Decision:  1997 ME 152
Docket:    Pen-96-592
Submitted on Briefs:   June 26, 1997
Decided:   July 18, 1997


                              DAVID MILLER 
                    MAINE TEACHERS ASSOCIATION et al.


     [1] David Miller appeals from the judgment entered in the Superior 
Court (Penobscot County, Marden, J.) granting the motion of the Maine 
Teachers Association and Margo Lister, President of the Clerical, Office, 
Laboratory and Technical Unit at the University of Maine (collectively 
MTA), to dismiss his complaint against MTA seeking damages for the 
alleged breach of the duty of fair representation and the intentional 
infliction of emotional distress.  Miller contends the court erred by 
determining that the Maine Labor Relations Board (the Board) has 
exclusive original jurisdiction to hear this action.  Because we conclude 
that the trial court has jurisdiction over Miller's claim for the 
intentional infliction of emotional distress, we vacate the court's 
dismissal of that claim.

   [2] Miller alleges the following facts in his complaint:  Beginning
in 1969, Miller became a full-time employee of the University of Maine.  
At all relevant times Miller was a member of MTA.  Following an April 1983 
reduction of his employment status to part-time, he initiated a grievance 
pursuant to the procedure contained within the collective bargaining 
agreement between MTA and the University of Maine.  In May 1984, pursuant 
to the terms of the collective bargaining agreement, MTA filed a Step 3 
request for a review of Miller's grievance that was denied MTA agreed to 
take the grievance to arbitration and notified the University accordingly.  
On August 25, 1984, after reconsideration by MTA, it withdrew the 
grievance from the arbitration procedure.

   [3] Seeking both compensatory and punitive damages, Miller alleges as
Count I of his complaint that by withdrawing his complaint from 
arbitration, MTA acted "arbitrarily," maliciously" and in "bad faith" and 
breached its duty to represent him pursuant to the collective bargaining 
agreement.  In Count II Miller alleges that the conduct of MTA caused him 
"severe emotional distress; and the conduct was intentional."

   [4] After a hearing on MTA's motion to dismiss the complaint on the 
ground that the Board has exclusive jurisdiction to hear actions alleging
misconduct by a bargaining agent toward a member of the bargaining unit, 
the court granted MTA's motion.  From the judgment entered accordingly, 
Miller appeals.

   [5] Miller contends the trial court erred by dismissing his complaint.
"When reviewing a motion to dismiss, we assume that all the facts as 
alleged in the complaint are true."  Webb v. Haas, 665 A.2d 1005, 1009 
(Me. 1995).  "We examine the complaint in the light most favorable to 
[Miller] to determine whether it sets forth elements of a cause of action 
or alleges facts that would entitle [Miller] to relief pursuant to some 
legal theory."  J.R.M., Inc. v. City of Portland, 669 A.2d 159, 161 
(Me. 1995).

   [6] The relationships between Miller, MTA and the University are 
governed by the University of Maine System Labor Relations Act, 26 M.R.S.A. 
 1021-1035 (1988 & Supp.1996).  Pursuant to section 1027(2), MTA, as 
the bargaining agent for Miller, is "prohibited from . . . interfering 
with, restraining or coercing employees in the exercise of the rights 
guaranteed in section 1023. . . ." Section 1023 provides:

     No one may directly or indirectly interfere with, intimidate,
     restrain, coerce or discriminate against university . . . 
     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.

The Act authorizes the Board to remedy prohibited acts.  26 M.R.S.A. 
 1029 (Supp. 1996).

   [7] Recently, in Brown v. Maine State Employees Ass'n, 1997 Me. 24, 
690 A.2d 956 (Me. 1997), in construing nearly identical language in the 
State Employees Labor Relations Act, we concluded that "the exclusive 
jurisdiction for breach of the duty of fair representation lies with the 
Board."  Id. at 959-60[fn]5.  We based our decision in part on the 
Board's "broad discretion in fashioning appropriate relief for the 
employer's prohibited practices . . . ."  Id. at 959 (quoting City of 
Bangor v. American Fed'n of State, County, and  Mun. Employees Council 74, 
449 A.2d 1129, 1136 (Me. 1982)).  The analogous language of the University 
of Maine System Labor Relations Act compels the same result in this case.

   [8] We agree with Miller, however, that Brown does not control the
disposition of his claim for damages resulting from the intentional 
infliction of emotional distress.  Miller's complaint alleges that MTA 
acted arbitrarily, maliciously and in bad faith when it withdrew its 
support of Miller's attempt to take his grievance to arbitration.  He 
alleges that by these actions, MTA intentionally caused him great emotional 

   [9] Unlike in the context of an alleged breach of duty of fair
representation, the Board's broad discretion to fashion relief does not 
extend to tort remedies, including punitive damages, that may be available 
to Miller pursuant to his claim for the intentional infliction of 
emotional distress.[fn]1  See 26 M.R.S.A.  1029(3) (Board has authority 
to issue cease and desist order "and to take such affirmative action, 
including reinstatement of employees with or without back pay, as will 
effectuate the policies of this chapter.").  Because the Board does not 
have the authority to resolve Miller's claim for emotional distress, that 
claim is not governed by the University of Maine System Labor Relations 
Act and is properly before the court.  Accordingly, while we express no
opinion as to the merits of Miller's claim, we conclude that the court
erred by its dismissal of Count II of Miller's complaint seeking damages 
for the intentional infliction of emotional distress.

     The entry is:

     Judgment on Count I affirmed; judgment on Count II vacated.  Remanded
 for further proceedings consistent with the opinion herein.


1.  The plaintiff in Brown also alleged a tort (legal malpractice) 
  against the Union.  We did not address the Board's ability to afford the 
  plaintiff a tort remedy because we concluded that: (1) as a matter of law, 
  the complaint failed to state a claim on which relief could be granted; 
  and (2) the "essence" of the malpractice claim was a breach of the duty 
  to represent him and therefore was "covered within the contours of the 
  statutory duty of fair representation."  Brown, 690 A.2d at 960.