Lundrigan v. Maine Labor Relations Board, 482 A.2d 834 (Me. 1984), 
affirming No. CV-83-81 (Me. Super. Ct., Ken. Cty., July 25, 1983) and
Lundrigan v. State Department of Personnel and Maine State 
Employees Association, No. 83-03. 


MAINE SUPREME JUDICIAL COURT                        Reporter of Decisions
                                                    Decision No. 3613
                                                    Law Docket No. Ken-83-320

                       WILLIAM E. LUNDRIGAN



                     Argued September 6, 1984
                     Decided October 10, 1984

       SCOLNIK, JJ.


     William E. Lundrigan appeals from a judgment of the Superior
Court, Kennebec County, which affirmed a decision and order
of the defendant-appellee Maine Labor Relations Board (MLRB)
dismissing his prohibited practices complaint.  Lundrigan contends
that the MLRB erred in finding that:  (1) his prohibited practices
claim against the State Department of Personnel was time-barred
by 26 M.R.S.A.  979-H(2) (Supp. 1983); and (2) his allegations
against his union, the Maine State Employees Association (MSEA),
could not, as a matter of law, constitute a breach of the duty
of fair representation.  We agree with the Superior Court and
affirm the judgment.

     Lundrigan's grievance results from the failure of the State
Department of Personnel to select him for the position of Director
of the Division of Finance in the Department of Educational

and Cultural Services in June  of 1981.  In April of 1981, the
Department of Personnel (hereinafter the State) solicited appli-
cations for the position.  Lundrigan, the acting director of
the Division of Finance, was one of many candidates for the
job.  In June of 1981, the interview committee chose another
applicant for the position.  Lundrigan then initiated action
in accordance with the three-stage grievance procedure provided
in his bargaining agreement.  His grievance alleged that the
State violated the collective bargaining agreement, acted arbitrar-
ily, and violated concepts of career service in failing to promote
him to the position of Director of Finance.

     Because the grievance remained unresolved throughout the
first three stages of the procedure, Lundrigan, represented
by an MSEA  attorney, took the grievance to arbitration.  In
an award issued on March 11, 1983, the arbitrator denied the
grievance, finding that the State neither violated the bargaining
agreement nor abused its discretion by failing to select Lundrigan
for the job.

     On July 16, 1982, Lundrigan filed a prohibited practices
complaint with the MLRB, alleging that the State had breached
various duties and obligations in handling his job application.
Further, he contended that the MSEA, through its attorney, had
violated its duty of fair representation.  The executive director
of the MLRB dismissed the complaint for failing to allege facts
which would constitute a violation of the State Employees Labor
Relations Act.  Lundrigan then appealed the executive director's

decision and filed another more detailed prohibited practices
complaint on October 6, 1982.  On October 20, 1982, the full
board issued an order upholding the executive director's dismissal
of the initial complaint and further ordered that the second
complaint be scheduled for a pre-hearing conference.  Following
the pre-hearing conference the Board granted the defendants'
motions to dismiss and dismissed the complaint without a hearing.

     Lundrigan then appealed to the Superior Court pursuant
to 26 M.R.S.A.  979-H(7) (Supp. 1983), which affirmed the decision
of the MLRB.  The Superior Court functions as an intermediate
appellate court when undertaking direct judicial review of an
administrative record.  The standard of review is the same in
the Law Court as it was before the Superior Court.  We review,
therefore, the decision of the MLRB under the standard of review
set forth in 5 M.R.S.A.  11007 (1979).  See Council 74, AFSCME
v. Maine State Employees Ass'n, 476 A.2d 699, 703 (Me. 1984).


     Lundrigan first contests the MLRBIs ruling that his prohibited
practice complaint against the State was time-barred by 26 M.R.S.A. 
979-H(2) (Supp. 1983).  Section 979-H(2) provides in pertinent
part that "no hearing shall be held based upon any alleged prohibited
practice occuring more than 6 months prior to the filing of
the complaint with the executive director."  Lundrigan's complaint
alleged that the State unlawfully interfered with the exercise
of his labor rights on June 22, 1981, when the Commissioner

of the Department of Education and Cultural Services threatened
to give Lundrigan poor references and evaluations should he
initiate a grievance concerning certain procedures utilized
in the hiring process.  Lundrigan's initial filing with the
MLRB did not occur until July 16, 1982, more than a year after
the alleged prohibited practice.

     Lundrigan contends that he "in effect" met the six month
requirement because he was required to utilize the applicable
grievance procedures under his contract before pursuing other
remedies.  However, in Lewiston Firefighters Ass'n, Local 785
v. City of Lewiston, 354 A.2d 154, 166-168 (Me. 1976), we noted
that contractual rights grounded in a bargaining agreement and
similar statutory rights are legally independent and as such
are enforceable concurrently in two different forums.  See also
Board of Directors of Maine School Admin. Dist. No. 33 v. Teachers
Ass'n of Maine School Admin. Dist. No. 33, 392 A.2d 1097, 1100
and n.2 (Me. 1978) (where bargaining agreement did not confer
exclusive power to determine substantive arbitrability upon
arbitrator, issue remained open for court determination).  We
therefore affirm the MLRB's dismissal of Lundrigan's charge
because he failed to enforce his independent statutory rights
within the time frame specified in section 979-H(2).


     Lundrigan next contends that the MLRB erred by dismissing
his charge against the Maine State Employees Association for

failure, as a matter of law, to constitute a breach of the duty
of fair representation.  The MSEA has a statutory duty to represent
employees fairly in its enforcement of the collective bargaining
agreement.  To constitutes breach of the duty of fair represen-
tation, the union's conduct toward its members must be arbitrary,
discriminatory or in bad faith.  Thus, the union may not ignore
a meritorious grievance or process it in a perfunctory manner.
See Vaca v. Sipes, 386 U.S. 171 (1967).  Nevertheless, a "[w]ide
range of reasonableness must be allowed" and "[m]ere negligence,
poor judgment or ineptitude are insufficient to establish a
breach of the duty of fair representation."  See Ford Motor
Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048

     The controlling language in 26 M.R.S.A.  979-H(2) (Supp. 1983)
provides that "[i]f it is determined that the facts do not,
as a matter of law, constitute a violation, the charge shall
be dismissed by the executive director, subject to review by
the board."  The MLRB, upon review of all the material before
it, ruled that the charge, as a matter of law, did not constitute
a breach of the duty of fair representation under the Act.
We review such a determination as a ruling of law.  However,
"the construction placed on the statute by the Board, as the
agency charged with its enforcement, should be acccorded 'consid-
erable deference' by a reviewing court."  State v. Maine Labor
Relations Board, 413 A.2d 510, 514 (Me. 1980) (citing Ford Motor
Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d

420 (1979)).  Our review of the entire record indicates that
the decision of the MLRB in dismissing Lundrigan's charge for
failure to constitute a breach of the duty of fair representation
on the part of the MSEA was not "[a]rbitrary, capricious or
characterized by abuse of discretion."  5 M.R.S.A.  11007(4)(C)(6)

     The remaining issues raised on appeal are without merit
and require no discussion.

     The entry is:

                                                Judgment affirmed.

All concurring.