Attorney for Plaintiffs: Donald Fontaine, Esq. Law Offices of
Attorney for Defendant: Glenn Israel, Esq. Bernstein Shur
ORDER ON DEFENDANT'S MOTION FOR
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.
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.
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.
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.
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.
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.
Award at 1, 19-20 (Feb. 1, 2017).
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.
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.
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