Case No. 93-35
                                      Issued:  August 18, 1993  

                         Complainant,   )
               v.                       )   DECISION AND ORDER
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.  


     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

     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.
                        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


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
          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:


     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

     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

          Please contact me if you have any questions
     regarding this matter.

No list of preferred fact finders was submitted by the


     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-

     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.


     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.  


     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

     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


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

     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


     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


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.    


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

     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.


     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

     In sum, we agree with the executive director that the
University's complaint was not timely filed.  We will affirm
dismissal of the complaint.


     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

     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.

     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