Stephen Collier v. Penobscot Bay Teachers Association, MLRB No. 92-30 (Sept. 25, 1992), aff'd, No. CV-92-478 (Me. Super. Ct., Ken. Cty., Apr. 10, 1993) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 92-30 Issued: September 25, 1992 ___________________________________ ) STEPHEN COLLIER, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) PENOBSCOT BAY TEACHERS ) ASSOCIATION/MTA/NEA, ) ) Respondent. ) ___________________________________) On March 4, 1992, Complainant Stephen Collier (Collier), a certified teacher employed by the Blue Hill Consolidated School (Blue Hill), filed a prohibited practice complaint with the Maine Labor Relations Board (Board) alleging that the Respondent Penobscot Bay Teachers Association/MTA/NEA (Union) has violated 26 M.R.S.A. 964(2)(A) (1988), by refusing, on the basis of his lack of Union membership, to allow him to vote on the nego- tiating positions to be taken by the Union in on-going contract negotiations respecting Blue Hill teachers. More specifically, Collier alleges that the Union's conduct in this regard violates its duty to represent him in good faith without regard to union membership, and coerces him with regard to his right to join or not join the Penobscot Bay Teachers Association (Association) as well as in his exercise of free political speech guaranteed by the United States and Maine Constitutions. Additionally, Collier alleges that by refusing his request to be admitted to membership in the Association without having to become a member of its affiliates, the Maine Teachers Association (MTA) and the National Education Association (NEA), the Union has "coerce[d him] in the exercise of his right to join [the] Association . . . as well as in his exercise of the right to engage in free political speech guaranteed by the United States and Maine Constitutions." Collier states that: The proposed collective bargaining agreement on which Stephen Collier sought to vote would control the amount of his - 1 - earnings and other conditions of his employment for the fore- seeable future. . . . [Title] 26 M.R.S.A. 967, requires that the union afford him the opportunity to vote on what is to be included in a proposed collective bargaining agreement. Given that voting constitutes the Respondent's established procedure for ranking the employees' contract priorities, to bar non- members from voting is to ignore their preferences with regard to the conditions of their employment. A "non-vote" cannot be tallied and therefore is not "represented" or "heard". Collier contends that the fundamental facts of this matter are essen- tially undisputed and that the case presents a question of law being "whether or not a [unit member who is not a member of the Association] ha[s] a right to vote and participate in union meetings." Collier requests the Board issue an order requiring the Union "to give due notice of its meetings to all certified teachers it represents" and "to allow full par- ticipation including voting privileges, . . . without regard to . . . mem- bership in the [Union], in all meetings at which contract issues are to be discussed." Collier also requests that the Board compel the Union "to adopt due provisions in its bylaws for allowing any teacher it represents to become a member of the local Association, without requiring simultaneous membership in any other organization." In its March 24, 1992, Response, the Union avers that the facts in the complaint do not constitute a prohibited act as a matter of law and that the Board "has no jurisdiction to regulate . . . [its] conditions for mem- bership, voting privileges, and admission to meetings where the internal business of the organization is conducted." Moreover, the Union contends that the Board cannot grant relief upon any of the asserted claims without violating the Union's "right to freedom of association under the First and Fourteenth Amendments to the United States Constitution." By way of counterclaim, the Union states that Collier in his capacity as a member of the Surry School Committee (Surry) is a public employer within the meaning of the Municipal Public Employees Labor Relations Law (MPELRL) and that Collier "seeks to influence the progress or outcome of [MTA/NEA affiliate] collective bargaining in Surry by coercing Respondent [Union] into extending voting privileges on negotiating positions and strategy to non- members in Blue Hill." Additionally, the Union avers that Collier "seeks to weaken the political, economic and collective bargaining resources of - 2 - [the Union] and its affiliates by coercing Respondent into changing its bylaws to allow local [Association] membership without requiring simulta- neous membership in any other organization, including MTA and NEA." The Union contends that Collier's above-mentioned conduct constitutes unlawful interference with, restraint and coercion of the Union respecting free exercise rights guaranteed by the MPELRL as well as unlawful domination and interference with the formation, existence and administration of the Union in violation of 26 M.R.S.A. 964(1)(A) and (C) (1988), respectively. On Tuesday, April 14, 1992, Chair Peter T. Dawson conducted a pre- hearing conference in this matter. The April 23, 1992, Prehearing Conference Memorandum and Order issued by Chair Dawson is incorporated in and made a part of this Decision and Order. On Thursday, May 28, 1992, the Board, consisting of Chair Dawson, Employer Representative Howard Reiche, Jr., and Employee Representative George W. Lambertson, conducted a full evidentiary hearing in the matter. The parties were afforded full oppor- tunity to present evidence and to make any desired argument with respect to the material issues. Mr. Collier was represented by Attorney Sandra Hylander Collier. The Association was represented by Attorney Shawn C. Keenan. Mr. Collier testified in his own behalf and the Union elicited testimony from Union Vice President Janice Snow. Both parties requested the award of attorney's fees and costs. On May 21, 1992, Collier withdrew that portion of his complaint which addresses the Union policy requiring membership in state and national affiliates of the Association. The transcript of the proceeding was completed June 4, 1992, and the last of the parties' post-hearing sub- missions was filed July 2, 1992. The Board deliberated the case on Friday, July 10, 1992. JURISDICTION The Board has jurisdiction to hear evidence and to determine the issues in this case and to render a decision and order pursuant to 26 M.R.S.A. 968(5) (1988 & Supp. 1991). The Penobscot Bay Teachers Association is a bargaining agent within the meaning of 26 M.R.S.A. 962(2) (1988). Collier is a public employee within the meaning of 26 M.R.S.A. 962(6) (1988 & Supp. 1991). Neither party has objected to - 3 - the Board's jurisdiction over this matter. FINDINGS OF FACT Stephen Collier, a resident of Surry, Maine, teaches fourth grade at the Blue Hill Consolidated School, where he has been employed for four years. In 1989, Collier declined in writing and continues to decline joining the Penobscot Bay Teachers Association because, as he was informed in January of 1989 by Union building representative Gary Wilson, to do so would require additional and simultaneous memberships in the Maine Teachers Association and the National Education Association under their "unified membership rule." Collier has been an elected member of the Surry School committee for the past five years. The Surry and Blue Hill Schools are administered by different superintendents in separate school unions. Collier desires to avoid any appearance of conflict of interest which might arise from his membership on the Surry School Committee, which engages in collective bargaining with a Surry Teachers Union affiliated with the MTA/NEA. Additionally, Collier thinks he can "serve [his] profession better by being a school board member than he [can] by being a union member." Collier also has reservations about becoming a Union member because he doesn't "like to affiliate with groups that purport to speak for [him]," and because their endorsements of political candidates and certain of their lobbying activities make him uncomfortable. Initially, Collier's school committee service constituted the primary reason for Collier's avoidance of MTA membership. Surry's practice has been to designate one member to negotiate with a representative of its teachers. That designee reports to the full commit- tee monthly during negotiations. In his capacity as a Surry School Committee member, Collier has not participated in collective bargaining negotiations. As a member of the Surry School Committee, Collier receives information from the Maine School Management Association concerning teacher contracts throughout the state. Collier has voted to ratify a negotiated contract. Surry contract negotiations during Collier's tenure have never required arbitration. Collier is an attorney licensed to practice in Maine. Collier and his law firm have represented towns, although not in labor relations. Collier - 4 - does not feel that it would be difficult to represent a school board in collective bargaining matters while being a member of the MTA. Collier feels he could keep his Surry School Committee obligations and any possible professional affiliations separate and states further that he would not act as a decisionmaker in matters affecting himself as a Blue Hill teacher. When Collier began teaching at Blue Hill in 1988, "there was no objec- tion to nonmembers attending association meetings and voting." During the second year of his employment, nonmembers were barred from voting, par- ticipation and attendance, upon objection by Union members. The Union's practice from 1989 until January 31, 1992, was to exclude nonmembers from its meetings. Any attendance of nonmembers, from 1990 until the Union's receipt of Collier's letter in January of 1992, was inadvertent. At a January 6, 1992, brainstorming session conducted in response to the Superintendent's request to reopen the parties' contract, the Union circulated a ballot with all alternatives raised at the session, for a vote among the entire thirty-nine member Blue Hill staff.1 Collier freely expressed his opinions at that session. The Union used the list of alter- native budget cuts approved by a majority of the staff in its January 21 informal negotiating session with the school committee. On January 22, sixteen Union members present at an association meeting voted unanimously to reopen negotiations and elected a five-member negotiations team. Nonmembers were not permitted to attend that meeting. On January 27, a vote was taken on authorizing the negotiators to agree on furloughs. The measure passed by a favorable vote of fourteen to two. Collier asked to be allowed to participate and was at first refused during the flurry of contract-related activity by the Union and the School ________________________ 1No violation of the duty of fair representation has been charged in this matter predicated upon the Union's having ascertained and advanced the desires of a majority of the Blue Hill School Committee's entire workforce, including employees which the Union is not certified to represent. The record does not establish or suggest that the interest of bargaining unit members were different from or submerged by those of non-unit members of the larger population. Moreover, there is no allegation of lack of authority for such activity or that objection was made thereto by any bargaining unit member. - 5 - Committee, during the winter of 1992, which resulted from the State budget crisis and a shortfall of State funding of the Town of Blue Hill. On January 30, 1992, Collier wrote and also orally contacted Chief Negotiator Della Martin and Building Representative Cathy Snow stating that his legal research concerning the Union's duty to represent all unit members regardless of union membership compelled him to ask that they reconsider his request on penalty of his further pursuit of a "ruling" on the issue. Both Martin and Snow agreed they would raise the issue before the next Union meeting. Martin informed Collier that although there was generally no objection to nonmembers attending, some members opposed voting by non- members. However, Martin told Collier that if the bylaws permitted it, nonmembers would be allowed to vote. On January 30th, in response to Collier's letter requesting that nonmembers be allowed to attend meetings and participate, the Union membership voted to allow nonmembers to attend and initiated an inquiry concerning the bylaws2 which resulted in the conclusion that nonmembers could not vote regarding Association matters. The Association's Constitution in Article 4 Section (1)(b) states that "[o]nly active members shall be eligible to vote, hold office or serve on any committee of this Association."3 Upon a vote of the membership, non- members were permitted to attend and speak, but not vote at meetings. Collier attended Union meetings which involved discussions of the Blue Hill School Committee's request that the contract be reopened in order that unit members might forego a pay raise. What the Union might require as a quid pro quo for acquiescence in the re-opening of the contract was the primary subject of discussion; however, at these meetings individuals also suggested issues which they wanted included in negotiations and votes were taken concerning whether and in what priority those issues would be advanced with the School Committee. Collier and other nonmembers were allowed to attend Union meetings and to speak on any subject, but not to vote. Collier attended three such meetings and was prevented from making ________________________ 2Although the parties both referred to the bylaws, it is the Association's Constitution which addresses the issue of voting generally. 3There is no indication of the method of amendment, if any, of the bylaws. - 6 - motions to advance for consideration both issues affecting his individual wages,4 and affecting the unit as a whole. Collier was extended the oppor- tunity to speak on any motion before the Union membership. Collier raised a personal pay scale concern directly with the Superintendent and obtained partial satisfaction. Collier did not request that the Union grieve the unsuccessful portions of the matter on his behalf. Collier suggested to the Union negotiator, Trisha Rhodes, that she raise his pay parity issue in negotiations if she had a chance. The Union has never otherwise refused to handle a request by Collier on the basis of his lack of membership. On January 31st, the Union voted on, then presented its final salary package to the School Committee. On February 3, the Union voted to submit a package and salary agreement to the Committee. On February 6, by a vote of nine to three, the Union agreed to ask for the dates of March 20, April 27 and June 19 as furlough days. Collier did not attend the February 6 meeting. On February 11, the negotiators submitted a ballot to the membership with language concerning five negotiation language issues. Nonmembers were not permitted to vote. The Union proposed at a February 24 negotiation session that five in-service days be eliminated, reducing the school year from 185 to 180 days. The School Committee countered with a threat to close down the school for lack of funds and to implement a reduc- tion in force if the Union did not open up the contract. On March 2, the Union voted to reopen negotiatiations in the fall of 1992, to work 180 days, to accept flat funding, to accept up to four furlough days and to give up all of its language proposals. Collier attended the March 2 Union meeting. The parties' agreement was memorialized on March 9. The Union membership ratified the negotiated agreement with "reluctant unanimity." There were some changes in the contract as a result of reopener nego- tiations between the Union and Blue Hill, including furlough days and a salary freeze. Collier would have voted for ratification as the Association did. _________________________ 4Collier desired to urge the Union to pursue his theretofore unavailing individually advanced contention that his law degree should, upon the Superintendent's evaluation, earn him the equivalent of Ph.D. pay. - 7 - Collier does not desire to possess the right to sit on the Union's negotiating team, to participate in the selection of negotiation team mem- bers, or to run for Union office. Although Collier's "prime focus is the [sic] issues that are to be discussed in the [sic] bargaining," Collier also desires to vote on issues such as whether to invoke mediation, arbi- tration and fact-finding services (both arranged for on a fee-for-service basis) and whether the Union should pay for grievances or negotiator services. The Penobscot Bay Teachers Association includes members and teachers who are employed by School Unions in Castine, Brooksville and Penobscot, who are covered by separate collective bargaining agreements. Including Blue Hill, the Association's units total about fifty teachers, only five of whom are not Union members. Collier is one of three nonunion members of the twenty-nine teacher Blue Hill bargaining unit. Collier has never asked the Union for any form of associate membership, leave of absence or other membership on the basis or in recognition of his school board membership. The Union has never asked for and Collier has not offered to pay a "fair share" contribution to cover a pro rata portion of the collective bargaining services provided by the Union. The pending PPC has not been discussed formally at a Union meeting. At least two people have told the Union negotiators that they are not going to pay dues "if [as a result of Collier's quest] no one else has to." The Penobscot Bay Teachers Association regularly submits collective bargaining issues to its membership for vote. Annual Union dues are $25. There are additional dues associated with MTA/NEA membership amounting to about $10 per paycheck. Tne Union's bylaws authorize the Union to pursue purposes other than representation of teachers as a collective bargaining agent; however, the representation of teachers in collective bargaining is the Union's primary purpose. Debby Carter, a teacher in another town, serves as the chair of the Blue Hill School Board. Although the negotiators who negotiated the last contract received a stipend, the chief negotiators for previous contracts, dating back to 1981, were not compensated. Blue Hill's ten teacher aides, custodians and secretaries are not organized. - 8 - DISCUSSION As is more fully explained below, we hereby hold that unless it has obligated itself by constitution, bylaw or otherwise, a collective bargaining agent is not compelled by the MPELRL to allow nonunion, non- fair-share bargaining unit members to vote on negotiating positions to be taken in collective bargaining.5 In so holding we do not deprive Collier of the right to affect the bargaining process by which the terms and con- ditions of his employment are established. Collier has in the past and assumedly will in the future continue to apprise the Association of his concerns and suggestions. He may also attempt to convince other unit mem- uers to remove or replace the incumbent agent through Board representation proceedings. Additionally, the Board's prohibited practice complaint pro- cedures are available to Collier to redress violations of the Union's duty to represent all of the members of the bargaining unit without discrimina- tion based on union membership. Finally, Collier may always join the Association and avoid the disenfranchisement resulting from his voluntary nonmembership. We conclude that the union membership prerequisite to voting on negotiations matters, at issue in this case, neither violates the MPELRL on its face nor as applied. We have been cited to no case establishing a statutory or constitu- tional right of nonunion unit members to participate on equal footing with union members in voting on negotiation proposals or strategies. There is no allegation in this case that there was no meaningful or adequate oppor- tunity for consideration of the views of nonmembers, or that the con- sideration given any expressed view was perfunctory. It is undisputed that Collier and other nonmembers were afforded access to Union decisionmakers during stages of negotiation preparations which immediately preceded voting on collective bargaining proposals. There is no evidence which convinc- ingly indicates whether votes taken were of the Union's membership serving as a bargaining position formulation "committee of the whole," or whether ___________________________ 5We make no finding beyond this narrow issue and do not comment upon whether nonunion fair-share contributors may properly be excluded from voting respecting negotiating positions to be taken in collective bargaining. - 9 - the vote constituted merely a poll of the Union membership, subsequently to be considered by an individual or committee charged with the responsibility of formulating bargaining positions representing the interests of the bargaining unit as a whole.6 Collier has failed to establish by direct evidence or reasonable inference, either: intent to ignore his or other nonunion unit members' interests; circumstances suggesting a lack of any rational argument for rejection of any bargaining position advanced by himself or fellow nonunion unit members; or, that the voting procedure used results in disregard of his interests or those of fellow nonunion unit members. There is no evi- dence suggesting that bargaining positions taken or contract provisions reached affect Collier or any other nonunion unit members differently from Union members. Accordingly, we shall apply the "general presumption . . . that the union's representative obligation has been performed in good faith." Pennsylvania Labor Relations Board v. Eastern Lancaster County Education Association, 427 A.2d 305, 309 (Pa. Commw. Ct. 1981) (citing Branch 6000, National Association of Letter Carriers v. NLRB, 595 F.2d 808, 812 (D.C. Cir. 1979)). There are no MPELRL provisions which deal directly with union or unit voting procedures or with other internal union matters.7 The National ________________________ 6The February 24, 1992, ballot (R-12) which the Union used urges "MTA members" to talk over appended language proposals "with a colleague." It further requests that members "vote [their] preference" concerning whether four contractual subjects ought to be negotiated. We distinguish this ballot from the procedure found violative in the Branch 6000 case, cited herein, on two bases. In Branch 6000 a union's decision respecting bargaining proposals based solely on the bald compilataion of the personal desires of union members present and voting was found to have neglected any consideration of the interests of the bargaining unit as a whole. Here, there is no indication whether the preference sought to be expressed was a personal or "collective" one. The ballot on its face asks Union members to consult with a "colleague" before making an election. Secondly, in the instant case, voting Union members were adequately apprised of the views of any nonmembers wishing to express them. Although the ballot might have been more artfully worded, we do not find it violative in light of the com- munication process which preceded it. 7Compare Section 447.309(1) & (4), Florida Statutes (1981) which require ratification of collectively-bargained agreements by bargaining unit members. - 10 - Labor Relations Act (NLRA) similarly contains no franchise availability or voting procedure provisions although the Landrum-Griffin Labor Management Reporting and Disclosure Act (LMRDA) contains provisions which address voting procedures applicable to votes among union members.8 Federal stat- utes in specified circumstances authorize the government to submit the employer's last offer to all bargaining unit employees both as a means of inducing settlement of a dispute over a new contract9 and in the case of presidentially determined emergencies when a related strike has been enjoined by a United States District Court.10 Lacking controlling statutory or caselaw authority, we are required to determine whether the Association should be required to accord Collier equal participation in all matters affecting collective bargaining nego- tiations, regardless of his lack of membership in the Union, based on the purpose and free exercise provisions of 26 M.R.S.A. 961 and 963 (1988). We have reviewed Collier's constitutional arguments and find them unper- suasive. We believe that the limited infringement on individual rights implicit in the grant of exclusive representational capacity to a majority elected collective bargaining agent "is justified by the compelling state interest in the orderly resolution of labor disputes." Pennsylvania Labor Relations Board v. Eastern Lancaster County Education Association, 427 A.2d 305, 310 (Pa. Commw. Ct. 1981), (citing, Abood v. Detroit Board of Education, 431 U.S. 209 (1977)). Even if, as Collier analogizes in his brief, "the state empowers the union to exercise authority over the non- member in employment matters in a way that is comparable to the authority of the government [more specificially, the legislature] over its citizens," we conclude, as did the District Court in the case of Lear Siegler, Inc. _______________________ 8The LMRDA's Bill of Rights of Members of Labor Organizations 29 USC 411 (a)(1) (1976) provides, in pertinent part, that "[e]very member of a labor organization shall have equal rights and privileges within such orga- nization to . . . vote in elections or referendums of the labor organiza- tion . . . ." There is no Maine statutory equivalent of the LMRDA. 9Labor Management Relations Act (Taft Hartley Act of 1947) (LMRA) Section 203(c). 29 USC 173(c) (1976). 10LMRA 209(b), 29 USC 179(b) (1976). - 11 - v. United Auto Workers, Local 330, 287 F. Supp. 692, 697 (W.D. Mich. 1968), aff'd in part, 419 F.2d 534 (6th Cir. 1969)11 that the United States Supreme Court's doctrine of "one man one vote" is applicable only to the election of political representatives and does not give citizens [or unit members] the right to a democratic vote on each action taken by their elected [representatives]." We conclude that the Union's actions in restricting voting on nego- tiations matters to Union members does not violate its duty of fair repre- sentation. Neither do we find any action by the Union electorate in the exercise of decisionmaking authority to constitute a violation of the duty of fair representation. The Municipal Public Employees Labor Relations Law (MPELRL) grants to a certified agent the exclusive right to bargain for unit employees. Because employees' individual negotiating rights are eclipsed by those of the majority representative, a correlative duty of fair representation applies. There is no dispute that the Union owes a duty of fair representation to all members of its Blue Hill teachers' bargaining unit--union members and nonmembers alike. Lundrigan v. State, No. 83-03, slip op. at 6-7, 5 NPER 20-14013 (Me.L.R.B. Feb. 4, 1983), aff'd, 482 A.2d 834 (Me. 1984); Bradbury v. Washburn Teachers Association, No. 82-08, slip op. at 4-5, 4 NPER 20-13014 (Me.L.R.B. Mar. 15, 1982); Whitzell v. Merrymeeting Educators' Association, No. 80-15, slip op. at 9, 3 NPER 20-12004 (Me.L.R.B. Nov. 6, 1980), aff'd, No. CV-80-124 (Me.Super.Ct. Sag. Cty., Dec. 28, 1982). "The duty of fair representation imposes upon the bargaining agent an obligation to represent fairly the interests of all employees in the bargaining unit, in good faith and without arbitrariness or invidious discrimination." Branch 6000, National Association of Letter Carriers v. NLRB, 595 F.2d 808, 811 (D.C. Cir. 1979). The duty applies from the formulation of bargaining proposals, through the acceptance of collective agreements to and including grievance handling. See International Brotherhood of Teamsters, Local No. 310 v. NLRB, 587 F.2d 1176, 1181 (D.C. Cir. 1978). The rule establishing the duty of fair representation ________________________ 11In Lear-Siegler the Court dismissed for lack of standing an employer's objection to a union's contract ratification procedures based on the Union Members' Rights provisions of the LMRDA, referred to in footnote 8, supra. - 12 - announced in Vaca v. Sipes, 386 U.S. 171, 190 (1967) and subsequently adopted by this Board applies to all union activity and requires the union to represent employees "adequately as well as honestly and in good faith." Airline Pilots' Association, International v. O'Neill, No. 89-1493, 59 L.W. 4175, 4176-8 (Mar. 19, 1991).12 Called upon to represent employees who often possess different and sometimes even competing interests, a collec- tive bargaining agent "may agree to terms favorable to some employees and unfavorable to others, provided it acts in good faith." Williams v. Pacific Maritime Association, 617 F.2d 1321, 1333 (9th Cir. 1980) (citing cases). In the facts of this case we find nothing in the Union's decision to restrict voting on contract proposals and strategy, or in the results reached pursuant to that restriction to be arbitrary, capricious or invid- iously discriminatory. We think it is reasonable for the Union to conclude that restriction of voting privileges to its dues-paying mem- bership is necessary to the Union's economic survival. It cannot be gain- said that the effectiveness of a collective bargaining agent and indeed the success of the statutory public sector collective bargaining process itself is in large measure directly dependent on the fiscal soundness of the union. Both the NLRB and the courts have been highly deferential to the exer- cise by unions of managerial control over their internal union affairs. In the federal private sector neither Section 101(a)(1) of the Labor Management Reporting and Disclosure Act, 29 U.S.C. 411(a)(1), nor the provisions of the National Labor Relations Act require modifications of a collective bargaining agreement to be submitted to the membership for ratification in the absence of a union constitutional requirement. Leary v. Western Union Telegraph Co., 570 F. Supp. 1384 (S.D.N.Y. 1983). Striking down an NLRB _______________________ 12The duty of fair representation requires that a collective bargaining agent acting in its negotiating capacity refrain from behavior which is so unreasonable as to be irrational. See Airline Pilots Association, International v. O'Neill, Nos. 89-1749, 59 L.W. 4175, 4179 (Mar. 9, 1992); Ackley v. International Brotherhood of Teamsters Local 337, 948 F.2d 267 (6th Cir. 1991). In ALPA v. O'Neill the Court further explained, at page 4176, that, "a union's actions are arbitrary only if, in light of the fac- tual 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 Company v. Huffman, 345 U.S. 330, 338 (1953), as to be irrational." - 13 - rule requiring that nonunion unit members be allowed to vote on the affil- iation of their collective bargaining agent with another union, the United States Supreme Court stated: A union makes many decisions that "affect" its representation of nonmember employees [such as to] . . . ratify a collective bargaining agreement, [to affiliate where there is no question of representation] or [to] select union officers and bargaining representatives. [However,] . . . dissatisfaction with represen- tation is not a reason for requiring the union to allow nonunion employees to vote on union matters . . . . Rather, the Act allows union members to control the shape and direction of their organization, and "[n]on-union employees have no voice in the affairs of the union." N.L.R.B. v. Financial Institution Employees of America, Local 1182, 475 U.S. 192, 205 (1986) (citing Allis-Chalmers Mfg. Co., 388 U.S. 175, 191 (1967)). In the federal private sector the means of contract ratification is left to the discretion of the exclusive representative. Houchens Market v. NLRB, 375 F.2d 208, 212 (6th Cir. 1967). A collective bargaining agent may reserve to its membership the right, acting on behalf of the interests of the collective bargaining unit as a whole, to ratify a negotiated collective bargaining agreement. Lear Siegler, Inc. v. UAW, Local 330, 419 F.2d 534, 535 (6th Cir. 1969). See also, Gilliam v. Independent Steelworkers Union, 572 F. Supp. 168 (N.D.W.Va. 1983); Pennsylvania Labor Relations Board v. Eastern Lancaster County Education Association, 427 A.2d 305 (Pa. Commw. Ct. 1981); Daigle v. Jefferson Parish School Board, 345 So.2d 583 (La. App. 1977), writ refused, 347 So.2d 260 (La. 1977). 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. Just as Congress never intended unions to be equal partners in the management of the enterprise in which its members are employed, see First National Maintenance Corp., 452 U.S. 666, 676 (1981), we think nonunion unit members were never intended to be equal partners in the internal - 14 - affairs of the union.13 We consider voting on contract ratification and voting on what will be proffered in negotiations to be of identical dimen- sions. Accordingly, we regard as equally applicable in the instant case the following portion of the analysis of the hearing examiner in Public Employees Federation/AFL-CIO and Muragali, No. U-4626, 3 NPER 33-14617 (H.O. Decision N.Y. PERB Nov. 13, 1980), aff'd, 3 NPER 33-13036 (N.Y. PERB May 8, 1981), a case involving the issue of whether non-union bargaining unit members possess a right of access to information destined to be used by union members in a contract ratification vote restricted to union mem- bers only. With respect to the restriction of the ratification vote to union members alone the hearing officer opined, in pertinent part: Surely there is no logical reason to determine that the union as exclusive representative consists solely of its officials. And once the union as a whole, officials and members both[,] is con- sidered the statutory agent, then a ratification vote within that entity can be viewed as another act of the bargaining agent, on a par with decisions concerning proposals during bargaining. It is simply another function within the negotiations process which the Act reserves to said agent. The argument to extend ratification voting rights to non-union unit members is not without merit. It rests on the discrimina- tion inherent in a members-only vote and the view of ratification as closely connected to the employment relationship. As to the job-related nature of a ratification vote, clearly, ratification affects the employment relationship of non-union unit members: the results of such a vote can set their terms and conditions of employment and preclude them from filing a representation peti- tion for up to three years. Yet this argument is not sufficient to extend the right to ratify. All actions of the bargaining agent regarding the unit affect unit members' terms and con- ditions of employment that is the very purpose of a bargaining agent. Yet no one can argue that each and every action of the bargaining agent must be subject to direct approval by unit mem- bers. Nor is there any dispute that the present limitation on eligibility to participate in a ratification vote distinguishes between union and non-union unit members. However, since I have determined that for the purposes of a ratification vote union members are part and parcel of the bargaining agent statutorily assigned the power to reach agreement with the employer, the distinction made between union members and non-members in this context is valid. _______________________ 13This is not to say that the Union cannot extend the franchise to all bargaining unit members if it so desires. - 15 - (Footnotes deleted) Although we have determined that the members-only voting restriction herein does not violate the MPELRL we hasten to add that the Union is not free to disregard the interests of nonunion unit members. Proper fullfillment 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. The union has responsibility as exclusive bargaining agent to formulate the employees' position on terms and conditions of employment. This responsibility may be delegated by the union membership. Such delegation is an internal union procedure from which nonunion employees properly may be excluded. However, the delegates, once selected, must in turn function as a representative for all the employees in the bargaining unit. If a representative's negotiating deci- sions are motivated solely by self-interest, then there is a breach of the duty of fair representation." Branch 6000, National Association of Letter Carriers v. NLRB, 595 F.2d 808, 813 (D.C. Cir. 1979). The Board's prohibited practice complaint procedures are always available for redress of violations of the duty of fair representation. There is, however, a range of managerial discretion in the internal affairs of unions in which this Board, absent circumstances not present in the instant case, is reluctant to intervene. Such matters are best addressed definitively by union decisionmakers subject to and mindful of the availa- bility of Board decertification election procedures. In Waiters Union Local 781 of Washington D.C. v. Hotel Association of Washington, 498 F.2d 998 (D.C. Cir. 1974), the United States Circuit Court for the District of Columbia made the following comments, which we think bear repeating here: The duty of fair representation must be applied realistically in the context in which union officials resolve internal union disputes, even though a decision in favor of one . . . faction . . . arouses keen resentment in the hearts of the other . . . . The duty of fair representation implies some consideration of the position of the members involved . . . . But there is no require- ment of formal procedures. The fiduciary principle precludes arbitrary conduct, but it must not be stretched so far as to "judicialize" the conduct of the affairs of the union, and to cut athwart a common sense and practical approach toward resolution - 16 - of problems and disputes that is fair in its essence without being rigid in its procedures. Id. at 1000. A "bargaining agent is not required to carry out the wishes of non-union employees; it suffices that [it] is available to ascertain them and to take them into account . . . . [However, although a collective bargaining agent must provide] communication access for employees with a divergent view . . . there is no requirement of formal procedures." Branch 6000, National Association of Letter Carriers v. NLRB, 595 F.2d 808, 813 (D.C. Cir. 1979. We have carefully considered the Association's countercomplaint in light of the evidence presented and conclude that no violation of 26 M.R.S.A. 964(1)(A) or (C) (1988) has occurred. Collier's status as a member of the Surry School Committee is an insufficient basis upon which to designate him a public employer with respect to the Union or its represented employees in Blue Hill. Moreover, Collier's actions, assuming, arguendo, they were taken for the purposes alleged of them by the Union constitute at best attempted interference, restraint or coercion, which actions we cannot conclude in the facts of this case to have a reasonable tendency to inter- fere with, restrain or coerce employees or the Union in the exercise of statutorily protected rights. Finally, we conclude that there is no merit in the Union's countercomplaint of violation of 26 M.R.S.A. 964(1)(C) (1988). We have repeatedly noted in analyzing changes based on the language contained in that and identical provisions of Maine's other public sector acts that Section 964(1)(C) "is directed at the evil of too much financial or other support of, encouraging the formation of, or actually participating in, the affairs of the union and thereby potentially dominating it." Hendsbee v. Department of Public Safety, No. 89-11, slip op. at 26, 12 NPER ME-21005 (Me.L.R.B. Jan. 16, 1990); Teamsters Local Union No. 48 v. Town of Fort Fairfield, No. 86-01, slip op. at 13, 9 NPER ME-17008 (Me.L.R.B. Jan. 24, 1986); Teamsters Local Union No. 48 v. Town of Kittery, No. 84-25, slip op. at 4, 7 NPER 20-15018 (Me.L.R.B. July 13, 1984). Since Collier is not a public employer with respect to Blue Hill employees or the Union in its representation of them, the Union's charge states a claim upon which relief cannot be granted. We do not find the award of attorney's fees or costs - 17 - warranted in this case. 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) (1988 & Supp. 1991), it is hereby ORDERED that Collier's March 4, 1992, Complaint and the Association's March 24, 1992, Countercomplaint be, and hereby are, DISMISSED. Dated at Augusta, Maine, this 25th day of September, 1992. MAINE LABOR RELATIONS BOARD /s/______________________________ The parties are advised of Peter T. Dawson their right pursuant to Chair 26 M.R.S.A. 968(5)(F) (Supp. 1991) to seek review of this decision and order by the Superior Court by /s/______________________________ filing a complaint in Howard Reiche, Jr. accordance with Rule 80C Employer Representative of the Maine Rules of Civil Procedure, within 15 days of the date of this decision. /s/______________________________ George W. Lambertson Employee Representative - 18 -