Case No. 16-06
Issued: April 20, 2016







	   The question before this Board is whether to affirm, deny, 
or modify the Executive Director's dismissal of the prohibited 
practice complaint filed on December 28, 2015, by Mr. David Trask.  
The Complaint alleges that the Town of Madison violated several 
sections of Title 26 by essentially transforming the Madison 
Police Department into a division of the Somerset County Sheriff's
Department effective on July 1, 2015.  The Complainant, now 
represented by Robert E. Sandy, Jr., Esq., filed a timely appeal 
of the Executive Director's dismissal in accordance with 
§968(5)(B).  The Complainant appeals the dismissal of the charges 
that the Town of Madison's conduct violated §964(1)(A), 
§964(1)(C), and §964(1)(E) of the Municipal Public Employees Labor 
Relations Law (the "Act"), 26 MRS §961 et seq.[fn]1
     Pursuant to the Board's Rules and Procedures, once a motion 
for review of a dismissal is filed, "the Board shall examine the 
complaint as it existed when summarily dismissed in light of the
[fn]1  The Executive Director dismissed the allegations charging violations of 
provisions not within this Board's jurisdiction; the dismissal of those 
charges has not been appealed.

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assertions contained in the motion."  MLRB Rule Ch. 12, §8(3).  
The Board makes its own determination on the sufficiency of the 
complaint, rather than simply reviewing the Executive Director's 
decision.  In doing so, the Board must treat all facts alleged as 
true and must construe the complaint in the light most favorable 
to the complainant.  Buzzell, Wasson, and MSEA v. State of Maine, 
No. 96-14 at 2 (Sept. 22, 1997).  When, however, something that is 
presented as a factual allegation is actually a legal conclusion, 
the Board is not bound to accept that legal conclusion as true.  
MSAD #46 Educ. Assn./MEA v. MSAD #46 Board of Dir., No. 02-13 
at 2 (Nov. 27, 2002), citing Bowen v. Eastman, 645 A.2d 5, 6 (Me. 
1994).  See also William D. Neily v. State of Maine, No. 06-13 
at 6 (May 11, 2006), aff'd, William D. Neily v. MLRB, AP-06-35 
(Oct. 23, 2006).
     The first two charges addressed in the appeal allege an 
interference charge in violation of a §964(1)(A) and a violation 
of §964(1)(C) by interfering with the existence of the Complain-
ant's bargaining unit.  Neither of these two charges were 
specifically included in the Complaint, either by referring to the 
specific subsection (as required by MLRB Rule Ch. 12, §5(4)) or by 
a narrative describing conduct that could be read as stating a 
charge.  The only reference to a §964 violation in the Complaint 
occurred in the context of charging a refusal to bargain, although 
the specific subsection (1)(E) was not mentioned.  Given these 
omissions from the Complaint, there is some question whether the 
(1)(A) and (1)(C) issues should even be addressed on appeal to the 
Board.  We need not answer this question as both of the charges 
are without merit.
     The Appellant first asserts that the actions of the Town of 

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Madison as alleged in the Complaint violated §964(1)(A), which 
prohibits an employer from "interfering with, restraining or 
coercing employees in the exercise of the rights guaranteed in 
section 963."  Section 963, in turn, protects the right of public 
employees 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.
Appellant argues, "[t]he action of the Town of Madison compelled 
Sergeant Trask to participate in the activities of an organization 
not of his own choosing, specifically the bargaining unit of the 
Somerset County Sheriff's Department."  Implicit in this argument 
is the legal conclusion that a bargaining unit is an 
'organization' within the meaning of §963.  This is incorrect:  
A bargaining unit is a group of job classifications or positions 
at a particular employer that defines the boundaries of the 
bargaining agent's representative authority under the Act.  
26 MRS §966(2).  Section 963 establishes the right of employees 
to participate in the activities of organizations of their own 
choosing "for the purposes of representation and collective 
bargaining" and §964(1)(A) protects that right.[fn]2  Section 963 
applies to "organizations" (often called unions or associations), 
not to the bargaining unit in which an employee's position is 
     Similarly, the Appellant argues that the Town of Madison 
violated §964(1)(C), which prohibits employers from "dominating or 

[fn]2  Furthermore, the procedures for establishing bargaining units as set 
forth in §966 demonstrate that individual employees do not choose which 
bargaining unit their job classification is placed in.

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interfering with the formation, existence or administration of any 
employee organization," by effectively "dissolving" the Madison 
Police Department bargaining unit.  The argument that the Town's 
conduct "interfered with the existence of" the bargaining unit 
must fail as well because, as noted above, a bargaining unit is 
not an "employee organization" within the meaning of this 
     The Appellant's final argument is that the Executive Director 
made an error of law in dismissing that portion of the Complaint 
charging a violation of the duty to bargain.  The Executive 
Director held "an individual bargaining unit employee does not 
have legal standing to charge a violation of the obligation to 
bargain," citing Neily v. State of Maine, No. 06-13 at 12.  The 
Appellant argues that because §968(5)(B) permits an individual 
employee to file a prohibited practice complaint, that individual 
employee is authorized to file a complaint with respect to any of 
the violations specified in §964.  Such an interpretation is 
inconsistent with the terms of both §964 and §965 and has the 
potential to continually undercut the very concept of collective 
     There is no question that §968(5)(B) authorizes an individual
employee to file a prohibited practice complaint.  The Act would 
be of little value in protecting an individual's rights under the 
Act to join or not join a union if an individual were not able to 
file a charge alleging, for example, interference, restraint or 
coercion in violation of §964(1)(A) or alleging discrimination in 
violation of §964(1)(B).  It would be equally destructive of the 
collective bargaining process enabled by the Act if an individual 
employee had standing to file a complaint charging a failure to 

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bargain collectively as required by §965.
     Section 965 establishes in great detail the mutual obligation 
of the public employer and the bargaining agent to bargain 
collectively.  Section 967(2) of the Act is clear that "the 
bargaining agent certified as representing the bargaining unit 
shall be recognized by the public employer as the sole and 
exclusive bargaining agent for all employees in the bargaining 
unit[.]"  The words "sole and exclusive bargaining agent" leave no 
option for the employer to bargain directly with an individual 
employee.  As this Board stated in Maine State Employees Assn. v. 
Maine Maritime Academy, "[t]his principle of exclusivity, found in 
all of Maine's collective bargaining statutes as well as the 
National Labor Relations Act, 'exacts the negative duty to treat 
with no other.'"  No. 05-04 (Jan. 31, 2006) at 15, citing Medo 
Photo Supply Corp. v. NLRB, 321 U.S. 678, 684 (1944), quoted in 
MSEA v. Bangor Mental Health Inst. (BMHI) and State of Maine, No. 
84-01, at 7 (Dec. 5, 1983).  The obligation to bargain is imposed 
on the employer and the bargaining agent, and the individual 
employee has no statutory right to enforce the bargaining agent's 
right.  Granting an individual employee the right to enforce the 
bargaining agent's right would tend to de-stabilize labor 
relations, as an individual employee may have different objectives 
than the bargaining agent's view of the interests of the 
collective whole, and the Employer would be forced to contend with 
prohibited practice complaints from employees attempting to second 
guess their bargaining agent.  Only the union certified or 
recognized as the bargaining agent has the right to bargain with 
the employer, and only the bargaining agent can seek to enforce 
that statutory right by filing a complaint alleging a refusal to 

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bargain collectively under 964(1)(E).[fn]3  Neily v. State of Maine, 
No. 06-13 at 6, aff'd, William D. Neily v. MLRB, AP-06-35 at 4.
     The Appellant contends that the Complaint should not be 
dismissed because in Powers McGuire v. University of Maine System, 
No. 93-37 (April 4, 1994), the Board held that a (1)(E) charge 
could be brought by the individual employee in that case, 
Mr. McGuire.  As this Board noted in Neily v. State of Maine, 
the McGuire case presented some "very unique circumstances" that 
justified allowing Mr. McGuire to proceed with his complaint 
alleging a failure to bargain:   
      . . . In McGuire, the University System and the union 
     had negotiated an "overload" compensation schedule that 
     applied to all system campuses and determined the 
     minimum compensation for teaching summer courses.  
     Individual campuses were free to pay higher overload 
     rates and individual faculty members were free to 
     negotiate higher rates as well.  The Augusta campus had 
     an established practice of paying twice the overload 
     rate for summer ITV courses, plus a $500 preparation 
     fee.  The unilateral change at the heart of the 
     complaint was a reduction to the single overload rate 
     for ITV courses offered at the Augusta campus that were 
     under-enrolled.  The Board considered it permissible to 
     allow an individual to bring a unilateral change charge 
     in that case because the union was not involved in 
     negotiating or enforcing the higher-than-minimum 
     overload rates that had been established at the various 
     (emphasis added) 

     No. 06-13 at 13, citing McGuire, No. 93-37 at 15.

McGuire was a unique situation where individual faculty members 
could negotiate rates above the minimum set in the system-wide 

[fn]3  Similarly, an individual employee would not have standing to file a 
discrimination charge alleging a violation of §964(1)(B) if the conduct 
complained of was that another employee was discriminated against.

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agreement for summer teaching.  Similar circumstances are not 
present in the Complaint before us.  McGuire was based on such 
unusual circumstances, the Board has not had occasion to apply it 
in any manner in the 22 years since it was issued.  The circum-
stances present in McGuire are not present here, and we therefore 
find it has no precedential value to this case.

     On the basis of the foregoing discussion, and by virtue of 
and pursuant to the powers granted to the Maine Labor Relations 
Board by 26 MRS §968(5), it is ORDERED:
     The Executive Director's decision dated January 25, 2016, 
     DISMISSING the prohibited practice complaint filed by 
     Complainant David Trask on December 28, 2015, against the 
     Town of Madison in Case No. 16-06, is AFFIRMED.

Dated at Augusta, Maine, this 20th day of April 2016


The parties are advised of their right pursuant to 26 M.R.S.A. §968(5)(F) to seek a review by the Superior Court of this decision by filing a complaint in accordance with Rule 80C of the Rules of Civil Procedure within 15 days of the date of this decision.


Katharine I. Rand

Amie M. Parker
Employee Representative

Robert W. Bower, Jr.
Employee Representative


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