Decision:  1997 ME 24
Docket:    HAN-96-456
Argued:    December 3, 1996
Decided:   February 14, 1997

                        RONALD J. BROWN 





     [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 


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  

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 

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.

  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

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.

     [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.


     The entry is:

     Judgment affirmed.


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).