Case No. 09-06
Issued: June 25, 2009







	    Complainant Stephen Duren filed a prohibited practice
complaint on September 24, 2008, in which he alleged that the
Maine Education Association violated section 1027(2)(A) of the
University of Maine System Labor Relations Act, Title 26, 1021
et seq., by failing to process his grievances and advocate for
him when it should have, thereby breaching its duty of fair
representation.  The Complaint described various incidents that
occurred during 2004, 2005, 2006, 2007 and 2008 which formed the
basis for the alleged violation.        
     On October 10, 2009, Mr. Shawn Keenan, Counsel for the Maine
Education Association (MEA or "the Union"), filed a Motion to
Dismiss with the Board's Executive Director on the grounds that
the complaint was untimely under the applicable six-month
limitation period found in section 1029(2) of the Act. The Com-

plainant, through his attorney Mr. Gregg Frame, filed a response
to this motion on November 4, 2008.  On November 18, 2008, the
Executive Director requested that the Complainant provide more
specific information in his pleadings, particularly with respect
to the grievance initiated in May of 2007.  The more detailed
pleadings were received in the form of a letter from Mr. Frame 
dated November 25, 2008.  The Executive Director issued his
ruling on the sufficiency of the complaint on December 5, 2008, 
[end of page 1]

pursuant to MLRB Rule Ch. 12, 8.   In that ruling, the Executive
Director dismissed as untimely all aspects of the complaint
except for the allegations concerning the Union's handling of the
grievance Mr. Duren initiated in May of 2007.  The Executive
Director instructed the Complainant to file an amended complaint
limited to the handling of the May 2007 grievance and to include
any relevant allegations contained in the November 25, 2007,
letter, as that was unsworn.  The sworn copy of the amended
complaint was filed and served on the respondent, and the Union
filed its response on January 22, 2009.
     A prehearing conference was held on February 25, 2009, with
Board Chair Barbara Raimondi serving as the prehearing officer. 
As required by MLRB Rule Ch.12, 10, the parties presented the
documentary evidence they intended to introduce at the hearing,
identified witnesses, and discussed various issues related to the
presentation of their cases.  It was at this point that MEA first
learned that Mr. Duren could not produce any evidence that the
grievance presented orally in May of 2007 had actually been filed
in written form by the Union or by Mr. Duren himself.  As a
result, Mr. Keenan renewed his Motion to Dismiss on the grounds
that the complaint was untimely under the six-month limitation
period found in 26 M.R.S.A. 1029(2).  The parties agreed to
submit stipulations for the purpose of deciding the motion and
agreed on a briefing schedule.  The stipulations and briefs were
all submitted by April 15, 2009.  The Board, consisting of 
Robert L. Piccone, Sandra S. Carraher, and Board Chair Raimondi
met on May 4, 2009, to deliberate this matter.
                       STIPULATIONS OF FACT

1.  At all relevant times, Mr. Duren has been employed as a
faculty member at Kennebec Valley Community College (KVCC), a
community college within the definition of 26 M.R.S.A.  1022(1-
C).  Mr. Duren is part of the Humanities and Social Sciences 

[end of page 2]

Department at KVCC.  

2.  Mr. Duren has been a member of the Maine Education
Association (MEA), a bargaining agent within the meaning of 26
M.R.S.A.  1022(1-B), since September of 2004.

3.  Near the conclusion of the 2007 spring semester, College
President Barbara Woodlee announced that the Humanities and
Social Sciences Department would be split into two departments. 
President Woodlee then unilaterally announced the appointment of
Department Chairs for each.

4.  The CBA between the MEA and the Maine Community College
System Board of Trustees requires the College President to make a
formal solicitation from the department faculty for a
recommendation prior to making a Department Chair appointment.

    Article 22(C)(1) of the CBA states, "Department chairs shall
be appointed annually.  This appointment shall be made at the
discretion of the President or his/her designee and under the
terms consistent with the agreement.  The President or his/her
designee shall solicit a formal recommendation annually from the
department faculty prior to making an appointment.  Such recom-
mendation may be the result of a vote taken by the department."

5.  Mr. Duren initiated a grievance in May 2007 to formally
complain about the manner in which President Woodlee appointed 
the Department Chairpersons to the newly formed departments.  The
remedy sought was withdrawal of the Department Chair appointment
and compliance with the formal solicitation procedure and method
of appointment as stated in the CBA.

6.  Mr. Duren's grievance was properly initiated according to the
terms of Article 8B of the CBA.

7.  Mr. Duren immediately discussed these appointments with MEA
representative (then Shop Steward) Marge York.  Mr. Duren
suggested to Ms. York that the grievance be extended to all
Department Chairs.

8.  In mid-May 2007, Mr. Duren orally presented the grievance to
the College Vice President, Karen White, which Ms. York also

9.  Following the hearing, Vice President White sent an email to
Mr. Duren on June 26, 2007, stating that the President "would
like to let the appointment stand" and would "meet and discuss
concerns" in the fall of 2007.  This "decision" was non-
responsive to Mr. Duren's grievance, contained no findings of 

[end of page 3]

fact or evidence that the College had complied with the CBA
provision, and was devoid of any interpretation of the contract
language that would be said to run counter to Mr. Duren's

10.  Mr. Duren informed Ms. York that the College's cursory
response was unacceptable.  In a June 28 email to Ms. York,   
Mr. Duren wrote:  "The point of the grievance is that it was made
contrary to contract . . . I requested compliance with the con-
tract, which requires the President to solicit a formal recom-
mendation and receive a formal response, a meeting and a vote
being one means of doing so.  Please take the next step in the
grievance process in a timely manner, or advise me how to move
this thing along, or let me know of any reason not to do so."

11.  On September 10, 2007, Mr. Duren finally did hear back from
the MEA.  Suzanne Joy, the new Shop Steward, emailed Mr. Duren
that she would follow-up on the grievance as soon as she received
the background information from her predecessor, Ms. York.  About
midway through the fall 2007 semester, Ms. Joy indicated to Mr.
Duren that she had still not received any of the background
information or materials from Ms. York.  Mr. Duren took it upon
himself to provide Ms. Joy with what information and materials he
had, absent any notes Ms. York may have produced.  Mr. Duren
asked what he needed to do in order to receive more responsive
service from MEA.  In response, Ms. Joy told Mr. Duren, "You
would have to sue."

12.  Mr. Duren renewed his suggestion to Ms. Joy that the
grievance be broader in scope and extent (sic) to the appointment
of all Department Chairs.  Ms. Joy responded that she "did not
have time" and "why bother?"  Ms. Joy declined to extend Mr.
Duren's grievance to all Department Chairs.  Ms. Joy, however,
gave him no indication that she would not pursue his original
grievance, although she did state that whether the President
reopened the Department Chair appointment as he had requested,
Ms. Joy doubted the end result would be any different since by
contract the President had the final decision and would simply
appoint the same person again.  Indeed, since the date of Mr.
Duren initiating his grievance, neither Ms. Joy nor any other MEA
representative had given Mr. Duren any indication or suggestion
that his grievance was not being pursued.  

13.  At a fall 2007 meeting, the Local Union President, Bill
Dolan, stated that about twenty grievances were backlogged for
service from the Union, and that the Executive Committee had
discussed this backlog with Mr. Wooten at a meeting.  Mr. Dolan
himself noted that the MEA is "doing nothing about these
grievances."  Mr. Dolan added that other local bargaining units 

[end of page 4]

were working to obtain better service from the MEA.  At the fall
2008 meeting, essentially the same report on the lack of pursuit
of grievances was made.

14.  As a result of the above mentioned revelations by Mr. Dolan,
Mr. Duren made a series of oral requests to both Mr. Dolan and
Ms. York for minutes of the Executive Committee meeting at which
the grievance backlog was discussed with Mr. Wooten.

15.  To date, Mr. Duren has not received the minutes from the
Executive Committee meeting that he requested.

16.  In February 2008 Mr. Duren again inquired as to the status
of his grievance.  Ms. Joy responded that "we're working on it,"
and that she had contacted Bill Dolan and Marge York for any
information they had about the status of his grievance but had
not heard anything yet.  Mr. Duren believed the MEA was pursuing
the grievance. 

17.  When the Department Chair appointments again took place in
May 2008, still without regard to the contractual procedure,  
Mr. Duren stepped up his efforts to learn of the status of his
grievance.  Mr. Duren spoke with Mr. Dolan, who again mentioned
widespread neglect of the membership by the MEA and commented on
the backlog of cases and member frustration.

18.  In May 2008 Mr. Duren's inquiries to the past and present
shop stewards and the Local President all referring questions
from Mr. Duren to UniServ Director Wooten.

19.  Mr. Wooten was not responsive to Mr. Duren's calls and
emails until, on June 2, 2008, Mr. Duren received an email
inviting him to "reinitiate" the grievance.  Up until this point,
Mr. Duren had received no indication or express confirmation that
his grievance was not being pursued or had in fact been dropped.

20.  On September 25, 2008, Mr. Duren filed this Prohibited
Practice Complaint with the Maine Labor Relations Board.

21.  Four years earlier, on August 16, 2004, Mr. Duren had
received a written reprimand from Dean Karen White based on
conclusions regarding an investigation into allegations of
inappropriate behavior by Mr. Duren toward students and employees
during the 2003-2004 academic year.  In a letter dated August 26,
2004, President Woodlee informed Mr. Duren that KVCC would be
discontinuing his designation as Department Chair of Humanities
and Social Sciences.

22.  Mr. Duren presented an oral grievance to Dean White in 

[end of page 5]

response to the reprimand and pursuant to Article 8B of the
relevant CBA.

23.  On October 4, 2008, Mr. Duren composed and filed a written
grievance with KVCC President Woodlee alleging, among other
contract violations, a lack of just cause for his August 26,
2004, reprimand and subsequent relegation from the position of
Department Chair of Humanities and Social Sciences.  Mr. Duren
received an unsatisfactory response from President Woodlee
regarding his written grievance and so appealed in writing to
System President John Fitzsimmons.

24.  On October 20, 2004, Dean White acknowledged receipt of the
October 4 grievance, and asked that the matter be heard at the
oral stage (Article 8B) of the grievance procedure.  Mr. Duren
declined to accept this request in a response dated October 27,
2004, citing the administration's failure to timely answer either
his oral grievance or his written grievance.

25.  By letter of October 22, 2004, Mr. Duren advanced his
grievance to System President John Fitzsimmons under Article 8D,
citing the failure of the College President to respond in writing
to his grievance under Article 8C.

26.  By letter of November 4, 2004, Human Resources Director Kim
Ehrlich wrote to MEA representative Tim Wooten, suggesting that
they mutually agree to suspend the time frames for the system
level appeal until Mr. Duren's grievance could be heard at the
College level.  Mr. Wooten accepted this proposal to extend the
grievance time limits.

27.  On December 17, 2004, a grievance hearing was held at
College President Woodlee's level, at which Mr. Duren and Mr.
Wooten (among others) were present.  Near the conclusion of this
meeting, Mr. Wooten agreed to President Woodlee's request that
she be given until January 7, 2005, to respond.

28.  After the grievance was formally denied by President
Woodlee, the grievance was advanced to the System level once
again, and on June 28, 2005, a hearing was held in the presence
of Ms. Ehrlich, Mr. Duren, and Mr. Wooten (among others).  When
the grievance was again denied, Mr. Wooten demanded that the
matter be submitted to binding arbitration.  

29.  In lieu of arbitration, Mr. Duren's grievance was
successfully resolved in the presence of mediator Ann Gosline.

30.  The 2007 spring term for complainant's courses at KVCC runs
from 1/16/07 to 5/12/07.  The 2007 fall term runs from 8/27/07 to 

[end of page 6]

12/16/07.  And the 2008 spring term goes from 1/15/08 to 5/7/08.  

31.  The following documents are stipulated to be admitted:

R-4.  "Appendix D, Grievance Form" dated October 4, 2004, to
Barbara Woodlee from Marj York and Mr. Duren; with Attached 12
page statement by Mr. Duren, Subject:  "Statement of Facts and
Evidence Supporting Grievance";

R-5.  October 20, 2004, letter to Mr. Duren from Karen White: 
"President Woodlee reviewed your written grievance";

R-6.  October 22, 2004, letter to John Fitzsimmons from Mr.
Duren:  "Enclosed is a copy of a grievance that, regrettably";
with "Appendix D, Grievance Form" containing Grievant's note at
the bottom:  "No reply received";

R-7.  October 24, 2004, letter to Karen White from Mr. Duren: 
"Thank you for your letter of October 20";

R-8.  November 4, 2004, letter to Tim Wooten from Kim Erhlich: 
"I am in receipt of the grievant's System level appeal. 

     Counsel for the Maine Education Association "renewed" its
Motion to Dismiss at the prehearing conference on the grounds
that the complaint was untimely.  The parties subsequently agreed
upon thirty stipulations of facts for the purpose of determining
the timeliness of the complaint and agreed to admit as evidence
the exhibits labeled R-4 through R-8.[fn]1  Although the Union
labels its motion a 'motion to dismiss'[fn]2, when it comes to
determining the standard of proof to be used, the motion is in
essence a 

     1  As we refer these facts, we will identify the source of each
with "Stip. #", "R-#", and will refer to the collective bargaining
agreement as "CBA".

     2  We note the Board routinely uses the term "dismiss" throughout
its proceedings, even the "dismissal" of cases after hearing and
argument.  See 26 M.R.S.A. 1029(4).

[end of page 7]   

motion for judgment as a matter of law.[fn]3  If it were a
motion to dismiss based on the allegations in the complaint, we
would accept the allegations as true and view the complaint in
the light most favorable to the Complainant.  See, e.g., William
D. Neily v. State of Maine and MSEA, No. 06-13 at 6 (May 11,
2006), aff'd No. Mem 07-89 (Me. May 15, 2007).  That standard is
not appropriate when a stipulated record is presented, as in this
case.[fn]4  As with any case decided on a record, the Board
assigns to each party the ordinary burden of proving by a
preponderance of the evidence any matter raised.  See 26 M.R.S.A.
1029(3) and (4).  The Union, as the party who raised timeliness
as an affirmative defense, must produce evidence sufficient to
establish the validity of that defense.  MSEA v. State of Maine,
No. 82-05, 8 (Dec. 22, 1982), rev'd on other grounds, 499 A.2d 1228 (Me. 1985).  

     The Union contends that Mr. Duren's prohibited practices
complaint should be dismissed because it is barred by the
limitations period contained in the University of Maine System
Labor Relations Act.  Title 26, section 1029(2) states, in
relevant part, 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."   The
six-month limitation period represents the legislative policy 

     3  This is comparable to Rule 50(d) of the Maine Rules of Civil

     4  The Board's authority to proceed in this manner is found in
MLRB Rule Ch. 12, 10(7), which states:
     Dispositive Legal Issue.  If it appears to the prehearing
     officer that the determination of a legal issue will resolve the
     dispute and render a fact hearing unnecessary, the prehearing
     officer may order a severance and fix a briefing schedule to
     enable the Board to first determine the legal issue.  If the date
     for a fact hearing has already been set by the executive
     director, the prehearing officer may order that the hearing be

[end of page 8]

decision that a short period of repose for disputes arising under
the Act was a necessary element in the public policy of
"promot[ing] the improvement of the relationship between public
employers and their employees."  26 M.R.S.A. 1021.  The limit on
the Board's authority not only helps to stabilize harmonious
bargaining relationships, it protects all of the parties from
having to defend stale allegations when witnesses are
unavailable, documents are missing, and memories of particular
events are vague or confused.[fn]5  The Board agrees with the
Law Court that the limitations period in the Act, like other
statutes of limitations in Maine, must be "construed strictly in
favor of the bar which it was intended to create."  White v.
McTeague, Higbee, Case, Cohen, 2002 ME 160, 8.

     We have held that the six-month limitations period begins to
run when the complainant knew, or reasonably should have known,
of the occurrence of the event which allegedly violated the Act. 
Coulombe and South Portland Prof'l Firefighters v. City of South
Portland, No. 86-11 at 8 (Dec. 29, 1986)(Six months begins to run
when union learned of employer's use of new condition-of-
employment agreement, not when employer decided to use it.); MSAD
No. 45 v. MSAD No. 45 Teachers Association, No. 82-10 at 12
(Sept. 17, 1982)(six-month period runs from the date the union
first learned of agreement employer illegally made with
individual employee); Auburn School Administrators v. Auburn
School Committee, No. 91-19 at 14 (Oct. 8, 1991) (Date that
employees expected to receive pay increase that was not 

     5  See Machinists Local Lodge No. 1424 (Bryan Mfg. Co.) v. NLRB,
362 U.S. 411, at 420 and n. 10 (1960) (citing congressional record in
discussing similar policies behind six-month limitation period of the
National Labor Relations Act).  See also Tim Dowling et al. v. Richard
Salewski, 2007 ME 78, 11 ("The purpose of statutes of limitations is
'to provide eventual repose for potential defendants and to avoid the
necessity of defending stale claims.'" quoting Langevin v. City of
Biddeford, 481 A.2d 495, 498 (Me. 1984)).

[end of page 9]

forthcoming was the start of the six-month period).  While
evidence of events outside the six-month period may be used to
shed light on the acts occurring within the six-month period, a
party may not rely on those events to prove the illegality of
conduct occurring within the six-month period.  See Teamsters
Local 48 v. City of Waterville, No. 80-14 at 2-3 (April 23,
1980)(Complaint was time-barred because the only event within
six-month period was legal denial of grievance and while basis of
grievance may have been a prohibited practice, it occurred more
that six months previously), citing Machinists Local Lodge No.
1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 420 (1960)(Complaint
dismissed as time-barred because enforcement of illegally-
executed contract was wholly benign and contract was illegally
executed more than six months prior to the charge). 
     In the present case, the Complainant alleges that the Union
violated the Act by processing his grievance in an arbitrary
manner.  The significant event here is the Union's failure to
submit in written form the grievance Mr. Duren initiated orally
in May of 2007.  The question is, therefore, when did Mr. Duren
know, or should he reasonably have known, of the Union's failure
to submit his grievance?  If the complaint was not filed within 6
months of that date, it is not timely.  The Complainant contends
that he did not know that the grievance had been "dropped" until
June 2, 2008, when the Union representative told him to re-file
his grievance.  The Union contends that the Complainant knew that
the Union failed to submit his grievance in September of 2007. 
     The relevant facts are as follows:  Mr. Duren orally
presented his grievance to the College Vice President, Karen
White, in mid-May of 2007.  Stip. #8.  His grievance was
initiated properly and in accordance with the requirements of the
first step of the grievance procedure (the "oral procedure")
specified in Article 8(B) of the collective bargaining agreement. 

[end of page 10]

Stip. #6.  The grievance alleged that the College failed to
follow the procedure established in the contract for the
appointment of Department Heads.  Stip. #5.  Also in attendance
at the oral presentation of his grievance was Ms. Marge York, the
MEA representative or shop steward.  Stip. #8.

     The grievance procedure requires the Vice President[fn]6 to
give the grievant an oral response to the grievance within five
days of the meeting with the grievant.  CBA Art. 8(B)(3).  The
Vice President sent an email to Mr. Duren on June 26, 2007,
stating that the President "would like to let the [department
head] appointment stand" and "would meet and discuss concerns" in
the fall of 2007.  Stip. #9.     

     On July 28, 2007, Mr. Duren sent an email to Ms. York, the
MEA representative, stating that he felt Vice President White's
response was unacceptable.  He asked her to "take the next step
in the grievance process in a timely manner, or advise me how to
move this along, or let me know of any reason not to do so." 
Stip. #10.  The collective bargaining agreement requires that any
appeal from the denial of a grievance at the oral stage must be
submitted in writing to the College President with ten days of
the oral response.  Art. 8 (C)(1).  The President, in turn, must
respond to the grievant in writing within ten (10) days of
receipt of the written grievance.  Art. 8 (C)(2). 
     In light of the summer break, the time frame for appealing
the grievance to the President in writing would begin to run as
soon as the fall semester began on Monday, August 27, 2007.[fn]7 

     6  The grievance procedure defines "Vice President" to include
the Academic Dean of the College.

     7  The parties stipulated that spring term at Kennebec Valley
Community College ended on May 15, 2007, and fall term began on 
August 27, 2007.  Stip. #30.  The basic annual contract runs from
August to May.  CBA Art. 27.

[end of page 11]  

deadline for filing the appeal would be ten working days from
August 27, or Monday, September 11, 2007.  Based on these
restrictions, the outer limit of the date by which the President
"must respond to the grievant in writing" is September 26,
     The stipulations and documents presented convince us that
Mr. Duren knew by the end of September, 2007, that MEA had not
submitted his grievance in writing to the College President in
time to meet the deadline.  The parties' stipulations and
Exhibits R-4 through R-8 relating to the grievance filed by   
Mr. Duren against the College in 2004 are compelling evidence
that Mr. Duren knew precisely what the deadlines were.  The first
exhibit, R-4, is the grievance form dated October 4, 2004, signed
by MEA's steward Marjorie York and Mr. Duren as the grievant. 
Attached to the grievance form is the 12-page, single-spaced memo
composed by Mr. Duren to President Barbara Woodlee entitled
"Statement of Facts and Evidence Supporting Grievance; Redress
Sought."  Stip. #23 and R-4.  The basis for the grievance was
primarily that the College did not follow the provisions of the
contract in investigating complaints lodged against him.  R-4. 
     Of particular interest to us in considering the present
motion is the fact that the contents of the 2004 grievance
demonstrates Mr. Duren's comprehensive knowledge and under-
standing of the provisions of the collective bargaining agree-
ment.  In his grievance, he refers to six separate articles in
the contract that he argues were not followed or were improperly
applied.  His use of the various contractual provisions to
support his grievance was rationally presented, with well-
articulated arguments and clearly presented facts.  Even at the
early stage of submitting the 2004 grievance in written form,  

     8  MEA cites September 26, 2007, as the date the written response
should have been received.  Brief at p. 4.

[end of page 12]

Mr. Duren pointed out the contractual requirement of a timely
response.  Mr. Duren stated in his written grievance that he had
presented it orally and had waited for a time to allow for an
oral response. R-4, pp. 1, 11.  He wrote,
     Already the lack of response is out of compliance with
     the oral grievance procedure outlined in the contract,
     and the lack of a clear response inhibits this written

R-4, p. 1.

     In response to his written grievance, President Woodlee
concluded that his grievance had not been "heard" at the oral
stage and directed the Acting Academic Dean to invite him to meet
for the first (oral) step of the grievance.  R-5.  On October 26,
2004, Mr. Duren responded by forwarding the grievance and a cover
letter to the President of the Maine Community College System,
stating, "This letter and the accompanying grievance are to serve
as my statement of appeal pursuant to Article 8 D."  R-6.  
Mr. Duren also wrote: 
     Please note that the covering form does not include an
     administrative record of processing or response.  That
     is because I have received no written response nor
     request to meet pursuant to Article 8 C -this in spite
     of the emphatic contractual language that the college
     President must respond.

     I have received a much-belated request, which refers
     only to Article 8 B, to return to the oral stage of the
     procedure because it was not "heard" at this stage by
     administration.  I have already cooperatively partici-
     pated in the oral process and before it I used ordinary
     means of professional management and college policy to
     resolve disagreements in good faith.  However you view
     each point of my written grievance, I hope you can
     understand why I would have little faith or confidence
     in a return to in-house-oral resolution.  My grievance-
     documents that I presented it orally in good order.  The 
     lack of a timely and purposeful response from adminis-
     tration simply reinforces points in the written 

[end of page 13]

     grievance as to communication and dispute resolution.  
     The same can be said of the lack of a timely response 
     or any response pursuant to section 8 C that addresses 
     the points of the written grievance.

R-6 (emphasis in original).  Mr. Duren's own written words
demonstrate his understanding of the requirements of the griev-
ance procedure contained in the collective bargaining agreement
and are pointed indicators of his knowledge of the subject. 
     In addition to his prompt appeal to the System President,
Mr. Duren also wrote to Dean White refusing her request to
revisit the oral stage of the grievance procedure.  In this
letter, Mr. Duren highlighted the Dean's choice of words that the
grievance was "not heard"[fn]9 at the first stage of the
procedure, and observed that it was not for his want of trying. 
He states:

     Note that the oral grievance was properly presented and
     then properly followed up in written form.  As the
     grievant, I have met all procedural requirements in
     good faith, so I am pleased to observe that you have
     presented no concerns in this regard.

     In addition to not being heard properly at the first
     stage, the oral grievance remains unanswered, long past
     the 5-day response requirement.  In addition, the
     written grievance remains unanswered in writing by the
     President within 10 days, as mandated by Article 8 C.  

     Nothing in the contract authorizes the President to
     request or require that the procedure revert to stage
     1.  Nor does the contract compel the grievant- the-
     more-so one who has cooperated in every way- to revisit
     the oral stage as you requested.        

     In addition, the opportunity to delay advancement of
     the written grievance, or to reach an amicable college-
     level resolution through a meeting to discuss it, has
     passed.  No request, nor any written response to the
     points of the grievance pursuant to Article 8 has been
     presented, and the 10-day time frame has expired.

     9  When he writes that it was "not heard properly," we gather he
was employing a play on words to mean that it fell on deaf ears.

[end of page 14]

     The contract does affirm, in both Article 8 B, 1 b and
     Article 8 F, 7, that the procedure may continue at the
     System President level.  Accordingly, I have forwarded
     the grievance to the System President.
R-7 (emphasis in original).  Mr. Duren made a handwritten note on
the copy of the grievance form included with his appeal in which
he highlighted the fact that the College President had not
responded to the grievance.  R-6, p. 3.  Again, this letter from
Mr. Duren unequivocally demonstrates his thorough understanding
of the restrictive time limits at the first two steps of the
grievance procedure as well as the effect of a failure to meet
those requirements.      

     In a similar vein, the stipulations and documentary evidence
demonstrate that Mr. Duren was aware that extensions of time
limits require the mutual agreement of the Association and the
employer.  Mr. Duren was provided a copy of the November 4, 2004,
letter from the Community College System's Human Resources
Director to MEA UniServ Director Tim Wooten regarding their
earlier agreement to extend the time limit for the College-level
appeal of Mr. Duren's grievance.  R-8.  Also, stipulation #27,
describing the 2004 grievance meeting at President Woodlee's
level, shows that Mr. Duren witnessed how deadlines are extended
by the explicit agreement of the Union and the College.

     With respect to the May 2007 grievance, the subject of the
prohibited practice complaint before us, the last event in the
grievance processing was the June 26, 2007, response denying
Mr. Duren's oral grievance.  This was in the form of an email
sent to Mr. Duren and MEA steward Marjorie York by Vice President
Karen White in which she denied the grievance.  Stip. #9. 
Pursuant to Article 8(C)(1) of the collective bargaining
agreement, the grievant has ten workdays from the oral response
to submit the grievance in writing to the President. 

[end of page 15]
     On June 28, 2007, Mr. Duren emailed Ms. York asking her to
take his grievance to the College President.  Stip. #10.  He did
not receive any confirmation of that step being taken, see Stip.
#11 & #12, such as a copy of the written grievance, or a request
that he sign the grievance form itself, as he had on the 2004
grievance.  R-4.  There is nothing in the complaint or the
stipulations indicating that Mr. Duren did anything after the
start of the fall semester in late August to inquire about
whether his grievance had actually been filed.  Likewise, there
is nothing to suggest that his concerns about meeting the time
limits for moving to the written stage, as expressed in his email
to Ms. York of June 28, 2007, had been allayed during this time
period by any action or statement by an MEA representative or
steward.  The facts demonstrate that Mr. Duren knew in late June
that the time limit was critical and we conclude that in late
August he still knew, or reasonably should have known, that time
was of the essence.

     The statement made by the new shop steward in an email dated
September 10, 2007, saying she would follow up on the grievance
as soon as she received the "background material" from her
predecessor, Ms. York, does not alter the fact that Mr. Duren
knew, or reasonably should have known, that the deadline was
imminent.  Rather than providing reassurance, the steward's email
would reasonably put someone in Mr. Duren's position with his
knowledge and apparent intelligence on notice that the Union had
missed, or was about to miss, the deadline.[fn]10  Whether the
steward knew that a deadline was looming does not, in this case,
have any bearing on what Mr. Duren knew or should have known. 

     10  We are not suggesting that Mr. Duren was responsible for the
Union's failure to meet the deadline; the only issue we are dealing
with here is when the six-month limitation period should begin to run.

     Furthermore, by the end of September, both the deadline for

[end of page 16]

filing the appeal and the deadline for receiving the response had
passed, and he had not received either a copy of the grievance or
the response.  Given Mr. Duren's extended experience with the
grievance procedure starting in 2004 and his demonstrated under-
standing of the various deadlines in the grievance procedure, we
conclude that Mr. Duren knew or should have known by the end of
September that the Union had not appealed his grievance.    

     The Complainant argues that the replacement shop steward's
email on September 10, 2007, that she would follow up on the
grievance as soon as she received the background information from
her predecessor and a comment a month or so later that she still
had not received the background information or materials is
equivalent to "affirmatively stating and representing to Duren
that the grievance was indeed being pursued."  These statements
do not, in fact, affirmatively state that the grievance was being
pursued, they merely state that she was trying to get the
background material from Ms. York.[fn]11  

     The significance of the steward's statements must be
assessed in light of the knowledge of the audience and the
particular circumstances at hand.  We have already concluded that
Mr. Duren had a thorough understanding of the time restraints of
the grievance procedure and that he knew that the Union missed
the deadline for advancing his grievance.  We cannot see that a 

     11 In addition, it is not clear if the "Fall 2007" union meeting
referred to in Stipulation # 13 occurred at the start of the fall
semester, before the deadline for submitting his grievance in writing,
or sometime later in the semester.  In either case, Mr. Duren did not
make any effort to inquire about the status of his own grievance at
that meeting.  The backlog of about 20 grievances was a subject
addressed by the Local Union President who indicated the Executive
Committee had discussed it with Mr. Wooten.  At some unspecified date
after this meeting, Mr. Duren made a series of oral requests of the
President and Marge York for the minutes of that Executive Committee
meeting.  Stip. # 14.  He did not inquire about whether his grievance
had been filed at the time he made these requests.

[end of page 17]

vague statement by a replacement shop steward that she was
waiting for "the background material" could serve to refute that
understanding and, despite all evidence to the contrary, replace
it with the notion that his grievance had been filed at the
written stage.  Similarly, the fact that Mr. Duren "took it upon
himself" to provide the steward with copies of the material he
had in his possession (stip. # 11) is not an affirmative
statement by the steward that the grievance had been filed and
does nothing to refute what Mr. Duren already knew or should have
known -that the Union missed the deadline.[fn]12  
     It is important to note, however, that if Mr. Duren had not
been so experienced and well versed in the requirements of the
grievance procedure, and had no knowledge other than the repre-
sentations of the union regarding the handling of his grievance,
we might view a bona fide reliance on the Union's statements more
sympathetically.  What a particular complainant knew or should
have known is a decision that depends on the facts of each case. 
Because the legal standard is whether the complainant "knew or
reasonably should have known" of the event that allegedly
violated the Act, we are compelled to look at just that.  What a
less intelligent or less informed person might have known is not

     In summary, the six-month limitation period contained in
section 1029(2) of the Act prohibits the Board from hearing a
complaint "based on any alleged prohibited practice occurring
more that 6 months prior to the filing of the complaint".  In the
present case, the allegation is that the Union handled his 

     12  Our conclusion is the same regarding the February 2008
exchange between the steward and Mr. Duren described in stipulation
#16, which says that when asked about the status of his grievance,
"[she] responded that 'we're working on it,' and that she had
contacted Bill Dolan and Marge York for any information they had about
the status of his grievance but had not heard anything yet."

[end of page 18]

grievance arbitrarily by failing to submit Mr. Duren's written
grievance to the College President by the deadline specified in
the collective bargaining agreement.  In doing so, the Complaint
alleges that the Union breached its duty of fair representation
in violation of 26 M.R.S.A.  1027(2)(A).  The missed deadline is
the act that allegedly violated the statute and we concluded that
Mr. Duren knew or reasonably should have known of that act by the
end of September of 2007.  Mr. Duren filed his prohibited
practice complaint nearly one year after that date, well beyond
the six-month limitation period.  We therefore must dismiss the
complaint as it was not timely filed.

     On the basis of the foregoing discussion, and by virtue of
and pursuant to the powers granted to the Maine Labor Relations
Board by 26 M.R.S.A.  1029(2), it is ORDERED that the prohibited
practices complaint filed by Mr. Stephen Duren is dismissed.
Dated at Augusta, Maine, this 25th day of June, 2009.

The parties are advised of their right pursuant to 26 M.R.S.A. 1029(7) to seek a review of this decision and order by the Superior Court. To initiate such a review, an appealing party must file a complaint with the Superior Court within fifteen (15) days of the date of issuance of this decision and order, and otherwise comply with the requirements of Rule 80(C) of the Rules of Civil Procedure.


Barbara L. Raimondi

Sandra S. Carraher
Employer Representative

Robert L. Piccone
Employee Representative

end of page 19