Opinion
Civil Action PORSC-CV-17-26
01-02-2018
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
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 University of Maine System and Associated Faculties of the Universities of Maine, MEA/NEA 2013-15, Arts. 17, 20.
Second, the retrenchment letters sent to Plaintiffs likewise commit the Defendant to maintaining payment of the Plaintiffs' salaries throughout the 18-month notice period until June 30, 2016.
Third, the "additional facts" in Defendant's Statement of Additional Material Facts that purport to support the "longstanding policy" boil down to a single fact: this is the first time AFUM and/or its members have claimed section 626 and 626-A statutory remedies for wages that were found to be due as the result of a grievance. See Defendant's Statement of Additional Material Facts ¶¶5-7; see also Affidavit of MarkSchmelz ¶¶6-8.
Assuming the truth of that assertion for purposes of summary judgment, it would not defeat Plaintiffs' claims in this case. Essentially, the Defendant's argument is that Plaintiffs cannot invoke the section 626 and 626-A statutory remedies because they have never done so before. That, in substance, is a waiver argument-that Plaintiffs' prior forbearance operates as a waiver of Plaintiffs' rights as employees under sections 626 and 626-A.
Even were there a past practice as the Defendant contends, it could not operate as a waiver of the individual Plaintiffs' rights under the Maine employment statutes. In Cooper v. Springfield Terminal Railway, the Law Court said, "statutes that impose minimum labor standards without affecting collective bargaining activity are not waivable in a collective bargaining agreement. Moreover, when a term contained in a collective bargaining agreement conflicts with minimum standards legislation, the former must yield." 635 A.2d 952, 955 (Me. 1993) (emphasis added). If the express terms of a CBA cannot operate as a waiver of an employee's statutory rights, it can hardly be contended that the absence of a previous claim for the statutory remedies by an employee is sufficient to waive the employee's rights to those remedies. Finally, for the court to accept the Defendant's argument that the Plaintiffs' wages became due only as of the arbitrator's award would set a precedent utterly contrary to the remedial purposes of the Maine employment statute. The plain purpose of the statutory remedies is to deter employers from withholding wages after the wages are "in fact, due." This means, quite simply, that an employer withholds wages at its peril once an employee has made a demand for payment. If an arbitrator or a court later decides that the withheld wages should have been paid upon demand because they were "in fact, due, " the employer owes the statutory damages and attorney fees. That is exactly what the Law Court held in Bisbing v. Maine Medical Center, 2003 ME 49, ¶5, 820 A.2d582.
The statute once contained a provision that allowed the statutory payment mandates to be modified in a collective bargaining agreement, but that provision has been repealed. See 26 M.R.S. § 626-B, repealed by 1999 Me. Pub. L. c. 465, § 6.
In conclusion, the summary judgment record establishes that Plaintiffs' wages were "in fact, due" for purposes of section 626-A, by no later than June 30, 2016-the end of the retrenchment notice period. Plaintiffs had demanded payment before and after that date, but payment was not made until February 2017. Plaintiffs were thus entitled to invoke the statutory remedies and to be granted partial summary judgment.
For these reasons, Defendant's Motion for Reconsideration is denied.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by reference in the docket.