STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 82-08
Issued: March 15, 1982
_____________________________________
)
EUGENE M. BRADBURY, JR., )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
WASHBURN TEACHERS' ASSOCIATION, )
)
Respondent. )
_____________________________________)
On September 8, 1981, Eugene M. Bradbury, Jr. ("Complainant") filed a
prohibited practices complaint against the Washburn Teachers' Association
("Union"), alleging that the Union violated Title 26 M.R.S.A. 964(2)(A) by
excluding him from Union meetings and by refusing to provide him with legal
assistance to prosecute his complaint in this action, all in breach of the
Union's duty of fair representation. The Union filed an answer to the
Complaint denying that it had violated any provisions of the Municipal Public
Employees Labor Relations Act ("Act"), 26 M.R.S.A. 961, et seq., and moving
to dismiss said Complaint on the grounds that it fails to state a claim upon
which relief may be granted.
A pre-hearing conference was held on this case on October 14, 1981,
Alternate Chairman Gary F. Thorne presiding. Alternate Chairman Thorne issued
a Pre-Hearing Conference Memorandum and Order on October 15, 1981. The
contents of said Memorandum and Order is incorporated herein by reference.
The Maine Labor Relations Board ("Board") heard this matter on
October 30, 1981, Chairman Edward H. Keith presiding, with Employer Repre-
sentative Don R. Ziegenbein, and Alternate Employee Representative Russell A.
Webb. The Complainant appeared and proceeded pro se at said hearing and the
Respondent was represented by Harold B. Dickinson, UniServ Director, Northern
Maine UniServ District MTA-NEA. Both parties were afforded a full opportunity
to present documentary evidence, to examine and cross-examine witnesses, and
to make argument. The Board requested the Complainant to file a post-hearing
brief, which was timely received and considered. The Board advised the
Respondent that it would be notified should the Board decide that a post-
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hearing brief was needed from the Union. The Board decided that no brief was
required from the Respondent and none was filed.
JURISDICTION
The Washburn Teachers Association is a public employee organization
within the meaning of 26 M.R.S.A. 968(5)(B). The Complainant, Eugene M.
Bradbury, Jr., is a public employee within the ambit of that term as it is
used in Section 968(5)(B) of the Act. The jurisdiction of the Maine Labor
Relations Board to hear and render a decision in this case is provided in
26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. Eugene M. Bradbury, Jr., the Complainant, is a former Social Studies
and Algebra teacher employed by M.S.A.D. #45 and is a member of the Washburn
(M.S.A.D. #45) Teachers Association.
2. In May, 1981, the Complainant signed a contract with M.S.A.D. #45 to
fill the job of guidance counselor and, therefore, the Complainant is a public
employee within the definition of 26 M.R.S.A. 962(6).
3. The Washburn Teachers Association is a duly certified collective
bargaining agent, within the meaning of 26 M.R.S.A. 962(2), and is
recognized to represent the full-time certified personnel employed by M.S.A.D.
#45 for purposes of collective bargaining.
4. That, at all times relevant hereto, the Complainant is not and has
not been certified by the Maine Department of Education and Cultural Services
to serve in the professional capacity of guidance counselor within the State
of Maine.
5. That, because the Complainant lacks the certification mentioned in
paragraph 4 hereof, the Union has and continues to take the position that the
Complainant should not have been hired to perform the duties of guidance
counselor for M.S.A.D. #45 nor should he be retained in said capacity.
6. That, on April 7, 1981, Carleton L. Barnes, the Superintendent of
Schools for M.S.A.D. #45, informed Peter Caruso, who was the Union's President
at that time, that the Complainant would be hired to fill the guidance
counselor position.
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7. That the Union held meetings to discuss the Complainant's being hired
as guidance counselor on or about the following dates: April 8, 1981,
April 16, 1981, and May 19, 1981.
8. That the Complainant was present and participated in discussion
concerning his being hired as guidance counselor at all of the meetings
mentioned in paragraph 7 hereof.
9. That, on June 16, 1981, the Complainant was asked to leave a
regularly scheduled meeting of the Washburn Teachers Association by Roger
Kelly, who was at that time Director of the Northern Maine UniServ District
MTA-NEA.
10. That the Complainant was informed, at the time and place mentioned
in paragraph 9 hereof, by the said Roger Kelly that the reason the Complainant
was being asked to leave said meeting was that the Union wished to discuss
strategy to be employed when the Union presented its grievance, against the
Complainant's being hired and retained as the guidance counselor. Said
grievance was to be presented by the Union on July 13, 1981 to the Board of
Directors of M.S.A.D. #45.
11. That, despite the request that he leave, the Complainant remained at
the meeting mentioned in paragraph 9 hereof and the grievance was discussed.
12. That, on August 24, 1981, the Complainant was asked by David
Pierpont, who was at that time the president of the Union, to voluntarily
leave a regularly scheduled Union meeting.
13. That, at the time and place mentioned in paragraph 12 hereof, the
said Pierpont told the Complainant that he was being asked to leave the
meeting so that the Union could discuss arbitration strategy concerning the
Complainant's being retained in the guidance counselor position.
14. That, as a result of the request mentioned in 12 hereof, the
Complainant voluntarily left the Union meeting.
15. That, prior to leaving said meeting, the Complainant requested to be
kept informed of all future Union action concerning his retention of the
guidance counselor position. Said request by the Complainant has been fully
satisfied by the Union.
16. That, on June 16, 1981, Roger Kelly explained to the Complainant the
Maine Teachers Association's (with which the Union is affiliated) internal
procedure for providing representation to Union members who allege a breach of
the Union's duty of fair representation.
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17. That, on September 15, 1981, Harold Dickinson, who was the Northern
Maine District UniServ Director at that time, informed the Complainant of his
right to representation, through the procedure mentioned in paragraph 16
hereof.
18. There is no evidence in the record that the Complainant ever asked
Respondent for assistance in drafting and/or in presenting his Complaint
before this Board.
19. That, on October 12, 1981, several members of the Union, as
individuals and without Union's urging that they do so, attended a meeting of
the M.S.A.D. #45 Board of Directors for the purpose of raising guidance issues
before the school board. The complainant was not informed of any Union
members' intention to attend said meeting.
DECISION
At the outset, we must focus on the Union's motion to dismiss the
complaint. Said motion was based upon the allegation that the complaint
failed to state a claim upon which relief could be granted because it alleged
a violation of Section 967(2) of the Act and not a violation of 26 M.R.S.A.
964(2). This issue was addressed in Whitzell v. Merrymeeting Educators'
Association, M.L.R.B. No. 80-15 (11/6/80). In that case, after citing
relevant federal precedent, we stated:
"Since 'the bargaining agent is under the obligation, statutorily
imposed, to represent all the employees within the bargaining
unit "without regard to membership in the organization . . . " '
[Opinion of the Justices, Me., 401 A.2d 135], at 147 [(1979)],
and since it is fair that each employee be required to share in
the costs of these mandatory services, id., then it is obvious
that the employee has a right to this representation. This right
is enforceable through Section 963, by Section 964." Whitzell,
supra, at 8.
Although the Complainant did not specifically plead a violation of Section 964
of the Act in his Complaint, we are aware that he proceeded pro se and, at the
hearing hereon, we stated that the pleadings would be deemed amended to
conform with the evidence presented. The Complainant presented enough
evidence to make out a prima facie allegation of a violation of the Union's
duty of fair representation and; therefore, the Complaint is hereby amended to
allege a violation of 26 M.R.S.A. 963, a prohibited practice under Section
964(2)(A) of the Act.
The scope of the Union's duty of fair representation was set forth in
Whitzell, supra, at page 9, where we explicitly adopted the parameters
therefor promulgated
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by the federal courts, interpreting the parallel provisions of the National
Labor Relations Act, 29 K.S.C. 141, et seq. The United States Supreme Court
has stated that a union breaches its duty of fair representation when its
conduct "is arbitrary, discriminatory, or [is] in bad faith." Vaca v. Sipes,
386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). Accord, Hines v.
Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231
(1976), Humphrey v. Moore., 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964),
and Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed.1048
(1953).
The Union's conduct in this case must be examined in the context of the
Union's philosophical position underlying the same. Uncontroverted testimony
at the hearing established that it is and has been the long-standing policy of
the Maine Teachers Association, the parent Union, to support only the hiring
and retention of properly certified personnel for instructional and
professional support staff educational positions throughout the State of
Maine. This policy decision is reasonable in that actions undertaken pursuant
thereto are likely to foster and maintain better quality education and
educationally-related professional services for Maine students. Having
determined that the union was reasonable in adopting its parent union's
policy, we now turn to the specific actions alleged in the Complaint.
The Complainant alleges that the Union breached its duty of fair
representation through the following actions:
1. Excluding the Complainant from Union meetings,
2. Not providing the Complainant with representation to prosecute
the within action, and
3. Not notifying the Complainant that the Union intended to attend
a meeting of the M.S.A.D. #45 Board of Trustees.
Turning to the first factual allegation, we have found, in paragraphs 9
through 14 of our findings of fact, that the Complainant either left the
meetings voluntarily or, upon his refusal to do so at one meeting, the
discussion continued with him present. In light of these facts, the first
alleged violation of the duty of fair representation has not been established.
Secondly, in paragraph 18 of our findings of fact, we found that the
Complainant did not, during the time period covered by the Complaint, as
amended at prehearing conference, ask the Union for representation to assist
him in the preparation and prosecution of his action before the Board. Had
he made such a request, the Union would have been obligated to process the
application in the
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same manner and following the same procedures as it would any other request
for representation from bargaining unit employees. Since no request for
representation was made no violation, under the second factual allegation, has
been established.
Thirdly, although several members of the Union attended a meeting of the
M.S.A.D. #45 Board of Directors, on October 12, 1981, they did so as
individuals, without urging from officers or agents of the Union. The Union
did not notify the claimant of said meeting, however, no other Union member
was notified thereof by the Union either. Accordingly, we hold that no
violation of the Act was established in connection with the aforesaid Board of
Directors' meeting.
ORDER
Upon 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. Section 968(5), it is hereby ORDERED:
1. That the Prohibited Practices Complaint filed by Eugene M.
Bradbury, Jr., on September 8, 1981 in Case No. 82-08 be
and hereby is dismissed.
2. That the Respondent's motion to dismiss, based on the grounds
that the Complaint herein failed to state a claim upon which
relief may be granted, be and hereby is denied.
Dated at Augusta, Maine, this 15th day of March, 1982.
MAINE LABOR RELATIONS BOARD
The parties are advised of their
right pursuant to 26 M.R.S.A.
968(5)(F) to seek review of this /s/______________________________
decision by the Superior Court Edward H. Keith
by filing a complaint in accordance Chairman
with Rule 80B of the Rules of
Civil Procedure within 15 days
after receipt of this decision. /s/______________________________
Don R. Ziegenbein
Employer Representative
/s/______________________________
Russell A. Webb
Alternate Employee Representative
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