issue herein. However, the complaint also states, in
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paragraph 10, that nearly four months later, on September 20, 1984,
"the Complainant informed the University of Southern Maine AFUM
chapter president, Prof. Alan Smith . . . of the violation and . . .
requested that the University of Southern Maine AFUM chapter or Prof.
Smith as its president file a grievance regarding violation of Article
7, A, 1." The complaint also states that a similar written request
was filed on October 9, 1984.
It is clear that neither Slavick nor the Union possessed the
capacity to file a timely grievance after June 21, 1984, in the
absence of mutual agreement for extension. No such agreement for
extension is mentioned in the complaint. Slavick's knowledge of the
facts and circumstances surrounding the alleged contract violation may
be imputed to the Union for the purpose of determining the time within
which a grievance concerning the appointment could have been timely
filed. A union member possessing such knowledge may not prolong the
viability of a grievance contrary to an agreement's timeliness limita-
tions by secreting the facts constituting the grievance from the union.
For the reasons set forth above I conclude that the prohibited
practice complaint in this matter fails to state a prima facie viola-
tion of the applicable prohibited practices provisions. Accordingly,
the prohibited practice complaint is, hereby, DISMISSED.
Dated at Augusta, Maine this 31st day of May, 1985.
/s/________________________________
Parker A. Denaco, Executive Director
Maine Labor Relations Board
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STATE OF MAINE MAINE LABOR RELATIONS 30ARD
Case No. 85-16
Issued: June 3, 1985
__________________________________
)
WILLIAM H. SLAVICK, )
)
Complainant, )
)
v. ) ERRATUM TO MAY 31, 1985
) ORDER OF EXECUTIVE DIRECTOR
THE ASSOCIATED FACULTIES OF THE ) DISMISSING COMPLAINT
UNIVERSITY OF MAINE, )
)
Respondent. )
__________________________________)
The date set forth in the second line of the first full paragraph
of page six of the order should be June 29, 1984, rather than June 21,
1984.
Dated at Augusta, Maine, this 3rd day of June, 1985.
/s/_________________________________
Parker A. Denaco, Executive Director
Maine Labor Relations Board