STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 93-35 Issued: August 18, 1993 ________________________________________ ) UNIVERSITY OF MAINE SYSTEM, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) UNIVERSITY OF MAINE SYSTEM PROFESSIONAL ) STAFF ASSOCIATION, ) ) Respondent. ) ________________________________________) On May 4, 1993, the Maine Labor Relations Board ("Board") received a prohibited practices complaint from the University of Maine System ("University") alleging that the University of Maine System Professional Staff Association ("Association") had refused to bargain over the impacts of the merger of MPBN and WCBB,1 in violation of section 1027(2)(B) of the University of Maine System Labor Relations Act ("Act"), 26 M.R.S.A. 1027(2)(B) (Supp. 1992). On May 5, 1993, the executive director sent a letter to the University stating that the complaint did not constitute a validly filed complaint, since no proof of service had been included as required by Rule 4.04(A) of the Board's Rules and Procedures. The letter also stated that the complaint, if validly filed, would have been insufficient for three reasons: 1) untimeliness of the allegation; 2) failure to cite the sub- section(s) of the Act alleged to have been violated; and 3) failure to provide copies of the collective bargaining agree- ment related to the bargaining unit involved. _________________________ 1Effective April 9, 1992, the Maine Public Broadcasting Network (MPBN), operated by the University, merged with WCBB, operated by the Colby-Bates-Bowdoin Educational Telecasting Corporation, into the private nonprofit Maine Public Broadcasting Corporation. P.L. 1992, ch. 848. -1- The University filed proof of service of the complaint with the Board on May 17, 1993, and an amended complaint on May 20, 1993. On May 20th, the executive director dismissed the complaint, on the ground of untimeliness -- the complaint had been filed beyond the statutory, six-month limitations period. On June 4, 1993, the University filed a motion for review pur- suant to 26 M.R.S.A. 1029(2) (Supp. 1992). Oral argument was scheduled at the request of the complainant, and both parties were given the opportunity to file written argument on or before July 1, 1993. Neither party chose to do so. Oral argument was heard by Chair Peter T. Dawson, Employer Representative Howard Reiche, Jr., and Employee Representative George W. Lambertson on Thursday, July 8, 1993. F. Paul Frinsko, Esquire, represented the University, and Rolf W. Tallberg, Maine Teachers Association Uniserv Director, represented the Associa- tion. At the close of argument, the Board met to deliberate the matter. JURISDICTION The jurisdiction of the Board to hear this appeal and to render a decision and order lies in 26 M.R.S.A. 1029(2) (Supp. 1992). FINDINGS OF FACT Upon review of the entire record,2 the Board finds: 1. On June 29, 1992, the University filed a request for mediation of impact bargaining between the University and the Association. The parties were billed for the service pursuant to 26 M.R.S.A. 965 (2)(C) (Supp. 1992), and a mediator was _________________________ 2At oral argument, the University designated for the record "all correspondence and other evidentiary and documentary materi- als received or distributed by the Board in connection with this matter." Although the University stated that said correspondence dated back to August of 1992, in fact it dates back to June of 1992. -2- assigned. On July 23, 1992, the executive director received a copy of a letter from the Association to the University dated July 20, 1993. The mediator also was sent a copy. The letter stated: On June 25, 1992, the University made a request to the Maine Labor Relations Board for mediation in the matter of impact negotiations between the University of Maine Professional Staff Association and the University regarding the termination of MPBN employees. On June 19, 1992, the Association had informed the University that it wished to terminate impact negotia- tions on this matter, since it was clear that the parties were not going to agree on the matter of the status of the affected employees, and opted to allow the contract to stand as negotiated. It is the Association's position that no obliga- tion to participate in mediation exists, since the issues involved are already covered by the collective bargaining agreement, and the Association is under no obligation to bargain such issues. The fact that we agreed to discuss the issues does not obligate the Association to participate in mediation, or any other procedure other than those mandated by the Agreement. The Association believes the collective bargaining agreement covers the issues in dispute, and that it provides the process by which laid off employees are to be handled. 2. On August 3, 1992, the executive director received a copy of a letter from the University to the assigned mediator dated July 30, 1992. It stated: This letter is to assure you that despite the letter to me from Rolf Tallberg dated July 20, which you should have received a copy of, the University will attend the mediation session scheduled for August 19 and 20 at 107 Maine Ave., Bangor. I look forward to seeing you at that time. 3. On August 6, 1992, the executive director received a copy of a letter from the mediator to Mr. Tallberg dated July 30, 1992. The mediator wrote: -3- I am in receipt of your letter of July 20, 1992, which in effect, indicates that the Association does not want to meet relative to the University's request for mediation. I am suggesting that we meet on August 19, 1992, at 10:00 am, at the University's office on Maine Avenue, not to mediate, but to explore if there is a mutually agreeable avenue available to resolve your differences. This will not be considered a mediation meeting by either party and will be held without prejudice to the Association's claim that it is not obligated to negotiate the matter. Please contact me to discuss this proposal as soon as possible. 4. On August 28, 1992, the University filed a request for fact finding with the executive director. On that same date, the executive director forwarded a list of employer representatives and employee representatives to the University and the Associa- tion respectively, and requested that they each submit five representatives from their list, ranked in order of preference. By letter dated September 10, 1992, the University complied with the request. By letter to the executive director dated October 19, 1992, the Association declined to participate: In response to the University of Maine's request for Fact Finding in the dispute regarding the Univer- sity of Maine and the University of Maine Professional Staff Association, the Association would maintain that because this dispute regards specific provisions of a collective bargaining agreement now in force between the parties, the matter should be handled by the grievance procedure currently in effect as a part of the agreement and not through fact finding. The Association, therefore, declines to partici- pate in Fact Finding regarding this dispute. It is a matter best and appropriately handled in grievance arbitration. Please contact me if you have any questions regarding this matter. No list of preferred fact finders was submitted by the Association. -4- 5. By letter dated October 22, 1992, the executive director informed the parties that since the Association had declined to participate in fact finding, "it would be futile to appoint private fact finders and schedule a fact-finding pro- ceeding." The letter stated further: "Remedies are available under the University of Maine System Labor Relations Act." In his letter to the parties, the executive director included a copy of the Association's October 19th letter declining to partici- pate. 6. On November 4, 1992, the executive director received a request from the University to initiate interest arbitration procedures concerning the bargaining dispute between the parties. On that same date, the executive director informed the University that because the first two steps in the dispute resolution pro- cedures of the Act (mediation and fact finding) had not occurred, he could not comply with the request. He further stated: The union's position is that the subject of your earlier fact-finding request and of this arbitration request is not within the statutory duty to bargain created by 1026 of the University of Maine System Labor Relations Act ("Act"), 26 M.R.S.A. Ch. 12. As I indicated in my letter of October 22, 1992, remedies are available under the Act. 7. By letter dated November 13, 1992, the University responded to the executive director's letter of November 4th. It requested that he reconsider his decision not to initiate arbitration procedures on the grounds that 1) the University had participated in mediation and fact finding to the extent that it was able to do so; 2) the impasse required under section 1026(4)(A) for the executive director to act had occurred; and 3) the determination whether the request for interest arbitration is within the Association's statutory duty to bargain is best made by the interest arbitration panel. -5- 8. By letter dated November 18, 1992, the executive director responded to the University's request for reconsidera- tion. The letter stated, in part: I have re-examined the statute in light of your argument; however, you fail to distinguish between parties who are at impasse over the substantive issues on the table and parties who disagree whether bargain- ing is required by the Act. The dispute between the parties is of the latter type and it must be resolved before the parties can proceed through the impasse resolution procedures. Disputes concerning the scope of mandatory bargaining under the Act are within the original and exclusive jurisdiction of the Labor Relations Board and cannot be resolved by interest arbitrators. I can only reiterate that remedies are available to the University under the Act. DISCUSSION At issue in this appeal is whether the facts as alleged in the University's complaint, as a matter of law, constitute a prohibited act. 26 M.R.S.A. 1029(2) (Supp. 1992). The executive director found that they did not, since the complaint was filed more than six months after the alleged violation occurred. The University argues that its complaint was filed before the six-month period had run, and alternatively, that its complaint was timely because the limitations period has not even begun to run. We reject both arguments. Section 1029(2) of the Act states 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." It also states: "No such complaint shall be filed with the executive director until the complaining party shall have served a copy thereof upon the party named in the -6- complaint."3 Service is not defined in the statute. The Board has interpreted the purpose of the service requirement to be to give the respondent actual notice of the allegations within the six-month limitations period. Accordingly, in addition to its more general service rule (Rule 7.03)4, the Board has promulgated a separate rule for service of complaints. Rule 4.04(A) states: No prohibited practice complaint shall be filed with the Board until the complaining party shall have served a copy thereof upon the party against whom the charge is made. A statement of refusal of service or proof of service must be filed with the complaint. Proof of service may be in the form of either a certified mail receipt signed by the recipient addressee or a signed and dated acknowledgment of receipt by hand delivery. The Board received the University's complaint on May 4, 1993, but did not receive its proof of service until 13 days later, on May 17th. The University argues that in spite of Rule 4.04(A), its complaint was validly filed on May 4, 1993, since 1) it was deposited in the mail, addressed to the Association, on May 3, 1993, and therefore was served on the Association on that date pursuant to Rule 7.03 of the Board's Rules and Procedures; and 2) it was received at the Board's offices on May 4, 1993, accompanied by a letter certifying that the complaint had been served on the Association. We need not decide whether the failure to comply with Rule 4.04(A) is fatal, since even if we use May 4th as the date on which the complaint was validly filed, it was filed more than six months after the charged conduct occurred. _________________________ 3Similar language appears in the other three collective bargaining statutes that the Board administers and enforces. 4Rule 7.03 states that service is complete when "the paper is mailed to the party or the party's attorney, upon in-hand delivery to the recipient or by delivery to the recipient's office." -7- According to a letter from the Association to the University dated July 20, 1992, the Association first notified the Univer- sity on June 19, 1992, that it was terminating bargaining over the impact of the MPBN/WCBB merger. The July 20th letter itself reiterates the Association's position in no uncertain terms. By letter to the executive director dated October 19, 1992, the Association declined to participate in the fact finding requested by the University, and the executive director mailed a copy of that letter to the University on October 22nd. In some circumstances, repeated refusal to act constitutes "new" conduct for which a new six-month limitation period begins. In others, it does not. Where the complainant simply obtains from the respondent a reiteration of its previous decision, allowing the complainant to characterize the reiteration as new conduct would nullify the six-month requirement. Lindsay v. Teamsters Union Local 340, No. 92-24 (Me.L.R.B. Apr. 30, 1992). See also NLRB v. McCready and Sons, 482 F.2d 872 (6th Cir. 1973) (claim based on repeated refusal to execute contract barred by limitations period). That may not be the case where the reasons for refusing to act have changed. McDermott & Co. v. NLRB, 571 F.2d 571 (5th Cir. 1978) (second refusal to bargain based on different circumstances than first refusal). It might be argued that the University's cause of action arose (that is, the six- month limitations period began to run) when the Association first refused to bargain over the impact of the merger in June of 1992, since the basis for refusal has not changed. We need not decide whether the Association's later refusals constituted "new" conduct for which a new six-month limitations period began to run, since even the last refusal, on October 19, 1992 (a copy of which was sent to the University by the executive director on October 22, 1992), occurred more than six months prior to the filing of the complaint. The University ignores these dates and suggests that the -8- six-month limitations period did not begin to run until November 18, 1992, when the executive director responded to the Univer- sity's request for reconsideration of his refusal to initiate arbitration. At this point, according to the University, it had exhausted all administrative remedies available to it under the Act, and the limitations period began to run. We reject the University's position for two reasons. First, section 1029(2) of the Act makes it clear that the limitations period expires six months after the "alleged prohibited practice" occurs, and it is the Association that refused to bargain, not the executive director.5 Moreover, there is only one administrative remedy in the Act for an unlawful refusal to bargain: the prohibited practices complaint procedure spelled out in section 1029.6 Section 1026 of the Act contains procedures (mediation, fact finding and arbitration) to assist parties who are bargaining and are unable to reach agreement on a contract without the intervention of a third party. Nowhere in that section is there an alternative to section 1029 for remedying an unlawful refusal to bargain. In this connection, we must also reject the University's suggestion that the six-month limitations period has not even begun to run. The University reasons that until the executive director appoints a fact-finding panel as requested, and the Association fails to participate in fact finding, the statutory period for filing a complaint cannot run against the University. The University states further that in response to its petition _________________________ 5Of course, the University could have sought review of the executive director's refusal to act under the Administrative Procedure Act and Rule 80C of the Maine Rules of Civil Procedure. It did not do so. 6On three different occasions, the executive director pointed out to the University that it had remedies under the Act, and the University ignored him. -9- for initiation of interest arbitration procedures, the executive director has failed, as required by section 1026(4)(A) of the Act, to determine whether impasse has been reached, and if so, to issue an order requiring arbitration. Again, the University argues, the limitations period cannot run against it in these circumstances. The University's suggestion that neither an oral or written refusal to bargain by the Association, however explicit, triggers the limitations period -- that a cause of action arises only when the Association fails to attend dispute resolution proceedings that have been set up by the executive director -- needs no discussion.7 Nor can we take seriously its suggestion that by insisting that the executive director appoint a fact-finding panel and an arbitration panel, and unilaterally participating in proceedings before those panels, the University may avoid adjudication of whether the Association has a duty to bargain the impact of the MPBN/WCBB merger in the first instance. The Association's position is that it has no such duty, since the issues involved are already covered by the parties' collective bargaining agreement. If the Association is correct, the end result would be new contract provisions (presumably more favorable to the University) arrived at either through binding interest arbitration or implementation of the University's last best offer, depending on what impacts are at issue.8 _________________________ 7Even if the University were correct that some specific failure to act by the Association was required in order to trigger the limitations period, the Association's failure to provide its list of preferred employee fact finders would qualify. That failure occurred in October of 1992, more than six months before the complaint was filed. 8All mandatory subjects except salaries, pensions and insurance are subject to binding arbitration in the absence of agreement between the parties. 26 M.R.S.A. 1026(4)(B)(Supp. 1992). -10- We do agree with the University on one point: arbitration is the preferred route for the resolution of labor disputes. As the University is surely aware, however, interest arbitrators, whose job it is to fashion or recommend collective bargaining agreements where the parties are unable to agree, have no authority to resolve whether an existing agreement covers matters sought to be bargained. That must be determined through grievance arbitration, or by the Board in a prohibited practices proceeding. Accordingly, we will decline the University's request that we order the executive director to appoint either a fact-finding panel or an interest arbitration panel in this matter.9 In sum, we agree with the executive director that the University's complaint was not timely filed. We will affirm dismissal of the complaint. ORDER On the basis of the foregoing facts and discussion, 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. 1029 (1988 & Supp. 1992) and the Board's Rules and Procedures, it is hereby ORDERED: 1. That the executive director's summary dismissal of the University's complaint is affirmed. _________________________ 9As we pointed out earlier, if the University believed that the executive director improperly refused to act, it could have appealed that decision to Superior Court. -11- 2. That the University's request that the Board require the executive director to convene a fact-finding panel or an interest arbitration panel is denied. Issued at Augusta, Maine, this 18th day of August, 1993. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 1029(7) (Supp. /s/______________________ 1992), to seek review of this Peter T. Dawson decision and order by the Chair Superior Court. To initiate such a review, an appealing party must file a complaint /s/________________________ with the Superior Court within Howard Reiche, Jr. fifteen (15) days of the date Employer Representative of issuance of this decision and order, and otherwise comply with the requirements /s/________________________ of Rule 80C of the Maine Rules George W. Lambertson of Civil Procedure. Employee Representative -12-