Interim Order of June 14, 2004

                                      Case No. 03-06
                                      Issued:  April 21, 2005

SHARRON V. A. WOOD,             )
               Complainant,     )
          v.                    )         DECISION AND ORDER    
(CMTC),                         )
               Respondents.     )

     This is the second part of the bifurcated hearing on the
prohibited practice complaint filed by Ms. Sharron Wood against
both the Maine Community College System[fn]1 and the Maine Education 
Association (MEA).  The first part of the hearing dealt with the
charge that the College violated 1027(1)(A) of the University 
of Maine System Labor Relations Act by interfering with Wood's
exercise of the rights protected by the Act or by coercing her
into abandoning such rights or coercing her into resigning.[fn]2 
  In this Board's Interim Order dated June 14, 2004, the Board
concluded that the Employer did not coerce Wood into abandoning
her rights, nor did the Employer coerce her into resigning from
her employment.  The Board found that Wood resigned her position
voluntarily in exchange for the benefit of having her negative
evaluation destroyed.  The Board concluded that she could have
contacted her Union for assistance prior to resigning but did not 
do so and that the Employer did nothing to prevent her from 

     1 Formerly called the Maine Technical College System.

     2 26 M.R.S.A. 1027(1)(A) prohibits an employer from "interfering
with, restraining or coercing employees in the exercise of the rights
guaranteed in section 1023."  Section 1027(2)(A) is the parallel
prohibition for employees and bargaining agents.


seeking union assistance.
     The purpose of the second part of the hearing was to take
additional evidence on the question of whether MEA breached its
duty of fair representation, thereby violating 1027(2)(A) and
whether the Employer colluded with the Union in that breach.  
The evidentiary hearing was held on October 18, 2004, but there
were a number of procedural issues raised prior to the start of
the hearing.  
     The first procedural issue was the Complainant's request 
for permission for the Complainant's attorney to testify.    
This request was initially raised in advance of the prehearing
conference of June 23, 2003, and was opposed by both Respondent
Union and Respondent College.  The prehearing officer set out a
prerequisite to consideration of this request in the prehearing
Memorandum and Order dated July 11, 2003, which involved the
submission of the proposed testimony of Attorney Alexander in
question and answer format 10 days in advance of the hearing.[fn]3
Alexander submitted the information as requested, but the Board
never had to rule on the request because by the end of the
hearing, Alexander had withdrawn his request to testify. 
Nonetheless, the fact that the Complainant's attorney was
directly involved in the events leading to this case and
continued to represent the Complainant (his daughter) created
some unusual evidentiary issues.  For example, Complainant's
exhibits include over 20 letters written by Complainant's
attorney which make various assertions about what did or did not
occur.  Respondents objected to these exhibits to the extent that
they were offered to prove the truth of the matters asserted in
them.  Irrespective of that objection, it would be problematic 

     3 MRLB Rule Ch. 12 16 states, "A party's representative may
testify at the hearing but the Board may require the testimony to be
in question and answer form."  A party is not required to be
represented by an attorney in any Board proceeding.


for the Board to consider these letters as evidence that some-
thing stated in the letter actually occurred because that would
essentially be testimony by the Complainant's attorney.  While
this is not the first time the Board has had to distinguish
between argument and evidence in the record, the challenge of
this task was significant in this proceeding.
     Other procedural issues were raised in the two motions the
Complainant filed on September 29, 2004.  The first motion
requested that Board member Robert Piccone either remove himself
from the case or be removed by the Executive Director in consul-
tation with the remaining members of the Board.  Complainant
argued that Employee Representative Robert Piccone, having had a
long career with the Teamsters Union, had a conflict of interest
in continuing to serve as the employee representative.  After
consulting with Member Piccone, Neutral Chair Dawson denied the
request in the Prehearing Order dated October 8, 2004.  Member
Dornish was unavailable for consultation at the time.
     The second motion filed by the Complainant on September 29,
2004, sought a clarification of issues to be litigated in the
upcoming hearing.  In the same prehearing order of October 8,
2004, the Board Chair explained the legal and factual issues left
to be presented to the Board.  The Board Chair also reiterated
that the Board's findings set forth in the Interim Order dated
June 14, 2004, were final and not open to relitigation.
     Complainant filed another motion on October 7, 2004,
requesting a ruling on whether evidence of the Complainant's job
performance would be considered relevant to the issues left to be
litigated.  In the first part of the hearing, the Board ruled
that evidence regarding Wood's job performance was not relevant
to that proceeding.  With respect to the second stage of the
proceeding, the Complainant argued that Wood's job performance
was relevant to determining whether the Union acted properly in
responding to her request for assistance.  In the October 8, 


2004, prehearing order, the Board Chair deferred ruling on this
matter to give the other parties an opportunity to respond. 
Ultimately, the Board did not have to rule on this issue because
in the course of the hearing the Complainant withdrew its request
to present testimony on Wood's job performance.        
     The evidentiary hearing was held on October 18, 2004.  
Chair Peter T. Dawson presided over the hearing, with Employer
Representative Karl Dornish, and Employee Representative Robert
Piccone.  Mr. Grover Alexander represented Ms. Sharron Wood, the
Complainant, Mr. Donald Fontaine represented respondent Maine
Education Association (MEA), and Ms. Linda McGill represented the
Maine Community College System.  The parties were given full
opportunity to examine and cross-examine witnesses and to
introduce documentary evidence.  Briefs were filed by all
parties, the last of which was received on January 4, 2005.     
The Board deliberated this matter on February 3, 2005.

     The Board's jurisdiction to hear this case and issue a
decision lies in 26 M.R.S.A. 1029.  Respondent Maine Community
College System is a technical college within the meaning of 
26 M.R.S.A. 1022(1-C) and 1029.  The Maine Education Associa-
tion is a bargaining agent within the meaning of 26 M.R.S.A.

     The following is a summary of the Board's findings in the
first part of the proceeding which provide a helpful background
to understanding the issues in this second part of the
     Ms. Sharron Wood had been a probationary faculty member in
the Nursing Department at the Central Maine Community College in
Auburn for two years.  The collective bargaining agreement 


establishes a 3-year probationary period.  On Friday, May 10,
2002,[fn]4 she met with the Department Chair and the Dean for her 
annual performance evaluation.  At that time, she was informed
that the Chair would be recommending to the College President
that Wood's contract not be renewed.  Wood was upset and after
considering the matter for a couple of hours and discussing it
with two co-workers, Wood voluntarily resigned in exchange for
the destruction of her negative performance evaluation.
     Wood had been informed by the Department Chair the previous
month that there were problems with her job performance.  The
Chair indicated that if the problems were not addressed in the
coming year, Wood's contract would not be renewed following her
third year of probation.  There was no indication that non-
renewal was being considered for the immediate year ahead.  Soon
after that meeting, Wood joined the Union.  Wood had no further
contact with the Union until a few days after she voluntarily
resigned from her teaching position with the College.
     Sometime after returning home on May 10th, the day she
resigned from her position, Wood spoke with her father, Grover
Alexander.  Over the course of the weekend, Alexander called the
Department Chair to tell her his daughter was withdrawing the
resignation she had submitted.  He called the Dean on Saturday
with the same message and called her again on the following day
to ask for the home phone number of the College System's counsel. 
The Dean said she did not know it but could provide it to him if
he called her office first thing on Monday.  On Sunday evening,
Wood sent e-mails to various officials at the College indicating
that she was withdrawing her resignation and would assert her
rights under the collective bargaining agreement and through
other civil remedies as necessary. 

     4 Unless otherwise noted, all dates mentioned in this order refer
to the year 2002.


                        FINDINGS OF FACT 

1.   On Monday, May 13, Wood called the MEA Office and sent an 
     e-mail to Mona Lothian, an MEA secretary, saying she was on
     the nursing faculty at CMTC.  She wrote, "I have some 
     concerns and questions as to my rights concerning my
     evaluation.  I feel that I was mislead and intimidated and
     would like an opportunity to talk with you and/or the
     appropriate person about this matter."  Lothian responded
     that she would relay the message to Tim Wooten.
2.   Mr. Timothy Wooten had worked for MEA for about 4 years and
     was responsible for a territory involving 1600 employees and
     many different collective bargaining agreements.  Wooten had
     28 years of experience in collective bargaining including
     his prior employment with the Maine State Employees Assoc-
     iation as a field representative, performing similar
     functions for various bargaining units of state employees. 
     He was very experienced with a variety of collective
     bargaining agreements.
3.   On May 14 or 15,[fn]5 Wooten returned Wood's call.  She told him
     that she had a performance evaluation and it had not gone
     very well and that she had essentially resigned in return
     for a ripped up evaluation.  She said the evaluation was
     inaccurate and unfair.  She wanted the Union's help to get
     her job back.  She said she had been harassed into
     resigning.  Wooten asked how long she had been employed and
     learned that she was finishing her second year of the three-
     year probationary period.  Based on this response, Wooten
     told her he did not think there was much the Union could do
     for her because she had not yet attained the tenured status 

     5 Whether this conversation occurred on the 14th or the 15th is
not significant.  For simplicity's sake, we will assume it was on the


     which provides just-cause protection.  He also discussed
     with her the problem created by the fact that she had
     resigned from her position.  She had informed him that she
     had written a letter of resignation with the help of a
     colleague and that her father, an attorney, told her that
     resigning probably was not a good thing to do.  Wooten told
     her that he would check the collective bargaining agreement
     and would do his best to get back to her.
4.   Wooten made a note to himself concerning his initial phone
     conversation with Wood.  It says she "resigned under
     pressure," her bad evaluation "needs to be removed," "no
     prior evals," "probationary instructor feels cheated," and
     that "Sue Jamison was there, helped write resignation
     letter."  The note indicated "G. Alexander" was her father
     and her attorney and listed his phone numbers.
5.   Later that same day, Wooten received a phone call from
     Wood's father, Grover Alexander.  They spoke about his 
     daughter's employment status, her position at the college
     and what had happened.  Wooten stated that he had already
     spoken with his daughter.  Wooten testified that Alexander
     began to tell him how the grievance should go forward, that
     she had withdrawn or was trying to withdraw her resignation,
     and that the evaluation was unfair and that they wanted to
     get her job back.  Alexander wanted to help, but Wooten said
     it was his job to handle it and Alexander should stay in the
     background.  Alexander assured Wooten that he could take the
     lead and that he just wanted to be kept informed. 
6.   Wooten testified that during this initial telephone
          [Alexander] vigorously insisted that in fact
          Mrs. Wood had just cause rights and that she
          could withdraw her resignation. I pointed out
          just as matter-of-factly as I'm pointing it
          out right now that I did not believe that 


          to be the case, I did not believe that even
          the just-cause standard applied in any way,
          shape or form, and that there was nothing in
          the collective bargaining agreement that
          allowed an employee who had resigned to
          withdraw that resignation.  

     Wooten testifed that Alexander then told him that he "had
     successfully sued MEA before and [he wasn't] hesitant about
     doing it again."
7.   After these two phone conversations, Wooten reviewed the
     collective bargaining agreement and confirmed that his
     initial view of the case was correct:  Wood was a probation-
     ary employee and had no just cause protections under the
     collective bargaining agreement.  Wooten knew that the
     absence of a just cause provision meant that the Employer
     did not have to provide a good reason for a discharge.    
     He also confirmed that the agreement did not contain a
     provision allowing an employee to withdraw a resignation.
8.   Wooten had never handled a case in his 28-year career deal-
     ing with a resignation where the collective bargaining
     agreement was silent on the issue of withdrawal of a resign-
     ation, nor was he aware of any case dealing with that issue.
9.   Based on his initial assessment of the situation in light of
     Wood's status as a probationary employee and the fact that
     the collective bargaining agreement did not have a provision
     allowing for the withdrawal of a resignation, Wooten con-
     cluded that Wood did not have a very good chance of success
     with her grievance.  Wooten called the shop steward to see
     if he had anything to add, but the shop steward did not know
     anything about Wood's case.  He then called Ms. Kim Erhlich,
     the Human Resources Director for the Community College
     System, to find out what she knew about Wood's situation. 
     The only thing that she stated was that she understood it 
     to be a resignation.

10.  Either that day or the next, Wooten spoke with Dean
     Vampatella.  He did not speak with Ms. Schuettinger, the
     Department Chair, because the Dean is the first step of the
     grievance procedure.  Dean Vampatella told Wooten that the
     meeting with Wood had been a difficult time.  She had been
     with the Department Chair for the evaluation and they had
     agreed to allow Wood to resign in return for the destruction
     of the negative evaluation.  Wooten did not inquire of Dean
     Vampatella if Wood was a good employee.
11.  During this same phone call, Dean Vampatella told Wooten
     that she had received phone calls from Alexander over the
     weekend and that the Department Chair also received a phone
     call from him.  Dean Vampatella went into "a litany of
     complaints" about Attorney Alexander and indicated that she
     and the Department Chair were angry that they were called by
     him over the weekend.  Wooten testified that he was a little
     dumbfounded that Alexander would have called them.  Wooten
     informed Dean Vampatella that he was going to grieve the
     case.  She did not object, but simply said "that is your
12.  Following his initial conversation with Alexander on May 15,
     Wooten chose not communicate with him further.  Wooten
     testified that he did so because he preferred to do his work
     in a way in which he gets "the least interference from
     outside sources."  He considered Alexander's behavior to be
13.  Wooten did not communicate with Wood regarding the status of
     her grievance until he had set up a first step meeting with
     Dean Vampatella.  The first step of the grievance procedure
     requires the grievant to present his or her claim orally to
     the Vice President (in this case, the Dean).  The meeting
     was scheduled for May 29, at 10:00 a.m.  Wooten called Wood
     and left a message for her that the grievance meeting was


     scheduled and that she should arrive one hour beforehand in
     order to discuss it with Wooten.  Wood denied that she
     received any such message.  
14.  Wooten did not communicate with Wood prior to leaving the
     message about the informal first step meeting because he
     felt he did not have anything to report.  His investigation
     of the case did not uncover any matters that contradicted
     anything that Wood had told him with respect to the essen-
     tial facts of the case:  she was a probationary employee,
     management's recommendation was for non-renewal of her
     contract, and she had resigned in exchange for the
     destruction of her evaluation.
15.  It was Wooten's standard procedure to set up a first-step
     meeting and instruct the grievant to arrive an hour early so
     that he could discuss the case further with the grievant
     before the scheduled meeting.  During this discussion, he
     would gather as much information as he could from the
     grievant.  Then he and the grievant would meet with the
     management representative.  Wooten described the first-step
     meeting of the grievance procedure as an informal process. 
     At the meeting, Wooten would state their case and see if
     there could be some way to resolve it.  After the meeting,
     he would discuss it with the grievant and talk about whether
     or not to proceed to the next level.  The grievance
     procedure gives management a period of time to respond to
     the first step, so often there would be a waiting period.
16.  The first step of the grievance procedure is referred to in
     the collective bargaining agreement as the "oral procedure,"
     and requires the grievant to present his or her claim orally
     to the Vice President within 30 days of the event giving
     rise to the grievance.  Then, within 5 days, the Vice
     President must discuss the grievance with the grievant and
     within five days of that discussion must give an oral 


     response to the grievant.  The next step of the grievance
     procedure goes to the College President and it is at this
     step that the grievance must be put in writing on the
     grievance form.  
17.  In Wooten's practice, the grievant was always present at the
     first-step meeting.  He had a long-standing practice of not
     permitting attorneys at lower-level grievance meetings and
     even most of the time at higher-level grievance meetings. 
     He also had a practice of excluding relatives from the
     grievance process.  Wooten did not inform Alexander that a
     first-step meeting had been scheduled.
18.  On Saturday, May 25, Alexander called Wooten at his home. 
     They spoke again about Alexander's theory of the case and
     Wooten's view to the contrary.  Wooten indicated that what-
     ever hopes Wooten had of prevailing upon management for a
     better outcome for Wood or for settling the case, Alexander
     "had managed to screw up" with his calls to the Dean and the
     Department Chair.  Wooten testified:
          The discussion became more heated.  You kept
          referring to those bitches at that college. 
          You continued to argue with me about the
          nature of whether or not your daughter had a
          valid, just-cause grievance.  I continued to
          reiterate my position that in fact she had
          both resigned and that she had not completed
          probation, and we finished the conversation
          when you said:  Now, listen, you son of a
          bitch, I have sued MEA before and you are
          rapidly becoming the object of this
          litigation.  And I said:  Thank you, I don't
          have to take that, and I hung up.

19.  During that conversation, Alexander insisted that he had a
     right to attend the meeting that was scheduled for May 29
     and Wooten firmly told him that he would not be permitted to
     attend.  Wooten had no intention of having a grievance
     meeting without Wood, but he would not let Alexander attend.

     Wooten testified that initially Alexander had taken the
     position that Wooten could take the lead, but by this time
     Alexander's position changed to one where he insisted on
     attending meetings and serving as some sort of co-
20.  After Wooten hung up, Alexander immediately called back but
     only connected to Wooten's telephone answering system.[fn]6  He 
     left a brief message saying it was rude of him to hang up
     and that he needed to speak with him promptly.  He called
     again a few minutes later and objected to his position that
     Alexander would not be allowed to attend the grievance
     meeting Wooten had scheduled with management.  Alexander
     asserted that allowing both his daughter and him to attend
     the meeting was required by the Union's duty of fair
     representation.  He also stated that he would regard a
     failure to return his call as a breach of the duty of fair
     representation and he would: 
          . . . proceed to protect Mrs. Wood's rights.  It's
          not a threat; it's a simple statement of . . . of
          fact.  We cannot be treated this way.  Please
          govern yourself accordingly.  Thank you.

21.  Alexander also left a message on Wooten's office machine
     later that same morning.  In a raised voice,[fn]7 he said there 
     was no way Wooten could advocate on Wood's behalf without
     talking to her.  He said, 
          If you proceed without at least getting Sharron's
          point of view and my point of view as well I shall
          regard that as a breach of your duty of fair
          representation on behalf of Mrs. Wood.  You cannot
          do that, and I can't permit it.


     6 Someone from the MEA office transcribed the messages, which
were admitted into evidence as C-63.

     7 The person transcribing the message indicated that Alexander 
was shouting.


22.  Wooten called Wood on Tuesday, May 28 (Monday was a holiday)
     to tell her the May 29 meeting was postponed.  He said that
     if her father was going to insist on being present, it would
     not be possible to have the meeting the next day.  He did
     not specifically say that if she could get her father to
     stay away they could have the meeting without him.
23.  Dean Vampatella testified that there was a notation on her
     calendar of a meeting with Tim Wooten and Sharron Wood that
     had been crossed out, indicating that the meeting had not
     taken place.[fn]8
24.  On May 28, Wooten had a phone conversation with MEA's
     General Counsel, Shawn Keenan, about Wood's case.  They
     discussed the thin nature of the grievance itself and the
     interference Wooten felt he was getting from Wood's father. 
     It was not until this conversation that Wooten learned
     anything of the prior lawsuit Alexander had filed against
     MEA.  Wooten asked about it because Alexander had mentioned
     it to him.  Keenan told him that a University of Maine
     employee named Miller had filed a duty of fair represent-
     ation claim against MEA in the courts and it eventually
     settled.[fn]9  Wooten testified that this information did not
     really affect his view of the grievance but it confirmed to
     him that it would be "intensely hard for anyone to process
     it without feeling threatened."  In his discussion with
     Keenan, Wooten mentioned an angry letter that he and Mark
     Gray received from Alexander, which Gray would forward to
     Keenan.  (Mark Gray was MEA's executive director.)  As a
     result of this discussion, Keenan and Wooten decided that 

     8 The Dean testified to this matter during the first part of the
bifurcated proceeding. Tr. Day 2 at 402-3.

     9 In Miller v. Univ. of Maine, the Law Court dismissed the duty
of fair representation claim and remanded a tort claim to the Superior
Court. 1997 ME 152.


     Keenan would handle the case.  Keenan made a note to himself
     of what Wooten had told him in the conversation.
25.  The angry letter referred to by Wooten was faxed to him on
     May 27 as well as to Mark Gray and Derek Langhauser, the
     Maine Community College System counsel.  The 3-page letter
     addressed Alexander's concern that he had not been updated
     by Wooten on the status of the grievance, his account of the
     phone conversation with Wooten on the previous Saturday, and
     the various messages he left for Wooten following that call. 
     His letter asserted that Wooten was not going to let either
     Alexander or Wood attend the grievance meeting, and that he
     regarded that as a breach of the duty of fair representation
     and that if MEA proceeded without them, he would commence
     litigation at the MLRB and in Superior Court seeking
     reinstatement and money damages.  
26.  Mark Gray received a call from Alexander in May, who gave
     him an overview of the case.  Gray said he would follow up
     and have someone get back to him.  Gray spoke with MEA's
     General Counsel, Shawn Keenan, and asked him to look into
     the matter. 
27.  Shawn Keenan had been the General Counsel for MEA since
     1987.  In that capacity, he gave legal counsel to numerous
     MEA locals through MEA's professional staff of Uniserve
     Directors regarding bargaining and contract administration. 
     Over half of his time was devoted to the interpretation and
     application of collective bargaining agreements.  He handled
     all appellate work for MEA.  When an attorney threatened
     legal action against MEA, Keenan's responsibility was to
     defend MEA.  Prior to his employment with MEA, he had been
     an attorney with the Maine State Employees Association since
     1978 where he focused primarily on grievance evaluation and
     arbitration with respect to five different bargaining units.

28.  Gray received another letter from Alexander dated June 4,
     and faxed to him on June 5.  In this letter, Alexander
     stated that he had been trying to get a response from MEA
     for three weeks and was concerned about the impending time
     limit for filing a grievance.  He provided considerable
     detail over a number of pages about how Wood was treated
     unfairly during the evaluation process and was coerced and
     duped into resigning.  The letter also asserted other
     violations of the collective bargaining agreement, such as a
     failure to comply with its requirements on the appointment
     of the Department Chair and a claim that by shredding the
     evaluation, the Dean was tampering with Wood's personnel
     file.  Alexander stated that if he did not hear from MEA by
     9 a.m. on June 6, he would have Wood present her grievance
     by herself on June 7, the last day for filing.  He closed
          If I am forced by MEA's actions to take the lead
          against CMTC, a civil suit in Superior Court for
          emotional distress, attorneys fees, punitive
          damages and other economic losses will be
          commenced forthwith without waiting until all the
          administrative procedures and remedies against
          CMTC and MEA have been exhausted . . . a course of
          action we have every right to pursue at this point
          if we so choose.  Please govern yourselves

     The letter was faxed to Wooten, Gray and Langhauser.   
29.  On June 6, Keenan spoke with Langhauser at length about the
     facts of the case from the system's perspective.  Keenan
     testified that there was very little disagreement on the
     essential facts described by the Complainant's attorney and
     the System's attorney:  the grievant was a probationary
     faculty member, she was being recommended for non-renewal
     but no final decision had been made on that at the time she
     resigned, she had at least a couple of hours to consider 


     what her choices might be, she had conferred with more than
     one co-worker, and had signed her resignation in exchange
     for having her evaluation discarded.  One point of dis-
     agreement was that the grievant's attorney stated that
     management had demanded that Wood sign the evaluation form,
     and that she had twice refused to do so.
30.  Article 8 of the collective bargaining agreement establishes
     the grievance procedure.  Section F(4) provides:
          4.  A faculty member shall be represented at
          any level of the grievance procedure only by
          himself/herself and/or by an Association
          designated representative, or professional
          staff or counsel of the Maine Education
     Section E governs the arbitration process.  Only the
     Association may appeal a grievance to arbitration.
31.  Article 16 of the collective bargaining agreement estab-
     lishes the 3-year probationary period and states, "Non-
     renewal of contracts of probationary faculty members shall
     be at the discretion of the President" and that decision may
     be appealed to the System President "whose decision is
32.  Article 20 of the collective bargaining agreement concerns
     the rights of the Association.  Section A(1) grants
     representatives of the Association access to faculty members
     for the purpose of administering the agreement and
     processing grievances.  Section A(2) requires the System
     President to supply the Association upon request with the
     names and college addresses of all faculty members each
33.  Keenan testified that he decided to have MEA step aside and
     to designate Alexander as Wood's representative because they
     could not agree on even the fundamentals of her case and it
     would be impossible to speak with a unified voice if both


     MEA and Alexander were participating.  Although Keenan and
     Alexander had not spoken at this time, Keenan had spoken
     about the case with Wooten and Langhauser and had read the
     three rather lengthy letters that MEA had received from
     Alexander.  From these sources, it was clear to Keenan that
     MEA and Alexander had some significant differences of
     opinion about the merits of the case.  Alexander disagreed
     with MEA's position that a probationary employee did not
     have just cause protection and that the Employer had no
     obligation to allow a resignation to be withdrawn.  Keenan's
     opinion was that even if there were irregularities in the
     evaluation procedure as Alexander claimed, a grievance would
     only achieve the destruction of the evaluation document
     (what Wood already obtained), not reinstatement.  Finally,
     because Article 16 states that the System President's
     decision on the non-renewal of a probationary employee is
     final, an arbitrator would simply not have the authority to
     order reinstatement.  There was also a significant disagree-
     ment on how to proceed with the grievance, particularly
     whether Alexander should be present at the grievance
34.  Keenan testified that by designating Alexander as Wood's
     representative under the contract, he was trying to create a
     "pathway" for Alexander to process the grievance as
     Alexander wanted to.  In Keenan's view, there was no
     question that Article 4(F) allowed Wood to pursue a
     grievance either unrepresented or represented by MEA. 
     Keenan testified that it was uncertain whether the collect-
     ive bargaining agreement allowed a personal representative
     or legal counsel to speak for her.  Keenan did not secure
     the agreement of the college to let Alexander manage Wood's
     grievance prior to or after writing the June 7 letter.  


35.  Keenan's letter of June 7 to Alexander was his first
     communication with him.  Keenan's June 7 letter to Alexander
          Dear Mr. Alexander: 

               I represent the Maine Education Association. 
          Your letter of May 27, 2002 addressed to UniServ
          Director Tim Wooten has been referred to me by
          Executive Director Mark L. Gray.  Kindly address
          any further communications regarding MEA staff and
          leadership to my attention.

               Mr. Wooten initiated a timely grievance on
          behalf of Mrs. Wood under the Oral Procedure in
          Article 8 of the Faculty Unit Bargaining
          Agreement.  He scheduled a meeting with CMTC
          administrators for May 29, which Mrs. Wood would
          indeed have been permitted to attend.  As Mrs.
          Wood's exclusive representative under the
          contract, however, Mr. Wooten rightfully objected
          to your insistence upon participating as her
          personal legal counsel.  That meeting had to be

               In the meantime, it has become apparent
          that neither you, nor Mrs. Wood, have
          sufficient confidence in MEA for us to
          effectively represent her at this time.  To
          avoid any further conflicting messages over
          who is advocating for Mrs. Wood, we have
          concluded that you, as her attorney, should
          hereafter assume full responsibility for
          representing her.  This arrangement is
          entirely appropriate under the bargaining

               "[A]ny university, academy or technical
               college employee may present at any time that
               employee's grievance to the employer and have
               that grievance adjusted without the
               intervention of the bargaining agent, if the
               adjustment is not inconsistent with the terms
               of any collective bargaining agreement then
               in effect and the bargaining agent's
               representative has been given reasonable
               opportunity to be present at any meeting of
               the parties called for the resolution of that


               grievance."  26 M.R.S.A.  1025(2)(E).

               Under Article 16 - Probation, a faculty
          member whose contract is non-renewed "shall have
          the opportunity to appeal the decision of the
          [CMTC] President to the [Technical College] System
          President whose decision shall be final."  At the
          same time, both Article 4(E) and Article
          8(B)(1)(b) contemplate that a dismissal grievance
          may be initiated with the System President.  We
          have asked the System President, through his
          counsel, to hear the appeal and/or grievance of
          Mrs. Wood directly.

               To facilitate your ability to fully advocate
          for Mrs. Wood, therefore, MEA will designate you
          as her representative under the collective
          bargaining agreement.  You will be solely
          responsible for investigating and prosecuting any
          appeal or grievance in accordance with its terms. 
          Understand that only the MEA may appeal a
          grievance to arbitration, and we reserve the right
          to refuse arbitration of a claim on its merits. 

               By copy of this letter to the System
          President's counsel, Mr. Langhauser, I am formally
          requesting that the grievance time limits be
          extended until a meeting can be scheduled between
          yourself, the System President, and Mrs. Wood,
          within 30 calendar days of the date of this
          letter.  Although I expect to be present on behalf
          of MEA's interests, you should be able to freely
          and fully present your case unencumbered by us. 

     The letter was copied to Langhauser, Gray and Wooten.
36.  Keenan thought that this designation would allow Alexander
     to investigate and present the grievance the way Alexander
     wanted to.  Keenan testified that by designating Alexander
     as Wood's representative, he was not delegating any
     authority to act on behalf of MEA nor was he granting him
     any authority that the Union had under the contract or by
     virtue of its status as the exclusive bargaining agent under
     the statute.


37.  Alexander spoke with Langhauser at least once during the
     first week following Wood's resignation and several times
     thereafter.  During the initial telephone conversations,
     Alexander spoke of the possibility of bringing Wood's claims
     to Superior Court as a civil action, to the MLRB as an
     unfair labor practice or perhaps even a tort claim. 
     Langhauser told him that if she were going to be bringing a
     contract claim, she would need to exhaust her internal
     remedies so the first step must be to determine if she had
     rights under the contract.  It was not clear to Langhauser
     which route or forum Wood would choose. 
38.  Langhauser's position from the start was that Wood's
     resignation was voluntary and as a result there were no
     grievance rights that applied under Article 8 or rights to
     appeal a non-renewal under Article 16.  Langhauser advised
     the System President not to entertain a grievance filed by
     either the Union or Alexander and advised the denial of
     Keenan's request that Alexander be granted an appeal
39.  After receiving a faxed copy of Keenan's letter on June 7,
     Alexander wrote to Langhauser saying that MEA's withdrawal
     as Wood's representative was "totally unacceptable" to him
     and "should not be relied upon" until they had conferred. 
     He went on to note that Wood had presented a written summary
     of her grievance to the Dean and that he was requesting
     certain information so that he could prepare for the next
     step of the grievance.  His letter then presented 12
     detailed requests for information touching on the various
     issues identified in the grievance.
40.  Alexander spoke with Keenan on the phone extensively on June
     10, and followed up with a letter telling him that MEA's
     withdrawal from the case was "totally unacceptable."  He
     argued that MEA had a conflict of interest, as both Dean 


     Vampatella and Ms. Schuettinger, the Department Chair, were
     members of MEA.  Alexander also asked Keenan to reconsider
     his position that Wood's grievance had no merit and to take
     the case to arbitration if requested.  In the June 10 tele-
     phone conversation, Alexander said he would consider any
     relevant case law Keenan provided.  On June 18, Keenan sent
     him cases on whether the non-renewal of a teaching contract
     for a probationary teacher must comply with the just cause
     standard, and he offered to meet with Alexander.
41.  On June 21, Alexander wrote to Keenan stating, among other
     things, that MEA's withdrawal from the case had encouraged
     the College to take the position that the complaints were
     not grievable and "to shut Mrs. Wood out of the grievance
     process."  Alexander wrote, 
          . . . In fact, Mr. Langhauser has invoked ethical
          considerations to prevent direct contact with
          Schuettinger and Vampatella notwithstanding that
          MEA has delegated its investigatory responsibili-
          ties to me.  Moreover, none of the information I
          have requested has been forthcoming.  . . . I
          respectfully urge you to communicate with Mr.
          Langhauser immediately and advise him that MEA
          feels that Mrs. Wood's complaints are both
          meritorious and grievable within the meaning of
          Article 8.  If you do this promptly, I am
          confident that Mr. Langhauser will reconsider his
          position.  If MEA does not support Mrs. Wood on
          this issue, such a refusal will be a further
          breach of its duty of fair representation owing to
          Mrs. Wood. 

42.  On June 23, Alexander wrote to Langhauser asserting that MEA
     had granted him "full powers to investigate and prosecute
     grievances and appeals on [Wood's] behalf."  He asked
     Langhauser to advise the college authorities that he "is to
     be granted access to the college facilities, the faculty
     members, the students and all pertinent departmental
     records, including addresses and telephone numbers, in order

     to process Mrs. Wood's grievance effectively."  He also
     asked Langhauser to comply with his prior requests for
     information and "other discovery".  In addition, Alexander
     sought additional information regarding the specifics of
     Chair Schuettinger's teaching load over the past five years,
     an itemized account of the total compensation paid to her
     from July 1, 1999 to June 30, 2002; all credit courses,
     seminars and other continuing education completed by her
     over the past five years, and other information regarding
     Chair Schuettinger.  A copy of the letter was faxed to MEA
     and Ms. Linda McGill, who had recently been retained as
     outside counsel for the Community College System.
43.  On June 26, Keenan wrote the following letter to Alexander:
            This will respond to your letter of June 21,
          wherein you have urged me to communicate to CMTC
          counsel that "MEA feels that Mrs. Wood's
          complaints are both meritorious and grievable";
          and that MEA's failure to do so "will be a further
          breach of its duty of fair representation".  At
          the same time, you continue to adhere to your
          allegation by letter of June 10 that MEA has a
          "clear conflict of interest" to the detriment of
          Mrs. Wood.
             I have reviewed the factual and contractual
          claims made in your various letters to CMTC and
          MEA.  On their face, I must say that you have
          failed to state a claim under the collective
          bargaining agreement upon which the relief you are
          seeking could be granted in arbitration.  Mrs.
          Wood's resignation, while perhaps impulsive, was
          voluntarily submitted to CMTC officials in
          exchange for valuable consideration.  She
          evidently intended her resignation to pre-empt any
          further review of her evaluation by CMTC
          officials, in lieu of the process afforded by
             With respect to your justification for
          attempting to later withdraw the resignation on
          the basis of alleged fraud or duress, the facts
          you have offered failed to support that theory:
          You have described your client as a mature, well-
          educated professional woman with a substantial 


          employment history, including some managerial
          experience.  While she apparently displayed enough
          steadfastness to resist an alleged demand to subscribe
          to the evaluation document, over a period of hours she
          conferred with two or three other people before
          executing a letter of resignation, with the expectation
          that her evaluation would be discarded.
             Please note that Mrs. Wood never consulted with
          MEA before offering, negotiating or executing a
          resignation.  Instead, she imputes to her
          supervisors the duty to advise her of her rights
          under the Union Agreement to challenge the
          evaluation and the non-renewal, and then accuses
          MEA of breaching our responsibilities after the
          damage is done.
             I do not perceive that CMTC is under any
          contractual obligation to permit Mrs. Wood to now
          withdraw her resignation.  Even if they did, her
          current probationary contract would still be
          subject to non-renewal at the discretion of the
          College President under Article 16, subject to
          final decision by the System President.  Without
          "continuing contract status" within the meaning of
          Article 4, she has no right under the contract to
          be non-renewed only for just cause.  On June 18, I
          mailed you several court cases regarding this
          subject, and offered to discuss them with you at
          your offices in person.  Instead, you insist that
          I respond to your letters.       
             In your June 23 letter to Mr. Langhauser, and
          your June 21 letter to me, you have apparently
          misconstrued your authority under the collective
          bargaining agreement.  My June 7 letter was
          intended to notify CMTC that MEA would not object
          to your appearance as Mrs. Wood's personal
          representative under Article 8(F)(4).  MEA has
          never delegated to you its status as exclusive
          bargaining agent, particularly with respect to
          access to other faculty members under Article 20. 
          To the extent that you would interpret my June 7
          letter to the contrary, consider it revoked.
             MEA will not represent Sharron Wood, nor demand
          arbitration on her behalf, because we believe in
          good faith that her claim under the bargaining
          agreement is without merit.  MEA will not provide
          you with any file materials related to this case. 
          Neither will we pay attorney's fees to yourself or
          any other counsel acting on Mrs. Wood's behalf.  


          Please take the opportunity to find a reasonable
          basis for settling this matter. 

44.  On June 27, McGill wrote to Alexander informing him that her
     firm had been retained to represent the College in matters
     arising from Wood's resignation.  Among other points made,
     McGill rejected his information demands by noting that he
     was not entitled to discovery and that the College would not
     respond to the interrogatory-type questions in his letter of
     June 23 or to his other demands for information.  Her letter
     closed with:
               I concur with Mr. Langhauser's position that
          Ms. Wood has no grievable issues or other valid
          claims.  She resigned her position voluntarily, a
          choice that was not negated by her later change of
          mind.  Nevertheless, the College has offered her
          the opportunity to meet with Dr. Knapp so that he
          can review her employment status.  Please contact
          me to confirm that you are interested in that
          meeting and to schedule a date and time.

45.  On July 16, Alexander sent McGill a copy of the grievance he
     was going to file with Dr. Knapp, the President of Central
     Maine Community College.  In his cover letter, Alexander
          Mrs. Wood has chosen not to participate in any
          proceeding outside the grievance process.  She
          wishes to preserve her rights to appeal to the
          System President and ultimately to arbitration
          under Article 8, Sections D and E if necessary.

     Alexander signed this letter, as he signed all letters to
     the College or its attorney after Keenan's letter of 
     June 26, as "Grover G. Alexander, Attorney for and the duly
     designated representative of Sharron V.A. Wood under the MEA
     Collective Bargaining Agreement."
46.  Dr. Knapp received Alexander's letter containing a "formal
     written grievance" on July 23.  McGill responded to this
     submission in her letter to Alexander of July 29, stating 


     that because Wood resigned, she was not entitled to grieve
     over her evaluation or non-renewal.  She also wrote:
          . . . Moreover, under both law and contract, the
          MTCS recognizes and deals only with grievances
          brought by the Maine Education Association as the
          exclusive bargaining agent for faculty and
          instructors.  Your representation that you are the
          "duly designated representative" under the MEA
          collective bargaining agreement is not sufficient
          to permit or obligate the MTCS to recognize you in
          that capacity.

47.  Again on August 5, McGill asked Alexander for "confirmation
     that you are MEA's agent under the agreement.  Until that
     occurs MTCS has no obligation to recognize you as such." 
     Alexander responded on August 15 by referring McGill to
     Keenan's letter to him dated June 7, "wherein MEA appointed
     me to represent Mrs. Wood under the Collective Bargaining
     Agreement."  Alexander faxed a copy of this letter to Keenan
     and to Langhauser.
48.  On August 16, Keenan wrote to Alexander in response to the
     previous day's fax.  Keenan wrote that in responding to
     McGill's request, 
          . . . You referred her to my June 7, 2002 letter,
          but neglected to mention the clarification I made
          to you by letter of June 26 (enclosed) . . . 
             If Ms. McGill should ask me to confirm whether
          you are the "agent" of MEA in this matter, I would
          have to answer that you are not now, and never
          have been.  Rather, I think it would be better for
          you to advise Ms. McGill that the June 7 letter
          is, for all intents and purposes, obsolete. 

49.  The next day, Alexander wrote to Keenan telling him "I have
     no plans to further advise Ms. McGill of anything (I am
     confident you have or will shortly) relating to my
     representative capacity in this matter."  He also stated
     that he felt he had complete authority and that MEA
     forfeited all right of control over the proceedings by 


     abandoning Wood at the outset.
50.  On August 23, McGill wrote to Alexander stating,
          I have become aware of a June 26 letter from Shawn
          Keenan expressly informing you that his June 7
          letter does not authorize you to act as Ms. Wood's
          exclusive representative or otherwise on behalf of
          the MEA.  I reiterate to you that MTCS is
          obligated and authorized to deal only with MEA or
          its authorized representatives on collective
          bargaining matters, and I obviously am disturbed
          by your apparent attempt to mislead me and MTCS on
          this point.

51.  By copies of letters to McGill dated August 31 and September
     3, Alexander offered an explanation of the source of his
     representative capacity and requested that Keenan confirm
     his status.  Keenan wrote to McGill on September 10, and
     quoted his letters of June 26 and August 16 in rejecting
     Alexander's claim of representative capacity.          
52.  Throughout the summer, Alexander attempted to present Wood's
     grievance first to the College President, then to the System
     President.  At each step, the Community College System
     refused to respond on the grounds that her separation was
     not a grievable matter.  McGill testified that the College's
     position during the initial stages of the grievance
     procedure was not based on Alexander's status.
53.  Eventually, Alexander submitted an arbitration request to
     the American Arbitration Association to which McGill
     responded that the agreement authorized only MEA to demand
     arbitration.  Keenan confirmed that Alexander was not
     authorized by MEA to pursue arbitration.  AAA rejected the
     arbitration request on that basis.



     The legal issue presented in this case is the scope of the
duty of fair representation owed to Wood and whether the Maine
Education Association breached that duty.  Also at issue is
whether Maine Central Community College colluded with the Assoc-
iation to commit a breach of the duty of fair representation.
     As the exclusive bargaining agent for the Faculty Unit at
the Community College System, it is undisputed that the Maine
Education Association owes all unit employees the duty of fair
representation.  See 26 M.R.S.A. 1025(2)(E).  The duty of fair
representation is breached only when a union's conduct toward a
bargaining unit member is arbitrary, discriminatory, or in bad
faith.  Lundrigan v. MLRB, 482 A.2d 834 (Me. 1984), Brown v.
MSEA, 1997 ME 24, 7, 690 A.2d 956.  See also Vaca v. Sipes, 386
U.S. 171, 190, 87 S.Ct. 903 (1967).  A breach of the duty of fair
representation is a violation of 1027(2)(A) of the University
Act, which prohibits a union from "interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed in
section 1023."[fn]10 
     The duty of fair representation provided by Maine law is
comparable to the duty of fair representation under the National
Labor Relations Act.  Langley v. MSEA, No. 00-14, at 25 (March 23,  
2000), aff'd, 2002 ME 32, 791 A.2d 100; see also Hughes v. Univ.
of Maine, 652 A.2d 97, 99 (1995).  In both cases, a complainant

     10 Section 1023 provides:

         No one may directly or indirectly interfere with,
     intimidate, restrain, coerce or discriminate against
     university, academy or community college employees or a
     group of university, academy or community college employees
     in the free exercise of their rights, hereby given,
     voluntarily to join, form and participate in the activities
     of organizations of their own choosing for the purposes of
     representation and collective bargaining, or in the free
     exercise of any other right under this chapter.


must show that the union's conduct was arbitrary, discriminatory
or in bad faith.  These three types of prohibited conduct are
     A union's actions are arbitrary only if, in light of
     the factual and legal landscape at the time of the
     union's actions, the union's behavior is so far outside
     a wide range of reasonableness as to be irrational.  A
     union's discriminatory conduct violates its duty of
     fair representation if it is invidious.  Bad faith
     requires a showing of fraud, or deceitful or dishonest

Aguinaga v. United Food & Commercial Workers Int'l Union, 993
F.2d 1463, 1470 (10th Cir. 1993) (internal quotations and
citations omitted).  
     To prove a breach of the duty of fair representation by
union conduct that is "arbitrary," a Complainant must show
something substantially more than that a grievance was poorly
handled.  In Brown v. MSEA, the Law Court noted that because of
the duty of fair representation, 
     the union may not ignore a meritorious grievance or
     process it in a perfunctory manner.  Nevertheless, a
     'wide range of reasonableness must be allowed' and
     'mere negligence, poor judgment or ineptitude are
     insufficient to establish a breach of the duty of fair

1997 ME 24, 7, quoting Lundigran v. MLRB, 482 A.2d at 836
(citations omitted); also citing Vaca v. Sipes, 386 U.S. at 191
("a union may not arbitrarily ignore a meritorious grievance or
process it in a perfunctory fashion"). 
     We agree with the Complainant that Wood's failure to seek
union assistance before resigning and the fact that this Board
subsequently concluded that her resignation was voluntary does
not absolve the Union of its duty of fair representation.[fn]11  This 

     11 We note that the Union has not argued that it had no duty to
the Complainant.  The Union argued that its conduct was not a breach
of that duty.


is because the central issue raised by the Complainant was the
allegedly coerced nature of the resignation and the Employer's
failure to permit the withdrawal of the resignation.  The volun-
tariness of the resignation was critical to the analysis of the
prohibited practice complaints against the Employer addressed in
our Interim Order of June 14, 2004.  In the present analysis,
however, the resignation is simply one relevant factor in the
Union's assessment of the merits of the grievance.  
     A duty of fair representation case does not call for a
ruling on whether the Union made the correct decision; the
question is simply whether the Union's conduct was arbitrary,
discriminatory or in bad faith.  See John T. Abbott & Elaine
Lacroix, et al. v. MSEA, No. 81-51, at 6 (Sept. 8, 1980).  The
test for arbitrary conduct is whether "in light of the factual
and legal landscape at the time of the union's actions, the
union's behavior is so far outside a 'wide range of reasonable-
ness'. . . as to be irrational."  Langley v. MSEA, No. 00-14, at
27, quoting Air Line Pilots v. O'Neill, 499 U.S. 65, 67 (1991),
aff'd, Langley v. MLRB and MSEA, 2002 ME 32.  To apply this
standard in the present case, it is necessary to determine the
"factual and legal landscape" at the time of the union's action. 
We will start with the initial handling of the grievance by
     In the telephone conversation of May 15 with Wooten, Wood
described her situation, the negative evaluation that she had
received which she thought was unfair, and the resignation she had
written with the help of a co-worker.  She stated that she had
resigned under pressure in exchange for the destruction of the
evaluation.  Upon hearing her request for help, Wooten felt that
Wood's case would be very difficult.  He knew, based on his
extensive experience, that a probationary employee without just
cause protection had very little chance of prevailing on a
discharge grievance.  He also viewed Wood's resignation as a  


factor further diminishing any chance of success.  He explained his
initial assessment to her.  Wooten's initial investigation
confirmed the essential facts that Wood had told him:  that she was
a probationary employee, she had received a bad evaluation that she
thought was unfair, and after considering the matter she had
resigned in exchange for the destruction of the negative
evaluation.  Wooten verified that the collective bargaining
agreement did not provide just cause for probationary employees 
and that it was silent regarding the withdrawal of resignations. 
Even though Wooten's initial assessment was that it was a very 
weak case, Wooten told Dean Vampatella that he would file a
grievance and they scheduled a first-step meeting.  He left a
message with Wood that she should arrive one hour early so that
they could discuss the case further and gather more
His actions preserved whatever rights Wood had and set the
groundwork for further processing of the grievance.  Wooten 
handled the grievance in accordance with his standard practice
based on his many years of experience and in accordance with the
grievance procedure. 
     The Complainant asserts in her brief that "MEA did absolute-
ly nothing to investigate and present the grievance" (Brief at
22) and "the handling of the grievance, to the extent it was
handled at all, was at best perfunctory." (Brief at 24).  The

     12 There is conflicting testimony about whether Wooten actually
left a message for Wood notifying her of the May 29 first-step
meeting:  Wooten said he did, Wood said he did not.  This particular
point is not critical as there is no question that her attorney knew
of the meeting on May 25th because much of his telephone conversation
with Wooten on that day revolved around the fact that Alexander would
not be allowed to attend.  Even if Wooten had failed to leave a
message and that failure had somehow extinguished her rights (which it
did not), it still would not constitute a breach of the duty of fair
representation as it would be, at most, simple negligence.  See, e.g.,
Brown v. MSEA, 1997 ME 24, 7; Steelworkers v. Rawson, 495 U.S. 369,
372-373, 110 S.Ct. 1911 (1990) (mere negligence does not breach the
duty of fair representation).


facts do not support these assertions.  Wooten spoke with Wood,
her father and attorney, the Dean, the shop steward, the Human
Resources Director for the Technical College System, he consulted
the collective bargaining agreement, and he made an appointment
with the Dean for the first-step meeting of the grievance
procedure.  There was no written grievance filed because the
first-step of the process is informal and contemplates the oral
presentation of the grievance.  Wooten did not have any further
conversation with Wood because he had nothing to report and, in
accordance with his standard practice, he would be meeting with
her to discuss the case for an hour prior to the first step
meeting.  Wooten did not have any obligation to communicate with
Wood's father.  He chose not to speak with him because he
considered Alexander's attempt to dictate to him how to present
the grievance to be interference.  Although Wooten's failure
communicate more with the grievant or her father may have sent
the wrong message to them, it was certainly not "so far outside
the range of reasonableness as to be irrational".  See Langley v.
MSEA, No. 00-14, aff'd, 2002 ME 32.   
     Wooten's decision to postpone the first-step meeting was not
a breach of the duty of fair representation because it was a
rational response to Alexander's insistence on attending the
meeting.  Wooten knew that Alexander had very strong opinions
about the merits of his daughter's grievance and how it should be
presented.  Alexander's interpretation of the contract was
directly at odds with Wooten's opinion.  Wooten's view was based
on a wealth of experience administering numerous collective
bargaining agreements.  Wooten felt that Alexander had already
jeopardized his daughter's chance of a successful resolution of
her grievance by angering the Dean by calling her and the
Department Chair at home on the weekend following Wood's resign-
ation.  Furthermore, by the time Wooten decided to postpone the
meeting, he had witnessed Alexander's confrontational style 


during their May 25 telephone conversation.  Wooten had no
statutory or contractual obligation to allow Alexander to attend
the meeting.  It was not irrational for Wooten to view
Alexander's insistence on attending the meeting as interference: 
Alexander's confrontational style was at odds with Wooten's need
to be able to negotiate and reason with management on behalf of
Wood.  Given all of these factors, there was nothing irrational
about Wooten's decision to exclude Alexander from the first-step
     Wooten testified that he had no intention of excluding Wood
from the meeting and that his practice was always to have the
grievant present at the first-step meeting.  Wooten told
Alexander in the May 25 telephone call that he would not be
permitted to attend because the grievance involved Wood, the
College and himself, but not Alexander.  We credit Wooten's
testimony that Wood was not being excluded from the meeting, as
it is consistent with his practice and there is no contrary
evidence in the record.[fn]13  Perhaps some confusion could have been 
avoided if Wooten had made it clear in his message postponing the
grievance meeting that he would be willing to go ahead with it
only if the grievant attended without her father.
     In summary, we conclude that Wooten's handling of Wood's
grievance, up to and including the postponement of the first-step
meeting, did not breach the Union's duty of fair representation. 
He considered the basis for the grievance to be very thin in
light of her probationary status and lack of just cause
protection.  The case was further complicated by Wood's 

     13 We note that in his letter of May 27 describing his version of
that phone call (Complainant's Exhibit #20), Alexander asserts that
Wooten said neither he nor his daughter would be able to attend the
first-step meeting with the Dean.  We cannot allow the Complainant's
exhibits to be considered evidence of the truth of the statements made
in them, because to do so would be equivalent to allowing testimony by
the Complainant's attorney.


resignation.  Nonetheless, he was prepared to present her
grievance at the first-step meeting.  It was Alexander's behavior
in insisting on attending the meeting that prompted Wooten to
postpone the meeting. 
     Our decision here is entirely consistent with prior Board
decisions finding no breach of the duty of fair representation
where the union refused to handle the grievance as demanded by
the grievant.  For example, in a case decided in 1982, the Board
found no breach of the duty of fair representation where the
union's conduct was based on a reasonable interpretation of the
contract, even though the complainants' reading of the contract
was reasonable as well.  John T. Abbott, et al. v. MSEA, No. 81-
51, at 7.  More recently, the Board found no violation where the
union refused to insist on the remedy sought by the grievant
(reinstatement to her former job) and withdrew from arbitration
after the grievant quit the comparable job to which she had
already been reinstated.  Ridge v. Cape Elizabeth Educ. Assoc.,
No. 98-02 (Sept. 8, 1998).  In another case, the Board concluded
that the union's decision to refuse to represent the employee at
arbitration due to the employee's uncooperative behavior was not
unreasonable.  Casey v. Mountain Valley Educ. Assoc., No. 96-26,
at 40 (Oct. 3, 1997).  See also Lundrigan v. State Dept. Of
Personnel and MSEA, No. 83-03 (Feb. 4, 1983), aff'd, Lundrigan v.
MLRB, 1997 ME 24, 690 A.2d 956 (finding no breach when the union
refused to present the arguments and evidence the grievant
thought relevant and even threatened to stop the arbitration
proceeding if the grievant raised those subjects). 
     Similarly, the Complainant has failed to prove that the
Union breached its duty of fair representation after the case was
taken over by the Union's General Counsel, Shawn Keenan.  Once he
became involved, Keenan conducted his own review and investig-
ation of the case:  he discussed it at length with Wooten, he
read the voluminous correspondence written by Alexander 


describing the details of his daughter's complaints, he reviewed
the terms of the collective bargaining agreement and he spoke
with the System's attorney to get its perspective on the case. 
Keenan observed that there was very little disagreement between
the Employer, the Union and the employee as to the facts
surrounding Wood's evaluation and resignation.  On the other
hand, it was apparent to Keenan that he and Alexander had
fundamentally different views on both the merits of the case and
how it should be presented.  Given the circumstances at this
point, Keenan's decision to remove MEA as Wood's advocate was not
unreasonable.  He communicated his decision in his letter to
Alexander dated June 7.  At the same time, Keenan attempted to
give Alexander a status under the contract that would enable
Alexander to be fully responsible for pursuing the grievance. 
     The collective bargaining agreement does not contain any
language authorizing a grievant to be represented by a private
attorney or other third party.[fn]14  This is not unusual.  Both 
management and labor have legitimate interests protected by such
a position.  The union has an interest in maintaining its status
as exclusive representative of the bargaining unit and both
parties benefit from consistent interpretation and administration
of the bargaining agreement.  Keenan indicated in his June 7
letter that permitting Alexander to represent his daughter was
"appropriate" under 26 M.R.S.A. 1025(2)(E).  That section
authorizes, but does not require, the employer to adjust a
grievance of an individual employee without the intervention of
the bargaining agent as long as certain conditions are met.  See
AFT Local 3711, Sanford Federation of Teachers v. Sanford School 

     14 Article 8(F)(4) allows a grievant to be represented only by
him-self or herself and/or by "an Association designated
representative" (presumably this would include shop stewards), "or
professional staff or counsel" of the MEA (presumably this would
include both Wooten and Keenan).



Committee, No. 01-24, at 8-9 (Jan. 31, 2002) (interpreting
comparable section of the Municipal Public Employees Labor
Relations Law), citing Emporium Capwell Co. v. Western Addition
Community Organization, 420 U.S. 50, 95 S.Ct. 977 (1975). 
Section 1025(2)(E) does not grant an individual employee any
statutory right to be represented by a personal attorney or a
third party, as that would be in direct conflict with the
bargaining agent's status as the "sole and exclusive
representative for all of the employees in the bargaining unit." 
26 M.R.S.A. 1025(2)(B).  As Keenan explained in his subsequent
letter of June 26, the June 7 letter was intended to indicate
that MEA would not object to Alexander serving as his daughter's
personal representative under Article 8(F)(4).
     Even though the collective bargaining agreement did not
expressly authorize representation by a private attorney, Keenan
thought Article 8(F)(4) might present an opportunity for
Alexander to participate in the grievance procedure.[fn]15  In his 
June 7 letter, Keenan designated Alexander as Wood's
representative in an attempt to enable him to pursue her
grievance under that portion of Article 8(F)(4) permitting
representation by an "Association designated representative." 
Keenan also noted in his letter that the contract provides that
both non-renewal appeals and dismissal grievances are initiated
at the System President level.  He requested that the College
agree to extend the deadline so that Alexander could arrange a
meeting with the System President to present Wood's appeal and/or
grievance.  Keenan made it clear in the June 7 letter, however,
that only MEA could appeal a case to arbitration and the Union 

     15 There is no evidence in the record that Keenan had ever
attempted to designate a third party as a grievant's representative
under this Article before, nor is there evidence that the Employer had
ever agreed that the collective bargaining agreement permitted such a


reserved the right to refuse to arbitrate a claim on its merits. 
While the letter ceded full responsibility for investigating and
processing Wood's grievance to Alexander, it did not specifically
grant to Alexander any power or authority the Union possessed as
the exclusive bargaining agent.  
     Between the June 7 letter and his June 26 letter in which
Keenan declared that MEA would not take Wood's case to
arbitration, Keenan continued to assess the merits of the case
and the grievant's arguments.  Keenan spoke on the phone
extensively with Alexander on June 10 about the facts of the case
and the legal issues involved.  Alexander indicated a willingness
to consider any pertinent case law Keenan could provide.  On 
June 18, Keenan sent him cases he had compiled in his research on
discharge cases involving probationary employees and offered to
meet and discuss the issues with Alexander.  By June 26, Keenan
had also read and considered the additional letters Alexander had
written to the College and the Association.
     In his June 26 letter, Keenan stated unequivocally that MEA
would not take Wood's case to arbitration because MEA believed it
was without merit.  Keenan gave a detailed and well-reasoned
explanation for arriving at that conclusion.  He noted that
Wood's resignation, "while perhaps impulsive, was voluntarily
submitted . . . in exchange for valuable consideration," the
destruction of her evaluation.  Keenan considered the facts
offered by Alexander regarding the resignation and concluded that
they did not support the allegation of fraud or duress.  Keenan
could not find any contractual obligation for the College to let
Wood withdraw her resignation.  Even if they did let her withdraw
it, any decision to non-renew was at the discretion of the
College President, subject to final decision by the System
President.  She had no just cause protection because she was a
probationary employee.  Keenan's declaration in his letter of
June 26 that MEA would not seek arbitration was not a breach of 


the duty of fair representation because the decision was not "so
far outside a 'wide range of reasonableness' . . . as to be
irrational."  Langley v. MSEA, No. 00-14, aff'd, 2002 ME 32.
     The June 26 letter also addressed what Keenan considered to
be Alexander's misinterpretation of his authority under the
collective bargaining agreement.  In a letter of June 23,
Alexander had claimed to Langhauser that MEA granted him "full
powers to investigate and prosecute grievances and appeals on
[Wood's] behalf."  He requested the College respond to his prior
requests for information and other "discovery," and he requested
that the college officials be advised that he had access to the
college, the faculty, students and all departmental records,
including addresses and telephone numbers, pursuant to Article
20(A)(1) and (2) of the collective bargaining agreement.  Keenan
responded to this claim in his June 26 letter stating, "MEA has
never delegated to you its status as exclusive bargaining agent,
particularly with respect to access to other faculty members
under Article 20.  To the extent that you would interpret my 
June 7 letter to the contrary, consider it revoked."  This letter
did not alter MEA's position on Alexander serving as his
daughter's personal representative, but did clarify that he had
not been granted any of the bargaining agent's authority.
     Complainant's assertions in her brief that the Union granted
Alexander "full power and authority to advocate on her behalf"
and "sweeping powers to investigate" are incorrect. (Brief at 8
and 23.)  While the June 7 letter could have been more explicit
as to what MEA intended, the subsequent letter of June 26 clearly
indicated that MEA had not delegated to Alexander its authority
as bargaining agent or its authority under Article 20 to access
faculty.  Permission to serve as the grievant's personal
representative is not the same as authority to function as MEA's
agent.  Short of hiring Alexander as an attorney to represent the 


Union or creating some other form of agency relationship,[fn]16 it 
would not be possible for the Union to unilaterally grant any
person or entity the authority conferred upon it by statute.   
If Alexander had been serving as the agent of MEA, as opposed to
the representative of Wood, the Employer would indeed have a
statutory obligation to provide information relevant to the
processing of grievances.[fn]17  See Sanford AFT, No. 01-24, at 14, 
citing Portland School Committee v. Portland Teachers Assoc., 
No. 93-27, at 16 (Feb. 17, 1994) and NLRB v. Acme Industrial Co.,
385 U.S. 432, 436 (1967).  In this case, however, MEA never
authorized Alexander to act as its agent.  See, e.g., Howell
Insulation Company, Inc. and Intern'l Assoc. of Heat & Frost
Insulators and Asbestos Workers Local 90, 311 NLRB 1355 (1993) 
(A union's statement that "it would not object" to third party
filing a grievance does not make third party the union's agent
thus it had no authority to obtain the information on behalf of
the union).  As soon as Keenan learned of Alexander's claim to
possess the Union's authority to access faculty and investigate
grievances, Keenan wrote to Alexander and told him he had no such
authority.  Far from being irrational, this step was a reasonable
and responsible thing to do and not a breach of the duty of fair
     The Complainant argues that the Union joined and colluded
with the College in "the erroneous, bad-faith contention that
only MEA as the exclusive bargaining agent could compel or
otherwise participate together with [the College] in the
grievance process."  (Brief at 9.)  The Complainant's argument 

     16 Had Alexander been an agent of MEA, he would have had a duty
to represent the individual grievant; however, an agent cannot perform
that function in isolation but must continue to serve the interests of
the bargaining unit as a whole.

     17 We offer no opinion on whether Alexander's requests for
information would necessarily be considered relevant.


seems to be based on the blurring of two issues:  1) the
Employer's position that Wood was not entitled to grieve and 2)
the Employer's position that Alexander did not possess the
bargaining agent's right to information related to the grievance
and was not entitled to pursue arbitration.  The first point had
nothing to do with Alexander's status but the second point did. 
The Union did not agree with the Employer on the first point, but
did agree on the second point.
     The Employer was willing to consider Wood's claims outside
the grievance procedure but took the position that her
resignation foreclosed any opportunity to file a grievance over
the evaluation and non-renewal recommendation and that the
resignation itself was not a grievable matter.  Langhauser
testified that on this basis he advised the System President not
to grant Keenan's June 7 request of an appeal meeting for
Alexander, just as he advised him not to entertain Alexander's
written grievances or even the Union's first oral grievance on
the matter.  There is no evidence in the record that the Employer
changed its position on this issue.[fn]18  The Union recognized that 
Wood's resignation complicated her case, but it never took the
position that her resignation foreclosed the filing of a
     McGill's testimony, that Alexander's claim of representative
status had no bearing on whether the College would entertain
Wood's grievance at the initial steps, is consistent with
Langhauser's statements.  In her letter of July 29 responding to
the "formal written grievance" Alexander sent to the System
President, McGill reiterated the System's position that Wood did
not have a grievable claim.  This was the basis for the System's
refusal to entertain Wood's grievance.  McGill went on to say 

     18 Assertions made by Alexander in his letters and otherwise in
this proceeding cannot be considered evidence.


that "moreover," the College dealt only with MEA as the exclusive
bargaining agent and, "Your representation that you are the 'duly
designated representative' under the MEA collective bargaining
agreement is not sufficient to permit or obligate the MTCS to
recognize you in that capacity."  Although it is not extremely
clear from the letter alone, we conclude that this latter
statement was not the basis for the System's refusal to hear the
grievance but was a statement regarding the System's position on
Alexander's status (or lack thereof) under the collective
bargaining agreement.  It is reasonable to conclude that McGill's
July 29 letter was responding not just to the "formal written
grievance," but to Alexander's letter of July 16.  Alexander had
given McGill notice that he would be sending a written grievance
to the System President in his letter of July 16, which was when
he first asserted that he was Wood's "duly designated represent-
ative" under the collective bargaining agreement.[fn]19  He also 
stated in that letter that Wood wanted to preserve her rights
under the grievance procedure and her "rights of appeal to the
System President and ultimately to arbitration under Article 8,
Sections D and E if necessary."  Given Alexander's claim that
Wood had a right to invoke arbitration and his use of the
appellation "duly designated representative," it is not
surprising that McGill responded by referring to MEA's status as
the exclusive bargaining agent.
     While MEA never took the position that only MEA could
process a grievance, it is true that the College and MEA agreed
that Wood was not entitled to take the grievance to arbitration. 
The collective bargaining agreement is very clear on this point. 
The fact that the College and MEA agreed on this point is not 

     19 All of Alexander's letters to the System attorneys after 
Keenan's letter of June 26 were signed "Grover G. Alexander, Attorney
for and the duly designated representative of Sharron V.A. Wood under
the MEA Collective Bargaining Agreement."


evidence of collusion.  "Collusion" is defined as, "A secret
agreement between two or more parties for a fraudulent, illegal
or deceitful purpose."  American Heritage Dictionary, Fourth
Edition (2000).  There is nothing secretive, deceitful or
fraudulent about the Employer and the Union agreeing on the plain
meaning of the collective bargaining agreement.
     There was agreement between MEA and the College on the issue
of whether Alexander was the agent of MEA or otherwise had access
to faculty under the contract, but there was nothing collusive in
that agreement.  The College was under no obligation to accept
Alexander's assertions that he had full authority to investigate
the grievance.  Contrary to the Complainant's assertions, MEA
never granted Alexander any of its authority to investigate the
grievance.  Also contrary to the Complainant's assertions, the
College was not obligated to agree with MEA's attempt to use
Article 8(F)(4) to designate Alexander as Wood's representative. 
Finally, the College was not obligated to grant to a third party
the statutory or contractual rights held by the exclusive
bargaining agent absent confirmation that the third party was an
authorized agent of MEA.  To do so would be a clear violation of
the statutory duty to bargain as it would be circumventing the
bargaining agent.
     The Complainant argues that the parties colluded to
"stonewall" the Complainant because the Complainant's attorney
had made various information requests and sought access to
faculty.  The Complainant claims that neither the Employer nor
the Union wanted an aggressive outside attorney meddling in their
affairs and consequently conspired to exclude him from the
process.  There is no merit to this argument.  If it were true
that the parties had actually changed their positions on anything
in response to Alexander's requests for information (which they
did not), one would think that they would have done so after his
first request for information in his letter of June 7.  It was 


not until later when Alexander asserted he had "full powers to
investigate and prosecute grievances" that Keenan reacted by
clarifying MEA's position on his status in his letter of June 26.
     As a final argument, the Complainant claims that at some
point Keenan provided McGill with a copy of his letter of June 26
so that she could "shoot down" Complainant.  There is no evidence
in the record on how McGill came to possess the letter.  Even if
Keenan did give her the letter, however, we can hardly see how
that would prove collusion.  It defies logic to conclude that the
disclosure of a letter is "a secret agreement between two or more
parties for a fraudulent, illegal or deceitful purpose" when the
disclosure served to expose the misrepresentations of the
letter's recipient regarding its contents.
     In addition to the assertion that MEA's conduct was
arbitrary, the Complainant asserts that the Union's conduct was
discriminatory and in bad faith.  Although it is not entirely
clear, the argument seems to be that MEA discriminated against
the Complainant because she had an aggressive attorney.  There is
no evidence in the record to support this argument.  The presence
or participation of an attorney had no bearing on the Union's
assessment of the merits of the grievance.  From the very first
conversation with the Complainant, the Union noted the weakness
of the grievance.  It was the behavior and confrontational style
of the Complainant's attorney and his insistence on being present
at the first step grievance meeting that prompted the Union to
call off the meeting.  The subsequent decision by Keenan that MEA
would not take the case to arbitration was based on further
review and his assessment that the grievance lacked merit.
     Discriminating on the basis of a grievance's merit is what
unions are supposed to do.  The Supreme Court has long recognized
the importance of this process to the proper functioning of the
collective bargaining system:      

     Union supervision of employee complaints promotes
     settlements, avoids processing of frivolous claims, and
     strengthens the employer's confidence in the union. 
     [Vaca v. Sipes], at 191-193, 87 S.Ct., at 917-918. 
     Without these screening and settlement procedures, the
     [Vaca] Court found that the costs of private dispute
     resolution could ultimately render the system
     impracticable.  Ibid.

International Bhd. of Elec. Workers v. Foust, 42 U.S. 442, 51, 99
S.Ct. 2121, 2127 (1979).  This reasoning is consistent with the
Board's long-standing view that a union needs to be able to
exercise discretion in order to perform its representational
duties effectively.  Lundrigan v. MSEA, No. 83-03, at 6-7.  See
also Hughes v. Univ. of Maine, 652 A.2d at 99 (giving discretion
to union to supervise grievance process assures that similar
complaints are treated consistently and problem areas of contract
interpretation resolved.)  
     The Complainant's assertion that the Union's acted in bad
faith is without support in the record.  Bad faith requires a
showing of fraud, or deceitful or dishonest action, which the
Complainant has failed to prove.  Complainant's remaining argu-
ments concerning the alleged prohibited practices and contract
violations by the Employer were addressed in the Board's Interim
Order of June 14, 2004.                                     
     In summary, we conclude that the Complainant has failed to
show that the Union breached its duty of fair representation and
has failed to demonstrate any evidence of collusion between the
Union and the Employer in an attempt to deprive the Complainant
of her statutory rights.         

     On the basis of the foregoing findings of facts 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.
 1029, it is hereby ORDERED:


          1.  That portion of the Complaint charging
          the Maine Education Association with violat-
          ing 26 M.R.S.A 1027(2)(A) by breaching its
          duty of fair representation is dismissed.
          2.  That portion of the Complaint charging
          the Maine Community College System with
          violating 26 M.R.S.A. 1027(1)(A) by
          colluding with the Union in committing a
          breach of the duty of fair representation  
          is dismissed.
Dated at Augusta, Maine, this 21st day of April, 2005.

                                     MAINE LABOR RELATIONS BOARD

The parties are advised of
their right pursuant to 26           /s/______________________________
M.R.S.A. 1029(7) to seek a          Peter T. Dawson
review of this decision and          Chair
order by the Superior Court.
To initiate such a review, an
appealing party must file a 
complaint with the Superior          /s/______________________________
Court within fifteen (15) days       Karl Dornish, Jr.
of the date of issuance of           Employer Representative
this decision and order, and
otherwise comply with the
requirements of Rule 80(C) of
the Rules of Civil Procedure.        /s/______________________________
                                     Robert L. Piccone     
                                     Employee Representative