STATE OF MAINE                               MAINE LABOR RELATIONS BOARD
					     Case No. 92-24
					     Issued:  April 30, 1992
GARRETT LINDSAY,                   )
		    Complainant,   )
	      v.                   )        DECISION AND ORDER
		    Respondent.    )

     On January 27, 1992, Mr. Garrett Lindsay filed a prohibited practice com-
plaint with the Maine Labor Relations Board ("Board") alleging that Teamsters
Union Local No. 340 ("the Teamsters") had failed to represent the complainant
fairly, which failure constituted interference, restraint and coercion.1 In
response to a notice of insufficiency, the complainant amended his complaint on
February 12, 1992. Upon receipt of the amended complaint, the Executive
Director reviewed the complaint and dismissed it pursuant to 26 M.R.S.A.
 968(5)(B) (1988) and Rule 4.06(A) of the Board's Rules and Procedures. The
basis for the February 27th dismissal was that events alleged to have occurred
within the six-month limitations period of section 968(5)(B) did not constitute
a violation of the MPELRL. The contents of the dismissal are incorporated
herein by reference. On March 12, 1992, the complainant filed a motion for
review of the dismissal. On April 6, 1992, the Board received the complainant's
written memorandum supporting his request for review.
     A hearing on the complainant's request for review was conducted on April 15,
1992. Board Chair Peter T. Dawson presided, accompanied by employer represen-
tative Howard Reiche, Jr., and employee representative George W. Lambertson.
Curtis Webber, Esquire, represented the complainant; the Teamsters did not par-
ticipate in the hearing. Upon completion of complainant's oral argument, the


     1The original complaint alleged violation of the State Employees Labor
Relations Act; the amended complaint corrected that error to allege
violation of the Municipal Public Employees Labor Relations Act ("MPELRL")
-- more specifically, of sections 964(2)(A) and 967(2) of that statute.


Board convened to deliberate the case.

     Complainant Garrett Lindsay, prior to his dismissal from the Aroostook
County Sheriff's Department, was a public employee within the meaning of
26 M.R.S.A.  962(6) (1988 and Supp. 1991). Teamsters Union Local No. 340 is
the bargaining agent, within the meaning of 26 M.R.S.A.  962(2) (1988), for a
unit of full-time employees of the Aroostook County Sheriff's Department. The
jurisdiction of the Board to hear this appeal and to render a decision and order
lies in 26 M.R.S.A.  968(5) (1988 and Supp. 1991).
     For the purpose of reviewing the Executive Director's action, we accept as
true all allegations contained in the complaint as well as those made during
oral argument. In essence, the complainant alleges that in March of 1991, the
Teamsters refused to represent the complainant in connection with his impending
dismissal from employment with the Aroostook County Sheriff's Department, in
spite of the fact that it was aware that the complainant was entitled to just
cause protection under the collective bargaining agreement in force at the time.
The Teamsters advised the complainant that he was a probationary employee and
was not entitled to utilize the grievance procedure in the contract or to be
otherwise represented by the Teamsters. Shortly after his dismissal on April
25, 1991, the Teamsters again refused to represent Mr. Lindsay when he requested
representation. Finally, in conversations on October 18 and 23, 1991, the union
reiterated its position that the complainant was not entitled to representation
in connection with his dismissal, because he was a probationary employee at the
time the dismissal occurred.

     Complainant filed his complaint more than ten months after he was first
told by the Teamsters that the union would not represent him, and approximately
nine months after his actual dismissal. In rejecting the Executive Director's
finding that events alleged to have occurred within the six-month limitation of
section 968(5)(B) of MPELRL did not constitute a violation of that law, complain-
ant argues that the Teamsters' last reiteration, on October 23, 1991, of its
refusal to file a grievance on Mr. Lindsay's behalf was "new" conduct from which
the six-month limitation began to run. In support of his position, the complain-
ant cites Whitzell v. Merrymeeting Educators' Association, No. 80-15 (Me.L.R.B.


Nov. 6, 1980).
     In Whitzell, the bargaining agent filed and pursued a grievance in connec-
tion with a poor performance evaluation of an employee in the unit, but refused
to take the grievance to arbitration -- step four of the grievance procedure.
Exactly six months after the bargaining agent's decision regarding arbitration
was made, the employee filed a complaint with the Board alleging breach of the
duty of fair representation. In considering whether the bargaining agent had
breached its duty, the Board refused to consider any conduct by the agent that
had occurred during the first three steps of the grievance procedure -- that is,
that had occurred more than six months prior to the filing of the complaint --
except as evidence of motive and character of conduct that occurred within the
six-month period.
     In the matter now before us, there is no "new" bargaining agent conduct
that occurred within the six-month period prior to the filing of the complaint
on January 27, 1992. When approached on two occasions in October of 1991, the
union simply reiterated the position that it had taken several months earlier
that a grievance could not be filed. The fact that the collective bargaining
agreement between the Teamsters and the Aroostook County Sheriff's Department
requires the filing of grievances within five days of the event being grieved
makes it even more clear that no new event occurred in October of 1991 that
could constitute a violation of the MPELRL. Mr. Lindsay was terminated on April
25, 1991, and the grievance had to be filed within five days of that date.
Thus, the October 23rd refusal to file a grievance would not, absent unique cir-
cumstances, be a breach of the duty of fair representation even if that refusal
had been the first rather than the last time that Mr. Lindsay sought help from
the union.
     The Board cannot permit a complainant to avoid the six-month requirement
of 26 M.R.S.A.  968(5)(B) simply by obtaining from the respondent a reiteration
of its previous decision and characterizing it as "new" conduct. To do so would
be to nullify the requirement. Accordingly, although the complainant in this
case may have been able to successfully challenge the Teamsters' refusal to file


a grievance on his behalf if the complaint had been filed in a timely manner,2
we find that the Executive Director's dismissal of the complaint was proper.
     On the basis of the foregoing discussion, and by virtue of and pursuant
to the powers granted to the Maine Labor Relations Board by the provisions
of 26 M.R.S.A.  968(5) (1988 and Supp. 1991), it is hereby ORDERED:

     The order of the Executive Director dated February 27, 1992,
     dismissing the prohibited practice complaint filed by complainant
     Garrett Lindsay against Teamsters Union Local No. 340 in Case No.
     92-24 is affirmed.

Dated at Augusta, Maine, this 30th day of April , 1992.

The parties are hereby advised           /s/_________________________
of their right, pursuant to              Peter T. Dawson
26 M.R.S.A.  968(5)(F) (1988            Chair
and Supp. 1991), to seek review
of this Decision and Order by
the Superior Court. To initiate          /s/_________________________
such a review an appealing party         Howard Reiche, Jr.
must file a complaint with the           Employer Representative
Superior Court within fifteen (15)
days of the date of issuance of
this decision, and otherwise             /s/_________________________
comply with the requirements of          George W. Lambertson
Rule 80C of the Maine Rules of           Employee Representative
Civil Procedure.


     2/30-A M.R.S.A.  381 (Supp. 1991) authorizes the appointment of both
full-time and part-time sheriff's deputies. Section 381(3) sets a proba-
tionary period of "not more than 6 months" for deputies, and does not
distinguish between full-time and part-time employees. Consequently, Mr.
Lindsay may in fact not have been a probationary employee at the time he
was dismissed, since he had been working for nearly a year. He may also
have had just cause protection under 30-A M.R.S.A.  501(3) (Supp. 1991).
Of course any termination decision made by county officials pursuant to
section 501 would not be within the jurisdiction of the Maine Labor
Relations Board, but rather would be subject to review by Superior Court
through Rule 80B of the Maine Rules of Civil Procedure.