MAINE SUPREME JUDICIAL COURT
Decision: 1997 ME 24
Docket: HAN-96-456
Argued: December 3, 1996
Decided: February 14, 1997
RONALD J. BROWN
v.
MAINE STATE EMPLOYEES ASSOCIATION
Before: WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD,
RUDMAN, DANA and LIPEZ, JJ.
CLIFFORD, Justice
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[1] Ronald Brown appeals from a judgment entered in the Superior
Court (Hancock County, Mead, J.) dismissing his complaint against the
Maine State Employees Association (MSEA) seeking to recover for his
damages flowing from the alleged negligent failure on the part of an
attorney for the union to file in a timely manner a demand for
arbitration of Brown's grievance with the Maine Labor Relations Board.
On appeal, Brown contends, inter alia, that he has pleaded a viable cause
of action and that the court erred in dismissing his complaint for the
failure to state a claim on which relief may be granted. Unpersuaded by
Brown's contentions, we affirm the judgment.
[2] Brown worked as the director of the psychology department at
the Bangor Mental Health Institute from 1989 until 1993. In October
1993, Brown was the subject of a disciplinary action and, following that
action, was reprimanded, suspended, and demoted. Brown subsequently
began a grievance pursuant to a procedure that existed in the
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collective bargaining agreement between the State of Maine and the MSEA.
The MSEA provided an attorney to work on Brown's grievance. At an
intermediate step of the procedure, the Bureau of Employee Relations
issued a decision denying Brown's grievance. The attorney failed to
timely file a request to move forward to arbitration, the next step in
the grievance process, and as a result, Brown's grievance was dismissed.
[3] On February 20, 1996, without filing a complaint with the
Board regarding the attorney's conduct, Brown filed suit in the Superior
Court against the MSEA and the lawyer alleging they had committed
professional malpractice by failing to file in a timely fashion the
demand for arbitration. Brown amended the complaint to add a second
count alleging that the union had breached its duty of fair
representation. Subsequently, Brown and the MSEA stipulated to a
dismissal of the lawyer from the suit.[fn]1
[4] After a hearing, the court granted the MSEA's motion to
dismiss both counts. The court concluded that Count I should be
dismissed because "no independent tort for professional (legal)
negligence exists where an employee of a union commits a negligent act
in the representation of an employee pursuant to a collective bargaining
agreement." The court declined to exercise concurrent jurisdiction with
the Board over Count II, alleging a breach of the duty of fair
representation, and in any event, found that it was time barred by the
six-month statute of limitations for filing a complaint with the Board as
provided in the State Employees Labor Relations Act, 26 M.R.S.A. 979
to 979-Q (1988 & Supp. 1996). Brown's appeal followed.
[5] A motion to dismiss tests the legal sufficiency of the
complaint. Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995). We review
a judgment granting a motion to dismiss by treating the material
allegations of the complaint as true and examining the complaint in the
light most "favorable to the plaintiff to determine whether it alleges
the elements of a cause of action against the defendant or alleges facts
that could entitle the plaintiff to relief under some legal theory[.]"
Id. (citing Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 99
(Me. 1984)).
[6] The relationships among the employee, the public employer, and
the union are governed by the statutory scheme set out in the State
Employees Labor Relations Act, 26 M.R.S.A. 979 to 979-Q (1988 & Supp.
1996). The Legislature has granted the Board jurisdiction over both the
employer and the union to remedy prohibited practices. 26 M.R.S.A.
979-H (1) (1988). A complainant must file a prohibited practices
complaint with the executive director of the Board no later than six
months after its alleged occurrence. 26 M.R.S.A. 979-H (2) (1988).
Prohibited practices include prohibiting a union from interfering with,
restraining or coercing employees in the exercise of the rights
guaranteed in section 979-B . . . ." 26 M.R.S.A. 979.C(2)(A).[fn]2
[7] We have said that a union commits a prohibited practice by
breaching its statutory duty to fairly represent its members. Lundrigan
v. Maine Labor Relations Board, 482 A.2d 834 (Me. 1984). In Lundrigan,
we concluded that a union breaches its "duty of fair representation" when
the union's conduct toward its members [is] arbitrary, discriminatory
or in bad faith. Thus, the union may not ignore a
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1. This dismissal is consistent with the generally accepted principle
that union agents, including lawyers, are not personally liable to
individual members for actions taken on behalf of the union during the
collective bargaining process. See Breda v. Scott, 1 F.3d 908
(9th Cir. 1993); Montplaisir v. Leighton, 875 F.2d 1 (1st Cir. 1989);
see generally Atkinson v. Sinclair Refining Co., 370 U.S. 238, 247-49,
8 L. Ed. 2d 462, 82 S. Ct. 1318 (1962) (immunity generally for union
agents).
2. Section 979-B provides:
979-B. Right of state employees to join labor organizations
No one shall directly or indirectly interfere with, intimidate,
restrain, coerce or discriminate against state employees or a group of
state employees in the free exercise of their rights, hereby given,
voluntary 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.
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meritorious grievance or process it in a perfunctory manner.
Nevertheless, a "wide range of reasonableness must be allowed" and
"mere negligence, poor judgment or ineptitude are insufficient to
establish a breach of the duty of fair representation."
Id. at 836. (citations omitted); see Vaca v. Sipes, 386 U.S. 171,
17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). "Freeing a union from liability
for ordinary acts of negligence in the performance of its
representational responsibilities requiring judgment on its part,
reflects a balance of the union's organizational interest against the
individual interests of its members." Peterson v. Kennedy,
771 F.2d 1244, 1255 (9th Cir. 1985). In Vaca, the United States Supreme
Court stated that "under [the duty of fair representation], the
exclusive agent's statutory authority to represent all members of a
designated unit includes a statutory obligation to serve the interests
of all members without hostility or discrimination toward any . . . ."
386 U.S. at 177.
[8] Once the Board finds a prohibited practice, it "shall issue
and cause to be served upon such party an order requiring such party to
cease and desist from such prohibited practice and to take such
affirmative action, including reinstatement of employees with or without
backpay, as will effectuate the policies of this chapter." 26 M.R.S.A.
979-H (3) (emphasis added). The Board's remedial powers are exercised
in an attempt to restore "'the situation, as nearly as possible, to that
which would have been obtained' but for the unfair labor practice."
Caribou School Dep't v. Caribou Teachers Ass'n, 402 A.2d 1279, 1284
(Me. 1979) (citations omitted). In the context of the analogous and
nearly identical Municipal Public Employees Labor Relations Act,
26 M.R.S.A. 961-974 (1988 & Supp. 1996), we have concluded that "the
Board has broad discretion in fashioning appropriate relief for the
employer's prohibited practices . . . ." City of Bangor v. American
Fed'n of State, County, and Mun. Employees Council 74, 449 A.2d 1129,
1136 (Me. 1982); see also Council 74, American Fed'n of State, County
and Mun. Employees v. Maine State Employees Ass'n, 476 A.2d 699, 704
(Me. 1984) (Board ordered new election); Association of Indep. Prof'ls
v. Maine Labor Relations Bd., 465 A.2d 401, 411 (Me. 1983) (suggesting
that proper remedy for distribution of false and misleading information
to members is for the association to circulate an ameliorative notice.).
[9] In light of this comprehensive statutory scheme, we disagree
that Brown additionally was entitled to a common law action in the
Superior Court. The Act creates and defines the rights of a public
employee against the employer and the union in the formation and exercise
of collective bargaining agreements, and Brown must look to the
provisions of that Act for his remedy.[fn]3 Brown could have filed a
prohibited practices complaint against the union alleging a breach of the
duty of fair representation.[fn]4 Brown also could have named the
employer in his prohibited practices complaint, and that inclusion would
have enabled the Board, if it found a wrong, to attempt to provide a
remedy. Accordingly, we decline to recognize a common law action for the
professional negligence of the union in addition to the right created by
the statute.[fn]5
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3. Brown's rights arise from the creation of the Act. Absent the
existing statutory scheme or some binding contract, Brown would have
been a employee at will.
4. Brown filed his complaint in the Superior Court on February 20, 1996,
eight months after an arbitrator dismissed his grievance as not timely
filed. Thus, as of February 20, he was time-barred from filing a
prohibited practices complaint with the Board.
5. Upholding the uniformity of the statutory scheme compels this result.
The Act was created "to promote the improvement of the relationship
between the State of Maine and its employees by providing a uniform
basis for recognizing the right of state employees to join labor
organizations of their own choosing and to be represented by such
organizations in collective bargaining for terms and conditions of
employment." 26 M.R.S.A. 979 (1988). The creation of a common law
cause of action for negligence by the union undermines that purpose.
For the same reasons, we conclude that the court correctly declined to
exercise concurrent jurisdiction over Count II. The Act expressly
provides for Superior Court review of a Board decision or order on
appeal. 26 M.R.S.A. 979-H (7) (Supp. 1996). Moreover, 26 M.R.S.A.
979-H(6) (1988), allows a party making a prohibited practices
complaint simultaneously to seek injunctive relief in the courts for
blacklisting or an employee's engagement in a work stoppage, slowdown,
or strike. 26 M.R.S.A. 979-H(6) (1988). Inferring from these
statutes, and in the furtherance of the interest in uniformity, we
conclude that the exclusive jurisdiction for the breach of the duty of
fair representation lies with the Board.
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[10] Brown's labeling of his claim as one for attorney malpractice
does not alter this conclusion and does not accurately describe the
underlying, alleged wrong. Although, in fact, the union provided an
attorney in this case, Brown did not enter into an attorney-client
relationship with that lawyer. The choice to use a lawyer as opposed to
another union worker to process Brown's grievance was the union's
decision. In Peterson v. Kennedy, 771 F.2d 1244 (9th Cir. 1985), the
Ninth Circuit Court of Appeals detailed the relationship between the
attorney, the grievant, and the union that exists in the present case:
We recognize that there are cases in which an attorney represents
the union in an arbitration proceeding, but the underlying grievance
belongs to a particular union member who has a very real interest in
the manner in which the grievance is processed . . . Nevertheless,
when the union is providing the services, it is the union, rather
than the individual business agent or attorney, that represents and
is ultimately responsible to the member.
Id. at 1258. Brown could not fire the union lawyer nor control his
actions, and the attorney's status as such was incidental to the services
he performed to process Brown's grievance. In the absence of an
attorney-client relationship, the professional negligence claim against
the union fails as a matter of law. See Fisherman's Wharf Assocs. II v.
Verrill & Dana, 645 A.2d 1133, 1136 (Me. 1994) (citing Rowe v. Bennett,
514 A.2d 802, 804 (Me. 1986)).
[11] The essence of Brown's claim is that the union did not fairly
represent him because it negligently missed a filing deadline that
resulted in the extinguishment of Brown's grievance. That failure is
covered within the contours of the statutory duty of fair
representation.[fn]6 Brown should have filed a prohibited practices
complaint with the Board, and Brown's failure to do so in this case
forecloses any remedy that he otherwise might have had.
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[12]
The entry is:
Judgment affirmed.
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6. Because Brown could have had a remedy before the Board, the Superior
Court's decision did not, as a matter of law, deprive him of a remedy
for a wrong committed against him. Me. Const. art. I 19; see Mathieu
v. Bath Iron Works, 667 A.2d 862, 866 (Me. 1995) (worker had remedy
under Workers' Compensation Act).