Union argues Bates blew its chance to make its legal case by missing a deadline

LEWISTON – As Bates College employees begin casting ballots to decide whether to form a union, a lawyer for the Maine Service Employees Organization hit back at the college’s appeal of its potential membership.

Calling the college’s legal move “little more than a craven, self-serving attempt” to have the National Labor Relations Board reject decades of its own decisions, attorney Jeffrey Neil Young filed an occasionally blistering 42-page response this week to counter Bates’ bid to overturn the board’s regional director’s decision that allowed educators and other staff to join the same union.

The brief by Young said the college’s contingent faculty and most of its staff “comprise an appropriate unit because they share a community of interest, including common benefits, common policies, a common worksite, common supervision, common contact, a common purpose, common skills and qualifications, and are functionally integrated” with each other.

For Bates to have dismissed the Dec. 16 ruling that allowed faculty and staff to join the same union as “stunningly facile” is an insult to the NLRB’s regional director in Boston who wrote the decision, Young’s brief charges.

Employees of Bates College in Lewiston are in the midst of a vote on whether to unionize, even as the college tries appeal a ruling determining who exactly is eligible to join that union. Steve Collins/Sun Journal

Young also took issue with Bates’ Dec. 30 plea that the federal agency consider the college’s arguments despite its failure to meet a required deadline by providing a copy of its initial filing to the union a day late.

The agency’s rules “could not be any clearer” that by missing the deadline, Bates is not allowed to introduce evidence or file a post-hearing brief challenging the regional director’s decision on the appropriateness of the proposed union membership, Young said.

Bates’ lawyers said the deadline rule had become “an instrument of injustice” and pleaded that “a technicality” should not slam the door on due process.

Young dismissed the argument as “little more than colorful language intended to inflame the reader’s opinion.” He said the college’s argument ignores the rationale for the deadline rule, which aimed to limit gamesmanship and promote expeditious scheduling of cases.

This month, about 630 Bates employees who were ruled eligible to vote are casting mail-in ballots on whether to form a union that would include about 85 contingent faculty. They consist of lecturers, senior lecturers, visiting instructors, visiting assistant professors, visiting associate professors, visiting lecturers and those holding formal lectureships at Bates.

Bates is pushing to exclude any faculty from the union, insisting they are part of the governance structure of the college and have diverse interests from most of the college’s workers.

Young’s brief, though, argues that the law generally prefers “wall-to-wall” unions at a single location and that there is “no compelling reason” for the agency to reconsider Regional Director Laura Sacks’ mid-December decision on the issue.

The argument that Bates ought to get a break after missing a key deadline doesn’t hold water, the union said.

What happened is the family of one of the college’s lawyers came down with an ill-timed bout of COVID-19, according to the legal filings by both sides.

Young said the union is sympathetic but doesn’t see any reason that a second attorney or the firm’s experienced paralegal couldn’t have had the papers served appropriately.

The union’s filing said the college’s argument for waiving the rule “simply does not survive careful examination.”

While the NLRB determines whether to overturn its regional director’s ruling, Bates employees are voting. Their ballots will be counted Jan. 31.

If Bates workers opt for a union, it would be one of the largest locals in the state and perhaps a precursor to similar efforts at other colleges and universities in Maine.