David J. Jordan filed this prohibited practice complaint
with the Maine Labor Relations Board on January 26, 2007,
alleging that AFSCME Council 93, AFL-CIO (the "Union"), violated
the Municipal Public Employees Labor Relations Law (the "Act") by
failing to represent all of the job classifications in the
bargaining unit during the negotiation process with the school
district and by failing to address the concerns raised by certain
union members during the contract ratification process.  On the
complaint form, Mr. Jordan wrote that AFSCME failed to represent
the maintenance workers and custodians in violation of "§967 page
16, para. 3."  The third paragraph on page 16 (which is the 5th
paragraph of section 967, subsection 2), requires that the
exclusive bargaining agent "represent all the public employees
within the unit without regard to membership in the organization
certified as bargaining agent. . . ."
     The Union filed a Motion to Dismiss on February 28, 2007,
arguing that the complaint failed to allege a violation of a
specific provision of the law as required by the Board's Rules. 
 
[end of page 1]

On March 28, 2007, the Board's Executive Director concluded the
complaint was sufficient as it expressly charged a violation of
the duty of fair representation.  The Executive Director noted,
"The Board has long held that the duty of fair representation
created by 26 MRSA §967(2)(5) is enforceable through the pro-
hibited practice complaint process as a violation of §964(2)(A)." 
Section 964(2)(A) prohibits a union from "interfering with,
restraining or coercing employees in the exercise of the rights
guaranteed in section 963" (generally protecting collective
bargaining rights).  The Executive Director determined that the
complaint, "[w]hile technically incomplete", gave notice to
AFSCME of the section of the Act alleged to have been violated. 
The Executive Director also stated, "At or before the prehearing
conference, the Complainant should move to amend the complaint to
charge a violation of 26 MRSA §964(2)(A)."
     A prehearing conference was held on June 15, 2007, with
Board Chair Peter T. Dawson presiding.  The Complainant
represented himself, and AFSCME Council 93 was represented by
Erin L. Goodwin, Esq., who was accompanied by James Oliver,
AFSCME Staff Representative. 
     The evidentiary hearing was held on December 27, 2007, and
February 11, 2008. Chair Peter Dawson presided, with Employer
Representative Karl Dornish, Jr., and Employee Representative
Wayne Whitney serving as the other two Board members.  The
parties were able to examine and cross-examine witnesses and to
offer documentary evidence.  At the close of the hearing, the
Complainant elected to present his closing argument orally, while
the Respondent was granted the opportunity to file a written
brief.  The parties agreed on a schedule for filing reply briefs,
the last of which was received on March 31, 2008.  The Board
deliberated this matter on May 7, 2008.

[end of page 2]
                          JURISDICTION
     AFSCME, Council 93 is a bargaining agent within the
meaning of 26 M.R.S.A. §962(2) and the Complainant, David J.
Jordan, is a public employee within the meaning of 26 M.R.S.A.
§962(6).  The jurisdiction of the Board to render a decision and
order lies in 26 M.R.S.A. §968(5).    
     
                      PRELIMINARY MATTERS
                                
     Prior to the start of the hearing, AFSCME renewed its motion
to dismiss, arguing that the Complainant had not amended his
complaint to reflect the specific statutory provision he claimed
the Respondent had violated.  At the hearing, the Respondent
argued that it was prejudiced by the Complainant's failure to
cite the proper statutory provision.  The Board considered the
positions of the Complainant and the Respondent and concluded
that there was no prejudice to the Union and that the complaint
should be considered amended to allege a violation of 26 M.R.S.A.
§964(2)(A).         

                        FINDINGS OF FACT
                                
     1.  David J. Jordan is a custodian at MSAD #52, which
includes the towns of Turner, Leeds and Greene.  Mr. Jordan was a
maintenance worker up until January of 2007.  He had worked as a
spare bus driver earlier in his 31 years of employment with the
school district.
     2.  AFSCME, Council 93 has been the bargaining agent for the
bargaining unit covering MSAD #52's bus drivers, custodians and
maintenance workers for many years.  Mr. Jordan's position is in
that bargaining unit and he is a member of the Union.  When the
preparations for negotiating the 2006-2009 collective bargaining
agreement began in January of 2006, Mr. Jordan was the co-chair
of the negotiating team.  He had held that position in the Union

[end of page 3]

for about 6 years.  Roger Libby, a bus driver, was chair of the
unit and had held his position for 3 or 4 years as of the time of
the evidentiary hearing.  Prior to that, Mr. Libby had not been a
member of the Union.
     3.  The negotiating team had at least four bus drivers on
it:  Roger Libby, Lois Nelson, Jackie Brown and Dwight Harris. 
Mr. Jordan was the only maintenance person on the team and
Dana Hood was the only custodian on the team.  Some of the
members of the negotiating team had been involved in several
negotiations.  Jim Oliver, the AFSCME Council 93 staff
representative who has been responsible for the unit for over
seven years, was the unit's chief negotiator and attended many,
but not all, of the negotiating sessions.  Prior to his
employment with AFSCME, Mr. Oliver had been a bus driver at
another school district for 27 years.
     4.  The Union's negotiating team had four preliminary
meetings in early 2006 before meeting with the School Board
negotiating team to negotiate the 2006-2009 agreement.  At the
first meeting of the negotiating team, Mr. Libby broke the group
into two subgroups to discuss their respective issues and come up
with suggested proposals.  One group was the bus drivers and the
other group was custodians and maintenance.  Mr. Jordan and
Mr. Hood were the only members of the latter group.  The purpose
of these subgroup meetings was to identify their respective
interests before getting together to figure out the Union's
starting proposal for the entire unit.  
     5.  At the second meeting, Mr. Libby broke the team into the
same two subgroups for discussions.  Mr. Harris, a bus driver
with prior experience on the negotiating team, told Mr. Libby
that they had to represent everyone equally and that they should
not divide the group in two.  Mr. Oliver was not present at this
meeting.  They split into two and when they regrouped to go over

[end of page 4]

what they had discussed individually, Mr. Libby stated that they
were trying to get more for the bus drivers than for the others. 
Mr. Jordan was not happy and made a critical remark about bus
drivers saying that "they got paid three hours for two hours of
work".  Mr. Libby countered with an argument that bus drivers
have other responsibilities besides driving.
     6.  Mr. Jordan felt that the negotiating team members
continued to show disrespect toward custodians and maintenance
workers during subsequent meetings over the next few months.  At
the negotiating session in June the Superintendent of MSAD #52
told Mr. Jordan, "You're not going to like to hear this, but the
school board and I believe the bus drivers are more important
than custodian and maintenance."  As soon as the School Board
negotiating team left the room, Mr. Libby said to Mr. Jordan,
"See, I told you so."  When Mr. Jordan argued for the custodians
and maintenance employees, Mr. Libby made a joke about the
quality of their work.  Mr. Jordan testified that this was the
breaking point for him.  He felt belittled and was angry that
neither Mr. Oliver nor anyone else gave him any support or showed
any respect for the custodians and maintenance workers.  He got
up and walked out without saying anything more.  He did not
attend any more meetings.  It was not clear to all the
negotiating team members whether Mr. Jordan would be returning. 
Ms. Nelson and Ms. Brown had not been in the room when Mr. Jordan
left, but he passed them on his way out and told them that he was
stepping down from his position with the Union.  Mr. Libby
testified that it was not until they met with the School Board
again that he realized that Mr. Jordan was not coming back.  
     7.  Jordan attended the four preliminary meetings with his
negotiation team and an additional four sessions with the School
Board before walking out.  Prior to his departure, there had been
discussions about step increases, but not about longevity pay. 

[end of page 5]
 
Within a month or so of the last meeting attended by Mr. Jordan,
the Union and the School Board reached a tentative agreement,
pending ratification by both sides.
     8.  AFSCME held a meeting to ratify the tentative agreement 
in July of 2006.  Mr. Oliver distributed a number of copies of
the agreement around the room for people to read along with as he
explained the changes in the agreement.  The new or revised
provisions were highlighted by the use of blue printing.  As the
copies were being handed out, Mr. Oliver asked that they all be
turned back in when they were done, because it was not the final
draft.  At that time, Mr. Oliver believed that he had collected
all of the copies at the end of the meeting.
     9.  Mr. Oliver proceeded through the contract, reading the
new sections out loud.  When he read the language on longevity
pay he was stopped abruptly by two members of the negotiating
team, Ms. Brown and Mr. Harris.  They pointed out that the 10
cent longevity pay was not supposed to start until the second
year of the contract.  The copy of the contract they were looking
at indicated that it would paid from the first year.  There was
no dispute about what had been agreed to with the employer; it
was clearly just a typographical error.  
     10.  Mr. Oliver made a note of the error and told everybody
that he would contact Ms. Debbie Holland, the MSAD #52 business
manager, to make this correction in the final draft of the
contract.  Mr. Oliver repeated the explanation of the provision a
couple of times in response to questions, and emphasized that the
increase would be in the second year of the contract only.
     11.  The longevity provision in the draft used at the first
ratification meeting stated:
     Article 19, #4. Employees who have completed eleven
     (11) years of employment in the District will receive a
     longevity payment of an additional $.10 per hour over
     the hourly rated listed above. Employees who have
     completed twenty-one (21) years of employment in the

[end of page 6]

     District will receive a longevity payment of an
     additional $.20 per hour over the hourly rate listed
     above (an additional $.10 per hour above those with 11
     years experience).       

     12.  The vote was taken and the contract was ratified with
the understanding that the typographical error would be fixed.
     13.  After the July ratification meeting ended, Mr. Libby
saw Mr. Jordan sitting in his car in the parking lot and went
over to speak with him.  Mr. Libby testified that he wanted to
smooth things over and told Mr. Jordan that he was disappointed
that he had dropped out of the negotiations.  Mr. Jordan
testified that Mr. Libby told him that after he walked out of the
June bargaining session, he and the other bus drivers did not
have to represent the custodians "because we are bus drivers, not
custodians."  Mr. Libby denied saying that but testified that he
might have told Mr. Jordan that he was the voice for the
custodians and maintenance and he needed to be there to speak for
them.[fn 1]  Ms. Jessica Tessier is a bus driver who works as a
custodian and maintenance worker in the summer.  She witnessed
this conversation and confirmed Mr. Jordan's version, adding that
the tone of the conversation was rude and heated.
     14.  Mr. Libby was the only witness who testified regarding
how members were notified of the first ratification meeting.  He
claimed that they called everyone and left messages, but also
said to Mr. Jordan as he was testifying:
     And my question to you is why didn't you notify them? 
     I mean I went over there and called everyone.  You
     could have gone with us. 

     15.  At some point after the July ratification vote,
Mr. Jordan brought to the attention of Mr. Frank Moroney,
AFSCME's Special Assistant to the Director in Boston, that three
_________________
	 1. It is not clear from the record whether the custodian Dana Hood 
was still participating in negotiations.

[end of page 7]

custodians had not been notified of the first ratification vote. 
After looking into it, Mr. Moroney told Mr. Oliver to conduct a
second ratification vote, which was scheduled for August 25,
2006.  AFSCME's Augusta office sent out the notices for the
second ratification meeting.
     16.  Mr. Oliver contacted the business manager for the
school district and informed her of the typographical error in
the copy of the contract they had.  On August 3, 2006, she
emailed him the corrected copy and the following note of
explanation:
     Hi Jim,
     Got your message about the contract ratification.....so
     happy to hear that it was ratified. We will ask the
     Board to act on it on the 10th.  I've attached a draft
     final version of the contract for you to review.  I've
     fixed the longevity language to clarify the starting
     year and also took out the statement about clarifying
     the make up day language.  Let me know if you see
     anything that isn't correct.
     Thanks.
          
     Deb Holland
     Business Manager
     MSAD #52
     
The corrected longevity language was identical to the first
version cited in paragraph 11 except at the end it added
"beginning in the 2007-08 contract year."
     17.  Gene Jordan, David Jordan's brother, is a maintenance
employee at MSAD #52 and has worked for the School District for
over 30 years.  He did not attend the first ratification vote
because he was not a union member at the time.  He joined the
Union on about August 19, 2006.  After he joined the Union,
Mr. Libby gave him a copy of the contract.  Mr. Jordan said he
made some copies of the contract and passed them out.  Mr. Jordan
saw that certain parts of the contract, including the longevity
language, were printed in blue and were more noticeable.

[end of page 8]

     18.  Gene Jordan did not have any conversations with his
brother about negotiations or the longevity pay.  He stated that
he would have remembered any conversation about longevity pay
because it is one of the few things in the contract that would
have affected him. 
     19.  The second ratification meeting was held on August 25,
2006, and, again, was led by Mr. Oliver.  David Jordan testified
that before the vote at the August 25th ratification meeting, he
described the comment Mr. Libby made to him in the parking lot
after the first ratification meeting.  Mr. Jordan testified that
he made the following statement to the assembled group:
     
     Before we vote, I want to tell you what happened
     outside after the last meeting.  Mr. Libby come up to
     me and said he was upset, he was upset, that he lost
     respect for me because I quit the negotiation team, and
     at that time they did not have to represent us--he said
     you  guys--and we did not represent you.  And we did
     not represent you.

     20.  There was conflicting testimony on whether the room was
noisy or quiet at the time of this statement and conflicting
testimony on whether Mr. Oliver and Mr. Libby heard it.
     21.  Mr. Jordan asked twice for the contract to be read
aloud, but Mr. Oliver said that it was not necessary because it
had been read at the first meeting.  When Mr. Jordan responded
that not everyone was at the first meeting, one of the bargaining
team members said that it was not their fault.  A number of the
people in the room did not want the agreement read aloud again.   
Gene Jordan then stood and asked, while holding the contract high
up in his hand, "Is this the contract we are voting on, the one
that Mr. Libby gave me?"  Mr. Oliver said yes and Mr. Libby said
if that is the one I gave you, yes, it is the one we are voting
on.  Neither Mr. Oliver nor Mr. Libby made any effort to verify
that the copy of the contract Mr. Jordan was holding was, in

[end of page 9]

fact, a corrected copy of the contract.  No one had told Gene
Jordan about the typographical error affecting longevity pay that
came up at the first ratification meeting.
     22.  Mr. Oliver did not think it was necessary to read
through the contract again because he had been told by someone on
the bargaining team that those who had missed the first meeting
had been informed of all the provisions in the new contract.  He
did not bring copies of the corrected contract to the meeting for
the members to see.  Mr. Oliver claims that he asked twice if
anyone wanted him to read the contract out loud again.  He
testified that no one thought it was necessary and that it was in
response to his question that Gene Jordan stood up and asked is
this the contract we are voting on.  
     23.  When it was time to vote, Mr. Oliver, Mr. Libby and two
other members of the negotiating team, Ms. Jackie Brown and Ms.
Lois Nelson, conducted the vote.  They counted out 24 ballot
cards, one for each person in the room.  As each person came to
the front of the line, Ms. Brown checked the person's name off
the roster of employees of the unit, and the voter was handed a
ballot to put it in the ballot box after voting.  When everyone
had voted, Mr. Oliver took the ballots out and showed everyone
that the ballot box was empty, and the others counted the vote. 
They counted the votes on the ledge by the window, but because of
the layout of the room, some people could only see their backs. 
While they were huddled around the ballots counting, Gene Jordan
asked them to turn around so they could see what was going on. 
The people counting the ballots did not respond, but just
continued counting.  When they had counted and double checked the
count, Mr. Oliver announced that they had ratified by a vote of
14 to 10.  When the complaint was made again that they could not
see the ballots being counted, Mr. Libby responded by asking if
they thought there had been cheating.  Mr. Oliver said anyone

[end of page 10]

could come up and count the ballots themselves.  No one came up
to count the ballots.    
     24.   Donald Gilbert was a custodian at MSAD #52 at the time
of these events.  His testimony, and that of Jessica Tessier and
Gene Jordan, confirms David Jordan's version of events leading up
to the vote:  that he asked twice for the contract to be read and
was told it was not necessary. 
     25.  Mr. Gilbert indicated that the reason he did not go up
and count the ballots himself after objections were made on the
visibility of the process was because he was just tired of the
treatment the custodians had received from the union leaders and
bus drivers and he was tired of fighting.  He said they looked
down on the custodians, did not want to engage with them, and did
not give them full answers.  He had two work issues in which he
had some serious problems with the Union not backing him and
found Mr. Libby particularly unsupportive in his meetings with
the school administration.  His dissatisfaction with the Union's
representation was one of the reasons why he left MSAD #52.
     26.  The wage provisions of the new contract had a more
generous increase for bus drivers than for the other job
classifications in the unit.  The record does not include the
wages prior to the start of the current contract so it is not
possible to determine the increase received in the initial year
of the contract.  For the second year, the bus drivers received a
4% increase and the custodians received 3% and for the third
year the bus drivers received a 4% increase while the custodians
received a bit less than 3%.  The five mechanic and maintenance
worker classifications received increases ranging from 3.22% to 3.29%
the first year and 3.22% to 3.26% for the second year.
     27.  Mr. Oliver testified that the bus drivers received more
because the School District was trying to bring their wages up to
a scale comparable to wages for bus drivers in other districts. 
Mr. Oliver said that it is quite hard to find bus drivers and

[end of page 11]

keep them now unless the pay is competitive.  MSAD #52 needed to
keep the employees that they had and wanted them to get bigger
increases than maintenance and custodians in this round of 
negotiations because they were having difficulty filling open
positions.  According to Mr. Oliver, when MSAD #52 advertised for
maintenance and custodian positions, they would receive many
applications, while when they advertised for bus drivers they
were lucky if they got one or two responses.  Mr. Libby also
testified about the shortage of bus drivers, indicating that the
transportation director and two mechanics have been driving
buses.  None of the bus driver positions are 40-hour positions,
while the maintenance and custodian positions are full time. 
     28.  Sometime after the second ratification vote, Mr. Dave
Jordan called Mr. Frank Moroney and complained about two aspects
of the vote:  the fact that the ballots were counted in a manner
that was not visible to the membership and that they voted on the
uncorrected version of the contract.  Mr. Moroney testified that
he spoke with Mr. Oliver about the substance of the complaint and
was assured that everything was done properly.  Mr. Moroney said
that he probably spoke to the chapter chair as well, as it is not
his practice to rely solely on the staff member's view, although
he could not recall such a conversation specifically. 
     29.  On September 25, 2006, Mr. Moroney sent Mr. Jordan the
following letter:   
     
     Dear Mr. Jordan:

     I have been made aware of your issues surrounding the
     two ratifications taken on your contract (MSAD #52-
     Turner Schools).  Our office has interviewed members of
     the bargaining team and I believe that there was no
     wrong doing by the persons conducting the ratification
     vote.
     
     If there was a problem at the second ratification
     meeting, the members present should have challenged the

[end of page 12]

     process at that time.

     Sincerely, Frank Moroney

     30.  In the early fall of 2006, a petition arrived at
AFSCME's Augusta office seeking the removal of Mr. Oliver as the
AFSCME staff representative for the MSAD #52 bus drivers, mainte-
nance and custodians unit.  David Jordan was the first name on
the list of signatures to that petition.  The petition was not in
evidence but the petition might have referred to Mr. Oliver's
failure to represent the custodians and maintenance workers. [fn 2]
Ms. Harriett Spencer has been the AFSCME Coordinator for New
Hampshire and Maine since shortly after the second ratification
vote.  To investigate the petition, Ms. Spencer looked at the
office file on that unit, spoke with Mr. Oliver about the
situation, and spoke to Mr. Moroney, who had been in charge of
the Maine office since the death of the former coordinator.   
Mr. Moroney explained his knowledge of and involvement with the
unit.  Ms. Spencer also spoke with the local Union president who
said she was not aware of any problems.  She also said that when
she spoke to the unit chair, he indicated that he was not
necessarily one of Mr. Oliver's biggest fans, but that as far as
he was concerned he had been doing a good job and had not done
anything inappropriate.
     31.  On November 15, 2006, Ms. Spencer sent a letter to  
Mr. Jordan responding to the petition.  The letter was copied to
Mr. Libby and the President of the Local, and stated, in its
entirety:
_______________________
	  2. In testimony, Mr. Jordan referred to "the petition that was 
passed in for failure to represent."  That could have meant that
'failure to represent' was a charge made in the petition or that it
was the reason why the petition to remove Mr. Oliver was submitted.

[end of page 13]

     Dear Brother Jordan:

     Although there was no indication who to respond to
     regarding a Petition I recently received calling for
     Jim Oliver's removal as the Staff Representative
     assigned to Local 2010 - Turner Schools, your name
     appears first.  As you are a member and I have an
     address, I am hoping you will share this information
     with any of your fellow Union members who signed this
     Petition.  I am not responding to any non-member, as by
     virtue of their status they have not input in any Union
     matters, thus I disregard their signatures.

     By way of investigation, I have spoken with several
     people and reviewed a letter sent to you by Frank
     Moroney dated September 25, 2006.  At this point in
     time I can find no valid reason to remove Brother
     Oliver as the Representative for the Unit.

     If you would like to make an appointment to come into
     the Augusta Office to discuss the situation, I would be
     willing to meet with you and perhaps an additional dues
     paying member or two.  I do not have the time to deal
     with non-members regarding internal Union matters but
     would try to arrange my schedule to accommodate you, as
     a Union member.

     Sincerely,
     Harriet Spencer
     Coordinator

     32.  After receiving her letter, Mr. Jordan telephoned   
Ms. Spencer to see about scheduling a meeting.  When she offered
a meeting in Augusta, he indicated that, given the work schedule
of one of the bus drivers, they would not be able to get to
Augusta in time.  He said they could meet with her in Turner
after 4:15 on any Tuesday or Thursday in December.  Ms. Spencer
responded that she had to be in New Hampshire on Mondays and
Tuesdays and she already had meetings scheduled and that it would
not work.  It is not clear from the testimony whether Ms. Spencer
had a conflict for every time that Mr. Jordan offered or if she
just refused to travel to Turner to meet with him.  In any event, 

[end of page 14]

Mr. Jordan mumbled something and hung up and no meeting was
scheduled.  Both thought the other should make the next move. 
     33.  When the AFSCME office first received the petition, 
Ms. Spencer had someone check on the names of those who had
signed the petition.  A large percentage of the names were not
members of the Union.  Ms. Spencer made no effort to directly ask
any petitioner, either members or non-members, about why they
submitted the petition, other than the offer to meet with Mr.
Jordan.  Ms. Spencer testified that she made it very clear to 
Mr. Jordan, in the letter and on the phone, that employees in a
bargaining unit who are not members have no say in the internal
affairs of AFSCME, such as who should serve as staff
representative.  
     34.  Ms. Spencer further explained her view of non-members'
limited input when she testified that the normal procedure is for
unit officers to collect bargaining proposals from the
membership.  She stated:
     
     Those proposals [from the membership] are brought to
     the negotiating committee, and the negotiating
     committee makes proposals to put forward to management. 
     Now, if you're not a dues-paying member, you really
     don't have any right to be submitting but hopefully
     you're smart enough to go to somebody who is your
     friend and a union member and say I'd like to have this
     in. . . . Hopefully the bargaining team knows which
     ones to put the greater weight on and which ones to put
     the lesser weight on.  
                         
     35.  There was no evidence in the record on whether or not
the bargaining team members received guidance from AFSCME on the
duty of fair representation.

[end of page 15]
               
                       DISCUSSION
          
     As the bargaining agent for the bargaining unit of Bus
Drivers, Custodians, Mechanics and Maintenance employees at MSAD
#52, AFSCME owes all of the employees in the unit the duty of
fair representation.  This duty derives from the statutory
provision that grants the certified bargaining agent the sole and
exclusive authority to act as the bargaining representative for
the employees in the bargaining unit.  See 26 M.R.S.A. §967 sub-§
2 ¶5.  That statutory authority includes the corresponding
obligation to represent all of the employees in the unit fairly. 
This Board and the Maine Law Court have held that 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, 1997 ME 24, ¶7, 690 A.2d 956.  See also Vaca v. Sipes,
386 U.S. 171, 190, 87 S.Ct. 903 (1967). 
     The nature of the duty of fair representation provided by
Maine law is comparable to the duty of fair representation under
the National Labor Relations Act.  Langley v. MSEA, No. 00-14, at
25 (March 23, 2000), aff'd, 2002 ME 32, 791 A.2d 100; see also
Hughes v. Univ. of Maine, 652 A.2d 97, 99 (1995).  In both cases,
a showing that the union's conduct was arbitrary, discriminatory
or in bad faith involves the same analysis:
     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 as to be irrational.  A
     union's discriminatory conduct violates its duty of
     fair representation if it is invidious.  Bad faith
     requires a showing of fraud, or deceitful or dishonest
     action. 

Aguinaga v. United Food & Commercial Workers Int'l Union, 993
F.2d 1463, 1470 (10th Cir. 1993) cert. denied, 510 U.S. 1072
(1994)(internal quotations and citations omitted).  

[end of page 16]
  
     An important element in the analysis of any claim regarding
the duty of fair representation is an understanding of the areas
to which the duty applies.  The duty of fair representation only
applies when the union is acting in its statutory capacity as the
bargaining agent representing the employees in the bargaining
unit.  Thus, when a union is representing employees in
negotiations and in administering a collective bargaining
agreement (including grievance processing), it is subject to the
duty of fair representation.  Stephen Collier v. Penobscot Bay
Teachers Assoc./MEA, No. 92-30 at 12 (Sept. 25, 1992), aff'd Ken.
Super. Ct. CV-92-478 (April 10, 1993).  When a union is managing
its own internal affairs, such as selecting officers and
bargaining team members, there is no duty of fair representation
because the duty "is confined to matters of employment and its
terms and conditions." Longshoreman's Local 1575 (Navieras, NPR)
332 NLRB 1336 (2000), citing Miranda Fuel Co., 140 NLRB 181, 185
(1962), enf. denied, 326 F.2d 172 (2d Cir. 1963). 
     The Maine Labor Relations Board addressed some of these
issues in the 1992 decision of Collier v. Penobscot Bay Teachers
Association/MEA.  In that case, Mr. Collier was not permitted to
vote on negotiation proposals or strategies because he was not a
union member.  The Board stated, 
          
     . . . We conclude that the union's ability to reserve
     to its membership the authority to determine, on the
     basis of the interest of the unit as a whole, what
     subjects and language are to be proposed in
     negotiations and the priority in which they will be
     pursued, is a logical derivative of the right of
     exclusive representation. . . .    
          . . . We consider voting on contract ratification
     and voting on what will be proffered in negotiations to
     be of identical dimensions. . . .

Collier, No. 92-30 at 14-15.  The Board concluded that prohib-
iting non-union members from voting on negotiating proposals was

[end of page 17]

not a breach of the Union's duty of fair representation.  This
was because there was ample evidence that Mr. Collier was allowed
to attend meetings and speak about the issues he felt were
important and that none of his ideas were ignored because of his
non-union status.  The MLRB went on to say,
     
     the Union is not free to disregard the interests of
     nonunion unit members.  Proper fulfillment of the fair
     representation duty 'requires the bargaining agent to
     function in a representative capacity, with a fair
     understanding of the interests of all represented
     employees.' 

Collier, No. 92-30 at 16, quoting Branch 6000, National Assoc. of
Letter Carriers v. NLRB, 595 F.2d 808, 813 (D.C. Cir. 1979). 
     In the present case, the Complainant's primary issue is a
claim of discriminatory treatment:  Mr. Jordan alleges that the
members of the bargaining team and the AFSCME staff representa-
tive were only concerned with the welfare of the bus drivers and
did not fairly represent the custodians.  As the scope of his
Complaint is not entirely clear, however, we will also consider
whether the Union's conduct was arbitrary or in bad faith.
     The basic issues in the Complaint fall into three
categories.  The first is the Union's actions in negotiating the
contract.  This includes breaking the bargaining team into two
sub-groups in the initial meetings, the derogatory comments about
custodians allegedly made by bargaining team members during
meetings, Mr. Libby's statement that he did not have to represent
the custodians, and the fact that the bus drivers received a
larger pay increase than the custodians received in each of the 3
years of the contract.  The second set of issues relate to the
ratification process.  The Complaint alleges that Mr. Libby gave
an uncorrected copy of the tentative contract to Gene Jordan,
that Mr. Oliver did not review the contract details at the second
ratification meeting or verify which contract Gene Jordan was
holding, and that the ballots were counted at the second meeting
in a manner that was not visible to the entire membership. 
Finally, the complaint suggests that the two separate
investigations by the central AFSCME staff were inadequate and a
further breach of the duty of fair representation.
      With respect to the Union's actions in the negotiating
process, the evidence does not support a conclusion that the
Union breached the duty of fair representation.  Separating the
bargaining team into two groups based on job classifications is a
reasonable way to identify work-related issues and does not
itself prove any discriminatory intent or effect.  There is no
evidence in the record that this action was taken for any other
purpose than to identify issues unique to each job classifica-
tion.  Furthermore, even assuming Mr. Libby had made the
statement that he did not have to represent the custodians and
did not, in fact, represent them at the negotiating table, the
statement is not a violation of the duty of fair representation. 
The statement must be viewed in the context in which it was made. 
David Jordan had been a co-chair of the negotiating team and was
viewed by Mr. Libby as a representative of the custodians.  After
becoming frustrated with what he perceived as the lack of respect
shown for the custodians and maintenance workers, Mr. Jordan
walked out of a negotiation session and did not return.  The
comment in the parking lot after the first ratification meeting
was part of a conversation in which Mr. Libby told Mr. Jordan
that he was disappointed in him for quitting the negotiating
team.  It can reasonably be seen as more about Mr. Libby not
feeling personally obligated to pick up what Mr. Jordan dropped
than a refusal to consider the custodians' interests.  Even if he
had said this, it is not evidence that the bargaining team as a
whole adopted the same position.        

[end of page 19]

   Secondly, there is no evidence that Mr. Libby or any other
bargaining team member actually did anything that impaired or
compromised the interests of the custodians while he was on the
negotiating team.  There was testimony that Mr. Oliver
represented the interests of custodians for the remainder of
negotiations after Mr. Jordan left.[fn 3]  Mr. Jordan did not offer
evidence of any proposals or suggestions he made on behalf of the
custodians or maintenance employees that were ignored or rejected
by the negotiating team.  There appears to have been some words
exchanged about the value of the work done by bus drivers versus
custodians, but negative comments were directed both ways.  
     The only evidence Mr. Jordan points to is the fact that the
bus drivers received a 4% increase while the custodians,
mechanics and maintenance employees only received 3¼%.  There was
evidence in the record, however, that the School District was
having trouble recruiting bus drivers, in part because they were
not year-round, full-time positions.  In addition, the
Superintendent told Mr. Jordan directly that he would be doing
more for the bus drivers than the custodians.  The 1 percent
difference in pay is a reasonable outcome of the need to increase
pay to attract more candidates.  The fact that the mechanics and
maintenance employees received the same increase as the
custodians supports the conclusion that the favorable treatment
of the bus drivers was based on recruitment needs. 
     The United States Supreme Court addressed a similar
complaint stemming from differing outcomes from the negotiation
process in Ford Motor Co. v. Huffman.  345 U.S. 330 (1953).  The
_____________________________
   3. Dana Hood, a custodian, was on the bargaining team at the 
beginning, but it is not clear how long that continued.
   4. We note that if the AFSCME local had actually implemented 
Harriet Spenser's view that a negotiating team should only consider
proposals submitted by union members, we would be faced with a much
different case.

[end of page 20]

Supreme Court observed:
     
     Inevitably differences arise in the manner and degree
     to which the terms of any negotiated agreement affect
     individual employees and classes of employees.  The
     mere existence of such differences does not make them
     invalid.  The complete satisfaction of all who are
     represented is hardly to be expected.

345 U.S. 330, 338.  A decade later in Humphrey v. Moore, the
Supreme Court wrote,
     
     [W]e are not ready to find a breach of the collective
     bargaining agent's duty of fair representation in
     taking a good faith position contrary to that of some
     individuals whom it represents nor in supporting the
     position of one group of employees against that of
     another.
  
375 U.S. 335, 349 (1964).  
     Thus, with respect to the negotiation process and the
resulting terms in the agreement, we conclude that the Union's
conduct was not a breach of the duty of fair representation.  
The established test for arbitrary conduct is whether "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' . . . as to be irrational."  Langley v. MSEA, No.
00-14, at 27, quoting Air Line Pilots v. O'Neill, 499 U.S. 65, 67
(1991).  Although there is evidence in the record that the bus
drivers treated the custodians with disrespect, that is not
equivalent to a failure to represent.  We conclude that the
representation of the custodians in the negotiation process was
within a wide range of reasonableness and therefore was not
arbitrary.  The Complainant has not presented any compelling
evidence that the Union negotiated with the intent to
discriminate against custodians nor is there any evidence of
fraudulent behavior or deceitful or dishonest conduct in the
negotiation process.     

[end of page 21]

     The Union's management of the ratification process left a
lot to be desired.  Even so, we do not conclude that the conduct
of the ratification process breached the duty of fair representa-
tion because there was no evidence that any fraud or deceit was
involved.  Giving Gene Jordan an uncorrected copy of the
agreement prior to the second ratification meeting was sloppy but
not a violation of the duty of fair representation.  Mr. Oliver
incorrectly thought he was in possession of all of the copies of
the draft used at the first meeting and apparently did not
provide Mr. Libby with a copy of the corrected version when he
received it on August 4.  Mr. Oliver's oversight might have been
caught earlier had he taken a moment at the start of the second
meeting to review what had previously occurred.  Similarly, Mr.
Oliver's failure to verify which copy of the agreement Gene
Jordan was holding at the second ratification meeting when Gene
asked "Is this the contract we are voting on?" does not
demonstrate the attention to detail one would hope to see. 
Something more than inattention is required, however, as even
negligence is not a breach of the duty of fair representation. 
As the MLRB noted in Sharron Wood v. MEA and MTCS,
     
     [A] 'wide range of reasonableness must be allowed' and
     'mere negligence, poor judgment or ineptitude are
     insufficient to establish a breach of the duty of fair
     representation.'

No. 03-06 at 28 (April 21, 2005), quoting Lundigran v. MLRB, 482 A.2d 834, 
at 836 (citations omitted).  We also note that the
version of the contract given to Gene Jordan was inaccurate on
the timing of longevity pay, which affected bus drivers in the
same way it affected custodians and maintenance workers.  
     The Complainant also suggests that the manner in which the
vote was counted at the second ratification meeting somehow
violated the law.  Counting ballots on the window ledge with

[end of page 22]

their backs turned to some members in the room is not a
particularly wise move, but it is not a violation of the law. 
There was no evidence presented of fraud, and no suggestion that
the individuals counting the ballots had their backs turned so
that they could rig the vote.  We decline to find a violation for
this conduct and note that the Union's offer to let anyone come
up and verify the count provides reassurance that the count was
not misrepresented.      
     The third category of issues in the complaint in this case
involve two separate investigations conducted by AFSCME's Boston
office in response to requests from the Complainant.  Mr. Moroney 
conducted an investigation into the two issues raised above when
David Jordan called him.  Mr. Jordan's primary argument is that
Mr. Moroney conducted his investigation by speaking extensively
with Union staff and Union members but only spoke to Mr. Jordan
for a few short minutes.  We have no information on the nature of
the complaint lodged by Mr. Jordan other than it generally
involved the same two issues we have discussed here.  Without
greater detail about what information and allegations Mr. Jordan
made in his complaint to the Union, it is impossible to gauge the
appropriateness of Mr. Moroney's investigation and response.
     Mr. Jordan later sent a petition to the AFSCME office,
signed by him and a number of other employees in the bargaining
unit.  The record indicates only that the petition sought to have
AFSCME remove Jim Oliver from his position as staff representa-
tive.  The petition itself was not introduced as evidence and
there was no testimony on whether the petition identified the
specific reasons for the requested action.  Ms. Harriett Spencer
conducted her investigation by speaking with Mr. Oliver, the unit
chair, and the unit president.  She also offered in a letter to
meet with Mr. Jordan, who was a Union member, and one or two 

[end of page 23]

others on the petition who were also Union members.  In their
only telephone conversation, Ms. Spencer and Mr. Jordan were
unable to find a mutually-suitable time to meet.  When the
conversation ended, both appeared to think the ball was in the
other's court.  
     We conclude that the duty of fair representation does not
apply to this particular issue because a petition seeking the
removal of a union staff representative is clearly an internal
union matter.  A union is under no obligation to respond to
criticisms of one of its staff representatives from employees who
are not members of the union.  See Collier, No. 92-30 at 16
(selection of bargaining agent's staff representative is an
internal union procedure).  Even if the petition had contained a
full explanation of the reasons for seeking an official's removal
and those reasons indicated a breach of the duty of fair
representation, a union's decision on how to respond to such a
complaint is an internal matter.  A union's policy of refusing to
listen to the complaints of non-members about internal union
matters is an internal matter itself and is not a breach of the
duty of fair representation. [fn 5]
     In summary, we conclude that the Union's conduct was not a
breach of the duty of fair representation.  There is no evidence
that the bargaining team refused to consider ideas presented by
anyone in the bargaining unit.  The management of the
ratification vote was not ideal, but it was not shown to be
arbitrary, discriminatory or in bad faith.

______________________
   5. This applies whether or not the complained-of conduct is a 
breach of the duty of fair representation.  This must be distinguished
from the duty representation in negotiation and contract 
administration discussed above at pages 17-18.

[end of page 24]
                       
                              ORDER               
                                   
     On the basis of the foregoing findings of fact and
discussion and by virtue of and pursuant to the powers granted to
the Maine Labor Relations Board by the provisions of 26 M.R.S.A.
§968(5), it is hereby ORDERED that the complaint charging AFSCME
Council 93 with violating 26 M.R.S.A. §964(2)(A) by breaching the
duty of fair representation is dismissed.
                                   

Dated at Augusta, Maine, this 18th day of June 2008.