Decision:  7109
Docket:    PEN-94-483 
Submitted on briefs:  November 17, 1994
Decided:   January 11, 1995

                            TERENCE J. HUGHES 
                           UNIVERSITY OF MAINE

LIPEZ, JJ.  All concurring.


     Terence Hughes appeals from a judgment entered in the Superior Court
(Penobscot County, Mills, J.) in favor of the University of Maine on an 
appeal from the judgment of the District Court (Bangor, Hjelm, J.) on 
Hughes's complaint against the University seeking reimbursement for 
certain travel expenses.  The Superior Court concluded that the District 
Court erred by denying the University's motion to dismiss the complaint. 
We affirm the judgment.

     The record discloses the following undisputed facts:  Hughes is a 
tenured faculty member at the University of Maine.  The University 
advanced Hughes $10,000 for his January 1988 scheduled attendance at a 
conference in Moscow and his February 1988 scheduled attendance at a 
symposium in Hobart, Australia.  Following his return, Hughes provided 
receipts and documentation for the expenses of the trip.  The University 
disallowed a portion of his claimed expenses.  After Hughes refused the 
University's request to return a portion of the previous advancement, 
the University suspended Hughes for eight days without pay, the

approximate equivalent to the amount Hughes allegedly owed to the 
University.  This suspension was later reduced to 6.5 days when Hughes 
provided additional documentation for his claimed expenses.

     Following his suspension without pay the Associated Faculties of the
University of Maine System [AFUM] initiated a grievance on behalf of 
Hughes claiming the University had violated Article 15(B) of the 
collective bargaining agreement between the University and AFUM that 
provides "no unit member shall be terminated, suspended, or disciplined 
without just cause."  Article 15(A) defines suspension to mean "the 
temporary removal of a unit member from the performance of duties."

     Following AFUM's inability to negotiate a settlement with the 
University that was satisfactory to Hughes, AFUM determined not to take 
Hughes's claim to arbitration.  Thereafter, Hughes brought the present 
small claims action against the University pursuant to 14 M.R.S.A.  7481 
(Supp. 1994).[fn]1  The University moved to dismiss the complaint on the 
ground that Hughes had not exhausted his contractual remedies.

     At the hearing, in support of its motion the University argued, 
inter alia, that the collective bargaining agreement provided the 
exclusive remedy for the dispute between Hughes and the University, that 
AFUM had sole power pursuant to the agreement to invoke arbitration, and 
that AFUM's election not to pursue arbitration precluded Hughes's 
present action against the University.  The District Court rejected this 
contention and denied the dismissal on the ground that because the 
grievance process had been satisfied to the extent that Hughes 
individually could have proceeded pursuant to the collective bargaining
agreement,[fn]2 Hughes could properly maintain the present action.  
On the merits of Hughes's small claim action, the District Court found 
that Hughes had failed to meet his burden of proof that the University 
had wrongfully denied him the claimed reimbursement for travel expenses 
and granted a judgment in favor of the University.  Hughes appealed to 
the Superior Court, and the University cross-appealed the denial of its 
motion to dismiss Hughes's complaint.  After a hearing, the Superior 
Court denied Hughes's appeal and remanded the case to the District Court 
for a dismissal of Hughes's complaint.  From the judgment entered
accordingly, Hughes appeals.

     When, as here, the Superior Court's review is of the record 
developed before the District Court, we review that record directly.  
Noyes v. Noyes, 617 A.2d 1036, 1037 (Me. 1992).  The decisive issue in 
this appeal is whether the District Court erred in denying the 
University's motion to dismiss Hughes's claim against the University.  
We conclude that it did.  Hughes does not dispute that as a professor 
employed by the University he is bound by the collective bargaining
agreement between the University and AFUM, the sole and exclusive 
bargaining agent for such employees.  Hughes's claim that he was 
wrongfully suspended without pay in response to his refusal to reimburse 
the University for travel expenses requires interpretation of Article 15 
of the collective bargaining agreement.  Article 14 of the collective 
bargaining agreement between AFUM and the University provides a five-step 
grievance procedure as the exclusive remedy for resolving a dispute that 
"exists with respect to the interpretation or

1.  Pursuant to 14 M.R.S.A.  7481 (Supp. 1994), the District Court has
jurisdiction of small claims.  At the time Hughes instituted the present
proceeding, the jurisdictional amount was limited to $1,400 exclusive of
interest and costs.  Hughes waived any claim in excess of that amount.  
By P.L. 1993, ch. 401,  3 the amount has been raised to $3,000. See 
14 M.R.S.A.  7482 (Supp. 1994).

2.  Although the University of Maine System Labor Relations Act permits a
University employee to present a grievance to the University directly and 
obtain an adjustment without the intervention of AFUM, this option is 
only available if the adjustment is not "inconsistent with the terms of 
any collective bargaining agreement."  26 M.R.S.A.  1025(E) (Supp. 
1994).  Article 14(C) of the collective bargaining agreement between the 
University and AFUM provides that the employee may proceed through the 
first three steps of the five-step formal grievance procedure without 
AFUM representation.  The fifth step provides that "in the event a 
grievance is not satisfactorily resolved at Step 4 of the grievance
procedure and the Association wishes to proceed to arbitration, it shall 
serve written notice to that effect."

application of this Agreement."  Although Hughes could proceed through
Step 3 of the grievance procedure without representation by AFUM.  
AFUM had the exclusive power to pursue the grievance beyond Step 3, 
including the invocation of arbitration contemplated by Step 5.  When 
AFUM did not invoke arbitration pursuant to Step 5, Hughes brought the 
present action against the University.

     We have traditionally looked to the federal courts for guidance in
interpreting our Labor Relations Acts.  See, e.g., Lundrigan v. Maine 
Labor Relations Board, 482 A.2d 834, 836 (Me. 1984); M.S.A.D. No. 43 
Teachers' Ass'n v. M.S.A.D. No. 43 Bd. of Directors, 432 A.2d 395, 
398 n.6 (Me. 1981).  In Republic Steel Corp. v. Maddox, 379 U.S. 650, 
13 L. Ed. 2d 580, 85 S. Ct. 614 (1965), the United States Supreme Court 
held that "individual employees wishing to assert contract grievances 
must attempt use of the contract grievance procedure agreed upon by the 
employer and union" before seeking direct legal redress.  Id. at 652. 
In Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967), 
the Court, in determining the rights of an employee pursuant to a 
collective bargaining agreement with language similar to Step 5 of
Article 14(C) in the agreement between the University and AFUM, fully 
reexamined the requirement of Republic Steel.  The Court accepted the 
proposition that a union may not arbitrarily ignore a meritorious 
grievance or process it in a perfunctory manner, but rejected the 
proposition that the individual employee has an absolute right to have a 
grievance taken to arbitration without regard to the applicable 
provisions of the collective bargaining agreement.  Id. at 191.

     The Court recognized two situations, however, when an employee could 
obtain judicial review of a claim against an employer in the face of a 
defense based upon failure to exhaust contractual remedies.  One, when 
"the conduct of the employer amounts to a repudiation of those 
contractual procedures," and the second when "the union has sole power 
under the contract to invoke the higher stages of the grievance 
procedure, and if ... the [employee] has been prevented from exhausting 
his contractual remedies by the union's wrongful refusal to process the 
grievance."  Id. at 185.  The Court defined a "wrongful" refusal as a 
breach of the union's duty to fairly represent the employee.  Id. at 186.  
The Court explained that a breach occurs "only when a union's conduct
toward a member of the collective bargaining unit is arbitrary, 
discriminatory, or in bad faith."  Id. at 190.

     In narrowly defining the circumstances in which an employee may seek 
judicial review before exhausting his remedies provided in the collective 
bargaining agreement, the Court reasoned:

  In providing for a grievance and arbitration procedure which gives the 
  union discretion to supervise the grievance machinery and to invoke 
  arbitration, the employer and the union contemplate that each will 
  endeavor in good faith to settle grievances short of arbitration.  
  Through this settlement process, frivolous grievances are ended prior 
  to the most costly and time-consuming step in the grievance procedures.  
  Moreover, both sides are assured that similar complaints will be 
  treated consistently, and major problem areas in the interpretation of 
  the collective bargaining contract can be isolated and perhaps 
  resolved.  And finally, the settlement process furthers the interest of 
  the union as statutory agent and as coauthor of the bargaining 
  agreement in representing the employees in the enforcement of that 

Vaca, 386 U.S. at 191.  See also Williams v. Sea-Land Corp., 844 F.2d 17 
(1st Cir. 1988) (when union settled employee's complaint against employer 
for wrongful discharge short of arbitration, union's refusal to file 
grievance not breach of fair representation and employee could not 
maintain action against employer and union); Smegal v. Gateway Foods of 
Minneapolis, Inc., 763 F.2d 354, 359 (8th Cir. 1985) (only if exhaustion 
of contractual remedies precluded by union's breach of duty of fair 
representation can this obligation be by-passed); Slagley v. Illinois 
Central Railroad Co.,  397 F.2d 546, 551-52 (7th Cir. (1986) (employee 
attempting to enforce collective bargaining agreement  

must allege attempts to utilize contract grievance procedure thwarted by
union conduct constituting breach of duty of fair representation).

     In the instant case, Hughes makes no claim that the conduct of the 
University amounted to a repudiation of the contractual grievance 
procedures or that AFUM wrongfully, arbitrarily, in bad faith or in 
violation of any statutory duty breached its contract with him by 
refusing to pursue to arbitration his claim against the University. 
Accordingly, the Superior Court properly determined that the District 
Court erred in denying the University's motion to dismiss Hughes's claim 
against the University.

     The entry is:

     Judgment affirmed.

     All concurring.