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Alagic v. University of Maine System

Superior Court of Maine, Cumberland

January 2, 2018

SUAD ALAGIC et als., Plaintiffs
v.
UNIVERSITY OF MAINE SYSTEM, Defendant

          Attorney for Plaintiffs: Donald Fontaine, Esq. Law Offices of Donald Fontaine

          Attorney for Defendant: Glenn Israel, Esq. Bernstein Shur

          ORDER ON DEFENDANT'S MOTION FOR RECONSIDERATION

          A. M. Horton, Justice

         Defendant University of Maine System's Motion For Reconsideration is before the court, with Plaintiffs' opposition and Defendant's reply memorandum. The court elects to decide the Motion without oral argument. See M.R. Civ. P. 7(b)(7).

         The Motion For Reconsideration is directed to the court's Order on Pending Motions docketed November 17, 2017. In that Order, the court granted Plaintiffs' Motion for Partial Summary Judgment, concluding that Plaintiffs were entitled to statutory remedies for unpaid wages because Defendant failed to pay Plaintiffs the wages due to them under the collective bargaining agreement TCBA[] within the statutory deadline for payment. See 26 M.R.S.A. §§ 626, 626-A.

         Defendant's Motion contends that the court misinterpreted the Defendant's primary argument, which is that the employment agreement between it and the Plaintiffs allowed the Defendant to withhold payment of wages that were the subject of Plaintiffs' grievance until after the arbitrator had ordered the Defendant to pay Plaintiffs. According to the Defendant, "the language of the CBA and the past conduct of the University, the Union, and the members of the faculty demonstrate that there has been a long-standing policy that any wages or other payments that are the subject of a grievance pursuant to Article 15 of the CBA are not 'due' until the grievance has been resolved." Defendant's Reply in Support of its Motion for Reconsideration at 2.

         In support of its argument, Defendant cites to Maine Law Court decisions in which the court has held that the terms, including due date, under which employees are entitled to payment under the statutes in question are determined by the employment agreement. See Rowell v. Jones & Fining, Inc.524 A.2d 1208, 1210-11 (Me. 1987); accord, Richardson v. Winthrop School Dep't, 2009 ME 109, ¶7, 983 A.2d 400, 402; Burke v. Port Resort Realty Corp., 1998 ME 193, ¶5, 714 A.2d 837, 839.

         Plaintiffs' Opposition points out what the court agrees is the fundamental flaw in the Defendant's argument: Defendant has not made a prima facie showing, for purposes of defeating Plaintiffs' Motion for Partial Summary Judgment, that the terms of its employment agreement with Plaintiffs include any "long-standing policy" that supports its argument.

         As a threshold matter, Defendant's claim in its Motion that it "paid wages that were the subject of the grievance to Plaintiffs as soon as the arbitrator determined they were due, " Defendant's Motion for Reconsideration at 5 (emphasis in original), is not supported by the language of the arbitration award. The award determined that the payment to Plaintiffs was due by no later than June 30, 2016:

The grievants received only 4/12 of the salary they were entitled to between September 1 and December 31, 2014 instead of 4/9. They never recouped that difference. As a result they were underpaid for their work during that time frame. Based on past practice, the University would probably have been entitled to withhold that differential until the grievants were separated from employment on June 30, 2016, but I see no contract language, bargaining history, or communicated understanding between the parties that permitted it to just not pay the differential that accrued during the fall semester of 2014 at all.

         Amended Award at 1, 19-20 (Feb. 1, 2017).

         Quite clearly, the arbitrator determined that the additional amounts that Plaintiffs were owed for the fall 2014 semester were "due" by no later than June 30, 2016, seven months before Defendant actually made payment, and that there was no past practice that justified the Defendant in continuing to withhold payment.

         Although the arbitration award is not res judicata as to this case, the arbitrator's conclusion is consistent with this court's view of the summary judgment record in this case. Just as the arbitrator decided there was no showing of any past practice that would allow the University to continue withholding payment of the additional amounts due to Plaintiffs after June 30, 2016, the court found no support-much less support rising to the level of a prima facie showing-in the summary judgment record for the Defendant's argument that it was entitled to withhold payment until after the arbitration decision.

         First, Defendant's summary judgment filing does not identify any term of the CBA or other document confirming a past practice or "longstanding policy" that supports its position. In fact, the salary and retrenchment articles of the CBA plainly required the Defendant to continue paying the Plaintiffs their salaries from the date of the retrenchment notice until June 30, 2016. See Agreement Between ...


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