STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 97-12
Issued: December 1, 1997
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ASSOCIATED FACULTIES OF THE )
UNIVERSITY OF MAINE, )
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Complainant, )
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v. ) INTERIM ORDER
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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;
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(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
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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,
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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
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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.
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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
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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
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