STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case 80-52
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)
GEORGE S. HOLMES, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
MAINE STATE EMPLOYEES ASSOCIATION )
and JOHN GRAHAM, )
)
Respondents. )
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George S. Holmes filed this complaint on May 27, 1980. The Maine State
Employees Association (MSEA) filed a response on June 17, 1980. John Graham,
who was named as a respondent, did not respond. He is an employee of MSEA
serving as an Employee Representative. It was clarified at the hearing that
Graham was a respondent. The complaint alleges that the Respondents had
violated 26 M.R.S.A. Section 979-C(2)(A) because it had breached the duty of
fair representation by failing to fully represent Holmes and by declining to
process his grievances through arbitration and that they had discriminated
against him because of past hostilities between MSEA and the Complainant.
MSEA responded on July 17, 1980, pleading that the complainant had failed to
state a claim upon which relief could be granted and that it had not committed
the violations alleged.
Alternate Chairman Donald W. Webber conducted a pre-hearing conference
on June 23, 1980, after which he issued a Pre-Hearing Conference Memorandum
and Order, dated June 23, 1980, the contents of which are incorporated herein
by reference. A hearing was held on July 29, 1980, Chairman Edward H. Keith
presiding, with Employee Representative Wallace J. Legge and Alternate
Employer Representative Thacher E. Turner. All parties were afforded full
opportunity to participate, to introduce relevant evidence, to examine and
cross-examine witnesses and to argue orally. Complainant appeared pro se;
Respondents were represented by John J. Finn, Esq., and Joseph R. Mackey, Esq.
Respondents moved to dismiss the complaint at the outset of the hearing
on the basis that the violation alleged emanated from 26 M.R.S.A. 979-F
(2)(E) (and the parallel section, 26 M.R.S.A. 967(2)), which this Board had
previously indicated would not sustain a prohibited practice.
At the close of Complainant's case, Respondents moved to dismiss on the
ground that, in essence, a prima facie case had not been established, even if
everything testified to and demonstrated by exhibit were true. After due
deliberations, the Board granted the motion.
FACTS
For the purpose of this motion, we simply state the following facts as
presented by Complainant:
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1. In September 1979, Holmes circulated a petition among fellow
employees seeking an investigation of (1) alleged misconduct
of the MSEA chapter and of Respondent Graham regarding the
infrequency of chapter meetings, (2) a delay in the resolution
of an election for the office of steward, and (3) the partici-
pation by a supervisor in a chapter (MSEA) delegate election.
The petition was signed by Holmes, Earl Quint, Hugh F. McGinley,
and seven others. The steward election was ultimately resolved;
Holmes became the steward.
2. In January 1980, Holmes, as MSEA steward, raised three grievances
with Superintendent Joseph P. Youngs, Jr., of the Baxter School
at step 2 of the grievance procedure under the existinq collec-
tive bargaining agreement between MSEA and the State for the per-
tinent bargaining unit (the OMSS Agreement). Youngs replied on
January 31, 1980, denying the grievances.
3. On February 4, 1980, Holmes, again as MSEA steward, submitted
the grievances to Commissioner Raynolds of the Department of
Education and Cultural Services, purporting to be at step 2 of
the grievance procedure.
4. On March 14, 1980, Holmes wrote to Graham. He expressed concern
that the grievance was taking too long; emphasized that he had
only agreed to the extension on grievance time limits that Graham
had orally given to Department representatives Pineo and Trend-
holm, protested the investigation of the three grievances being
conducted by the department representatives; expressed the fear
that the State was delaying the grievances in order to foreclose
the opportunity to go to arbitration; and indicated his inten-
tion to go to step 3 of the grievance process on his own in order
to protect time limits. He stated that Graham had not met with
him in the preceeding week as he had indicated.
5. On March 26, 1980, Holmes wrote to a special services employee of
MSEA, instructing that the three grievances be typed and submitted
to step 3 of the grievance process, the Governor's Office of
Employee Relations (G.O.E.R.)
6. On April 18, 1980, Holmes wrote to Lanning Mosher, the head of
G.O.E.R., and asked if he had received the grievances. Mosher
testified that his office did not reply to this letter because
it had been misplaced in the office. Mosher also explained that
the grievances were still undergoing discussion, and that it was
not uncommon for MSEA or the State to extend grievance time limits
on request.
7. Earl Quint testified about the nature of the Department's inves-
tigation of the grievances and about the grievances themselves.
Hugh F. McGinley testified about the steward election and the
fact that he had only learned the results through the grapevine
and had not seen any official notice.
8. Although Holmes offered no direct testimony, he stated in answer
to the Board's questions or cross-examination that the State has
not claimed that the time limit has run on these grievances, that
he cannot get any information, and that the gravamen of his com-
plaint was that the time extension granted by Graham had not been
made in writing. The OMSS Agreement does provide that mutual agree-
ments to extend time limits shall be confirmed in writinq. At least
one of the grievances had actually been settled.
DISCUSSION
Assuming for the purposes of this decision that the State Employees
Labor Relations Law (Act) requires a duty of fair representation, we see no
evidence of any questionable conduct by the union in the scanty facts
presented to us.
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Rather it appears that Holmes is upset that he, as a steward, has been
unable to move these grievances to step 3[fn]1 of the process on his own and
that he also objects to a nonwritten extension of the grievance time limit.
A union steward, as a steward, has no right cognizable by this Board to
force the union to go to the next step of the grievance process, or to expect
union staff employees to do his bidding without reference to other considera-
tions. Accordingly, we reject this concern as nonactionable.
Time limit extensions are frequently in the best interest of all parties
concerned. Since the State is not raising any objection, and apparently never
has, we see no basis to imagine that a conspiracy to squelch these grievances
is underfoot. In contrast, it is evident that one of the three has been
satisfactorily resolved, and that the other two are still alive.
Finally, the handling of Holmes' letter of inquiry by G.O.E.R. is totally
unrelated to any obligation on the part of the Respondents.
In short, we see no basis for a conclusion that MSEA has not properly
processed or is not properly handling the grievances initiated by Holmes.
Thus, no concern about the proper handling of the grievances having been
raised by this evidence, there is no requirement that Respondents elucidate
the reasoning or motive behind their actions. The complaint is therefore
dismissed.
Dated at Augusta, Maine, this 8th day of September, 1980.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Edward H. Keith
Chairman
/s/___________________________________
Wallace J. Legge
Employee Representative
prese t i
/s/___________________________________
Thacher E. Turner
Employer Representative
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1. Step 3 is the final step prior to arbitration. No individual employee
has the absolute right to have a grievance go to arbitration. See,
Vaca v. Sipes, 386 U.S. 171 (1967). If otherwise, the wheel of effective
contract dispute resolution would rapidly grind to a halt. This area must
be left to the union's proper discretion.
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