Langley v. State of Maine Dept. of Transportation and MSEA, No. 00-14

Troy A. Langley v. State of Maine Dept. of Transportation and MSEA,
No. 00-14, Interim Decision on State's Motion to Dismiss (March 23, 2000),
Decision and Order in Langley v. MSEA (Dec. 26, 2000), affirmed by Law Court,
2002 ME 32, 791 A.2d 100, (Feb. 22, 2002).
Decision and Order in Langley v. State of Maine DOT (March 29, 2002).

STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 00-14
Issued: March 23, 2000

____________________________
)
TROY A. LANGLEY, )
)
Complainant, )
)
v. ) INTERIM DECISION ON
) RESPONDENT STATE OF MAINE'S
STATE OF MAINE DEPARTMENT ) MOTION TO DISMISS COMPLAINT
OF TRANSPORTATION ) FOR FAILURE TO STATE A CLAIM
) UPON WHICH RELIEF MAY BE
and ) GRANTED
)
MAINE STATE EMPLOYEES )
ASSOCIATION, )
)
Respondents. )
____________________________)

The prohibited practice complaint in the above-captioned
matter was filed on December 14, 1999. Pursuant to our normal
practice, the executive director inquired whether the Respondents
desired to be heard prior to his ruling on the sufficiency of the
complaint. The Respondent State of Maine Department of
Transportation (hereinafter referred to as "State") availed
itself of the opportunity and filed the motion at issue. The
Complainant and the Respondent Maine State Employees Association
("MSEA") each filed argument in opposition to the State's motion
and the State filed responsive argument. Pursuant to 26 M.R.S.A.
&sect; 979-H(2), the executive director presented the matter for our
consideration because of the state of our case law regarding the
nature and extent of our remedial authority over the public
employer in duty of fair representation cases in light of the Law
Court's decision in Brown v. Maine State Employees Association,
1997 ME 24, 620 A.2d 956.

We met to deliberate on the matter on March 15, 2000. As
the questions presented were exclusively issues of law and the
parties already had ample opportunity to present their argument,
we decided not to grant the State's request for oral argument.

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Having now given due consideration to the parties' argument,
we decline to grant the State's motion to dismiss at this time.
The State's motion will be considered at the appropriate time as
set forth below.

The Complainant's charge against the MSEA is that it
violated its duty of fair representation. The gravamen of the
Complainant's charge against the employer is that, by failing to
follow the procedures set forth in the discipline article in the
applicable collective bargaining agreement, the State interfered
with, restrained or coerced the Complainant in the exercise of
the rights guaranteed by the State Employees Labor Relations Act
and thereby violated 26 M.R.S.A. &sect; 979-C(1)(A). We do not read
the complaint to charge that the State colluded or otherwise
directly participated in MSEA's alleged violation of the
statutory duty of fair representation. If our reading of the
complaint is inaccurate in this regard, the Complainant must so
notify the executive director within 10 days of the issuance of
this Interim Order. Absent such notification, we will process
the complaint as follows:

1. The Complainant's charge against MSEA will be
bifurcated from that against the State and the
former will be heard and decided first. The
State may, at its option, attend the evidentiary
hearing but it will not be treated as a party in
this phase of the litigation.

2. Once the Complainant's case against MSEA has
been adjudicated and subsequent to our deter-
mination as to whether the duty of fair repre-
sentation has been violated, we will consider
the State's motion to dismiss before considering
the appropriate remedy.

3. The executive director shall, in the normal
course of business, schedule a prehearing
conference and an evidentiary hearing for
adjudication of the Complainant's charge against
MSEA.

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Date in Augusta, Maine, this 23rd day of March, 2000.

MAINE LABOR RELATIONS BOARD

/s/_____________________________
Peter T. Dawson
Chair

/s/_____________________________
Karl Dornish, Jr.
Employer Representative

/s/_____________________________
Wayne W. Whitney
Employee Representative

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STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 00-14
Issued: December 26, 2000

_______________________________
)
TROY A. LANGLEY, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
MAINE STATE EMPLOYEES )
ASSOCIATION, LOCAL 1989, SEIU )
)
Respondent. )
_______________________________)

The question presented in this prohibited practice complaint
is whether the Maine State Employees Association ("MSEA" or
"Union") violated §979-C(2)(A) by breaching the duty of fair
representation. Specifically, the complainant contends that the
Union's handling of Langley's request for assistance in his final
days of employment before incarceration was arbitrary. The Union
admits that it did not file a grievance on Langley's behalf but
denies that its handling of his request for assistance breached
the duty of fair representation. We hold that the Union's
handling of Langley's situation did not constitute a violation of
the duty of fair representation.

Troy Langley filed this complaint on December 14, 1999,
alleging that the Union violated §979-C(2)(A) by failing to
represent him in accordance with the Union's duty of fair
representation. The complaint also alleged that the State of
Maine, Department of Transportation ("Department" or "DOT")
interfered with, restrained or coerced the complainant in the
exercise of the rights guaranteed by the State Employees Labor
Relations Act and thereby violated 26 M.R.S.A. §979-C(1)(A) by
failing to follow the procedures set forth in the discipline
article in the applicable collective bargaining agreement. The
Department filed a motion to dismiss on December 28, 1999, and
both the complainant and the Union filed briefs in opposition to

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that motion. In the Maine Labor Relations Board's ("Board")
Interim Decision dated March 23, 2000, addressing the Depart-

ment's Motion to Dismiss, the Board bifurcated the proceeding in
order to allow the Board to first decide the merits of the
complainant's duty of fair representation ("DFR") case against
the Union. After resolving the DFR issue, the Board would be in
a position to address the Department's Motion to Dismiss.

A prehearing conference on the case was held on May 11,
2000, with Chair Peter T. Dawson presiding. Troy Langley was
represented by Diane A. Khiel, Esq., and the Union was
represented by Timothy L. Belcher, Esq. Also in attendance was
Sandra S. Carraher, Esq., from the Bureau of Employee Relations,
representing the Department of Transportation. Ms. Carraher was
allowed to be present during the entire proceeding over the
objection of both parties. The Prehearing Conference Memorandum
and Order was issued May 23, 2000, and is incorporated by
reference.

A public hearing on this matter was held on August 3,
August 8, and August 29, 2000, at the Board's offices in Augusta.
Chairman Peter T. Dawson presided, with Employer Representative
Karl Dornish, Jr., and Employee Representative Wayne W. Whitney.
The parties were afforded full opportunity to examine and cross-
examine witnesses, to present evidence, and to make argument.
Each witness was sequestered and after testifying was advised not
to discuss the case with anyone. Both parties filed post-hearing
briefs which were considered by the Board prior to its
deliberation in this matter.

JURISDICTION

The State of Maine, Department of Transportation is a public
employer, as defined by 26 M.R.S.A. §979-A(5) and MSEA is a
bargaining agent as defined by 26 M.R.S.A. §979-A(1). At the
relevant times, Mr. Troy Langley was a state employee as defined

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by 26 M.R.S.A. §979-A(6) and was part of the Operations, Mainte-
nance and Support Services Bargaining Unit which includes the
highway workers at the Department of Transportation. The juris-
diction of the Maine Labor Relations Board to hear this case and
to render a decision and order derives from 26 M.R.S.A. §979-H.

FINDINGS OF FACT

Upon review of the entire record, the Maine Labor Relations
Board finds the following facts:

1. Troy Langley was hired by the State's Department of
Transportation (DOT) on December 22, 1997, into the position of
Highway Worker I at the Springfield garage. He was promoted into
a Highway Worker II position in the Enfield garage in the spring
of 1998. From that time until Langley's termination of employment
on June 23, 1999, his immediate supervisor was Mike Badger, the
Highway Crew Supervisor. Badger reported to Gerald Worster, the
Highway District Manager, who was responsible for eight or nine
crews. Worster reported to William Gormely, the Division
Superintendent, who reported to Guy Baker, the Division Engineer
for Division 3. Both Gormely and Baker worked in the Bangor
office.

2. Langley's union steward was Bruce Jones, who worked in
the Medway garage. Jones has been a steward for ten years for a
group of about 30 employees. Jones has attended at least a dozen
training sessions for stewards over the past decade. Jones'
experience includes resolving various problems at the work site
without the assistance of the union field representative as well
as filing grievances without assistance. Jones testified that he
does not hesitate to call his Field Representative, Ron Ahlquist,
for assistance with unusual issues.

3. Ron Ahlquist is one of six MSEA Field Representatives
covering geographical regions in the state and has held that

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position for twenty years. Prior to that, he was a union steward
for five years at the Maine Turnpike Authority. As a Field
Representative, Ahlquist is responsible for 1500 state employees,
mostly located in the northern part of the state, of which 400 to
500 are DOT employees, including Langley. There are 110 stewards
and ten to 12 Chief stewards in his area of responsibility in the
various State bargaining units represented by MSEA. Ahlquist's
responsibilities included negotiating contracts, impact
bargaining, dealing with complaints and investigations and being
a troubleshooter to try to resolve problems before they became
major issues. He also would investigate and file grievances or
help the stewards file grievances and, if necessary, take
grievances to arbitration. During the spring of 1999, MSEA's
Field Operations group was shorthanded: the Director of Field
Operations had died that winter and there was a Field
Representative position vacant. In addition, Ahlquist was
negotiating an initial contract at that same time for a new
bargaining unit in Island Falls.

4. In Mr. Langley's year and a half employment with the
DOT, he had three performance evaluations. His four-month
evaluation as a Highway Worker I completed by his supervisor at
Springfield was a positive evaluation and indicated he had missed
two days of work. The evaluation as a Highway Worker II completed
by Mike Badger and dated February 11, 1999, was satisfactory,
indicating that he was a good worker who "does everything he is
asked to do." The evaluation noted that he let the supervisor
know ahead when needing time off. The supervisor's statement of
performance expectations for the upcoming evaluation period that
was completed at about the same time stated "I would like to see
him build more sick and vac. time up."

5. The contract provides for accrual of vacation time and
sick time at a rate of one day each month for an employee with
less than five years of service. When an employee works
overtime, the employee has the option of receiving premium pay

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for the overtime hours worked, or to earn one and a half hours of
compensatory time for each hour of overtime worked. In any week,
an employee may elect to have some of the overtime hours paid for
with premium pay and the rest put in the employee's compensatory
time bank. The employee is entitled to use compensatory time at
times of their choice unless operational needs require otherwise.
If an employee does not have any vacation or compensatory time
available, the time off is referred to as "K-time," which is time
without pay. The employee is supposed to receive the prior
approval of management before using K-time.

6. Mr. Langley's attendance pattern during his year and a
half shows that he used the sick and vacation time generally at
about the same rate that he accrued it. In the first three
quarters of 1998, he earned 24 hours of sick time in each quarter
and used from 16 to 19 hours in each of those quarters. With
respect to vacation time, he initially built up a bank of 26
hours in the first quarter, then used the hours at about the same
rate as they were accrued. At the end of 1998, his first year of
employment, he had earned 12 sick days (96 hours) but entered the
next calendar year with a sick bank of only 16 hours. At the
beginning of 1999, his attendance worsened.

7. Beginning in January, 1999, Langley's home life began
to deteriorate. He had been married for 12 years and lived with
his wife and three children (ages 7, 9 and 11) in Lincoln, Maine.
In January, Langley's pattern of taking time off became more
pronounced. In March, his marital problems came to a head and
Langley took a week off from work, using accumulated compensatory
time, and tried to cope with the situation. On Thursday of that
week, March 18, 1999, the "firearm incident" occurred. It is
undisputed that a firearm was discharged by Mr. Langley while he
was in his truck and his wife was next to the truck. The firearm
was discharged shortly after his wife told him, in response to
his question, that she was leaving him. It is not clear whether
Mr. Langley was attempting suicide and changed his mind at the

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last second, as he claims, or if the firearm was discharged in
the course of some other sort of reckless behavior.

8. The police arrested Langley, charged him, and took him
to the emergency room for evaluation. Langley testified that he
was charged with criminal threatening with a firearm. His
brother posted bail and he spent the night at his brother's home.
A condition of the bail was that Langley have no contact with his
wife. Langley's wife then moved out of their home and Langley
retained possession of the home and custody of the three
children.

9. Langley returned to work the following week. His
brother had told him that the article in the newspaper about the
firearm incident made it look like Langley was trying to hurt his
wife. Langley testified that he told Gerry Worster and Michael
Badger that he had been suicidal, and was not trying to harm his
wife. He told them that he might have to serve time in jail,
although it was not certain at that point.

10. After the firearm incident, Mr. Langley continued to
miss time from work. He was under a great deal of stress at home
due to the unfamiliar responsibilities of managing a household
with young children by himself along with the emotions connected
with the disintegration of his marriage.

11. On April 23, 1999, Mr. William Gormely, the Division
Superintendent, and Mr. Gerald Worster, the Highway District
Manager, met with Mr. Langley to discuss his attendance problem.
Mr. Langley's immediate supervisor, Mr. Michael Badger, was on
vacation and was not present at the meeting. Mr. Gormely and
Mr. Worster referred to the April 23rd meeting as an informal
counseling session, something that is not part of the progressive
discipline steps specified in the contract. The procedure
involves completing a form called a "Counseling/Commendation"
summarizing the substance of the counseling, having the employee

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sign it, and putting it in the employee's file maintained by the
supervisor. It stays there until the employee's next performance
appraisal or merit increase, at which time it is discarded. Even
if one had been completed as the employer contends, it would not
have been retained after Langley's termination because the form
is not put in the employee's permanent personnel file.

12. All those present at the April 23rd meeting agreed that
Langley was very emotional and distraught and cried profusely at
times. Neither manager recollected Langley telling them he had
suicidal thoughts, as Langley claims. Mr. Langley felt that the
managers were sympathetic to his problems and testified that they
told him to "hang in there" and that if he needed a day off it
was "OK." He said he left the meeting happy, feeling that his
supervisors were very supportive. He denies that they ever
referred to the meeting as a counseling session, that he was ever
shown a counseling form, asked to sign anything, or that he was
shown any of his attendance records.

13. A week or so after that meeting, there were problems
at home and Langley missed time again. Michael Badger,
Mr. Langley's immediate supervisor, knew that Langley was very
unhappy and was having trouble coping with his family situation.
He gave Langley all the time off that he requested including K-
time, but also told Langley that his presence at work was
important, that he needed to come to work. Langley continued to
miss time from work due to various unforeseen problems, such as
an unreliable truck, a broken sewer line and getting a call from
school when his children's ride failed to show. On one occasion
he called in and spoke to Gerry Worster, who said he was taking
too much time off, and that he needed to be at work.

14. Some time after the firearm incident, Mr. Worster
provided Mr. Langley with some material on the State's Employee
Assistance Program (EAP), which provides assistance to employees
by referring them to counselors, programs or other services to

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help the employee with his or her problem. Employees are allowed
up to three hours off for meeting with the EAP counselor. If the
EAP counselor makes a referral, the meetings with psychologists
or therapists or other services must be covered by the employee's
sick or vacation time or other approved medical leave.

15. Langley met with Dr. John Hale on one occasion in
Lincoln. Dr. Hale was a psychologist who came to Lincoln on a
regular basis to provide counseling there. Mr. Langley could
only make appointments with him during the workday, not in the
evening. When he asked for additional unpaid leave to attend a
second counseling session with the psychologist, he was
discouraged from taking any more time off by the supervisor's
comment that he had already used so much time, his missing
additional work time is not going to help him, that "it looks bad
your not being here."

16. Gerald Worster testified that Langley had told him that
there was a possibility of him going to jail, but said that
Langley was always very optimistic about not having to go to
jail. Worster testified that he told Langley that Guy Baker had
all of the information about types of leave that may be available
and that Langley should contact Baker "to get something rolling
on it." Langley did not contact Baker prior to his sentencing.

17. On Friday, June 11, 1999, Mr. Langley was arrested for
violating the bail condition that he have no contact with his
wife. On the previous day, Mr. Langley's wife had left a message
with the babysitter that she would be coming there to decorate
for their son's birthday. When Langley returned home from work
on that Thursday, his wife was there. He asked her to leave and
an argument ensued. He took her by the wrist and tried to get
her into the other room so the argument would not be in front of
the children. The following day, the children told someone at
the school about the incident and the school called the police.
The police went to Langley's house on Friday evening and arrested

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him when he admitted that he did have contact with his wife on
the previous day. Mr. Langley spent the weekend in the county
jail.

18. On Monday, June 14, 1999, Mr. Langley was arraigned in
Bangor District Court. His attorney[fn]1 advised him that the
best thing to do would be to get the case over with, before
anything else bad occurred. Mr. Langley testified that prior to
the bail violation he felt he "had everything pretty much under
control" and was expecting a sentence for the firearm incident
which could be served on a weekend.

19. On Tuesday, June 15, 1999, Mr. Langley and his attorney
appeared in Lincoln District Court and entered a guilty plea to a
charge of assault and violation of a condition of release. The
judge sentenced Mr. Langley to 90 days in jail and one year
probation. During the sentencing, Mr. Langley's attorney asked
the judge "to sign work release papers" so that he could continue
to work at the Department of Transportation. The attorney stated
that work release was necessary because Langley had used up all
of his vacation and sick time over the prior three months. The
attorney stated that she had met with the Department of Human
Services ("DHS") caseworker that morning who had requested that
Mr. Langley have no contact with the children until they could
meet with Mr. Langley later in the week. The attorney asked that
Mr. Langley be allowed to report to jail on the following Monday
so that he could get things arranged with DHS. By this point,
Langley had reconciled with his wife.

20. According to the official transcript of the proceeding,[fn]2
Mr. Langley told the sentencing judge that he would like to be at
work on Monday, but was unsure of the process of getting "signed
____________________

1 Not Langley's attorney in this case.

2 Two pages of the 12-page District Court transcript were admitted.

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in" at the jail. The judge said:

I'll sign a work release, but it has to go through the
Sheriff's Department first. I mean a form comes --
form comes to me and usually there's some paperwork
that you need. I mean presumably between now and
June 21st you can be -- talk to the sheriff and line
up whatever there is to line up.

After verifying that Langley's attorney was asking for a stay in
serving the sentence until Monday, the 21st, the judge approved
the stay.

21. After Langley's sentencing, he went to his attorney's
office and spoke to her about the case and what was going on. He
then went home with his wife to make arrangements for the care of
their children so that he would not have any contact with them
before that issue was resolved with DHS. Langley called the jail
and spoke to someone named Mr. Clukey who gave him a general
description of the work release process and told him to call back
and speak to Corporal Robinson, who handled the program. Langley
returned to work on Wednesday, June 16.

22. Mike Badger kept a daily diary at work in which he noted
the assignments given to each person on his crew, whether someone
was out and other items. He usually made the notations on the
day of the entry. The notation for Tuesday, June 15, 1999,
concerning Troy Langley was "Troy off court Called me at home."
The entry for Wednesday, June 16, 1999, concerning Troy was:

Supervisor meeting 830 AM Enfield. Troy
mowing Intersection on I95. Eric John mowing
I95 215 Northbound. Alden Dennis working with
Rick crew. Matt drove/ Hot top Milo area.
Troy told me he had 90 days to serve in jail.
Just a work release. He wanted the rest of
the week off they wouldn't give it too him.
I took Matting to Bradford. He Troy told me
Gerry told him if he missed another K day he
would be done. I got radiator for
Hydroseeder.

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23. Badger was not authorized to handle requests for work
release himself but would call his supervisors and have them take
care of it. Badger testified that Langley told him he would be
able to come to work while he was in jail, and that he had a ride
to and from work arranged. Badger told Langley that Langley
needed to contact Guy Baker to find out whether the Department
would allow it and "make some arrangements" regarding his
upcoming 90-day sentence. Badger believes that he told Langley
this on Wednesday, the 16th, the day Langley returned to work and
told him the length of his sentence.

24. Langley insists that he called the jail from work on
Wednesday, June 16th, to get information from Corporal Robinson.
He says he knows it was Wednesday because he was able to work
around the garage that day doing MSDS sheets and cleaning up.
Mr. Badger's diary indicates that on Wednesday, Langley was
mowing. The diary entry for Thursday, June 17th, noted that Troy
and Alden "worked around the lot, cleaning up." It also states
"Troy called the jail to find out what was going to happen to
him. He told me 7-10 day before he would get released to come
back to work."

25. Eric Robinson was a Corporal in the Penobscot County
Sheriff's Office from May of 1997 until November of 1999, and was
responsible for processing work release petitions. At any given
time, the Penobscot County Jail had three to five inmates on the
work release program. Corporal Robinson did not specifically
recall any conversation with Langley before June 21st regarding
the mechanics of the work release process, but did describe what
his normal practice was when someone called inquiring about
getting approval for work release. He would explain that the
person needed a letter from the employer stating the days of the
week and hours the inmate would be working and who the inmate's
immediate supervisors were and verification of workers'
compensation insurance coverage. Someone at the employer needed
to be named as a contact person for the jail. He would explain

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that the person must be classified as a minimum security risk to
be eligible for work release and must pass a urine test. He
explained the room and board charge for work release inmates and
that the inmate must pay the jail two weeks of that amount up
front. He explained that in most cases it takes from five to ten
days on average to get someone out on work release, that it is
not something that happens right off.

26. Corporal Robinson described the steps taken at the jail
to process a work release request. The inmate's responsibilities
are to bring in the letter from the employer, the verification of
the employer's workers' compensation coverage, and the money to
cover the room and board charge. Once the inmate begins his
sentence, the jail determines the inmate's security classifica-
tion and, if the inmate is a minimum security risk, a urine drug
test is administered. The urine test is not done unless the
individual is a minimum security risk and the security
classification is not done until the person has arrived at jail.
If the inmate passed the urine test, Corporal Robinson would
gather the materials and sit down with the inmate to complete the
Work Release Petition form to be submitted to the court. The
information requested on the petition is taken out of the
employer's letter along with certain personal information from
the petitioner. The form is signed by the petitioner, notarized,
and the form is signed by the Sheriff or authorized agent
recommending that the petitioner be admitted to the work release
program. It is then sent to the appropriate district court.
Corporal Robinson testified that if the inmate were sentenced in
Bangor District Court or Bangor Superior Court, the petition
would be hand delivered to that court. In some cases they would
wait for the sentencing judge to sign it, sometimes not,
depending upon the circumstances at the court. If the petition
needed to go to a court further away, such as Newport, Lincoln or
Millinocket, it would be mailed. Corporal Robinson could not say
how long a petition mailed to Lincoln would usually take to be
returned, but he did indicate that for those petitions mailed out

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it could be as long as two or three weeks or as short as one
week. The very shortest period Robinson remembers for processing
a work release request was a case where the petition was hand
delivered and approved on the same day.

27. Langley testified that when he spoke with Corporal
Robinson on the phone, Robinson told him that Langley would need
to arrange for a ride back and forth from the jail to work, that
he would need to bring in something from the employer showing his
work schedule, where his work was located, and showing that he
was covered by workers' compensation insurance. Langley
testified that Robinson said that if everything was lined up, his
work release petition could be processed in three days, although
there was a possibility of it being seven to ten days.

28. There is some dispute about whether Langley initially
spoke to supervisors and Union representatives about a request
for work release, simply a request for a leave of absence, or
both. It is pretty clear that Langley did not understand the
work release process. He sincerely thought that the work release
issue was more or less automatic if he could get a ride arranged
and just get something from the employer verifying workers'
compensation coverage. Langley thought that the sentencing
judge's statement about work release was equivalent to full
approval of work release and he seems to have proceeded on that
assumption and appeared to still be under that impression during
the Board hearing. When Langley returned to work on Wednesday,
he asked his supervisor, Mike Badger, for time off so he could
get things lined up for Monday morning, the day he was to report
to jail. He told Badger he needed to get things ready at home,
get everything straight financially, see his children, get rides
arranged to and from work and get everything lined up that needed
to be processed. Badger went to Gerry Worster, the next level
up, who apparently called Bangor. Gerry got back to Langley,
denying his request for the rest of the week off, telling him
that if he took any additional time off, he should not come back.

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29. At some point in Langley's final week on the job, all of
the supervisors and managers above Langley became aware that
Langley was asking for work release approval in addition to
unpaid personal leave. Although no one was certain whom Langley
asked about it other than Baker, it was clear that Baker was the
only one with authority to approve such a request.

30. DOT had an established policy of not granting a request
for an unpaid leave of absence to cover a period of
incarceration. Although this policy was unwritten, it had been
uniformly applied for many years. The Department considers an
incarcerated employee to be unavailable for work due to the fault
of the employee, not the employer. The Department would allow an
individual, however, to use vacation time and compensatory time
to cover a period of incarceration. Mr. Baker testified that he
thought that this practice had first started sometime in the late
1980s or early 1990s when a Division Engineer had been allowed to
use vacation time to cover an absence while serving a jail
sentence. This policy allowing the use of vacation time and
compensatory time but not allowing the use of sick time or unpaid
personal leave to cover periods of incarceration was consistently
applied for a number of years. Jane Gilbert, the Director of
Human Resources for the Department, stated that the circumstances
surrounding the incarceration were not taken into account--the
person was simply unavailable for work. This policy was known by
Ahlquist, Baker, Gilbert and others at DOT's Human Resources
office. Ahlquist testified that he was not aware of any
circumstance where the DOT would allow the use of an unpaid leave
of absence to cover a period of incarceration.

31. In the past, there have been a couple of instances of
the DOT allowing an incarcerated employee to continue working at
the Department. In at least one case, the individual was able to
serve his sentence on weekends. In another, the employee had
sufficient leave time to cover the period of incarceration. In
the case involving work release, the person had used vacation or

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compensatory time and served part of his sentence prior to
starting the work release program. Baker's recollection was that
the employee's period of incarceration was for several weeks.
None of the instances involved the use of unpaid leave to cover
any part of the incarceration.

32. The State has an established Personnel Rule regarding
absence without leave that provides that an employee will be
terminated after three consecutive days of absence without leave.
Neither DOT nor MSEA considers terminations in that situation to
be a disciplinary termination but view it as job abandonment or
no longer being available for work. DOT had an established
practice that when they knew an employee would be absent without
leave for three consecutive days, that person would be given the
opportunity to voluntarily resign and keep a clean record rather
than be terminated.

33. Langley went to Bruce Jones, the Union steward, after
his employer denied his request for time off. This was Langley's
second meeting with Jones, the first having taken place at some
earlier time. Jones was not clear on when Langley's first
conversation with him occurred, but he did state the second
meeting was "a couple of days" after the first. It is likely
that the first meeting took place on Friday, after the
altercation with his wife but before he was arrested for the bail
violation.[fn]3 Jones said that Langley was very emotional and
distraught. Although Jones thought the sentence was not definite
yet, from the way Langley was talking, Jones had the impression
that jail time was imminent. Langley told him that he was going
to court on a domestic dispute, that the offense involved a
____________________

3 This date is consistent with Jones' testimony, which we find
credible. Jones indicated Langley's visit was either after Langley
was sentenced, or within a couple of days of his sentencing. It is
also consistent with Langley's testimony that before the encounter
with his wife, he thought he had the situation under control and would
be able to serve his sentence on a weekend. Langley gave inconsistent
testimony on when he first met with Jones.

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firearm, and there was a possibility of a jail sentence. Langley
thought he was going to need a leave of absence.

34. During the first conversation with Langley, Bruce Jones
called the Union's Field Representative, Ron Ahlquist, but
Ahlquist was not available. Ahlquist called back either that
evening or the next day. Jones briefed him on what was going on
with Langley to see what Ahlquist could do.

35. At some point between Jones' first and second
conversation with Langley, Langley's brother Shawn called and
asked if there was anything the Union could do for his brother.
Jones told him the Union was working on it.

36. Jones' second conversation with Langley occurred on
Wednesday, June 16th, or Thursday, June 17th, after Langley's
request for time off "to make arrangements" had been turned
down.[fn]4 Langley wanted to know what Jones had found out from the
Union on getting a leave of absence. After Langley told Jones
that his request had been denied, Jones told him that he should
probably put his request for leave in writing. At some point in
the conversation, Langley told Jones that the paperwork was being
processed for his work release. Langley also mentioned that he
was told he could resign. Jones called Ahlquist, explained
briefly that he had with him the employee who was going to jail,
and handed the phone over to Langley so that he and Ahlquist
could speak directly with one another. Langley told Ahlquist
that he was going to jail and that the sentence was 90 days.
When asked how much time he had available, he said he didn't have
any. Langley claims that he was very clear with Ahlquist that he
had work release and was not asking for a 90-day leave of
____________________

4 When Langley first testified during his case in chief he said
"arrangements." When he testified on rebuttal, he stressed that there
was no doubt that he had said "work release" to everyone all along.
As will become apparent below, a factual determination on this dispute
is not necessary to this case.

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absence. Ahlquist denies this. Ahlquist claims that he told
Langley that he wasn't going to succeed with a request for an
unpaid leave of absence to serve time in jail and that another
option was to voluntarily resign so that he could leave with a
clean record, rather than being terminated for being absent for
three consecutive days. He told Langley that Langley needed to
put the leave of absence ("LOA") request in writing and send it
to Guy Baker. Langley denies that Ahlquist mentioned anything
about voluntary resignation or that anyone told him to put the
LOA request in writing. Ahlquist testified that Langley never
mentioned to him that there was a firearm involved but, rather,
that Langley simply told him he was going in for assault.
Langley admitted that he told Ahlquist that he was in trouble
with the law, and that he "didn't go into a lot of details" about
the incident leading to his incarceration.

37. Ahlquist spoke to Guy Baker that day or the next about
the possibility of a leave of absence for Langley. Ahlquist told
Baker that he might be receiving a LOA request in the mail from
Langley. Ahlquist testified that his practice was to ask the
employee in the initial conversation about the employee's work
record, although he could not specifically remember whether he
had asked Langley if he had any record of discipline. Ahlquist
did state that he would always use as an argument with management
that the employee was a good employee. Ahlquist testified that
Baker responded to the effect that Langley was not a particularly
good employee. When Ahlquist asked Baker about Langley's
available leave time, Baker said he did not have any time on the
books, that Langley uses his time up as it is earned. Baker
showed Ahlquist Langley's time records which Ahlquist reviewed.
Ahlquist saw that Langley had less than a day of time available,
which was consistent with what Langley had told him. Ahlquist
saw from the time records that Langley did tend to use the time
as quickly as he accumulated it, as Baker had indicated.

38. Ahlquist also testified that Baker reacted negatively to

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the LOA issue, stating that he wasn't going to approve a LOA for
someone facing a weapons charge. Ahlquist testified that he was
surprised because Langley had never mentioned that there was a
weapon involved. In contrast, Baker testified that he would not
have denied Langley's request for a LOA on the basis of the
underlying weapons charge, because he simply saw the whole
incident as a domestic relations issue. He did not recall making
a statement about the weapons charge to Ahlquist, but stopped
short of saying that Ahlquist was lying.

39. Ahlquist's testimony on when the question of work
release came up is somewhat inconsistent. On the one hand, he
insists that Langley never mentioned work release to him but only
asked for a LOA. On the other, in one replay of Baker's negative
reaction described above, Ahlquist said Baker referred to the
work release request. Baker did not recollect any conversation
with Ahlquist about work release.

40. Ahlquist called Langley at the Enfield garage and told
him that Baker said that Langley had no time left on the books,
and that Langley had misused his time. Ahlquist told Langley
that there was nothing he could do, that his hands were tied.

41. Ahlquist never offered to file a grievance for Langley
or told Langley of the possibility of filing a grievance on his
own. He did not tell Langley that if he were considering a
grievance there were time limitations to keep in mind. Langley
never asked anyone to file a grievance for him, but simply asked
for help by saying "What can you do for me?" Ahlquist did say
that if Langley had specifically asked him to file a grievance
for him, he would have done so. Although Langley had received a
copy of the contract in the mail the previous year, he never
looked at it but just filed it away. Langley testified that at
the time, he didn't have a clue as to what a grievance was, that
he had never heard of one.

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42. Langley called Guy Baker at 8:30 a.m. on Friday morning
to see what could be done for him regarding work release.
According to Baker, Langley implied that he would be able to get
work release arranged within three days. Baker told Langley
about the option of resigning rather than being terminated under
the three-day absence-without-leave rule. Baker then called
someone at DOT's Human Resources office who indicated that in his
experience it usually took much longer than three days to get
work release. Baker then called the County jail and spoke with
someone who, he claims, said that three days was "not even a
possibility." When Langley returned to the garage at the end of
his shift on Friday, he called Baker to find out if he had any
answers. Baker told him that he would be terminated for missing
three days and again told him about the option of resigning in
order to maintain a clean record. Baker then faxed to Langley a
copy of the form used to submit resignations. Langley received
it but did not want to resign.

43. On Friday after work, Langley's brother Shawn was at
Troy's home. When Shawn heard about Troy's problem, he offered
to donate a week of his own vacation time to cover the three days
Troy thought he would need to arrange for work release. Shawn
was a supervisor at another DOT garage in Baker's division. He
called Baker to see if Baker would allow him to donate the time
so his brother could get work release. He was informed by Baker
that it would not be allowed.[fn]5

44. That Saturday or Sunday, Langley called Bruce Jones at
his home and told him that if he got any further information for
him he could leave a message with his wife because he was going
to jail.
____________________

5 There is a state policy that allows an employee to contribute
vacation or compensatory time to a bank that can be used by eligible
employees who are suffering a catastrophic illness. There is no
provision, however, for donating vacation time or compensatory time to
another employee for situations other than catastrophic illness.

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45. After Troy had started his sentence, Shawn Langley
called Ron Ahlquist to see if he could go to Baker to see about
getting a work release. According to Shawn, Ahlquist responded
that Troy had not been honest with Ahlquist in discussing his
situation earlier. Shawn was embarrassed by Ahlquist's
revelation and did not pursue the matter with him. Ahlquist
testified that he did contact Baker, who reacted to the idea of
work release with a comment about the danger of putting a man
serving time for a weapons charge on work release. Ahlquist said
he called Shawn back and told him Baker was not receptive to the
idea.

46. Shortly after his arrival at the jail to serve his
sentence, Langley completed a form requesting assistance in
obtaining the information he thought was needed for work release.
The next day, Corporal Robinson informed Langley that it was
Langley's responsibility to gather the necessary paperwork for
the work release program. Once Langley had done that, Robinson
could begin the processing.

47. Langley was terminated on June 23, 1999, for being
unavailable for work for three consecutive days due to
incarceration. He was informed of the official action by that
information being written on a form titled "Record of Employee
Discipline" signed by Guy Baker, sent to his home address, and
opened by his wife.

48. Langley was released from jail after serving 58 days.
Not long after that, he called Jones to inquire about getting his
job back. Langley claims that Jones told him that the Union
"dropped the ball" in his case and they messed up. Jones denies
saying that to Langley, but admits saying that to Langley's
current attorney in a telephone conversation at some later date.

49. After Langley was released from jail he read the
collective bargaining agreement at which time he "learned all

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sorts of things."

50. There are two relevant provisions of the contract
between MSEA and the State for the Operations, Maintenance and
Support Services Bargaining Unit: Article 63, the Unpaid
Personal Leave of Absence article, and Article 67, Withdrawal of
Resignation, which uses the same standard that a request "shall
not be unreasonably denied." The relevant portions of the two
articles state:

ARTICLE 63. UNPAID PERSONAL LEAVES OF ABSENCE
1. Any employee may apply for an unpaid personal leave
of absence for good and sufficient reason. Leave
pursuant to this provision may be for a period not
exceeding twelve (12) months in any fourteen (14)
consecutive months. Such leave may be granted at the
discretion of the appointing authority and shall not be
unreasonably denied. Employees are encouraged to
consult with their agency/department Personnel Officer
to determine if they are eligible for benefits
available under the Federal Family and Medical Leave
Act. All requests for such leave and responses shall
be in writing. The application for leave must
specifically state the reasons for such application and
the length of time requested. . . .

ARTICLE 67. WITHDRAWAL OF RESIGNATION
An employee may resign in good standing by giving
written notice to his/her appointing authority at least
seven (7) calendar days in advance of the effective
date of his/her resignation. An employee may, with the
approval of his/her appointing authority, withdraw
his/her resignation up to ten (10) calendar days after
the effective date. Such approval shall not be
unreasonably denied.

51. Ahlquist's understanding of the LOA provision is that
granting or denying a request is within management's discretion
as long as it is not unreasonably denied. Ahlquist's view of
proffered reasons for denying Langley's leave request was that
they were reasonable reasons.

52. As a long-time field representative, Ron Ahlquist was
familiar with arbitration decisions that had been issued

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affecting his area of responsibility. He was the field
representative involved in the Myster arbitration case concerning
the reasonableness of employer's denial of a request for unpaid
leave of absence. In that case, the arbitrator determined that
the State violated the contract because the denial of the request
was unreasonable. The arbitrator found that unlike those cases
where the requested leave was for pleasure or personal
advancement, Myster's request for leave was because of a family
crisis precipitated by the job itself and his assignment to a
very remote location in Allagash. Because the need was due to
the job itself and was beyond the employee's control, the
employer's denial was unreasonable.

53. The Charpentier arbitration case issued about a year
later concerned the LOA request of an employee of the Office of
Emergency Preparedness, who had pleaded nolo contendere to
unlawful sexual contact. He was sentenced to five years in jail
with all but 18 months of it suspended. He had enough vacation
time to cover five or six weeks of the sentence and requested a
12-month leave, the maximum amount permitted. He indicated on
the request that he could be released after nine months on good
behavior. The arbitrator noted that the length of the leave
requested and the reason for the leave, that is, whether it was
job related or beyond the employee's control, were both valid
considerations in approving or denying the request. The
arbitrator concluded that, given those considerations and the
operational needs of the department, the employer's denial was
not unreasonable.

54. Ahlquist was also generally familiar with the four
arbitration decisions interpreting the "unreasonably denied"
standard in the "Withdrawal of Resignations" article that were
received in evidence. In one case, the arbitrator determined
that the employer unreasonably denied an employee's request to
withdraw his resignation when the basis for the denial was simply
the fact that the employee offered his resignation in the course

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_________________________________________________________________

of "overreacting" to a situation. In the Rumney case, the
arbitrator held that the State's denial of an employee's request
to withdraw his resignation was not unreasonable when the
employer concluded that, in spite of satisfactory performance
appraisals, the employee's performance was a problem. "So long
as the State predicates its decision on an unbiased evaluation of
his job performance; acts in good faith; and does not base its
decision on any personal animosity or ill-will toward the
grievant, then its decision was not unreasonable . . ." In
another case, the arbitrator upheld the State's denial of an
employee's request to withdraw his resignation based on his
deteriorating job performance. The arbitrator concurred with the
arbitrator's decision in the Rumney case, pointing out that the
"not unreasonable" standard is substantially less stringent than
just cause, since it is the employee and not the employer who
instigates the initial action in instances of resignations. In
the Ellis case, the arbitrator found that the State unreasonably
denied an employee's request to withdraw his resignation when the
employee was being investigated on charges of sexual harassment
and resigned rather than be interviewed by the State's
investigating officer. After receiving words of support from co-
workers and others, the employee reconsidered. The arbitrator
concluded that the State's interest would not be prejudiced by a
few days' delay in interviewing him and there was no other
reasonable basis for denying the request.

55. Mr. Ahlquist testified that the current language on
unpaid leave of absences has not changed since the first contract
and there had never been a push during bargaining to have that
language amended. Similarly, he could not recollect any instance
where there had been an effort by the Union to change the
existing personnel rule that treats three consecutive days of
absence without leave as a termination. Both the Union's Field
Representative, Ron Ahlquist, and various members of management
at DOT, including Guy Baker and Jane Gilbert, all testified that
termination of an employee for being unavailable for work for

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_________________________________________________________________

three consecutive days is not considered a contract violation,
is not considered a disciplinary termination, and that the
provisions of the contract regarding discipline and discharge do
not apply.

56. The contract has no provision on work release and the
Department does not have a consistent practice in handling such
requests. Baker and Gilbert had differing opinions on whether
approval for work release would have been granted absent the
unpaid leave issue. Gilbert testified that work release would
not be approved because it was not compatible with the odd hours
worked at DOT. She was unaware of any instance in which it had
been granted but remembered one instance when it had been denied.
Baker, on the other hand, knew of one occasion that work release
was granted and, to be consistent, he felt he would have to
consider other requests if there were no question of unpaid leave
involved. Ahlquist, Baker and Gilbert all testified that
management had full discretion to approve or deny work release
requests.

57. MSEA trains its stewards to try to work out problems at
the lowest level rather than automatically filing a grievance on
every complaint that arises. MSEA's policy is based on its
desire to maintain credibility so that it can be more effective
with grievances that are not frivolous, as well as to manage its
financial resources effectively. Ahlquist testified that if he
had been asked by Langley to file a grievance on his behalf, he
would have done so. He stated that it only takes 15 to 20
minutes to get a grievance completed and filed. Although an
individual may file a grievance without the assistance or
approval of the Union, the MSEA grievance committee decides
whether or not to take a particular grievance to arbitration.

-24-

_________________________________________________________________

DISCUSSION

As the exclusive bargaining agent for the Operations,
Maintenance and Support Services bargaining unit, the Union owes
all unit employees the duty of fair representation. See, 26
M.R.S.A. §979-F(2)(E). The duty of fair representation is
breached only when a union's conduct toward a bargaining unit
member is arbitrary, discriminatory, or in bad faith. Lundrigan
v. MLRB, 482 A.2d 834 (Me. 1984), Brown v. MSEA, 690 A.2d 956
(Me. 1997). See also, Vaca v. Sipes, 386 U.S. 171, (1967). The
duty derives from section 979-C(2)(A) of SELRA, which prohibits
an employee organization from "interfering, restraining, or
coercing employees in the exercise of the rights guaranteed in
section 979-B." Section 979-B, in turn, provides:

No one shall directly or indirectly interfere with,
intimidate, restrain, coerce or discriminate against
state employees or a group of state employees in the
free exercise of their rights, hereby given,
voluntarily to join, form and participate in the
activities of organizations of their own choosing for
the purposes of representation and collective
bargaining, or in the free exercise of any other rights
under this chapter.

The MLRB has held and continues to hold that the duty of
fair representation provided by Maine law is comparable to the
duty of fair representation under the National Labor Relations
Act. Whitzell v. Merrymeeting Educator's Assoc., MLRB No. 80-15,
(Nov. 6, 1980), at 8, aff'd, Whitzell v. Merrymeeting Educator's
Assoc. and MLRB, (Sagadahoc, CV-80-124, Dec. 28, 1982). See
also, Hughes v. Univ. of Maine, 652 A.2d 97, 99 (1995). The
Maine Law Court has affirmed the Board's interpretation of the
duty of fair representation and summarized the nature of the duty
in Lundrigan, a case decided in 1984, and reaffirmed it as
recently as 1997 in Brown v. MSEA. The Law Court stated:

The MSEA has a statutory duty to represent employees
fairly in its enforcement of the collective bargaining
agreement. To constitute a breach of the duty of fair
representation, the union's conduct toward its members

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_________________________________________________________________

must be arbitrary, discriminatory or in bad faith.
Thus, the union may not ignore a meritorious grievance
or process it in a perfunctory manner. See Vaca v.
Sipes, 386 U.S. 171 (1967). Nevertheless, a "[w]ide
range of reasonableness must be allowed" and "[m]ere
negligence, poor judgment or ineptitude are
insufficient to establish a breach of the duty of fair
representation."

Lundrigan v. Maine Labor Relations Board, 482 A.2d 834, 836 (Me.
1984) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73
S.Ct. 681, 686, 97 L.Ed. 1048 (1953)). See also Brown v. MSEA,
690 A.2d 956, 958-959 (Me. 1997). This Board has provided
further elaboration of the duty with respect to grievance
handling by noting:

The union must be accorded "[a] wide range of
reasonableness" to enable it to perform its duties
effectively, however, with its broad authority subject
of course "to complete good faith and honesty of
purpose in the exercise of its discretion." Ford Motor
Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97
L.Ed. 1048 (1953). Or, as stated in Griffin v.
International Union, UAW, 469 F.2d 181, 183 (4th Cir.
1972): "A union may refuse to process a grievance or
handle the grievance in a particular manner for a
multiple of reasons, but it may not do so without
reason, merely at the whim of someone exercising union
authority."

Lundrigan v. MSEA, No. 83-03, at 6-7, aff'd Lundrigan v. MLRB,
482 A.2d 834 (1984).

In the present case, the complainant argues that the Union
breached its duty of fair representation by handling Langley's
request for assistance arbitrarily.[fn]6 The complainant contends
____________________

6 Langley made no claim that the Union's actions were discriminatory
or made in bad faith. An example of discriminatory conduct found to
violate the duty of fair representation is racially motivated conduct,
Steele v. Louisville & Nashville R.R., 323 U.S. 192, 203 (1944), as is
conduct motivated by intraunion politics, or by the fact that the
employee is not a union member or is a dissident union member. See
Postal Service, 272 N.L.R.B. 93, 104 (1984), California Saw & Knife
Works, 320 N.L.R.B. No. 11 (1995). An example of bad faith is where
the union president negotiated a secret agreement with the employer
modifying the collective bargaining agreement and willfully concealed

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that the Union failed to adequately investigate Langley's grounds
for at least two grievances (the leave of absence request and the
manner of termination) which were both 'clearly meritorious';[fn]7
the Union accepted, without question, the employer's represen-
tation of the facts; the Union failed to advise Langley about
the time frame for filing grievances; the Union failed to file
grievances on Langley's behalf; the Union failed to address his
termination in any manner; and the Union failed to notify Langley
that it would not represent him.

The problem with the complainant's argument is that it
ignores the directive of the U.S. Supreme Court on the meaning of
"arbitrary" with respect to the duty of fair representation, an
interpretation this Board adopted in Ridge v. Cape Elizabeth
Educ. Assoc., 98-02 (Sept. 8, 1998), slip op. at 16. In the
1991 case O'Neill v. Air Line Pilots Assoc., 499 U.S. 65, the
U.S. Supreme Court stated unequivocally:

We hold that the rule announced in Vaca v. Sipes, 386
U.S. 171, 190 (1967) -- that a union breaches its duty
of fair representation if its actions are either
"arbitrary, discriminatory, or in bad faith" -- applies
to all union activity, including contract negotiation.
We further hold that a union's actions are arbitrary
only if, in light of the factual and legal landscape at
the time of the union's actions, the union's behavior
is so far outside a "wide range of reasonableness,"
Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953), as
to be irrational.

Airline Pilots v. O'Neill, 499 U.S. 65, 67 (1991). The O'Neill
____________________

that agreement from the members. Lewis v. Tuscan Dairy Farms, 25 F.2d
1138 (2nd Cir.) (1994). We find no evidence of any such invidious
motivation.

7 Complainant is correct that the outcome of a DFR case is not
controlled simply by the merits of a grievance, without regard to how
it was handled; however, even if Langley's potential grievances were
"clearly meritorious," which they are decidedly not, "a breach of the
duty of fair representation is not established merely by proof that
the underlying grievance was meritorious." Ridge, 98-02 slip op. at
12, citing Whitzell, 80-15, slip op. at 9.

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_________________________________________________________________

Court went on to reject the suggestion that there is a "double
standard" requiring less scrutiny of the union's actions with
respect to negotiations than applies to contract administration
and enforcement.[fn]8 Id. at 77. The O'Neill Court compared the
degree of deference appropriate when reviewing a union's
performance in a DFR case to a court's limited review of the
rationality of legislative action. Id. at 75, 78. That Court
noted, and we concur, that any review of the union's performance
must be "highly deferential" in order to allow the union the
latitude necessary to manage its collective bargaining responsi-

bilities. Id. at 78. See Ridge, slip op. at 16. See also,
Hughes v. Univ. of Maine, 652 A.2d 97, 99 (1995) (giving
discretion to union to supervise grievance process assures that
similar complaints are treated consistently and problem areas of
contract interpretation resolved.)

In a similar vein, it is not appropriate to apply a
different standard requiring more scrutiny of a union's actions
when an individual's job is at stake, as the complainant argues.
The NLRB does not apply a double standard nor does this Board.[fn]9
The NLRB has consistently found that the duty of fair
representation is not breached by mere negligence even if the
negligent conduct leads directly to loss of employment. The NLRB
found no breach where the union negligently failed to process a
meritorious grievance in a timely manner and the employee was
thereby prevented from obtaining relief. Truck Drivers Local 692
(Great Western Unifreight System), 209 NLRB 446, 448 (1974).
Similarly, there was no breach when a union negligently failed to
____________________

8 Indeed, the Court observed that the line between contract
negotiations and contract administration is often blurred as grievance
processing is often seen as a form or extension of contract
negotiations. Id.

9 In discipline and discharge grievances under a just cause
article, the employer bears the burden of going forward and the burden
of proof, while the union has these burdens in all other cases. The
union's conduct with respect to the duty of fair representation,
however, is always subject to the same legal standard.

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_________________________________________________________________

give strike notices required under the National Labor Relations
Act even though it meant the strikers lost their statutory
protection and were discharged. Sheet Metal Workers Local 49
(Aztech International), 291 NLRB 282 (1988), aff'd sub nom.
Le'Mon v. NLRB, 902 F.2d 810 (10th Cir. 1990), vacated and
remanded, 499 U.S. 933 (1991), enforced, 952 F.2d 1203 (10th
Circ. 1991), cert. denied, 113 S.Ct. 93 (1992).

In the present case, we conclude that the Union's handling
of Langley's employment situation did not constitute a breach of
the duty of fair representation. We cannot hold that the Union
was "arbitrary" in its actions because the record simply does not
support a conclusion that the Union's handling of the matter was
"so far outside the 'wide range of reasonableness' as to be
irrational." As an initial point, Langley's potential
grievances were not "clearly meritorious" as the complainant
argues but, at most, might conceivably be viewed as a potential
test case on a particular issue. A decision not to submit a
grievance or pursue such a test case is clearly within the
Union's discretion. While it is clear to us that the Union could
have done a better job in assisting Langley, it did not breach
the duty of fair representation. Even if we were to assume the
situation to be as poorly handled as the complainant contends,
and even if we were to conclude the Union was negligent or just
plain inept, there would be no violation of the Union's duty of
fair representation.[fn]10
____________________

10 There are a number of factual issues in dispute in this case,
and differing recollections of conversations, the timing of those
conversations, the substance of the information given and the
statements made. Some degree of confusion is understandable, given
the fact that the hearing occurred 15 months after the events at
issue, and that there were few contemporaneous records of what was
said. Clearly, some witnesses were more credible than others. Our
credibility determinations were based on the demeanor of the
witnesses, the presence of corroborating testimony or evidence, and
the consistency of the testimony. Some of the witnesses, particularly
Bruce Jones, the Union steward, and Mike Badger, the first-line
supervisor, impressed us as being quite credible. Many of the other
witnesses may have had their recollections distorted by the passage of

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In his post-hearing brief, the complainant argues the Union
did not adequately investigate the circumstances surrounding
Langley's request for a leave of absence and work release. We
conclude that the Union's investigation was reasonable,
particularly in light of the long-standing policy at the
Department of not granting unpaid personal leave to cover periods
of incarceration. Langley told Ahlquist that he did not think he
had any vacation time.[fn]11 Ahlquist spoke with Baker about the
leave of absence request and Baker said he would not grant the
leave, that Langley had a pattern of misusing his leave time.
Ahlquist reviewed Langley's time records which confirmed that he
had a pattern of using paid leave as he accrued it, as Baker had
indicated, and that Langley had very little time available, just
as Langley himself had said. Ahlquist relied on his extensive
experience as an advocate for employees, his familiarity with
arbitration cases, and his knowledge of how both the Union and
the employer had applied the contract over the years to conclude
that the denial of the LOA request or the work release request[fn]12
____________________

time and a desire to appear in a positive light. It was unnecessary
to make a determination on all of the factual issues in dispute
because, as we mentioned above, even if the Union handled the case as
poorly as the complainant contends, it would not be a breach of the
duty of fair representation.

11 The complaint alleged that, according to his own records,
Langley did have sufficient paid leave time available to cover a
three-day processing period for work release. Once it became apparent
from records admitted that Langley had less than one day available,
the complainant did not continue with that specific allegation.

12 The dispute about whether Langley specifically requested work
release as soon as he was sentenced and whether Ahlquist knew of this
request need not be resolved. Neither the employer nor the Union was
under any obligation to "go the extra mile" for Langley to try to get
the work release petition processed as quickly as possible, as the
complainant argues. The evidence was clear that the sheriff's
department would not start processing the request until the inmate
began serving his sentence. Furthermore, hand delivery of petitions
to the court for the judge's signature was not a procedure used for
courts other than Bangor. Even if the work release had been requested
at the outset, Langley would still have been absent without leave for
well over three or more consecutive days. We strongly disagree with
the complainant that had Ahlquist known that Langley was "eligible"
for work release, it would be more difficult for Ahlquist to defend

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would not be a violation of the contract. In his judgment, a
grievance over the denial of the leave request lacked merit and
there was nothing further to investigate.

The complainant also argues that the Union failed to
adequately investigate Langley's termination. A termination
following three consecutive days of absence without leave is not
considered a disciplinary discharge by either the employer or the
Union. The employee is viewed as unavailable for work without
leave and is terminated. It is an event that occurs by operation
of the State's personnel rules. Ahlquist did not consider it a
violation of the contract for the employer to apply the rule
after three consecutive days of absence without leave. He could
not recollect any instance in which application of this rule was
considered to be a problem that needed to be resolved at the
bargaining table. Similarly, the evidence indicates that, at
that time, neither the employer nor the Union considered such a
non-disciplinary termination to require a pre-termination hearing
under the contract. Given the long-standing interpretation of
the contract by both the Union and the employer, we cannot
conclude that Ahlquist's failure to investigate these issues to
be beyond "a wide range of reasonableness" that unions must be
afforded.

The complainant contends that the Union "unquestionably"
accepted the employer's representation of the facts when it
should have investigated the history of Langley's emotional state
and appealed to "the employer's sense of obligation, under the
law, to an emotionally distraught employee." (Complainant's
Brief at p. 11). Regardless of whether an argument could be made
that the employer had a legal obligation to this employee under
one or more statutes affecting employment, we have no interest in
____________________

his "inaction" in this case because the length of leave required would
be shorter. There is no reason to speculate on whether the work
release request would have been approved if Langley had had sufficient
leave time to cover the processing period.

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even suggesting that a union should be expected to be some sort
of "in-house" attorney for the unit members, zealously advocating
for the interests of each particular employee without regard to
the needs of the collective whole, as the complainant seems to
contend.[fn]13

The remaining failures of the Union listed by the
complainant are, for the most part, true but still are not "so
far outside a 'wide range of reasonableness,' as to be
irrational." It is true the Union never told Langley about the
possibility of filing a grievance or the time frame in which a
grievance must be filed.[fn]14 While that may not have been the most
helpful approach, it is not a violation of the duty of fair
representation. The Union had concluded that a grievance was
baseless. The Union had a policy of investigating problems at
the outset and of discouraging the filing of frivolous
grievances. If Langley had requested that Ahlquist file a
grievance even after hearing that Ahlquist thought it would be
futile, Ahlquist testified that he would have filed it. Given
the rational basis for Ahlquist's decision not to pursue the
issue by filing a grievance, neither the fact that it only takes
a few minutes to file a grievance nor the eventual impact on
Langley are relevant to a determination of whether the duty of
fair representation was breached. Similarly, even if the Union
did not advise Langley to put his leave request in writing or
advise him of the option of resigning, as Langley contends, those
failings simply do not constitute a breach of the duty of fair
representation. At most, it was negligence.
____________________

13 The complainant argues that had the Union investigated
Langley's emotional state, it would have discovered that the employer
"violated" various state and federal laws on disability and medical
leave and could have then used these "violations" as bargaining chips
in trying to get the leave request approved. (Complainant's brief at
p. 11, fn.18).

14 The contract imposes specific time frames for the filing of
grievances, whether the grievance is filed by the employee
individually or by the Union on an employee's behalf.

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It is true that the Union did not file or offer to file a
grievance on Langley's termination. The complainant's claim that
the termination was "in blatant violation of the contract" does
not make it so. The record shows the Union and the employer
agreed that terminations occurring as a result of the State
personnel rule on absence without leave were not disciplinary
terminations subject to pre- or post-termination hearings under
the contract.[fn]15 Consequently, it was not irrational for Ahlquist
to consider a grievance on the termination or the failure to
offer a hearing to be futile. Finally, we reject the
complainant's contention that the Union breached the duty of fair
representation by failing to follow up with him while he was in
jail. Even if that failure were negligent, it would not be so
far outside the wide range of reasonableness as to be irrational.

We want to make it clear that in concluding that the duty of
fair representation was not violated, we are not concluding that
the Union's handling of the matter as a whole was laudable or
even acceptable in terms of providing the kind of assistance and
direction Langley really needed. Nor are we saying that the
employer's treatment of Langley was commendable either.
Clearly, Langley got himself into a pickle and didn't have the
foresight or the wherewithal to get himself out on his own. Had
the employer handled the situation differently and been less
rather than more lenient with him regarding his absences from
work while at the same time being more understanding of his need
for assistance in managing his personal life, Langley might have
been able to save his job. Similarly, either the employer or the
Union could have helped him considerably by telling him, as soon
as it was known that jail was a possibility, that unpaid leave
would not be granted to cover any length of incarceration. If
____________________

15 Any change in practice in this respect, whether due to
contractual or due process concerns, is irrelevant to this proceeding.
See O'Neill, 499 U.S. at 67 (In DFR cases, must consider the "factual
and legal landscape at the time of the union's actions.")

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_________________________________________________________________

either the employer or the Union had explained to Langley in very
clear terms that he would need to build up a bank of vacation and
compensatory time to cover any jail time, and that he would be
terminated if he missed three or more consecutive days without
leave, Langley might have been able to save his job. Finally,
the Union could have done a much better job in Langley's final
week of employment by explaining the reason why Ahlquist's "hands
were tied." If the Union had explained what Langley's options
were, the advantages of voluntarily resigning, the option of
submitting a written request and then filing a grievance after
his written request had been denied, perhaps the complaint in
this case would never have been filed.

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_________________________________________________________________

ORDER

On the basis of the foregoing findings of fact and
discussion and pursuant to the powers granted to the Maine Labor
Relations Board by the provisions of 26 M.R.S.A. §979-H (1988 &
Supp. 2000), it is hereby ORDERED that the complaint filed by
Mr. Troy A. Langley on December 14, 1999, as against the Maine
State Employees Association, Local 1989, SEIU be and hereby is
DISMISSED.

The Board will rule on the Department's Motion to Dismiss
following the expiration of the period in which to appeal this
decision and order.

Dated at Augusta, Maine, this 26th day of December, 2000.

The parties are advised of MAINE LABOR RELATIONS BOARD
their right pursuant to 26
M.R.S.A. § 979-H(7) (Supp.
2000) to seek a review of this
decision and order by the /s/___________________________
Superior Court. To initiate Peter T. Dawson
such a review, an appealing Chair
party must file a complaint
with the Superior Court within
fifteen (15) days of the date
of issuance of this decision /s/___________________________
and order, and otherwise Karl Dornish, Jr.
comply with the requirements Employer Representative
of Rule 80(C) of the Rules of
Civil Procedure.

/s/___________________________
Wayne W. Whitney
Employee Representative

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_________________________________________________________________

STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 00-14
Issued: March 29, 2002

____________________________
)
TROY A. LANGLEY, )
)
Complainant, )
)
v. ) DECISION AND ORDER
) ON STATE'S
STATE OF MAINE DEPARTMENT ) MOTION TO DISMISS
OF TRANSPORTATION, )
)
)
Respondent. )
____________________________)

The prohibited practice complaint in this case was filed on
December 14, 1999, against both the State of Maine, Department of
Transportation ("State"), and the Maine State Employees Associa-
tion ("Union"). The State filed a motion to dismiss the
complaint against it on December 28, 1999. The Complainant and
the Respondent Union filed briefs in opposition to the State's
motion and the State filed a responsive brief. The last brief on
the motion was filed on February 25, 2000.

In our Interim Decision dated March 23, 2000, we bifurcated
the proceeding to allow the duty of fair representation complaint
against the Union to be decided before addressing the State's
motion to dismiss. After hearing evidence and argument on the
claim against the Union, we concluded that the Union did not
breach the duty of fair representation and dismissed Langley's
complaint against the Union. Langley v. MSEA, No. 00-14
(Dec. 26, 2000). The Law Court affirmed that decision on

[-1-]
_________________________________________________________________________________________

February 22, 2002. Langley v. MSEA, et al., 2002 ME 32.[fn]1
We have now considered the parties' arguments on the State's
motion to dismiss and, for the reasons stated below, grant the
State's motion.

JURISDICTION

The Board's authority to consider and rule upon the State's
motion lies in §979-H(2) of the State Employees Labor Relations
Act, 26 M.R.S.A. ch. 9-B.

DISCUSSION

Langley's complaint alleges that the State failed to follow
any of the procedures required by the collective bargaining
agreement when it terminated his employment after he began
serving a 90-day jail sentence.[fn]2 Langley claims that the
alleged contract violation, combined with the manager's statement
to the union representative that he had "no alternative" but to
dismiss Langley, constitutes interference with Langley's rights
under the collective bargaining agreement and was therefore
unlawful interference within the meaning of 26 M.R.S.A. §979-
(C)(1)(A).[fn]3
_______________

1Given that disposition of the case against the union, there is
no need to examine the extent of our remedial authority over a public
employer when there has been a violation of the duty of fair
representation. See Interim Decision of March 23, 2000, and Brown v.
Maine State Employees Association, 1997 ME 24, 620 A.2d 956.

2The Complaint also alleges the State violated the due process
clauses of the Maine and U.S. Constitutions. The Board has no
jurisdiction to hear constitutional claims. Teamsters Union Local 340
v. Town of Fairfield, No. 94-01, at p. 50 (Dec. 5, 1994).

3 The complaint itself does not make a connection between the
manager's statement and the alleged violation of §979-C(1)(A).
Langley attempts to tie the manager's statement to the alleged

-2-
_________________________________________________________________________________________

For the purposes of deciding the State's motion to dismiss,
we must consider the complaint in the light most favorable to
Langley to determine if it states a claim upon which relief may
be granted. In doing so, we will accept all allegations in the
complaint as true. See, e.g., Brown v. Maine State Employees
Association, 690 A.2d 956, 958 (Me. 1997); McNally v. Town of
Freeport, 414 A.2d 904, 905 (Me. 1980).

Section 979-(C)(1)(A) makes it unlawful for an employer to
interfere with, restrain or coerce an employee in the exercise of
rights guaranteed in §979-B. Section 979-B states:

No one shall directly or indirectly interfere with,
intimidate, restrain, coerce or discriminate against
state employees or a group of state employees in the
free exercise of their rights, hereby given, voluntar-
ily to join, form and participate in the activities of
organizations of their own choosing for the purposes of
representation and collective bargaining, or in the
free exercise of any other right under this chapter.

The focus of §979-B, which is labeled "Right of state employees
to join labor organizations," is on the rights of representation
and collective bargaining granted by the Act. A finding of a
§979-C(1)(A) violation is based on "whether the employer engaged
in conduct which, it may reasonably be said, tends to interfere
with the free exercise of employee rights under the Act." MSEA
v. State Development Office, No. 84-21 at 8-9 (July 6, 1984),
aff'd. 499 A.2d 165, 169 (Me. 1985). There is no need to show
the employer's motive or whether the conduct succeeded in
restraining employees from exercising the rights granted by the
Act, as the conduct is viewed from the perspective of a
reasonable employee. Id.
____________

violation of SELRA in his response in opposition to the employer's
motion to dismiss.

-3-
__________________________________________________________________________________________

In the present case, even if it were true that the employer
violated the contract, Mr. Langley's complaint against the State
does not state a claim upon which relief may be granted. The
Board's jurisdiction is limited to allegations of prohibited acts
set forth in §979-C. A contract violation, by itself, is not a
prohibited practice over which the Board has jurisdiction. MSEA
v. State of Maine, 499 A.2d 1228, 1239 (Me. 1985). Something
more is needed to rise to the level of a prohibited act. For
example, when a contract violation is a repudiation of a pro-
vision of the contract or a unilateral change in a mandatory sub-
ject of bargaining, it could be a violation of §979-C(1)(E) and
§979-C(1)(A). See, e.g., MSEA v. State of Maine, No. 89-06
(Sept. 5, 1989). A contract violation may also be relevant in
a case alleging discrimination based on union activity (§979-C
(1)(B)) or retaliation for participating in a Board proceeding
(979-C(1)(D)). The allegation of a contract violation in this
case, however, does not state a prohibited act set forth in
§979-C.

Moreover, even if the manager told the union representative
that he had "no alternative" but to dismiss Langley, it is no
more interference, restraint or coercion of Langley's rights
under the Act than is a simple contract violation. The "no
alternative" statement is simply a reflection of the manager's
reading of his options in dealing with Langley's impending
absence from work. If Langley disagreed with the manager's
conclusions, he had the right to file a grievance. There is
no allegation that the employer's conduct interfered with
Mr. Langley's ability to file a grievance over his discharge,
Teamsters v. City of Calais, No. 80-29 (May 13, 1980), p. 7,
(interfering or restraining an employee in the right to file a

-4-
__________________________________________________________________________________________

grievance is a prohibited practice). There is also no allegation
that the employer's conduct interfered with Langley's ability to
exercise a right granted by SELRA. See, e.g., MSEA v. Dept. of
Human Services, No. 81-35, p. 5 (June 26, 1981) (participating in
bargaining is one of the employee rights guaranteed by section
979-B).

The manager's "no alternative" statement was an explanation
of why he was going to terminate Langley's employment and cannot
reasonably be viewed as interference with the free exercise of
rights under the Act, including the right to file a
grievance.[fn]4 Thus, even if there had been an allegation that
the statement interfered with Langley's right to file a
grievance, the complaint still would not state a violation of
§979-C-(1)(A).
As the facts as alleged do not state a violation of SELRA, the
State's motion to dismiss must be granted.

ORDER
For the foregoing reasons, it is accordingly ORDERED that
the State's motion to dismiss is granted, and it is further
____________

4The apparent theory of the §979-C(1)(A) charge is contained in
Langley's response to the State's motion, which states that because
the manager said he had 'no alternative' but to terminate Langley,

It follows that Mr. Langley had no alternative, under the
circumstances, but to be terminated. [The manager] directly
and indirectly interfered with [Langley's] right to fully
participate in the contract, in violation of §§979-B and
979-C(1)(A). In fact, [the manager] did have an
alternative: to follow the terms of the contract.

Restating an allegation of a contract violation so that it reads that
the employer interfered with a "right to fully participate in the
contract" does not transform it into a violation of SELRA. It remains
nothing more than a contract violation.

-5-
_________________________________________________________________________________________

ORDERED that Langley's complaint against the State be dismissed
for failure to state a claim upon which relief may be granted.

Date in Augusta, Maine, this 29th day of March, 2002.

The parties are advised of MAINE LABOR RELATIONS BOARD
their right pursuant to 26
M.R.S.A. §979-H(7) (Supp.
2001) to seek a review of this
decision and order by the /s/___________________________
Superior Court. To initiate Peter T. Dawson
such a review, an appealing Chair
party must file a complaint
with the Superior Court within
fifteen (15) days of the date
of issuance of this decision /s/___________________________
and order, and otherwise Karl Dornish, Jr.
comply with the requirements Employer Representative
of Rule 80(C) of the Rules of
Civil Procedure.

/s/___________________________
Wayne W. Whitney
Employee Representative

-6-
_________________________________________________________________________________________

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