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MAINE LABOR RELATIONS BOARD
Case No. 18-20
Issued: September 28, 2018
JEFFREY L. MACOMBER,
Complainant,
v.
MAINE STATE EMPLOYEES ASSOCIATION, SEIU LOCAL 1989,
Respondent.
ORDER ON APPEAL OF EXECUTIVE DIRECTOR'S DISMISSAL OF COMPLAINT
I. Statement of the Case
This prohibited practice complaint (Complaint) alleges a union
violated its duty of fair representation to a bargaining unit
employee by, in large part, failing to correct a procedural
defect during the processing of a grievance. This error resulted
in an arbitrator ruling against the employee. After reviewing
the sufficiency of the Complaint, the Executive Director of the
Maine Labor Relations Board (Board) dismissed it for failure to
state a claim upon which relief may be granted by the Board.
Upon review of the Executive Director's determination, we uphold
the Complaint's dismissal.II. Background and Executive Director's Dismissal of Complaint[fn]1
Jeffrey L. Macomber (Macomber or Complainant) is employed by
the State of Maine, Department of Corrections (Employer). Prior
to March 12, 2015, Macomber was promoted to a Captain/JFOS
position. On March 12, 2015, the Maine State Employees[fn]1 The facts stated in this Order derive from the Complaint, as originally filed
Association, SEIU Local 1989 (Union) filed a grievance
and amended.
[end of page 1]
(Grievance) on Macomber's behalf alleging that the Employer
violated the parties' collective bargaining agreement (Contract)
by failing to place Macomber in the appropriate pay step
following his promotion.[fn]2 In part, the Grievance expressly
asserted that the Employer violated the Contract's Seniority provisions.On June 1, 2015, the Union filed a Demand for Arbitration for
the Grievance.[fn]3 Although the Demand for Arbitration included a
description of the nature of the dispute at issue, thisdescription failed to include any reference to the Contract's
Seniority article. Arbitrator James M. Litton, Esq., was
selected to conduct the Grievance arbitration.On July 14, 2016, Arbitrator Litton issued an award for a
Following the issuance of Arbitrator Litton's July 2016 award,
grievance filed by the Union, but for a matter unrelated to
Macomber or his Grievance.[fn]4 In part, the Arbitrator determined he
was precluded from analyzing a particular claim raised by the
Union because the Union had not referred to the related contract
article in its demand for arbitration.
the Union failed to take corrective steps to include the
[fn]2 While not specifically alleged in the Complaint, the Board assumes for the
purposes of this Order that Macomber is a member of a bargaining unit for which
the Union is the certified, exclusive bargaining agent per 26 M.R.S. § 979-F.[fn]3 Article 34 of the Contract provides the parties' grievance procedure. Per
Article 34, Section 1, employees have the right to present grievances. If a
grievance is unresolved by step 3 of the process, Article 34, Section 2.4, Step
4(a) provides, in part that "MSEA-SEIU may submit the grievance to arbitration
by submitting a request for Arbitration...as well as a statement of the grievance
specifying the Article, section or clause of the contract alleged to have been
violated... ." In the event the parties proceed to arbitration, Article 34,
Section 2.4, Step 4(c), requires the parties share the cost of arbitration
equally.
[fn]4 At the time of the July 2016 award's issuance, the Macomber Grievance
remained pending arbitration.
[end of page 2]
Contract's Seniority provisions in its Demand for Arbitration in
On December 4, 2017, Arbitrator Litton issued his award for
Macomber's case while the Grievance remained pending arbitration.
the Grievance. The Arbitrator found that the Union failed to
include the Contract's Seniority article in its Demand for
Arbitration, per Article 34 of the Contract.[fn]5 Thereafter, the
Union did not pursue any appeal of the award, nor did it notify
Macomber that it would not pursue appeal. The Union also did not
inform Macomber there was a 90-day deadline to file an appeal per
the Maine Uniform Arbitration Act, 14 M.R.S. § 5938.On May 29, 2018, Macomber filed this Complaint alleging that
On June 14, 2018, the Board?s Executive Director notified
the Union violated the State Employees Labor Relations Act (Act),
26 M.R.S. § 979, et seq., by failing to include the Contract's
Seniority article in its Demand for Arbitration and by failing to
inform Macomber of the 90-day deadline to appeal the award.[fn]6
Macomber, in writing, of potential deficiencies in the Complaint
including a possible failure to state a claim upon which relief
may be granted.On June 29, 2018, Macomber filed an amended Complaint.[fn]7 In
part, the amended Complaint reiterated the original allegations,
[fn]5 While not alleged in the Complaint, we will assume for the purposes of this
Order that the Arbitrator rendered a decision adverse to Macomber and that the
Union's failure to include the Seniority provisions in its Demand for
Arbitration was a determinative factor in the Arbitrator's decision.[fn]6 The Complaint, as originally filed, mistakenly alleged a violation of the
sections of the Act that address prohibited practices by employers as compared
to unions. On June 13, 2018, per MLRB Rule Chapter 12, § 8, the Union filed a
Motion for a Ruling on Sufficiency of the Complaint noting the apparent
erroneous citation to the Act.[fn]7 The amended Complaint corrected the sections of the Act cited to include only
those that address prohibited practices by unions.
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but also expanded upon those allegations by further describing
The duty of fair representation was breached in three ways:
the Union's knowledge of Arbitrator Litton's July 2016 award as
well as the Union's failure to correct the Demand for Arbitration
to include the Seniority article. Macomber summarized his
allegations as follows:1. Failure to review/correct the Demand for Arbitration on
behalf of all grievants after being informed on July 14,
2016 in another case...of the importance of particularity
in the Demand for Arbitration.
2. Failure to file a Motion to Vacate the Arbitration Award
within 90 days of the decision... .
3. Failure to communicate with the Grievant, before the
Motion to vacate the Arbitration Award deadline,
regarding the decision of the Union not to pursue a
Motion to Vacate the Arbitration Award, thereby causing
any Motion filed by grievant himself or outside Counsel
to be time-barred.See Amended Complaint in Case No. 18-20. (Edits supplied).
On July 12, 2018, the Executive Director dismissed the
Complaint for failure to state a claim upon which relief may be
granted. With regard to the Union's failure to include the
Seniority article in its Demand for Arbitration, and its failure
to review all pending demands for arbitration to ensure that all
issues had been included, the Executive Director noted while the
Union's actions might be evidence of negligence or poor judgment,
said conduct does not constitute a violation of the Union's duty
of fair representation under the applicable Maine Law Court
precedent. In connection to the Union's failure to inform
Macomber of the 90-day deadline to file a motion to vacate the
arbitration award, and its decision to not pursue such a motion,
the Executive Director concluded that a successful motion was
[end of page 4]
unlikely given the circumstances. He also observed that
Macomber, as an individual, lacked standing to appeal the
arbitration award because the Maine Uniform Arbitration Act
limits the right to appeal to only a party to the arbitration,
which, in this case, was the Union by operation of Article 34 of
the Contract.[fn]8
Macomber timely filed with the Board a Motion to Review the
Executive Director's dismissal of the Complaint. Through the
Motion, Macomber reiterated his allegations against the Union and
asserted that the Union processed the Grievance in a perfunctory
manner. He also argued that any conclusion that the Union's
conduct was merely negligent is premature given the potential for
similar cases to have arisen since July 2016. Finally, he
asserted the Union's conduct denied him his constitutionally
guaranteed right to due process.[fn]9
III. Analysis and Conclusions
With regard to the Board's jurisdiction in this matter, because
the Complainant is employed by the State of Maine, Department of
Corrections, he is considered a State employee as defined in
Section 979-A(6) of the Act. Likewise, the Union was a bargain-
ing agent within the meaning of Section 979-A(1) of the Act at
all times relevant to this complaint. Accordingly, the juris-
diction of the Board to render a decision and order lies in
Section 979-H of the Act.
[fn]8 14 M.R.S. § 5938 reads in part: "Upon application of a party, the court
shall vacate an award where... ." (Emphasis supplied).[fn]9 Given the Board lacks the authority to adjudicate a specific claim that
alleged conduct violates the U.S. Constitution, this Order will not address
this particular allegation further. E.g. Sanford Police Association, No. 09-04
(January 28, 2009).
[end of page 5]
Upon the filing of a prohibited practice complaint, the Act
requires the Board's Executive Director to review the complaint
to determine whether the facts as alleged constitute a violation
of the Act, i.e. whether there is a basis for which relief may be
granted by the Board. 26 M.R.S. § 979-H(2); MLRB Rule Chapter
12, § 8. Further, the Act mandates the dismissal of the charge
if it is determined that the alleged facts do not, as a matter of
law, constitute a violation. Id.[fn]10In determining whether this Complaint, as amended, alleged
In this case, the Complaint alleges the Union violated its duty
facts sufficient to state a claim upon which relief may be
granted, the Board must treat the material allegations of the
Complaint as true and must consider the complaint in the light
most favorable to the Complainant. Neily v. State of Maine and
Maine State Employees Ass'n, No. 06-13, slip op. at 5-6 (MLRB
May 11, 2006), aff'd No. Mem. 07-89 (Me. May 15, 2007). However,
the Board is not obligated to accept as true legal conclusions
asserted in the Complaint. MSAD No. 46 Education Ass'n v. MSAD
No. 46, No. 02-13, at 2 (Nov. 27, 2002), citing Bowman v.
Eastman, 645 A.2d 5, 6 (Me. 1994).
of fair representation to Macomber. The statutory duty of fair
representation is established through Section 979-F(2)(E) of the
Act which generally requires a union to represent all of the
employees in its bargaining unit. In turn, a union violates
Section 979-C(2)(A) of the Act if it breaches its duty of fair
representation.
[fn]10 "If it is determined that the facts do not, as a matter of law, constitute a
violation, the charge must be dismissed by the executive director, subject to
review by the board." 26 M.R.S. § 979-H(2). (Emphasis supplied).
[end of page 6]
This Board and the Maine Law Court have held that the duty of
In this case, the Complainant alleges, in effect, that the
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).
Union's conduct was arbitrary.[fn]11 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."
Langley v. MSEA et al., 2002 ME 32 ¶9, 791 A.2d 100 (Feb. 22,
2002) quoting Air Line Pilots Association v. O'Neill, 499 U.S.
65, 67 (1991). It is well established that "[m]ere negligence,
poor judgment or ineptitude are insufficient to establish a
breach of the duty of fair representation." Lundrigan at 836,
quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct.
681, 686 (1953). However, a "union may not ignore a meritorious
grievance or process it in a perfunctory manner." Lundrigan at
836, citing Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903 (1967).Here, the facts as alleged are insufficient to state a claim
upon which the Board could grant relief. Specifically, even
though the Union failed to ever include the Seniority article in
its Demand for Arbitration--despite the fact that Arbitrator
Litton ruled against the Union for a near-identical mistake while
the Grievance remained pending arbitration--Macomber fails to
allege any facts from which one could conclude that this error
was anything but mere negligence or ineptitude as compared to
[fn]11 The Complaint makes no evident allegation that the Union's conduct was
discriminatory or in bad faith.
[end of page 7]
conduct that is so far outside a wide range of reasonableness as
to be irrational. C.f. Graf v. Elgin, Joliet & Eastern Ry., 697
F.2d 771 (7th Cir. 1983)(union did not violate its duty of fair
representation despite committing a potentially negligent
procedural error that prevented the processing of a grievance).Additionally, where it is undisputed that the Union invoked
As to the Union's decision to forgo appeal, Macomber fails
arbitration and brought the matter before an arbitrator, at
financial cost to the Union, such facts weigh against finding
that the Union ignored a meritorious grievance or treated the
Grievance in a perfunctory manner.
to plead any facts to suggest the Union's conduct was so
unreasonable as to be irrational given the circumstances of the
Arbitrator's decision and the seeming questionability of a
successful appeal.[fn]12 E.g. William H. Slavick v. The Associated
Faculties of the University of Maine, No. 85-16 (May 31, 1985) at
4-5 (union did not violate its duty of fair representation by
declining to file a grievance that was likely to be denied).
Additionally, where the language of the Maine Uniform Arbitration
Act limits the right of appeal to a "party," and in light of the
Contract's apparent designation of the Union as the named party
bringing the matter to arbitration, the Union's failure to notify
the Complainant of the appeal period, thus precluding the
Complainant from filing his own appeal was, again, not so
unreasonable as to be irrational.
[fn]12 Under the Maine Uniform Arbitration Act, an arbitration award may only be
vacated on the specific grounds enumerated in 14 M.R.S. § 5938(1). HL1, LLC v.
Riverwalk, LLC, 2011 ME 29, 15 A.3d 725.
[end of page 8]
Given the above, the Complaint failed to state a claim upon
which relief may be granted by the Board and is therefore subject
to dismissal.IV. Decision
For the foregoing reasons, we affirm the Executive Director's
dismissal of the Complaint.
Dated this 28th day of September 2018
MAINE LABOR RELATIONS BOARD
/s/_____________________________
Katharine I. Rand
Chair
/s/_____________________________
Robert W. Bower, Jr.
Employer Representative
/s/_____________________________
Dennis E. Welch
Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A.
§ 979-H(7) to seek a review of this decision and order by the
Superior Court. To initiate such a review, an appealing party must
file a complaint with the Superior Court within fifteen (15) days of
the date of issuance of this decision and order, and otherwise
comply with the requirements of Rule 80(C) of the Rules of Civil
Procedure.
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