STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 81-51
                                                   Issued:  March 17, 1982

JOHN T. ABBOTT,             )
ELAINE LACROIX, et al.,     )
            Complainants,   )
  v.                        )                   DECISION AND ORDER
ASSOCIATION, et al.,        )
            Respondents.    )

     This is a prohibited practices case, filed pursuant to 26 M.R.S.A. 
979-H(2) on May 1, 1981 by John T. Abbot and Elaine Lacroix, individually and
on behalf of other unclassified employees of the Office of Maine CETA ("OMC").
The Complainants allege in their complaint that the Maine State Employees
Association ("MSEA"); its President, Albert C. Willis; its Vice President,
Richard F. Trahey; its Executive Director, John V. Oliver; and its Chief
Counsel, John J. Finn; all in their representative capacities with MSEA; had
violated 26 M.R.S.A.  979-C(1)(A) and  979(2)(E) by arbitrarily interpreting
the Seniority Article, in the contract between MSEA and the State of Maine,
in such manner as to discriminate against the Complainants.  MSEA filed a
response to the complaint on May 21, 1981, claiming that the complaint failed
to state a claim upon which relief could be granted and that Complainants had
failed to exhaust their internal administrative remedies, and denying that it
had violated any provision of the State Employees Labor Relations Act, 26
M.R.S.A.  979, et seq. ("Act").

     A pre-hearing conference was held on the case on May 29, 1981, Alternate
Chairman Donald W. Webber presiding.  Alternate Chairman Webber issued a Pre-
Hearing Conference Memorandum and Order, dated June 4, 1981 and amended by
Order dated June 11, 1981, the contents of which are incorporated herein by


     Hearings were held on July 1, 1981 and on October 2, 1981, Alternate
Chairman Gary F. Thorne presiding, with Employer Representative Don R.
Ziegenbein and Alternate Employee Representative Harold S. Noddin.  At the
former hearing the Complainants were represented by Howard T. Reben, Esq.,
and they appeared pro se at the latter proceeding.  MSEA was represented by
Shawn C. Keenan, Esq.  Full opportunity was given to examine and cross-
examine witnesses, present evidence, and make argument.  Both parties filed
post-hearing briefs which have been considered by the Board.


     John T. Abbott and Elaine Lacroix are state employees within the meaning
of 26 M.R.S.A.  979-H(2) and, therefore, are proper parties to file a
prohibited practices complaint with the Board.  MSEA is a state employee
organization as that term is used in Section 979-H(2) of the Act.  The juris-
diction of the Maine Labor Relations Board ("Board") to hear this case and
render a decision and order lies in 26 M.R.S.A.  979-H.

                                FINDINGS OF FACT

     Upon review of the entire record, the Board finds:

     1.  The Complainants John T. Abbott and Elaine Lacroix are state
employees as that term is defined in 26 M.R.S.A.  979-A(6).

     2.  The Respondent Maine State Employees Association is a bargaining
agent within the meaning of Section 979-A(1) of the Act and all of the other
named Respondents are officers, agents, or employees of MSEA.  All of the acts
allegedly committed by the individual Respondents were performed by them in
their representative capacity for MSEA, therefore, said organization is
vicariously responsible for the same.

     3.  All employees of Maine Department of Labor, Office of Maine CETA,
have been represented by MSEA, as their exclusive bargaining agent, at all
times relevant hereto.


     4.  All of the employees of the Office of Maine CETA are unclassified
employees as that term is used in 5 M.R.S.A.  711.

     5.  The State has been informed that the employees, mentioned in para-
graph 4 hereof, must be brought into the classified service in compliance with
Federal Regulation (5 CFR 900F, dated February 16, 1979).

     6.  Approximately ninety (90%) percent of the employees represented by
MSEA, during negotiations and under the collective bargaining agreement, are
in the classified service.

     7.  Prior to collective bargaining, employees in the unclassified service
enjoyed no seniority, displacement (bumping) or recall rights under the
Personnel law and Rules.

     8.  During negotiations of the collective bargaining agreement between
MSEA and the State, MSEA represented both classified and unclassified

     9.  Nothing in the bargaining history of the parties indicates that any
distinction was ever raised between a classified employee or an unclassified
employee for seniority purposes.

    10.  MSEA would testify that the State did attempt during negotiations to
exclude unclassified employees from the just cause protection of the
Discipline Article, but MSEA rejected this proposal.

    11.  All provisions of the collective bargaining agreement, including the
Seniority and Discipline Articles, were ultimately agreed to be applicable to
both classified and unclassified employees.

    12.  Bargaining demands and contract ratification were initially approved
by the MSEA Statewide Bargaining Committee, whose membership was open to both
classified and unclassified employees, and final ratification was by secret
mail ballot sent to all MSEA members in the classified and unclassified

    13.  MSEA has discussed with the State the impact of the transfer of
unclassified employees to the classified service.

    14.  MSEA's present stance submitted to the State is that the movement
from an unclassified position to a classified position, and vice versa, is a
change of classification for purposes of application of the Seniority Article
(Article XXV).


    15.  The result of this stance is to reduce by one-half (1/2) the
seniority credit given to unclassified employees who will be transferred to
the classified service for their time in the unclassified job.

    16.  Another result of the MSEA's stance, mentioned in paragraph 14
hereof, is that, where an individual transfers from unclassified to classified
service and his job functions and/or job title remain the same, he would still
retain only one-half (1/2) of his seniority credit for service in the
unclassified job.

    17.  Prior to collective bargaining, neither classified nor unclassified
employees were given seniority credit for prior service other than in their
present classification.

    18.  David Bustin, Commissioner of Personnel, would, according to a
stipulation of the parties, testify that the State of Maine disagrees with
the interpretation advanced by MSEA and believes that unclassified employees
should be combined with classified employees and retain full seniority
credits for each month during which they have held unclassified job, without
regard for the fact that such prior jobs were designated unclassified.

    19.  Employees represented by MSEA, including Ena L. McCollett, have
accepted transfers from classified to unclassified positions within the past
two (2) years without being informed by MSEA or the State that such movement
would substantially reduce their seniority.

    20.  David Bustin, according to the stipulation of the parties, would
testify that previously, including the period that the collective bargaining
agreement has been in force, the State has granted transfers to the same or
similar positions with the retention of full seniority from classified to
unclassified service.  When these individuals transferred back to classified
they retained full seniority for the time spent in classified service.  MSEA
did not object to this practice.

    21.  At the time of a transfer, MSEA is not notified as to the affect
of said transfer upon that individual's seniority rights.


     MSEA has moved to dismiss the Complaint herein on the grounds that it
fails to state a claim upon which relief may be granted.  In the only other
case where we had opportunity to consider whether an actionable duty of fair


is created by the Act, Holmes v. Maine State Employees Association, M.L.R.B.
Case No. 80-52 (9/8/80), we intimated that such a cause of action did in fact
exist.  Holmes, supra, at 2.  In Whitzell v. Merrymeeting Educators' Asso-
ciation, M.L.R.B. Case No. 80-15 (11/6/80), we held that a duty of fair
representation existed under the Municipal Public Employees Labor Relations
Act, 26 M.R.S.A.  961, et seq., and violations thereof would be heard and
ruled upon by this Board.  The same rationale, adopted in Whitzell, applies
equally here and, therefore, we hold that unions, representing employees under
the State Employees Labor Relations Act, are bound to represent all unit
employees under the duty of fair representation.  The relevant language of the
S.E.L.R.A. is analogous with that in the M.P.E.L.R.A., militating our adoption
of the duty of fair representation as a stricture upon the unions organizing
employees under the former statute.  Furthermore, we specifically adopt the
parameters, set forth by the federal courts defining the scope of said duty,
to the extent that the same can reasonably be applied to State employee
unions.  The Complainants herein have set forth a prima facie allegation of a
violation of the duty of fair representation and we will consider the same
herein.  A violation of the duty of fair representation, created by Section
979-F(2)(E), is actionable through the prohibited practices process as a
transgression of 26 M.R.S.A.  979-C(2)(A).  Our jurisdiction, to entertain
complaints alleging violations of the duty of fair representation and to issue
decisions and orders granting remedies thereon, is found in Section 979-H of
the S.E.L.R.A.

     Turning to the merits of the case, we must discuss the parameters of the
duty of fair representation.  In Hines v. Anchor Motor Freight, Inc., 424 U.S.
554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), the United States Supreme Court
outlined the parameters of a union's duty of fair representation as follows:

         "Necessarily '[a] wide range of reasonableness must be allowed
     a statutory bargaining representative in serving the unit it repre-
     sents . . .'  Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct.
     681, 686, 97 L.Ed. 1048, 1058 (1953).  The union's broad authority
     in negotiating and administering effective is 'undoubted,' Humphrey
     v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 368, 11 L.Ed.2d 370, 377
     (1964), but it is not without limits.  Because '[t]he collective
     bargaining system as encouraged by Congress and administered by the
     NLRB of necessity subordinates the interests of an individual em-
     ployee to the collective interests of all employees in a bargaining
     unit,' Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct.903, 912, 17 L.Ed.2d


     842, 853 (1967), the controlling statutes have long been interpre-
     ted as imposing upon the bargaining agent a responsibility equal in
     scope to its authority, 'the responsibility and duty of fair repre-
     sentation.'  Humphrey v. Moore, supra, 375 U.S., at 342, 84 S.Ct.,
     at 368, 11 L.Ed.2d, at 377.  The union as the statutory representa-
     tive of the employees is 'subject always to complete good faith and
     honesty of purpose in the exercise of its discretion.'  Ford Motor
     Co. v. Huffman, supra, 345 U.S., at 338, 73 S.Ct., at 686, 97 L.R.,
     at 1058.  Since Steele v. Louisville & N.R. Co., 323 U.S. 192, 65
     S.Ct. 226, 89 L.Ed. 173 (1944), with respect to the railroad industry,
     and Ford Motor Co. v. Huffman, supra, and Syres v. Oil Workers, 350
     U.S.-892, 76 S.Ct. 152, 100 L.Ed.785 (1955), with respect to those
     industries reached by the National Labor Relations Act, the duty of
     fair representation has served as a 'bulwark to prevent arbitrary
     union conduct against individuals stripped of individual forms of
     redress by the provisions of federal labor law.'  Vaca v. Sipes,
     supra, 386 U.S., at 182, 87 S.Ct., at 912, 17 L.Ed.2d, at 853."
     424 U.S., at 563-564, 96 S.Ct., at 1056.

     The Board's role in evaluating a particular union's conduct is to apply
the foregoing standard and not to answer the question faced by the union on a
de novo basis.  Although we might have reached a different or contrary result
than did the union, our task is to determine whether the union was arbitrary,
discriminatory, or acted in bad faith in making its determination.  Vaca v.
Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967).

     In the case now before us, the MSEA determined that movement of a State
employee, from an unclassified position to a classified position, represents a
change in the classification of said employee, for lay-off purposes under
Seniority Articles of the applicable collective bargaining agreements.  The
Union based its decision on the difference between classified and unclassified
employees, as set forth in the personnel laws.  Title 5 M.R.S.A.  671
provides, in relevant part:

         "Appointments to and promotions in the classified service
     shall be made according to merit and fitness, from eligible lists
     prepared upon the basis of examinations, which so far as practic-
     able shall be competitive."

No similar requirement exists for hiring and/or promotion in the unclassified
service.  The foregoing is the distinction and difference upon which the
Union based its conclusion in interpreting the contract.  The relevant
contract language, in the Seniority Articles thereof, states:


         "Seniority for the purposes described herein shall be based
     on the following formula:  one (1) point for each month of con-
     tinuous service in the employee's present classification and higher
     classifications previously held (and, in the event of bumping into
     a lower classification, service in that lower classification) plus
     one-half (1/2) point for each month of continuous State service in
     any other classification previously held by the employee."

Administrative Services Bargaining Unit, 1980-1981 Agreement, Article
XXIV(A)(1), Professional and Technical Services Bargaining Unit, 1980-1981
Agreement, Article XXV(A)(1).

     Although the job titles and/or work responsibilities of the affected
unclassified employees may in many cases be similar or identical to those of
classified employees, the unclassified employees did not have to compete for
said positions.  We cannot say that the Union's finding, that classified and
unclassified job classifications are different, was arbitrary, discriminatory,
or was made in bad faith.  Said position by the Union was based upon the
plain language of the contract, read within the context of applicable public

     Our above holding, that the Union was not arbitrary, discriminatory, nor
did it act in bad faith in formulating its interpretation of the Seniority
Articles of the applicable collective bargaining agreements, does not address
nor should it be construed to mean that the Complainants' stance, relative to
said contract language, is unreasonable.  Our role was, under the strictures
of the relevant standard of review enunciated above, limited to a review of
the Union's position and the reasoning process followed in reaching the same.
We have not ruled upon the merits of the Complainants' interpretation of the
sections of the collective bargaining agreements which were in contention.
The record before us indicates that no action has been undertaken, to date,
to implement the merger of the unclassified employees of the Office of Maine
CETA into the classified service of the State of Maine.  If and when such
action is undertaken, the interpretation of controlling sections of collective
bargaining agreements will ultimately be resolved through the contract
administration provisions of said agreements.



     On the basis of the foregoing findings of fact and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A.  979-H, it is ORDERED:

     1.  That the prohibited practices complaint, brought by John T. Abbott,
         et al., and filed on May 1, 1981, in Case No. 81-51 be and hereby
         is dismissed.

     2.  That the motion to dismiss on the grounds that the complaint failed
         to state a claim upon which relief may be granted be and hereby is

Dated at Augusta, Maine, this 17th day of March, 1982.

                                      MAINE LABOR RELATIONS BOARD

                                      Gary F. Thorne

                                      Don R. Ziegenbein
                                      Employer Representative

                                      Harold S. Noddin
                                      Alternate Employee Representative

     The parties are advised of their right pursuant to 26 M.R.S.A.  979-H(7)
to seek a review by the Superior Court of this decision by filing a complaint
in accordance with Rule 80B of the Rules of Civil Procedure within 15 days
after receipt of this decision.