Ann H. Ridge v. Cape Elizabeth Education Assoc. (MEA), No. 98-02, Interim Order, March 27, 1998. Decision and Order, Sept. 8, 1998.

Ann H. Ridge v. Cape Elizabeth Education Assoc., No. 98-02, Interim Order, March 27, 1998.
Decision and Order, Sept. 8, 1998.

STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 98-02
Issued: March 27, 1998

__________________________________
)
ANN H. RIDGE, )
)
Complainant, )
)
V ) INTERIM ORDER
)
)
CAPE ELIZABETH EDUCATION )
ASSOCIATION, )
)
Respondent. )
________________________________)

This is an interim order to address prehearing motions which
were heard by the Maine Labor Relations Board on March 3, 1998.
Ms. Ann H. Ridge (hereinafter "the Complainant") filed a Motion
to Amend to Designate Potential Party-In-Interest in which she
seeks to add the Cape Elizabeth School Department ("the School
Department") as a party to her prohibited practice complaint
against the Cape Elizabeth Education Association ("the
Association") . The Association requested to be heard on the
defense raised in its response to the complaint. The Board
considered the Association's request to be heard on the defense
as a Motion to Dismiss and permitted oral argument in this
regard.[1] For the reasons stated herein, we DENY Complainant's
Motion to Amend, and we DENY the Association's Motion to Dismiss.

Ms. Ridge filed a prohibited practice complaint, pro se,
against the Association on July 7, 1997, in which she alleged the
Association breached its duty of fair representation in violation
of 26 M.R.S.A. 964(2) (A). Complainant contends she was

__________

1.There were no briefs filed prior to the Board's consideration of
the Association's request. The Association also moved that this case
be presented on briefs based on complainant's representation that she
intended to withdraw her witness list. Complainant objected to
proceeding without an evidentiary hearing and indicated that she,
herself, wished to testify before the Board. The Association withdrew
its motion based on Complainant's objection.

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improperly and unfairly discharged from her position as a Library
Educational Technician I at the Cape Elizabeth High School on
August 16, 1996. Complainant contends the Association failed to
represent her "fully" (i.e., failed to request the remedy she
sought) in her discharge grievance and, despite the merits of her
grievance, declined to take it to arbitration.

The Association admits it did not process Ms. Ridge's
grievance on the terms she insisted on,[2] and that it withdrew its
request for arbitration, The Association denies the essential
factual issue in this case: whether the manner in which it
handled Ms. Ridge's grievance was arbitrary, discriminatory or in
bad faith.[3]

A prehearing conference was conducted on September 11, 1997,
by Alternate Chair Kathy M. Hooke. There were no motions filed
prior to the date of the prehearing conference. Ms. Ridge
appeared at the conference, pro se, and Shawn Keenan, Esq.,
appeared on behalf of the Association. An evidentiary hearing
scheduled for December 12, 1997, was postponed at Complainant's
request, and a second hearing date of January 8, 1998, was
postponed due to inclement weather. By letter dated January 12,
1998, Robert W. Kline, Esq., entered his appearance on behalf of
Complainant. Mr. Kline advised that Complainant intended to seek
reinstatement and raised the issue of adding the Cape Elizabeth
School Department as a party. Complainant's motion was filed

___________
2. Ms. Ridge's grievance sought reinstatement to a position
equivalent to the one she held in the library. She maintained that
the position to which she was eventually reinstated was not an
eguivalent position and wished to press this issue. The Association
limited the relief sought to back pay for the period of time preceding
her assignment to the new position.

3. It is well established that, to constitute a breach of the duty of
fair representation, the union's conduct must be arbitrary,
discriminatory or in bad faith. Lundrigan v. Maine Labor Relations
Board, 482 A.2d 834, 826 (Me. 1984).

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with the Board on January 28, 1998.

The March 3, 1998, hearing on these motions was conducted by
Alternate Chair Pamela D. Chute, Alternate Employee Representa-
tive Carol Gilmore, and Employer Representative Karl Dornish, Jr.
The Complainant was represented by Mr. Kline, and the Association
was represented by Mr. Keenan. The Cape Elizabeth School
Department, through counsel Harry R. Pringle, appeared specially
in this proceeding solely for the purpose of objecting to
Complainant 's motion..

COMPLAINANT'S MOTION TO AMEND TO DESIGNATE POTENTIAL
PARTY- IN-INTEREST

Complainant seeks to add the Cape Elizabeth School
Department as a "party-in-interest" to her complaint against the
Association. Complainant does not charge her former employer
with any prohibited practice but, instead, recognizes the remedy
she now seeks of reinstatement would "have obvious impact on the
School Department."[4] Complainant contends there would be no
prejudice to the School Department to add them as a party since
there has been no evidence taken in this matter, and because the
School Department has long been aware "there was an issue
brewing." Complainant argues that enjoining the Association from
violating its duty of fair representation would be a "hollow
victory" and that reinstatement is the only meaningful remedy.

Complainant's attempt to add the School Department to this
complaint must fail for two reasons, either of which would defeat
the amendment effort: (i) Complainant has not charged the

____________
4 Complainant represents in her pleadings that she has sought the
remedy of reinstatement "all along." We note that complainant did not
seek reinstatement in her complaint. Complainant sought from the
Association "adequate monetary relief to compensate her for lost past
and future wages, medical expenses and all other benefits to include
retirement contributions[,] and . . . such other and further relief as
(the Board) deems proper" (emphasis added) . The request for future
wages could be interpreted to preclude reinstatement.

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department with a violation of the Municipal Public Employees
Labor Relations Law (MPELRL), and (ii) the request to amend is
untimely.

There is no authority in the MPELRL, or in any prior
decision of this Board, for the proposition advanced by the
Complainant that the Board may exercise jurisdiction over a party
solely for the purpose of awarding relief in the event of a
violation of the law on the part of another party. The MPELRL
reads, in part:

After hearing and argument if, upon a preponderance of
the evidence received, the board shall be of the
opinion that anv narty named in the complaint has
engaged in or is engaging in any such nrohibited
Dractice, then the board . . . shall issue and cause to
be served upon such party an order requiring such party
to cease and desist from such prohibited practice and
to take such affirmative action, including reinstate-
ment of employees with or without back pay, as will
effectuate the policies of this chapter (emphasis
added).

26 M.R.s.A. 968(5) (C). We think the statute is clear that a
Board order may issue only to a party who is found to have
violated the MPELRL. We do not see how it would effectuate the
policies of the law to find otherwise.

Our conclusion is consistent with a prior Board decision
which addressed this issue. In Trepanier v. Perry, No. 93-38
(Me.L.R.B. Mar. 24, 1994), a prohibited practice complaint
alleging a breach of the duty of fair representation on the part
of a Maine Teachers Association UniServ Director, the
complainants requested relief be awarded against the school
department. The Board determined it lacked jurisdiction to award
the requested relief because the school department had not been
charged with a violation of the MPELRL. The decision reads, in
part:

The Complainants have charged no prohibited employer

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practice which would give us jurisdiction to consider
the propriety of the complained-of School Department
actions. Therefore, none of the relief which
Complainants request to be awarded against the School
Department may be granted.

Trepanier, slip op. at 23. If Ms. Ridge were to convince this
Board that the Cape Elizabeth School Department violated the
contract when it terminated her employment, we would lack the
authority to order reinstatement unless the contract violation
also constituted a prohibited practice under the MPELRL.
Ms. Ridge does not allege that the School Department1s action
constituted a violation of the MPELRL; therefore, we must deny
the motion to add the Cape Elizabeth school Department as a party
to the pending prohibited practice complaint.[5]

Even if Ms. Ridge had charged the School Department with a
violation of the MPELRL, the statute of limitations would
prohibit an amendment to add the Department as a party at this
time. The timeliness of prohibited practice complaints is
governed by statute and the statute is clear: no hearing shall
be conducted by the Board based upon any alleged prohibited
practice occurring more than 6 months prior to the filing of a
complaint. 26 M.R.S.A. 968(5) (B). Time limits set by statute
are jurisdictional and cannot be enlarged for any reason by the
Board. See MSAD #70 Teachers Association/MTA/NEA v. MSAD #70
School Board, No. 93-13, slip op. at 2 (Me.L.R.B. Mar. 29, 1993);
see also City of Lewiston v. Maine State Employees Association,
638 A.2d 739, 741 (Me. 1994) (if a party does not file an appeal
within the statutory period the court has no legal power to

________________
5 Ms. Ridge argues that it would be unfair to deny her requested
amendment because, in drafting her own complaint, she relied on a
sample complaint provided by the Board's executive director after she
"explained her claim" to him. We do not know how Ms. Ridge explained
her complaint to the executive director and, in any event, it is not
necessary to reach her "reliance" argument. It would have been an
error to name the School Department as a party and include rein-
statement in her prayer for relief because the School Department is
not charged with a violation of the MPELRL.

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entertain the appeal; statutory periods of appeal are not subject
to a court-ordered enlargement of time). [6] The conduct complained
of clearly occurred more than six months prior to the attempted
amendment; therefore, we must deny the proposed amendment because
the statutory limitations period has expired.

We will address Complainant's contention that reinstatement
is the only meaningful remedy of a breach of the duty of fair
representation in our discussion of the Association's motion.

ASSOCIATION'S MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED

The Association's defense that Ms. Ridge fails to state a
claim upon which relief can be granted has two components.
The Association contends that: (i) none of the facts alleged by
Ms. Ridge can constitute, as a matter of law, a prohibited
practice under the MPELRL, and (ii) her request for monetary
damages is beyond the authority of the Board.

We find that the facts alleged by Ms. Ridge in her complaint
state a claim against the Association under the MPELRL. The
standard for proving a breach of the duty of fair representation
(DFR) is well established and not in dispute:

To constitute a breach of the duty of fair represen-
tation, the union's conduct toward its members must be
arbitrary, discriminatory or in bad faith. Thus, the
union may not ignore a meritorious grievance or process
it in a perfunctory manner.

Lundrigan V. Maine Labor Relations Board, 482 A.2d 834, 836 (Me.

_______________
6 Even if we had discretion to enlarge the limitations period, we are
not persuaded by complainant's contention that the provision for
"relation back" of amendments provided in Rule 4.06 (B) permits the
Board to cure an untimely-filed complaint against a party not named in
the original complaint, especially when that party is not charged with
a violation of the MPELRL. By its terms, Rule 4.06 (B) pertains to
amendments of claims arising out of the conduct, transaction, or
occurrence set forth in the original pleading.

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1984) (quoting Ford Motor Co. v. Huffman, 345 U.S. 338, 73 S.Ct.
681, 686, 97 L.Ed. 1048 (1953)).

Ms Ridge asserts in her complaint that the Association
prematurely (prior to receiving a Level II written response)
decided against pursuing her grievance and reversed its decision
once it heard from her attorney. Ms. Ridge claims the
Association failed to represent her adequately (refused to press
the equivalent position issue) and, without good reason, dropped
her meritorious grievance prior to arbitration. The complaint
reads, in conclusory fashion, that the Association's "discrimi-
natory acts and breach of it duty of fair representation"
resulted in loss of wages and damage to Ms. Ridge's professional
reputation. Essentially, Ms. Ridge's claim against the
Association is that it "ignored [her] meritorious grievance" and
"process [ed] it in a perfunctory manner." This is our under-
standing from a reading of Ms. Ridge's complaint as a whole.

We believe these alleged facts constitute a claim and, if
proven by Complainant and left unanswered by the Association,
could constitute a breach of the duty of fair representation.
Ms. Ridge bears the burden of proving the truth of her
allegations at hearing, and that these actions on the part of the
Association were "arbitrary, discriminatory or in bad faith" and
went beyond "mere negligence, poor judgment or ineptitude."
Lundrigan at 636. While it is true that Ms. Ridge did not
specifically plead that the Association's actions were
"arbitrary, discriminatory or in bad faith," we should not
elevate form over substance by dismissing this complaint without
reviewing the Association's position and its reasoning process. [7]

_____________________
7The Board's role in DFR cases is to evaluate the union's conduct,
review its position and the reasoning process followed in reaching the
same in order to determine whether it acted in bad faith or in an
arbitrary or discriminatory fashion. See John T. Abbott. et al. V.
Maine State Emnlovees Association, No. 81-51, slip op. at 6-7 (Me.
L.R.fl. Mar. 17, 1982)

-7-

We note that Board Rule 4.09(A) contemplates objection at
hearing to the admission of evidence on the ground that it is not
within the issues set out in the pleadings, and permits liberal
amendment of pleadings at hearing when the presentation of the
merits of the action will be served thereby.[8] Rule 4.09(B)
permits amendment of pleadings at the conclusion of the hearing
to conform to the evidence. With these liberal amendment rules
in mind, we decline to dismiss Ms. Ridge's complaint at this
stage of our proceedings for failure to state a claim.

We turn now to the Association's contention that the Board
lacks the authority to award monetary damages to Complainant in
the event she prevails in her DFR complaint. The issue of remedy
and make-whole relief in a case such as this, that is to say, a
DFR case involving the failure to process a discharge grievance
where the employer cannot be made a party, has never been
addressed by this Board.

The Association does not question the Board's authority to
order "make-whole" relief. "A properly designed remedial order
seeks 'a restoration of the situation, as nearly as possible, to
that which would have obtained' but for the unfair labor
practice." City of Bangor v. American Federation of State;
County, and Municical Employees, Council 74, 449 A.2d 1129, 1136
(Me. 1982). As noted above, this Board may not order rein-
statement when the employer cannot be made a party. What else
might the Board order to restore the parties, as nearly as
possible, to their pre-unfair labor practice positions in a
discharge grievance situation?

The Association cites Miller v. Maine Teachers Association,
697 A.2d 1270, 1272 (Me. 1997), in support of its proposition

_______________
8 If admission of the evidence at that time would prejudice the
objecting party in maintaining its defense, Rule 4.09 (A) permits the
Board to grant a continuance to enable it to meet such evidence.

-8-

that the Board has no authority to award money damages against a
public employee organization which has breached its duty of fair
representation. In Miller, an employee filed a complaint against
the Maine Teachers Association seeking damages for an alleged
breach of the duty of fair representation and intentional
infliction of emotional distress. The Law Court vacated the
lower court's dismissal of the tort of intentional infliction of
emotional distress, but upheld the court's dismissal of the
employee's duty of fair representation claim, based on this
Board's exclusive jurisdiction to hear such an action and broad
discretion in fashioning appropriate relief.

In vacating the dismissal of the intentional infliction of
emotional distress claim, the Court noted that this Board did not
have the authority to resolve Miller's claim for emotional
distress or award "tort remedies, including punitive damages,
that may be available to Miller pursuant to his claim for the
intentional infliction of emotional distress." Miller at 1272.
We find nothing in Miller which would restrict our authority to
order public employee organizations to pay monetary damages in
the event of a breach of the duty of fair representation, so long
as the damages were compensatory or actual damages and not
punitive in nature.

There is ample precedent under the National Labor Relations
Act to support the award of monetary damages representing lost
wages for a union's breach of its duty of fair representation in
discharge grievances which can no longer be processed.[9] See
United Steelworkers v. National Labor Relations Board, 692 F.2d
1052 (7th Cir. 1982); Abilene Sheet Metal. Inc. v. National Labor
Relations Board, 619 F.2d 332 (5th Cir. 1980); National Labor

__________
9. If the grievance is still viable, the National Labor Relations
Board orders the union to process or attempt to process the grievance
in good faith through arbitration. If the employee prevails, lost
wages are recoverable from the employer. See generally The Develoning
Labor Law (Third Edition, 1997), chapter 26.

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Relations Board v. International Association of Bridge. Structure
and Ornamental Iron Workers Local 433, 600 F.2d 770 (9th Cir.
1979) ; Oil Chemical & Atomic Workers Local 3-495 (Hercules,
Inc,), 314 NLRB 385, 146 LRRM 1277 (1994); Rubber Workers Local
250 (Mack-Wayne II) , 290 NLRB 90, 129 LRRM 1129 (1988).

A majority of courts have held that, in order to award
monetary damages against the union, the National Labor Relations
Board (NLRB) must decide the merits of the underlying discharge
grievance. Otherwise, an assessment of back pay against the
union might well be speculative and punitive and a windfall to
the employee, possibly rewarding them for misconduct. San
Francisco Web Pressmen & Platemakers' v. National Labor Relations
Board, 794 F.2d 4201 (8th Cir. 1986); United Steelworkers, 692
F.2d at 1057. In this regard, the MPELRL specifically provides:

No order of the board shall require the reinstatement
of any individual as an employee who has been suspended
or discharged, or the payment to him of any back pay,
if such individual was suspended or discharged for
cause (emphasis added)

26 M.R.S.A. 968(5) (C)

While the NLRB places the burden of proof as to the merits
of the underlying grievance on the union, Rubber Workers, the
reviewing courts are not in agreement on this point. See Abilene
Sheet Metal, 619 F.2d at 348 (burden to prove underlying
grievance was not meritorious placed on the union) ; San Francisco
Web Pressmen, 794 F.2d at 423-424 (burden to prove underlying
grievance was meritorious properly placed on the employee)

In "hybrid" court actions, that is, in lawsuits filed by the
employee in which the employer is charged with a violation of the
union contract and the union is charged with a breach of its duty
of fair representation as well, the United States Supreme Court
places the burden of proving the merits of the underlying
grievance on the employee (who must bear the burden of proving

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the contract violation in order to prevail in their contract
action against the employer) . DelCostello V, International
Brotherhood of Teamsters, 462 U.S. 151, 164-165, 103 S. Ct. 2281,
2290-2291, 76 L. Ed. 2d 476 (1983).

In light of this developing federal labor relations law and
the lack of any controlling case law under the MPELRL, we deny
the Association's motion to dismiss Ms. Ridge's complaint on the
basis of our lack of authority to award monetary damages in a
prohibited practice complaint alleging a breach of the duty of
fair representation.

In keeping with Board practice, see Whitrell v. Merrymeeting
Educators Association, No. 80-15, slip op. at 1 (Me.L.R.B.
Nov. 6, 1980), we decline to decide the appropriate remedy in
this case until there is a decision on the merits. If the Board
decides that the Association breached its duty of fair
representation of Ms. Ridge, it will request the parties to brief
the issue of appropriate remedy and reconvene to take testimony,
if necessary, so that we may turn our full attention to this
issue based on a thorough analysis of competing views.

Ms. Ridge has represented that the only meaningful remedy
for her is reinstatement by the Cape Elizabeth school Department.
We have determined that, in the event she were to prevail in this
complaint against the Association, the Board is without authority
to order this relief. The decision whether to proceed on the
basis of her original prayer of relief is Ms. Ridge's to make;
therefore, we deny the Association's motion to dismiss.

ORDER

On the basis of the foregoing facts and discussion, it is
hereby ORDERED that:

1. Complainant's Motion to Amend to Designate potential
party-In-Interest is DENIED;

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2. Association's Motion to Dismiss for Failure to State a
Claim Upon Which Relief Can Be Granted is DENIED.

Dated at Augusta, Maine, this 27th day of March, 1998.

MAINE LABOR RELATIONS BOARD

Pamela D. Chute
Alternate Chair

Karl Dornish, Jr
Employer Represeiftative

Carol Gilmore
Alternate Employee Representative

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STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 98-02
Issued: September 8, 1998

___________________________
)
ANN H. RIDGE, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CAPE ELIZABETH EDUCATION )
ASSOCIATION, )
)
Respondent. )
___________________________)

Ms. Ann H. Ridge filed a complaint against the Cape
Elizabeth Education Association (hereinafter referred to as "the
Association" or "the union") on July 7, 1997, alleging that the
union breached its duty of fair representation in violation of
26 M.R.S.A. 964(2)(A). Specifically, Ms. Ridge alleges that
the Association failed to request the remedy she sought in a
grievance concerning her discharge from employment and, despite
the merits of her grievance, refused to take it to arbitration.

The Association admits it did not process Ms. Ridge's
grievance on the terms she insisted on, and that it withdrew its
request for arbitration. The Association denies that it acted in
bad faith with regard to Ms. Ridge, or handled her grievance in
an arbitrary or discriminatory manner.

A prehearing conference was conducted on September 11, 1997,
by Alternate Chair Kathy M. Hooke. Ms. Ridge appeared at the
conference, pro se, and Shawn C. Keenan, Esq., counsel for Maine
Education Association ("MEA"), appeared on behalf of the
Association. The Prehearing Conference Memorandum and Order of
October 2, 1997, is incorporated herein and made a part of this
Decision and Order. An evidentiary hearing scheduled for
December 12, 1997, was postponed at Ms. Ridge's request, and a
second hearing date of January 8, 1998, was postponed due to

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inclement weather.[fn]1

An evidentiary hearing was conducted on May 13, 1998, by
Pamela D. Chute, Alternate Chair, and Carol B. Gilmore, Alternate
Employee Representative.[fn]2 Ms. Ridge was represented by
Robert W. Kline, Esq.; the Association was represented by Shawn
C. Keenan, Esq. The parties were provided full opportunity to
examine and cross-examine witnesses and present documentary
evidence. Both parties filed post-hearing briefs which were
considered by the Board prior to its deliberation in this matter.

We conclude, for the reasons stated herein, that the
Association did not breach its duty of fair representation and
hereby dismiss Ms. Ridge's complaint.

JURISDICTION

Ms. Ann Ridge was a public employee at the time of the
events complained of and, as such, was authorized by the
Municipal Public Employees Labor Relations Law ("the Act") to
file this prohibited practice complaint. 26 M.R.S.A. 968(5)
(B). The Cape Elizabeth Education Association is a "bargaining
agent," as that term is defined in Section 962(2), for a
bargaining unit in which Ms. Ridge was formerly employed. The
jurisdiction of the Board to hear this case and issue a decision
lies in 26 M.R.S.A. 968(5)(C) (1988). Neither party has raised
an objection to the Board's jurisdiction.
____________________

1 Ms. Ridge retained counsel at this point in the process. On
January 28, 1998, Complainant's counsel filed a motion to add the Cape
Elizabeth School Department as a party-in-interest to her complaint
against the Association. The motion was heard on March 3, 1998. The
Board denied Complainant's motion in an Interim Order dated March 27,
1998.

2 The third member of the panel, Edwin S. Hamm, Alternate
Employer Representative, was unable to attend the hearing;
however, the parties agreed to proceed with the hearing in his
absence and Member Hamm participated in the deliberations of this
matter after review of a transcript of the hearing.

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FINDINGS OF FACT

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

1. Ms. Ridge was first employed in the Cape Elizabeth
School system in 1985; she was an educational technician I at the
Cape Elizabeth High School library from 1988 until her termination
in 1996. Ms. Ridge was a member of the Cape Elizabeth Education
Association. Ms. Ridge was supervised by the high school
librarian, Ms. Joyce Bell, since 1990. The librarian is in a
different bargaining unit of employees represented by the Cape
Elizabeth Education Association.

2. The relationship between Ms. Ridge and Ms. Bell began to
deteriorate during the 1994-1995 school year. In March, 1995,
Ms. Bell requested a meeting with Principal Rick DiFusco and
Superintendent Connie Goldman to discuss her concerns about the
deteriorating relationship. Ms. Ridge requested union represen-
tation and the Association's president, Clarke Smith, attended
the meeting. The superintendent chided Ms. Ridge and Ms. Bell
for acting like high school students, and counselled them to
attempt to get along. The meeting ended without any disciplinary
measures.

3. Matters did not improve between Ms. Ridge and her
supervisor during the remainder of that school year and through-
out the 1995-1996 school year. In April, 1996, Ms. Ridge
received a negative evaluation from Ms. Bell. In June, 1996,
Ms. Ridge filed a grievance on her own behalf concerning
derogatory information included in the evaluation. Ms. Ridge
engaged in settlement negotiations with Principal DiFusco in
connection with the evaluation. Although she had written to her
union representative, Ms. Deb Raymond, in February, 1996, to
express concern about the upcoming evaluation, Ms. Ridge did not
seek union representation in processing this grievance.

4. On June 7, 1996, Ms. Bell complained in writing to

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Principal DiFusco about "ongoing personnel issues" with Ms. Ridge
and requested "some resolution" to the situation. The superin-
tendent, Ms. Ridge, and the Association president were copied on
this letter. On or about June 11, 1996, Ms. Ridge received a
letter from the superintendent asking for a meeting to discuss
this problem and informing Ms. Ridge that she had a right to
union representation at the proposed meeting.

5. The meeting was held on June 20, 1996. The support
staff's union representative, Ms. Raymond, and the teachers'
union representative, Ms. Kerry Hall, accompanied Ms. Ridge at
her request. Ms. Ridge was warned that she should "explore the
possibility of job change," and that "the possibility of
dismissal exists" due to the "interpersonal conflict" between her
and her supervisor,

6. Superintendent Goldman left the district and an interim
superintendent, Ms. Cynthia Mowles, assumed that position in
July, 1996. On July 12, 1996, Ms. Mowles wrote to Ms. Ridge and
scheduled a meeting to address her future employment status.
She referred to this situation as a "pressing concern" and a
"serious personnel issue." The letter invited Ms. Ridge to have
union representation at the meeting. The meeting was conducted
on July 29, 1996. Ms. Ridge did not request union representation
at this meeting; she attended the meeting with private counsel.
Also in attendance were the interim superintendent, Principal
DiFusco, Ms. Bell, and the school district's attorney.

7. Ms. Ridge was terminated from her position on August 16,
1996. Ms. Ridge filed a grievance, with the assistance of
private counsel, contending that her termination was without
warning or just cause, in violation of the collective bargaining
agreement.

8. Ms. Ridge's grievance requested the following relief:

By way of remedy I am requesting that my termination be
rescinded, that I be reinstated to an equivalent

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position with equal or superior pay, with no loss of
seniority and with a transfer of supervision such that
I no longer have to report or interface with my
previous supervisor and that this reinstatement be made
with back pay, all benefits and include a recision of
the letters of June 7, 1996, June 29, 1996 and any
other adverse references in my personnel file or any
other file maintained about me and that I otherwise be
made whole.

9. Level One of the contractual grievance procedure
consists of a meeting with the school principal to attempt
resolution of the grievance. The Association's president, Clarke
Smith, along with Ms. Ridge and her attorney, attended such a
meeting with Principal DiFusco. Principal DiFusco denied
Ms. Ridge's grievance.

10. The Association's Executive Board decided to pursue
Ms. Ridge's grievance to Level Two of the grievance procedure,
and informed her of its decision by letter dated October 3, 1996.
The Association agreed with Ms. Ridge that there was no just
cause for her termination and it intended to seek clarification
of the 'just cause' provision of the contract.

11. Level Two of the grievance procedure consists of a
meeting with the superintendent to attempt resolution of the
grievance. The union filed the grievance at Level Two and on
October 21, 1996, the Association's president, Ms. Ridge and her
attorney attended such a meeting with Superintendent Mowles and
the school department's attorney. The grievance was not resolved
at Level Two.

12. During November, 1996, Ms. Ridge's attorney engaged in
settlement discussions with the school department's attorney,
without the involvement of the Association. Ms. Ridge was
offered a position as an educational technician I assigned to the
playground, cafeteria and school buses at Pond Cove Elementary
School, with no loss in seniority. This educational technician I
position, despite different working conditions, was at the same
salary and benefit level as the educational technician I position

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at the high school library.[fn]3 In exchange, Ms. Ridge was to
withdraw her grievance and release the school department from a
previously-filed discrimination complaint.

13. Ms. Ridge did not accept the offer because she did not
believe that employment in this capacity was consistent with her
training and experience as an educational technician I in the
high school library. Ms. Ridge stated her preference for
secretarial work or any tasks involving the Pond Cove or Middle
School libraries. In addition, Ms. Ridge was not willing to
relinquish her claim for lost earnings and other costs related to
her termination, and she was not willing to withdraw her
grievance or discrimination claim.

14. Ms. Ridge and her attorney met with the Association's
Executive Board on December 10, 1996, to update the union on the
status of Ms. Ridge's grievance. The board voted to go no
further than Level Two in its support of Ms. Ridge's grievance.
By letter dated December 16, 1996, the Association's president
informed Ms. Ridge that the offer of reinstatement to an
educational technician I job, with no loss in seniority or
benefits, would resolve her grievance to the Association's
satisfaction. Ms. Ridge was urged to accept the offer, despite
her belief that the new job was not equivalent to her prior
position in the library. The Association president wrote: "[W]e
do not believe that it would be in the CEEA's best interest to
support any further legal action."

15. Level Three of the collective bargaining agreement
provides that the Association may submit a grievance to
arbitration if the grievance is not resolved at Level Two to the
_____________________

3 In January, 1996, Ms. Ridge's union representative showed her a
job description for educational technician I, which includes the
following language under the heading of "Performance
Responsibilities": Performs non-instructional, non-evaluative duties
supervised by administration, such as lunch duty, bus duty &
playground duty.

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satisfaction of the Association.

16. Ms. Ridge's attorney discussed the local Association's
decision not to pursue the grievance with MEA's attorney,
Mr. Keenan, and asked for reconsideration in light of two
matters: (i) Ms. Ridge was simply seeking access to the
arbitration process; her attorney would present her case in
arbitration and she would pay any incidental costs; and (ii) even
though Ms. Ridge's supervisor was also represented by the
Association in her position as librarian, she performed a
management role associated with Ms. Ridge's termination and the
Association needed to be careful to "parse out these dual roles
in fairly representing" Ms. Ridge.

17. In her Level Two response to the local Association
president, submitted on December 23, 1996, the interim superin-
tendent offered Ms. Ridge unconditional reinstatement to
employment in the educational technician I position previously
offered, with limited back pay. Ms. Ridge accepted the position
and began work as an educational technician I at Pond Cove
Elementary School on January 6, 1997. Ms. Ridge's attorney
informed MEA's attorney that she intended to accept the position
under protest since she did not consider the new position to be
equivalent to her former position, and that she was still
interested in pursuing her grievance to arbitration.

18. By letter dated January 9, 1997, the Association's
president informed Ms. Ridge's attorney that the union would
request arbitration on her behalf in order to recover lost wages,
but that it would not press for assignment to a position
different from the one she was offered and accepted under
protest. The Association reiterated that the department's offer
of reinstatement to an educational technician I position, with no
loss in seniority or other benefits, "answer[ed] [its] original
position on 'just cause'." On that same date MEA's attorney
formally demanded arbitration in order to recover lost wages and
benefits caused by Ms. Ridge's termination in violation of the

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'just cause' provision of the contract.

19. By letter of this same date, Ms. Ridge's attorney
requested that the Association proceed to arbitration without
restricting the remedy to lost wages. The letter addressed to
the Association president reads, in part:

There may be some misunderstanding of the Association's
role. The Association is not charged with rectifying
personnel issues, its mission is to vigorously
represent aggrieved members. Providing a member, who
is dissatisfied with the discipline she continues to
experience, with access to arbitration requires the
Association to recognize the representative role which
it fills. The Association should not advance one
member's considerations at the expense of another --
particularly where only one has been subject to
discipline.

20. Ms. Ridge experienced physical discomfort in the new
position resulting from noise levels and the amount of walking
required. In response to her request for some accommodation/
changes in job duties, the Pond Cove Assistant Principal asked
that Ms. Ridge obtain a note from her physician and then contact
her again about the issue. Two days later, without consulting
the union, Ms. Ridge resigned from the Pond Cove educational
technician I position. Ms. Ridge's resignation letter reads, in
part:

I find the created position you assigned me . . . to
be physically too taxing. The constant standing and
walking have caused me severe pain and continued
discomfort. My supervisor expressed an unwillingness
to accommodate my physical needs.

Your failure to honor my request to be reinstated to my
job as an Ed. Tech. I in the High School Library or to
an equivalent position, has prompted me to seek a
suitable assignment outside the school system.

21. On February 19, 1997, Complainant's attorney wrote to
MEA's attorney to again address the union's decision to limit the
remedy it sought in arbitration to back pay and to reiterate that
Ms. Ridge opposed the union's decision. At this time Ms. Ridge's

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attorney indicated that Ms. Ridge was seeking reinstatement to
her former position as an educational technician I in the high
school library. The letter reads, in part:

Even if the Union believed that Ms. Ridge and Ms. Bell
will not work effectively together if Ms. Ridge is
reinstated to her position . . . this opinion is not a
basis to fail to arbitrate a portion of a grievance.
The Union cannot give one member preference over
another in this manner. This would be discriminatory
conduct which is a hallmark of a breach of duty of fair
representation claim.

22. By letter dated February 26, 1997, MEA's attorney
informed Ms. Ridge's attorney that he intended to advise the
union's executive board that Ms. Ridge waived any claim to
reinstatement when she resigned; he also intended to inform them
that Ms. Ridge raised the possibility of a claim of breach of the
duty to fairly represent, even if the union went to arbitration.
Ms. Ridge's attorney was invited to show cause before the union's
next executive board meeting as to why the grievance should not
be withdrawn from arbitration.

23. Complainant's attorney submitted a written explanation
as to why the grievance should not be withdrawn. Essentially,
complainant argued: (i) her resignation did not mean she did not
want to work in her former position; she resigned because the new
assignment was physically taxing; (ii) her dismissal from the
library position was without just cause; and (iii) there is no
mechanism in the union contract for stopping arbitration once it
is requested.

24. MEA's attorney responded by letter dated March 5, 1997,
which reads:

Your letter was not helpful to your client's cause.
You failed to enclose Ms. Ridge's letter of resig-
nation; failed to address my request for correspondence
between herself and Cape administrators relating to the
reasons for her resignation; and failed to advise
whether Ms. Ridge has found another job. All you have
offered is mere argument.

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You continue to threaten a DFR complaint if your client
does not get exactly what she wants, whether CEEA
arbitrates her claim or not.

By this time next week, you will be informed of what
happens next.

25. Ms. Ridge's attorney promptly provided the information
mentioned in this letter and indicated that Ms. Ridge "has no
intention of bringing a claim against the Association provided
the Association fully presents her grievance, which includes a
claim for back pay and reinstatement."

26. At its March 11, 1997, executive board meeting the
Association considered the status of Ms. Ridge's grievance.
MEA's attorney was present to discuss the matter with the board.
Mr. Keenan informed the board that arbitration (for the remedy of
back pay) was scheduled for April 3, 1997, and MEA would cover
the fee for an arbitrator. He explained that Ms. Ridge was
unhappy with the Association's decision to pursue only back pay
and not reinstatement to her former position; that she had been
reinstated by the school department to an educational technician
I position, but had resigned from that job. Mr. Keenan informed
the executive board that it had a right to withdraw from
arbitration. The executive board voted unanimously to cancel
arbitration.

27. Ms. Ridge was advised of the board's decision by letter
dated March 27, 1997, from MEA's attorney which reads, in part:

At their March 11 meeting, the CEEA Executive Board
considered whether Ms. Ridge had abandoned her claim
for back pay and reinstatement when she voluntarily
quit employment as an Ed. Tech. I. It was also
observed that the remedies which she initially
requested in her September 19, 1996 grievance,
including "a transfer of supervision," had otherwise
been substantially granted by her employer.

. . . I have been authorized to request that the
arbitration hearing, once scheduled by the AAA for
April 3, 1997, be cancelled. . . .

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. . .

28. No other school department employee has been terminated
in the past twenty years, nor has the Association taken any
grievance to arbitration during this time period.

DISCUSSION

Ms. Ridge claims the Cape Elizabeth Education Association
violated its duty of fair representation ("DFR") when it refused
to request the remedy she sought in a discharge grievance, and
when it refused to take her grievance to arbitration.

A bargaining agent's duty to fairly represent all employees
in its bargaining unit arises under 26 M.R.S.A. 964(2)(A).[fn]4
Whitzell v. Merrymeeting Educators' Association, No. 80-15, slip
op. at 8-9, 3 NPER 20-12004 (Me.L.R.B. Nov. 6, 1980), aff'd sub
nom. Whitzell v. Merrymeeting Educators' Association and
M.L.R.B., No. CV-80-124 (Me. Super. Ct., Sag. Cty., Dec. 28,
1982). The legal standard for establishing a breach of the duty
of fair representation is well-established:

To constitute a breach of the duty of fair
representation, the union's conduct toward its members
must be arbitrary, discriminatory or in bad faith.
Thus, the union may not ignore a meritorious grievance
or process it in a perfunctory manner. See Vaca v.
Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L.Ed.2d 842
(1967). Nevertheless, a "[w]ide range of reasonable-
ness must be allowed" and "[m]ere negligence, poor
judgment or ineptitude are insufficient to establish a
breach of the duty of fair representation."

Lundrigan v. Maine Labor Relations Board, 482 A.2d 834, 836 (Me.
1984) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73
S.Ct. 681, 686, 97 L.Ed. 1048 (1953)).
_____________________

4 Section 964(2)(A) prohibits public employee organizations
from interfering with employees in the exercise of rights
guaranteed in the MPELRL. Section 967 of the MPELRL guarantees
employees the right to be represented by their bargaining agent.

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Ms. Ridge contends that the Association's handling of her
grievance was arbitrary and in bad faith, primarily because her
grievance was meritorious.[fn]5 While the merits of an underlying
grievance influence our ultimate determination in DFR cases, a
breach of the duty of fair representation is not established
merely by proof that the underlying grievance was meritorious.
Whitzell, slip op. at 9. In a case such as this, where the union
does not dispute that the underlying grievance is meritorious,[fn]6
the focus of our inquiry is on the manner in which a grievance is
handled by the union. For purposes of this decision, we will
assume that Ms. Ridge's termination was without just cause and
move on to the heart of the matter; that is: what was the
Association's rationale for handling the grievance as it did, and
were the Association's decisions in this regard arbitrary,
discriminatory, or made in bad faith.

For reasons not revealed in the record, Ms. Ridge filed the
discharge grievance without assistance from the union. A public
employee has the right to present a grievance to the employer and
have it adjusted without the intervention of the bargaining
agent, so long as the adjustment is consistent with the terms of
the collective bargaining agreement. 26 M.R.S.A. 967(2).
Ms. Ridge's requested remedy was reinstatement to an "equivalent
position with equal or superior pay." She also sought a transfer
of supervision; no loss in seniority, back pay or other benefits;
and recision of unfavorable references in her personnel file.
_____________________

5 Ms. Ridge points out that, in the last 20 years, there has never
been a discharge in the school department and the union has never
taken a grievance to arbitration, and then poses the question: "If not
in this discharge case, when?"

6 The basis for the Association's decision to take the grievance
to Level Two (Ex. C-7) and then to demand arbitration (Ex. C-22) was
lack of just cause to terminate Ms. Ridge. Ms. Ridge would not be
entitled to the remedy sought by the union unless her discharge was
without just cause. The union did not abandon Ms. Ridge's just cause
termination claim. The disagreement here concerned the appropriate
remedy, not the underlying basis for the grievance.

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The Association did not ignore Ms. Ridge's discharge
grievance.[fn]7 Association President Clarke Smith attended the
Level One meeting with Ms. Ridge and her attorney. When the
grievance was denied at that step by Principal DiFusco, the
Association's Executive Board decided to take the grievance to
the next step. Association President Smith filed the grievance
at Level Two, and joined Ms. Ridge and her attorney in a meeting
with Superintendent Mowles. Over the next several weeks
Ms. Ridge's private attorney engaged in settlement negotiations
with the school's attorney. The Association's Executive Board
was kept informed of the negotiations and met with Ms. Ridge and
her attorney once an offer was made to reinstate her.

It is at this juncture that the Association and Ms. Ridge
began to disagree on the manner in which the discharge grievance
would be handled. The Association's Executive Board decided to
drop the grievance upon learning that the school department had
offered Ms. Ridge reinstatement to an educational technician I
position. The Association believed its "original grievance
position in seeking 'just cause' for [Ms. Ridge] [was] served" by
this offer.

The Association's decision to drop the grievance was not so
unreasonable as to be suspect. Ms. Ridge had originally
requested reinstatement to an "equivalent" position with equal or
superior pay, a change in supervisors, and no loss in seniority
or benefits. Even though Ms. Ridge found the job at Pond Cove
too physically taxing, it had the same classification as her
former position and equal pay. It was reasonable for the union
to consider these positions "equivalent." In addition, the
settlement included a different supervisor and no loss in
seniority or benefits. The only requested remedy which had not
been offered was the remedy of back pay for a two-month period
and recision of adverse references in her personnel file.
_____________________

7 The Association represented Ms. Ridge concerning her treatment
by her supervisor prior to the grievance as well.

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Although the Association was unwilling to hold out for full
relief, it cannot be said that its decision to drop the grievance
was arbitrary. The catalyst for its decision was the school
department's offer of settlement which the union found
satisfactory. Mindful that the Board must "allow a wide range of
reasonableness" in these such decisions, we conclude that the
Association's conduct to this point was well within the bounds of
Lundrigan.[fn]8

The Association reconsidered its decision to drop Ms. Ridge's
grievance after Ms. Ridge's attorney appealed to MEA's attorney.
By this time, Ms. Ridge had accepted the job offer "under
protest" and had begun working in the position. While Ms. Ridge
believed that the union should continue to fight for her original
position in the library, the Association indicated its "final
position": that the offer of reinstatement to an educational
technician I job "answer[ed] [its] position on just cause," the
grievance would be pursued through arbitration for the limited
purpose of recovering back pay and other monetary considerations.

The fact that the Association considered Ms. Ridge's appeal
and reversed its earlier decision to drop the grievance, supports
the conclusion that the union did not process this grievance in
a perfunctory manner. The union decided to go further on
Ms. Ridge's behalf, but not as far as she wished them to go.
In the absence of any evidence of discriminatory motive, the
union's decision not to press for Ms. Ridge's reinstatement to
the same job, since she was reinstated to an equivalent job,
seems reasonable.
_____________________

8 While no claim may be based on practices occurring more than 6
months prior to the filing of a complaint, we examine the union's
conduct prior to the six-month period immediately preceding the filing
of this complaint (in this case, prior to January 7, 1997) for the
limited purpose of "shed[ding] light on the true character of matters
occurring within the [statute of] limitations period." See Teamsters
Local 48 v. City of Waterville, No. 80-14, slip op. at 2-3, 2 NPER 20-
11017 (Me.L.R.B. April 23, 1980).

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In her appeals to the union, Ms. Ridge raised the specter of
bad faith and discrimination against her in favor of her
supervisor. Ms. Ridge claimed that the Association refused to
fight for her reinstatement to the library position after it
determined that she and Ms. Bell could not work together and, in
doing so, chose to "advance [Ms. Bell's] considerations at the
expense of [Ms. Ridge's]." If the evidence had revealed
preferential treatment of one bargaining unit member over
another, for no legitimate reason, it would have "cast an
entirely different light on this case." Whitzell, slip op. at
12. However, there is a lack of evidence to support Ms. Ridge's
claim that the union, in bad faith, chose to support Ms. Bell's
interests over hers.[fn]9

Finally, Ms. Ridge challenges the Association's decision to
withdraw from arbitration. The catalyst for the Association's
decision to cancel arbitration was Ms. Ridge's resignation,
without prior notice to the union, from the educational
technician I position at Pond Cove. Once again, the union's
decision was not perfunctory. MEA's attorney communicated with
Ms. Ridge's attorney, requested further information and shared
his opinion that Ms. Ridge's resignation affected her potential
remedy in the grievance. Ms. Ridge was invited to "show cause"
as to why the grievance should not be withdrawn from arbitration
and her attorney submitted a position statement. The executive
board made its decision, in consultation with MEA's attorney,
after considering Ms. Ridge's arguments in favor of going
forward.

Public employees do not have an absolute right to have a
grievance taken to arbitration. Casey v. Mountain Valley
____________________

9 The only evidence presented in support of this claim was
Association President Clarke Smith's testimony that he had received
complaints about Ms. Ridge from Ms. Bell. This testimony was never
developed; nor is there any evidence that Ms. Bell in any way
influenced members of the executive board in their decisions about
Ms. Ridge's grievance.

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Education Association and School Administrative District No. 43,
Nos. 96-26 & 97-03, slip op. at 40 (Me.L.R.B. Oct.30, 1997).[fn]10
The decision whether to advance a grievance to arbitration must
be left to the union's discretion, Holmes v. Maine State
Employees Association, No. 80-52, slip op. at 3 (Me.L.R.B.
Sept. 8, 1980), and failure to do so is not a breach of the duty
of fair representation unless the union's decision is arbitrary.
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 reasonable-
ness' as to be irrational." Air Line Pilots Association
International v. O'Neill, 499 U.S. 65, 111 S. Ct. 1127, 1130
(1991).

On the facts before us, we cannot say that the union's
decision to withdraw from arbitration was "so far outside a 'wide
range of reasonableness' as to be irrational." Our decision
takes into account the fact that Ms. Ridge was willing to pay the
costs of arbitration. We do not believe that an employee's
willingness and ability to pay costs should influence a union in
its decision whether to proceed to arbitration. This practice
very obviously would infringe on a union's decision-making power
and integrity and would discriminate against employees who are
unable to pay such costs. Nor were we impressed with the other
reasons advanced by Ms. Ridge in her final appeal to the
Association.

The executive board made a judgment call that was its to
make, based on all of the information before it and after
consulting with MEA's attorney about its obligations.[fn]11 Although
_____________________

10 Nor did Ms. Ridge have a contractual right to proceed to
arbitration. The collective bargaining agreement in effect permits
only the Association to take a grievance to arbitration when it is not
satisfied with the results at Level Two.

11 We agree that consultation with an attorney for guidance in
decision-making is strong evidence of good faith on the part of a
union. Tracey v. Local 255, IUE, 783 F.Supp. 1527, 1531 (D.Mass.

-16-

we might have reached a contrary conclusion, we see no basis for
concluding that the Association's decision to withdraw from
arbitration was arbitrary, discriminatory or in bad faith.
Abbott v. Maine State Employees Association, No. 81-51, slip op.
at 6, 4 NPER 20-13016 (Me.L.R.B. Mar. 17, 1982).

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. 1996), it is hereby ORDERED that the
complaint filed by Ms. Ann Ridge on July 7, 1997, against the
Cape Elizabeth Education Association be, and hereby is,
DISMISSED.

Dated at Augusta, Maine, this 8th day of September, 1998.

MAINE LABOR RELATIONS BOARD

The parties are advised of
their right pursuant to 26
M.R.S.A. 968(5)(F) (Supp. /s/___________________________
1997) to seek review of this Pamela D. Chute
decision and order by the Alternate Chair
Superior Court. To initiate
such a review, an appealing
party must file a complaint
with the Superior Court within /s/___________________________
fifteen (15) days of the date Carol B. Gilmore
of issuance of this decision Alternate Employee
and order, and otherwise Representative
comply with the requirements
of Rule 80C of the Maine Rules
of Civil Procedure.
/s/___________________________
Edwin S. Hamm
Alternate Employer
Representative

_____________________

1992). However, we must examine the actions of all who play a part in
decision-making, including counsel, in order to discern whether
decisions were made arbitrarily. Lundrigan v. State Dept. of
Personnel and MSEA, No. 83-03, slip op. at 6 (Me.L.R.B. Feb. 4, 1983);
aff'd Lundrigan v. Maine Labor Relations Board, 482 A.2d 834 (Me.
1984).

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