STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 97-12 Issued: December 1, 1997 _______________________________ ) ASSOCIATED FACULTIES OF THE ) UNIVERSITY OF MAINE, ) ) Complainant, ) ) v. ) INTERIM ORDER ) BOARD OF TRUSTEES OF THE ) UNIVERSITY OF MAINE SYSTEM, ) ) Respondent. ) _______________________________) On December 19, 1996, the Associated Faculties of the University of Maine (hereinafter referred to as "AFUM") filed a prohibited practice complaint with the Maine Labor Relations Board ("the Board") against the Board of Trustees of the University of Maine System ("the University"), which alleged the University failed to properly include Ms. Mary Dolan in the AFUM bargaining unit during her employment for the period of January, 1996, through May, 1996, in violation of the University of Maine System Labor Relations Act ("UMSLRA") Section 1027(1)(A), (B) and (E). By letter dated December 20, 1996, the executive director informed AFUM Director F. Stewart Kinley that "unless further explanation is provided bringing the complaint within [the six- month statute of limitations] the complaint appear[ed] to be time-barred." AFUM filed an amended complaint on January 7, 1997. The amended complaint explains that: (i) in February, 1996, the University, in conformity with the parties' collective bargaining agreement, provided AFUM a listing of faculty members which purportedly included all members of the AFUM bargaining unit, and Ms. Dolan's name was not on this list; (ii) neither AFUM's leadership nor AFUM Director Stewart Kinley was aware prior to September, 1996, of Mary Dolan's exclusion from the AFUM unit; -1- ______________________________________________________________________________ (iii) in September, 1996, Ms. Dolan sought the assistance of AFUM to get her health insurance extended beyond September; (iv) once AFUM's Director was made aware of her exclusion from the unit, AFUM sought "to clarify and rectify" Ms. Dolan's status with representatives of the University; and (v) "the refusal of the University to rectify the error of Mary Dolan's having been excluded from the bargaining unit [between September and December, 1996] constitutes a prohibited practice." The University filed a response to the complaint on January 21, 1997, which addresses the merits of the complaint, raises three affirmative defenses and requests that the complaint be dismissed. The University contends Ms. Dolan's name was not included in a list of unit members provided to AFUM in February, 1996, "for the sole reason that since December, 1995, Ms. Dolan has not been a 'university employee' as that term is defined in 26 M.R.S.A. 1022." The affirmative defenses raised by the University are: (i) the complaint is time-barred; (ii) the complaint fails to allege any facts constituting a violation of UMSLRA; and, (iii) to the extent the complaint alleges a violation of any of the terms of the collective bargaining agreement, the agreement's provision for binding arbitration must be honored and implemented. A prehearing conference was conducted on October 17, 1997, at which time argument was taken on the record in connection with the University's request for dismissal. AFUM was represented by its Director, F. Stewart Kinley, and the University was repre- sented by F. Paul Frinsko, Esq. The prehearing officer referred the University's request for dismissal to the full Board for determination and the matter was deliberated on November 13, 1997, by Peter T. Dawson, Chair, Gwendolyn Gatcomb, Employee Represen- tative and Karl Dornish, Jr., Alternate Employer Representative. For the reasons stated below, the University's request for dismissal based on the second and third affirmative defenses is denied, and we will reserve judgment on the issue of whether this -2- ______________________________________________________________________________ complaint is time-barred until further evidence is taken in conjunction with a hearing on the merits of this complaint. The thrust of the complaint filed by AFUM concerns Ms. Mary Dolan and her bargaining unit status while employed as a lecturer at the University College in Bangor during the 1996 spring semester. AFUM contends the University's erroneous classifica- tion of Ms. Dolan interfered with her rights under UMSLRA and denied AFUM the opportunity to bargain with the University on Ms. Dolan's behalf. The complaint clearly alleges facts which, if proven, would constitute a violation of 26 M.R.S.A. 1027(1) (A), (B) and (E); therefore, we deny the University's request for dismissal of this case on that basis. See Wone v. City of Portland, 466 A.2d 1256 (Me. 1883) (Maine Labor Relations Board is appropriate forum for unfair labor practice complaint alleging erroneous classification of an employee by the public employer); AFSCME, Council 74 v. City of Bangor, No. 80-41, 2 NPER 20-11042 (Sept. 24, 1980); aff'd in part and modified, City of Bangor v. AFSCME, Council 74 and MLRB, No. CV-80-574 (Me. Super. Ct., Pen. Cty., Jan. 28, 1982); City of Bangor v. AFSCME, Council 74 and MLRB, 449 A.2d 1129 (Me. 1982) (City violated the Act by failing to treat seasonal laborers as members of bargaining unit and by failing to bargain with union regarding effects of termination of seasonal employees). We also deny the University's request to dismiss this case or, in the alternative, to defer our ruling based on the existence of a binding arbitration clause in the parties' collective bargaining agreement. There is no dispute that, at the time of Ms. Dolan's employment with the University, the parties' earlier collective bargaining agreement had expired and a successor agreement had not yet been executed. In these circumstances, the University is not obligated to arbitrate any grievance on Ms. Dolan's behalf. Maine State Employees Association v. Bureau of Employee Relations, 652 A.2d 654 (Me. 1995); Teamsters Union Local #340 v. Portland Water District, -3- ______________________________________________________________________________ 651 A.2d 339 (Me. 1994). We also note that, although parties may always agree to arbitrate, AFUM has not filed a grievance and the University is not willing at this time to waive any procedural defenses it may have (e.g., timeliness) should one be filed by AFUM. Deferral under these circumstances would be an empty gesture; therefore, we deny the University's request to dismiss or defer this complaint. We do not have an adequate factual record upon which to decide the University's request for dismissal based on the timeliness of the complaint. The six-month statute of limitations begins to run when the complainant knew, or reasonably should have known, of the occurrence which allegedly violated the Act. Coulombe v. City of South Portland, No. 86-11, slip op. at 8, 9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986). In this case, the "occurrence which allegedly violated the Act" was the exclusion of Ms. Dolan from the AFUM unit and the University's failure to bargain with AFUM concerning the terms and conditions of her employment.[fn]1 We know that AFUM, the named complainant, was not informed by Ms. Dolan until September, 1996, of the matter which gave rise to this complaint. However, the gist of this complaint concerns Ms. Dolan alone, and we do not know when Ms. Dolan "knew or reasonably should have known of the occurrence which allegedly violated the Act." We believe it is appropriate to impute Ms. Dolan's knowledge of the facts and circumstances surrounding the alleged violation to AFUM for the purpose of determining the time within which a prohibited practice complaint should have been filed, and that the onus is properly placed on Ms. Dolan to inform AFUM in a ____________________ 1 We reject AFUM's attempt to bring this complaint within the six- month statute of limitations by casting the University's "failure to rectify the error" between September and December, 1996, as the occurrence which gave rise to this complaint. The occurrence which gave rise to this complaint is the determination of Ms. Dolan's unit status in February, 1996, and the resulting failure to bargain with AFUM about the terms and conditions of her employment. -4- ______________________________________________________________________________ timely manner of her circumstances. This is not a case where the employer has instituted a unilateral change in working conditions which affect the entire unit, in which case we have placed the onus on the employer to give notice directly to the agent in order to afford it the opportunity to bargain over the intended change. Teamsters Local Union No. 48 v. Washington County Commissioners, No. 89-07, slip op. at 8, 11 NPER ME-2004 (Me. L.R.B. Dec. 12, 1989) (Employer's notice to unit employees is not tantamount to giving such notice to the bargaining agent in the unilateral change context); Coulombe, slip op. at 8. AFUM's Director stated at oral argument that the parties' agreed-upon system for identifying unit members (the lists of unit members provided to AFUM twice a year) works "actually quite well." In these circumstances, we fail to see what more the University could have done to inform AFUM of its decision to classify Ms. Dolan as they did and, in light of the apparent success of the system up to this time, we cannot fault AFUM for placing its reliance on the University's lists. On the other hand, Ms. Dolan had all of the information necessary to form a basis for believing her rights under UMSLRA may have been violated. It is fair to place the responsibility for taking action in this regard squarely on Ms. Dolan. This complaint is time-barred if it was not filed within six months of the date upon which Ms. Dolan knew, or reasonably should have known, of the occurrence which allegedly violated the Act. Were we to find otherwise, the six-month statute of limitations would become a nullity in those cases where unit members, by design or otherwise, fail to timely notify the bargaining agent of the facts which give rise to prohibited practice complaints. For all of the policy reasons which favor the statute of limitations on complaints, we reject any such attempt to extend the limitations period. For the reasons stated above, we DENY the University's request to dismiss this complaint on the basis of failure to -5- ______________________________________________________________________________ state a claim; we DENY the University's request to dismiss or defer this complaint based on a grievance arbitration procedure in the parties' expired collective bargaining agreement; and we reserve judgment on the issue whether this complaint is time- barred until further evidence is taken in conjunction with a hearing on the merits of this complaint. ORDER On the basis of the foregoing discussion and pursuant to the provisions of 26 M.R.S.A. 1029(2) (1988 & Supp. 1996), it is hereby ORDERED: The University's request for dismissal is DENIED in part and we reserve judgment of the issue whether this complaint is time- barred until further evidence is taken in conjunction with a hearing on the merits of this complaint. The prehearing officer shall issue a prehearing memorandum, and the executive director shall schedule an evidentiary hearing on the merits of AFUM's complaint. Issued at Augusta, Maine, this 1st day of December, 1997. MAINE LABOR RELATIONS BOARD /s/____________________________ Peter Dawson Chair /s/_____________________________ Gwendolyn Gatcomb Employee Representative /s/____________________________ Karl Dornish, Jr. Alternate Employer Representative -6- ______________________________________________________________________________