STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 80-14

State, Countv, Municipal and )
University Employees in the  )
State of Maine,              )
     v.                      )                     DECISION AND ORDER

     Teamsters Local Union No. 48, State, County, Municipal and University
Employees in the State of Maine ("Local 48") filed this prohibited practice
complaint on November 9, 1979, and an amended prohibited practice complaint
on December 5, 1979.  The City of Waterville filed its answer to the amended
complaint on December 21, 1979.  Alternate Chairman Donald W. Webber held a
pre-hearing conference in the matter on January 14, 1980, after which he
issued a Pre-Hearinq Conference Memorandum and Order dated January 23, 1980,
the contents of which are incorporated herein by reference.

     At the pre-hearinq conference the parties agreed that a fact hearing was
not required and that the matter be submitted to the Maine Labor Relations
Board ("Board") upon the record and written briefs.  Both parties filed a
post hearing brief.  Local 48 was represented by Jonathan G. Axelrod, Esq.;
the City by James E. Millett, Esq.


     Jurisdiction of the Board lies in Section 968(5) of the Municipal Public
Employees Labor Relations Board (the "Act"), 26 M.R.S.A.  968(5).

                               FINDINGS OF FACT

     1.  On May 26, 1978, a hearing examiner of the Board issued a unit
         determination report as the result of a petition for appropriate
         unit determination filed by Local 48 seeking a group of supervisory
         police officers.  The hearing examiner determined, in part, that
         the position of Drug Officer should be excluded from this unit;
         he stated, however, that local 48 would not be prejudiced from
         petitioning for modification of the then existing unit of police
         patrolmen to include the Drug Officer.  This was done and on August
         1, 1978, the City and Local 48 executed an Agreement on Appropriate
         Bargaining Unit including:  Patrolmen, Detective, and Drug Officer.

     2.  On October 21, 1978, Officer Norman Quirion reached the ten year
         anniversary of his employment as a full-time police officer.  He
         was the Drug Officer at all relevant times to this complaint.


     3.  On October 25, 1978, Quirion became a union member.

     4.  On December 5, 1978, the City Council adopted a new longevity pay
         policy providing a $10.00 per week pay increment for all "non-
         union employees," retroactive to January 1, 1971.

     5.  On December 15, 1978, Local 48 signed a collective bargaining agree-
         ment for the nonsupervisory police unit (which included Quirion),
         retroactive to July 1, 1978.  The agreement provides for longevity
         pay benefits different from the City plan for non-union employees.
         (The City's answer alleged that the City plan is provided to "non-
         bargained for employees" and is not contested.)

     6.  On March 21, 1979, Quirion filed a grievance for a failure to pay to
         him the longevity increment adopted by the City Council on December
         5, 1978.

     7.  On March 30, 1979, the grievance was denied at the first step of the
         grievance procedure provided in the December 15, 1978 collective bar-
         gaining agreement.

     8.  On April 11, 1979, the grievance was denied orally at the second
         step of the grievance procedure by City Administrator Robert W.
         Palmer, Jr.  On April 17, 1979, Palmer followed the oral denial with
         a letter denying the grievance.  Palmer did grant Quirion the incre-
         ment for part of the period, however, i.e., from October 21, 1978,
         (when Quirion reached ten years) until October 25. 1978 (when Quirion
         became a union member).

     9.  On August 3, 1979, the grievance was denied in writing at the third
         step of the grievance procedure by the Waterville Civil Service Board
         for the reason that the grievance was not timely filed at this step.
         The record does not show when the grievance was filed at step three,
         althouqh the contract permits only ten days after denial at step two.
         Local 48 did not invoke step four of the contract, arbitration.

    10.  On November 9, 1979, Local 48 filed a complaint alleging that the
         denial of the longevity increment on August 3, 1979, was a prohibited
         practice.  On December 5, 1979, Local 48 filed an amended complaint
         alleging the same facts with a few minor detail additions.


     Local 48 alleges that the City denied the longevity increase to Officer
Quirion because of his inclusion into the nonsupervisory bargaining unit in
violation of Sections 964(1)(A)(B) and (D) of the Act.  The City responds that
(1) the complaint is barred by the statute of limitations contained in Section
968(5)(B) of the Act, (2) Local 48 is barred and estopped from claiming this
conduct as a prohibited practice because it has not appealed the denial of
the grievance at the third step, and (3) on the merits that Quirion was not
entitled to the longevity increase since he was covered by a collective
bargaining agreement which did not provide for such.  We conclude that the
statute of limitations has run and therefore dismiss the complaint.

     Section 968(5)(B) provides in 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."[fn]1  In viewing the alleged
conduct it is apparent that some conduct falls within the period and some
without.  The degree to which conduct occurring outside the limitations period
can be considered was decided by the Supreme Court in Local Lodge No. 1424 v.
N.L.R.B., 362 U.S. 411 (1960).  The court described two situations, first,
where occurrences within the six month period in and of themselves may
constitute, as a substantive matter, unfair labor practices, earlier events
may be utilized to shed light on the true character of matters occurring
within the limitations period.  The second situation is where conduct within
the six months can be charged to be an unfair labor practice only through
reliance on an earlier unfair labor practice.  There the use of the earlier
unfair labor practice is not merely "evidentiary," since it does not simply
lay bare a putative unfair labor practice.  Rather, it serves to cloak with
illegality that which was otherwise lawful.  And where a complaint based upon
that earlier event is time-barred, to permit the event itself to be so used
in effect results in reviving a legally defunct unfair labor practice.
362 U.S. at 416.

     The Local Lodge No. 1424 court then held that an unfair labor practice
which was based upon enforcement of a contract provision was time-barred
because (1) the enforcement itself was wholly benign and (2) that the
complaint was entirely based on the execution of the contract itself which
was an unfair labor practice but had occurred greater than six months prior
to the charge.

     In the case before us, the only conduct that occurred within the six
month period was a denial of a grievance on procedural grounds by the Civil
Service Board of the City acting at step three of a contractual grievance
procedure.  Since there is no question but that the grievance was untimely,
this was an evidently proper denial of the grievance.  While it is appropriate
under Local Lodge No. 1424 to permit earlier events to shed light on the true
character of the matters occurring within the limitations period, we find that
no evidence in this case could throw a prohibited light on the action of the
Civil Service Board, even if the denial of the longevity increase at an
earlier time were a prohibited practice.

1 The parallel provision of the National Labor Relations Act is Section 10(b),
29 U.S.C.  160(b):

     "Provided, that no complaint shall issue based upon any unfair labor
      practice occurring more than six months prior to the filinq of the
      charge with the [National Labor Relations] Board and the service of a
      copy thereof upon the person against whom such charge is made
      (Emphasis in original).

Because of the similarity in provisions - the review of the prohibited prac-
tice complaint by the Executive Director prior to setting the complaint for
hearing under the Maine Act and the investigation of a charge by a Regional
Director prior to the issuance of complaint under the National Act - we
believe that judicial construction of the National Act should guide our
application of Section 968(5)(B).  See, State of Maine (Bureau of Alcoholic
Beverages) v. Maine Labor Relations Board, __ A. 2d __ (Me. Sup. Jud. Ct.,
Apr. 9, 1980).


     It is clear that the Civil Service Board did not reach the merits of the
grievance.  Rather, it denied the grievance solely because it was untimely.
It would be absurb to permit an untimely grievance appeal to resurrect an
issue for the single purpose of filing a prohibited practice complaint which
would otherwise be time-barred.

     Thus, the latest it could be argued that the City denied Quirion's
alleged benefit because of his entry into the bargaining unit[fn]2 would be
Quirion's receipt of the letter of April 17, 1979,[fn]3 well beyond six months
before the filing date of November 9, 1979.

      Local 48 argues in its brief, however, that the denial of the longevity
increment is a "continuing violation" and thus should not be barred on this
ground.  We reject the continuing violation theory for the same reason that
the Local Lodge No. 1424 court did.

     "To justify reliance on those circumstances [existing solely outside
      the six-month period] on the ground that the maintenance in effect
      of the agreement is a continuing violation is to support a lifting
      of the limitations bar by a characterization which becomes apt only
      when that bar has already been lifted."

362 U.S. at 423.[fn]4

     Since we conclude that the complaint is barred bv the statute of limita-
tions, we choose not to reach the merits of this complaint.  We do note,
however, that we see no basis in law for the City's affirmative defense that
Local 48 should be barred and estopped from filing a prohibited practice
complaint because it had failed to exhaust the grievance procedure.  The
availability of a contractual dispute resolution procedure raises the
question only of deferral, not of estoppel

2 City Administrator Palmer on April 17, 1979, and the City Council on
December 5, 1978, appear to make a distinction on the basis of membership in
the "union" as opposed to inclusion within a represented bargaining unit.
While this is an impermissible distinction, counsel for the City alleged in
the answer that the different longevity benefit is applied to "non-bargained
for employees" as contrasted to non-union members.  Local 48 does not contest
this point.

3 We do not here decide when or whether conduct of an employer in denying a
grievance during a grievance process might constitute a prohibited practice
where the initial act which precipitated the grievance was a prohibited
practice but occurred outside the limitations period.

4 But see, U.A.W. v. N.L.R.B., 363 F.2d 702 (D.C. Cir. 1966), where the court
upheld the National Labor Relations Board in finding a continuing refusal to
bargain where a continuing demand to bargain was implicit.


or bar.  Thus where the merits of a dispute are not resolved or capable of
resolution by final and binding arbitration, there would be nothing to defer

     The Complaint is dismissed.

Dated at Augusta, Maine, this 23rd day of April, 1980.

                                       MAINE LABOR RELATIONS BOARD

                                       Edward H. Keith

                                       Wallace J. Legge
                                       Employee Representative

                                       Don R. Ziegenbein
                                       Employer Representative