Norman P. Whitzell v. Merrymeeting Educators' Assoc., No. 80-15, aff'd 
Norman P. Whitzell v. Merrymeeting Educators' Assoc. and MLRB, CV-80-124

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                                Case No. 80-15

              Complainant,  )
     v.                     )                      DECISION AND ORDER
ASSOCIATION,                )
              Respondent.   )
     Complainant filed this prohibited practice complaint on November 14,
1979, alleging that the Merrymeeting Educators' Association (MEA) discrimi-
nated against him because he was not a member and breached its duty of fair
representation in violation of Section 964(2)(A) of the Municipal Public
Employees Labor Relations Law (ACT), 26 M.R.S.A.  964(2)(A)(1974).  MEA
responded on December 7, 1979, denying that it had discriminated or breached
its duty to him.  Alternate Chairman Donald W. Webber held a pre-hearing
conference on December 18, 1979, after which he issued a pre-hearing
conference memorandum and order, dated December 21, 1979, which is
incorporated herein by reference.

     The Maine Labor Relations Board (Board) heard this matter on January 9,
January 10, February 4, and February 27, 1980, Edward H. Keith presiding,
with Employer Representative Don R. Ziegenbein and Alternate Employee Repre-
sentative Harold S. Noddin.  At the start of the first hearing, in response
to complainant's motion, the Board noted that it had jurisdiction to entertain
his claims and that it had authority to render at least some of the remedies
requested but it deferred a decision whether the Board could issue monetary
damages in this case until after hearing the merits.

     Both parties were afforded a full opportunity to present documentary
evidence, to examine and cross-examine witnesses, and to make argument.
Complainant was represented by George S. Isaacson, Esq.; the MEA by Howard T.
Reben, Esq., Margaret Cook, Esq., M. Elaine Patrick, Esq., and Gary Goldberg,
Esq.  Both sides ordered portions of the oral transcript, after which they
filed post-hearing briefs.

                               FINDINGS OF FACT

     Based upon the observation of the witnesses, the entire record in this
proceeding, and the briefs of the parties we find the following facts:

     1.  Respondent MEA is a public employee organization and a bargaining
         agent within the meaning of 26 M.R.S.A.  964(2) and  962(2).
         The MEA is the recognized bargaining agent for a unit of all
         certified professional employees of M.S.A.D. No. 75 except
         Superintendent, Assistant Superintendent, Principals, Assistant
         Principals and tutors (approximately 150 employees in all).
         Norman P. Whitzell was a public employee of S.A.D. No. 75 and a
         member of this bargaining unit at all relevant times.  See 26
         M.R.S.A.  962(6);  968(5)(8).  Delmont Perry


         is a UniServ Director employed by the National Education Asso-
         ciation (NEA), the Maine Teachers Association (MTA), and a
         UniServ Council of approximately 20 local presidents, includ-
         ing the president of the MEA.  Perry is not employed by the
         MEA but he assisted the MEA in handling the grievance in
         this case.  He is required, as he understands it, to render
         his services to the MEA as it desires.  Perry was an agent of
         MEA within the meaning of 26 M.R.S.A.  964(2) with regard to
         much of his conduct in this case.

     2.  Whitzell was hired by S.A.D. No. 75 In August 1977 as Coordinator
         of Special Education Services.  Based on his qualifications and
         experience, he was paid at the level of a teacher with a masters
         degree and seven years of experience.  Although he did not teach
         in a classroom, all unit members are nonetheless referred to in
         the 1978-80 collective bargaining agreement (Agreement) as
         "teachers."   He understood when hired that he was considered to
         be a "probationary" teacher and he signed a one year contract as
         such.  He also understood that the Agreement provision which
         protected teachers from discipline, dismissal, and non-renewal
         without just cause would not apply to him until he had acquired
         two years of service in S.A.D. No. 75.  The Agreement also
         specifically excepted the dismissal and non-renewal of teachers
         with two years or less of service from the grievance procedure.

     3.  Whitzell was initially hired by, and worked directly under,
         Superintendent Ralph Ulmer.  His primary duty was to bring S.A.D.
         75 into compliance with the relatively new federal "mainstreaming"
         law (Education Involving Handicapped Children Act).  The job was
         difficult because he, not unexpectedly, encountered some resistance
         from both administrators and classroom teachers within the district.

     4.  From the spring to the fail of 1978, Whitzell was on a committee to
         update the teachers evaluation form, which form was eventually
         changed for the 1978-79 school year.  Whitzell himself received no
         written evaluation during his first year.  The two other non-class-
         room teachers who also worked for Ulmer, the Director of Adult Edu-
         cation and another, also were not evaluated in this year.

     5.  On May 11, 1978, Whitzell signed a probationary teachers contract
         for a second year of employment.  Whitzell negotiated his salary
         directly with Superintendent Ulmer.

     6.  Whitzell did not ask to be evaluated and he did not complain about
         not being evaluated in his first year despite the fact that he was
         aware that the Agreement provided that probationary teachers were
         to receive three to five "visitation/evaluations" each year.

     7.  At the end of his first year, Whitzell claimed that Ulmer encouraged
         him to return for a second year.  Ulmer testified to the contrary
         that he was merely willing to see if problems with Whitzell's
         employment could be smoothed out in the second year.

     8.  The revised teacher evaluation form that was created for the 1978-
         79 school year, Whitzell's second year, was a complete change from
         the prior, half-sheet, narrative style evaluation form.  The revised
         version was a nine page objective form which was designed for the
         classroom teacher.  It made little sense to attempt to utilize this
         form to evaluate nonclassroom teachers, however.  Whitzell testified
         that he told Ulmer that the new form was not applicable to him.
         Ulmer agreed and asked Whitzell to send him a memo requesting that
         Ulmer use the format used for other administrators.  Whitzell was
         aware what this format was, i.e., once a year, on the basis of goals
         prepared in advance primarily by the evaluee.  Whitzell submitted
         such a memo to Ulmer dated October 3, 1978, requesting "that my

1.  Although uncontested in this proceeding, such direct negotiation would
    probably constitute a prohibited practice by the Superintendent because
    it bypasses and undermines the bargaining agent in violation of Section
    964(1)(E) of the Act.


         be completed in the same manner used to evaluate other adminis-
         trative personnel in the district."  Ulmer suggested and received
         similar memoranda from the two other members of the bargaining unit
         who were also administrators and not classroom teachers.
         On October 30, 1978, Whitzell submitted his goals to Ulmer.

     9.  On February 8, 1979, Ulmer evaluated Whitzell. He also evaluated
         the other two similarly situated "teachers" about this time.
         Whitzell was unaware that he was being evaluated until he actually
         received the written evaluation on February 13th.  Ulmer testified
         that he had become pretty firm about not reappointing Whitzell
         around December 1978.  He admitted that Whitzell's evaluation was
         not for the purpose of providing an opportunity for him to improve.
         Rather, he believed that it was useful in providing a basis for
         nonrenewal or termination.  The two-page evaluation itself identified
         areas that were less than satisfactory and needed improvement.
         According to Whitzell, this was the first notion he had that his job
         might be in jeopardy.

    10.  On February 17 or 18, 1980, Whitzell contacted Del Perry by phone
         about the adverse evaluation.  They met on February 20th at a local
         restaurant.  Perry suggested that the evaluation was grievable but
         recommended that Whitzell try speaking to Ulmer first about salvag-
         ing things before they considered filing a grievance.  They also
         discussed possibilities of generating support from parents as a form
         of political pressure.  Perry also indicated that he would check on
         his informal contacts with School Committee members to see what, if
         anything, he could learn and that he would check with other UniServ
         directors about possible avenues to pursue. (Perry later came up
         with the idea of employing a sensitivity specialist to aid the in-
         terpersonal relation problems which Ulmer was blaming Whitzell for.)

    11.  On February 21, 1980, Whitzell met with Ulmer and reviewed the
         evaluation point by point.  Ulmer claims that he told Whitzell at
         this time that he was not going to be renewed and suggested that
         Whitzell resign.  Whitzell denied that Ulmer said such things.
         Whitzell claimed that he asked Ulmer if he could write a rebuttal;
         Ulmer agreed; and they agreed to meet again afterwards.  Whitzell
         also testified that he asked for additional evaluations from Ulmer
         but conceded that he never mentioned this claim to anyone else.
         Whitzell began keeping a journal of events in a bound, two-year date
         book around this time.  This journal was submitted as one of his
         exhibits.  The page containing February 21st was ripped out, however.
         Whitzell explained that he ripped this page out before going to a
         lawyer on the case because he had written "unprintable things" about
         this conversation.

    12.  On March 12, 1980, Ulmer asked Whitzell if he had decided about
         resignation.  Whitzell, who maintained that this was the first he
         heard of it, said he would not.  Ulmer stated that he had been
         waiting to give Whitzell a chance to resign, and that it was
         customary to give oral notification of nonrenewal for this purpose.
         On the same day Whitzell dated his written rebuttal to the evalua-
         tion and gave it to Ulmer's secretary on that day or the next,
         March 13th.

    13.  Ulmer dated his letter notifying Whitzell of his nonrenewal on
         March 13, 1980; Whitzell received it some time after that.  As soon
         as he received it, he called Perry.  Perry said that they had better
         file a grievance and that he would draw it up.  They met, reviewed
         the situation, and Perry promised to mail it to Whitzell when
         complete.  Whitzell received it in the mail from Perry, signed it,
         and brought it to Ulmer on April 3. 1980.  The grievance stated that
         Whitzell "was not properly and timely evaluated."

    14.  On April 9, 1980, Whitzell claimed he spoke to Doug Rollins about
         the grievance.  Rollins was president of MEA, past vice president,
         and past chair of the MEA Professional Rights and Responsibilities
         Committee (PR&R Committee).  Whitzell told him that he filed it and
         that he understood that the MEA would then act on his behalf with
         respect to the grievance.  Whether this conversation ever took place
         is in dispute.  According to Whitzell, Rollins said words to the
         effect that since he was a nonmember it would be hard to support his


         grievance and that he would not get representation since he
         had not paid his dues.  Whitzell told him that he already had
         Perry's support.  Rollins' resistance softened by the end of
         the conversation.  Whitzell's journal generally supports his
         version of the event.  According to Rollins, however, such a
         conversation never took place and he never said these things.

    15.  Whitzell called Perry about this time. The substance of this
         conversation is also in dispute.  According to Whitzell, he
         called Perry immediately after speaking with Rollins about
         the latter's resistance to supporting the grievance of a
         nonmember.  Perry expressed disappointment to learn that
         Whitzell was not a member, said that the MTA does not like
         to give "free rides," and generally confirmed the resistance
         of Rollins.  Perry suggested that Whitzell write a letter to
         the president of the MTA requesting support on the grievance
         since the local (MEA) would not.  Whitzell wrote the letter the
         next day.[fn]2 Perry's version of this conversation is substantially
         different.  He testified that he did have a conversation with
         Whitzell at some point which covered the fact of his nonmem-
         bership status and that it could have been around this time.
         Perry did tell Whitzell that he would have to write to the presi-
         dent of the MTA seeking permission to have Perry work on his
         case.  Perry explained that this step is necessary so that he can
         justify to members the use of his time and the expense of repre-
         senting nonmembers.  A member does not have to do this.  (One
         membership form provides simultaneous membership in the local,
         the MTA and the NEA.)  Also according to Perry, he made no state-
         ments about Whitzell not being a member except for one on or
         about May 25th, referred to below.

    16.  On April 9th or 10th Perry called Rollins to tell him to set up a
         meeting about this grievance, Rollins agreed.  According to Rollins
         this was the first he heard of the grievance.  He also learned that
         Whitzell was not a member either at this time or on April 11th, but
         Perry said that that should make no difference.

    17.  On April 10, 1979, the PR&R Committee received Ulmer's response to
         the grievance (which constituted both level 1 and level 2 of the
         procedure).  Ulmer denied the grievance claiming that (1) it was not
         timely since Whitzell knew that his evaluations were not done accord-
         ing to the Agreement, (2) it was not timely because it was not filed
         within 30 days of the oral notice of nonrenewal on February 21,
         1980, and (3) Whitzell had requested to be evaluated in the manner
         that he was.

    18.  On April 11, 1979, Whitzell met with part of the PR&R Committee:
         Perry, Rollins, Committee Chair Ann Szumowski, and the past presi-
         dent.  Perry informally conducted the meeting, presented the griev-
         ance, and advocated going on to the next step.  The Committee
         voted to transmit the grievance to level 3 of the grievance proce-
         dure (a meeting with the School Committee).  Whitzell testified
         that after the business portion of the meeting Rollins made com-
         ments to him about non-dues-paying members of the unit.

    19.  The level 3 meeting with the School Committee was scheduled for
         April 26, 1979.  Prior to that day Perry consulted with Rollins
         and Szumowski a number of times by phone, and once more in person.
         Perry consulted with attorneys but did not specifically tell either
         Whitzell or MEA members what they said.  They did talk about the
         problems with the case.

    20.  Whitzell claimed that prior to the level 3 meeting on the evening
         of April 26, 1979, in the hallway outside, Rollins spoke with him
         again about the question of the MEA representing nonmembers.  Rollins
         generally denied such comments.  When the level 3 meeting convened,
         Perry presented the grievance to the School Committee.  Perry

2.  Whitzell did not introduce a copy of this letter.  Perry was not asked
    whether the MTA received such a letter or not.


         advocated the merits of the grievance, arguing that the evalua-
         tion was unfair and untimely, that Whitzell had not received
         the proper number of evaluations, and that he did not receive
         adequate notice of the evaluation.  The point of the grievance
         was that Whitzell wanted his job back.  Whitzell testified that
         Perry did an excellent job in presenting the grievance.

    21.  On May 10, 1979, the School Committee met and decided to deny
         the grievance.  On May 11th, Superintendent Ulmer sent Whitzell
         a letter notifying him of this action.  On May 15th, Whitzell
         delivered a letter to Rollins requesting that the MEA submit the
         case to arbitration in accordance with Article III(D)(4)(a).

    22.  The full PR&R Committee met that evening to decide whether to
         go to level 4 of the grievance process, that is, arbitration.
         Neither Perry nor Whitzell were asked to come.  Perry testified
         that it was common practice in local teacher associations to
         have the grievant present at the meeting where the decision
         whether to proceed to arbitration would be decided.  He was sur-
         prised that this was not the case with the MEA.  Szumowski testi-
         fied, however, that it had been a longstanding, but unwritten,
         policy of the MEA not to have the individual grievant or advo-
         cate present when this question is decided.

    23.  Rollins opened the meeting formally and cautioned members of the
         committee not to discuss "personalities."  He then turned the
         meeting over to Chair Ann Szumowski,[fn]3 who made a presentation
         of the case; the facts, what the grievance was, the requested
         remedy, and the procedural history.  Rollins and Szumowski were
         the only ones of the thirteen present who knew anything about the
         case prior to this meeting.  This was also the first meeting of
         the full PR&R Committee in four years concerning a grievance
         which involved only an individual (as opposed to a group of
         teachers or more).  The meeting lasted for approximately one
         hour during which time Whitzell's nonmembership status was not
         raised.  The expenditure of funds was a major topic of discussion.
         (The MEA treasury at that time contained approximately $3100.00;
         an arbitration in 1975 had cost $300.) According to Rollins,
         the cost, the benefit to MEA, and the benefit to the individual
         were the factors in the decision.  Although Rollins said that
         specific sections of the Agreement were not read aloud, committee
         member Linda Millay testified that they were.  The Committee voted
         unanimously, by secret ballot, that the grievance did not have
         merit, and in a second unanimous vote, that Whitzell could pro-
         ceed to arbitration at his own expense.

    24.  Millay based her decision in part on the idea that Whitzell had
         asked for the method of evaluation that he actually received.
         She did not know that Perry had argued before the School Committee
         at level 3 that an individual could not waive his rights under a
         collective bargaining agreement.  She also did not know that Whit-
         zell was not a member of the MEA.

    25.  The second, pay-at-own-expense vote had been employed the last time
         an individual grievance had come up.  In that case, the grievance
         involved one of the then current PR&R Committee members.  After
         voting against supporting the grievance to arbitration, the Com-
         mittee voted, as it had with Whitzeil, to allow the person to pay
         his own way.  At that time arbitration was successfully invoked;
         Ulmer was also the Superintendent at that time.

3.  Ann Szumowski was a classroom teacher who in the past had had a profes-
    sional argument with Whitzell over the placement of a student in her
    class.  At one point Szumowski got angry with Whitzell and raised her
    voice.  She also spoke to Ulmer to complain about Whitzell in another
    matter.  She testified that these were purely professional disagreements,
    that their personal relationship was not "icy" thereafter, that their re-
    lationship was not bad, and that they had no personal relationship.  She
    did not believe that her past dealings with Whitzell should cause her to
    remove herself from voting on his evaluation.


    26.  On May 16, 1979, Rollins wrote to Whitzell notifying him
         of the votes not to support his grievance but to allow him
         to use the arbitration level at his own expense.  Whitzell
         testified that Rollins called him first to tell him of
         these results and that Rollins also said that the MEA had
         done its fair duty in representing him to this point but
         that since he was not a dues-paying member, that he would
         have to pick up the expenses on his own.  On cross-examina-
         tion, Whitzell was unsure when Rollins made such comments
         other than the first time they spoke about the grievance,
         back on April 9, i979.

    27.  On Kay 18, 1979, Whitzell tried to proceed to arbitration
         on his own by sending a letter to Superintendent Ulmer and
         the Board of Directors of S.A.D. #75 stating his desire to
         proceed to level 4 and asking to be notified of a possible
         date and time to meet to choose an arbitrator.  The addressees
         did not respond to this letter.

    28.  On May 19, 1979, Whitzell asked Ulmer about the letter.
         Ulmer maintained that only the MEA could invoke arbitration.

    29.  On May 21, 1979, Whitzell delivered a letter to  Rollins stating:

              "As I told you previously, I am prepared to do so
               [proceed to Level 4] at my own expense.  However,
               since the language of the contract at level IV
               refers only to the P.R.&R. Committee, I would
               request that the association appoint me to an
               ad hoc position on that committee.  Otherwise,
               the school board has only an obligation to
               recognize the request for arbitration when the
               P.R.&R. Committee requests it."

         Whitzell added that time was of the essence.  He correctly
         computed the deadline for a proper request for arbitration
         to be the next day, May 22nd.

    30.  Rollins met immediately with Perry and Szumowski.  He then
         called Whitzell and told him:  (1) that he had notified the
         Chairperson of the Directors by a letter of that day, May 21st,
         of the decision of the PR&R Committee not "to support" his
         grievance beyond level 3, but that it had voted to allow him
         to proceed at his own expense; (2) that he would not be appointed
         as a member of the PR&R Committee; and (3) that he should send
         Rollins another letter which stated that Whitzell would under-
         take the expense of arbitration without any conditions as had
         been indicated in the previous letter.  Rollins said Whitzell
         agreed to do so.  Rollins dated a letter on May 21st, incorporat-
         ing items (1) and (2), above, in writing and sent it to Whitzell.

    31.  The apparent deadline to request arbitration, May 22, 1979, passed
         without any further correspondence or oral communication between
         Whitzell and Rollins.  Rollins testified that the only reason
         he did not invoke arbitration in the name of the MEA was because
         he did not get the unconditional letter he requested.  He conceded
         that it was not clear that the MEA could legally invoke arbitra-
         tion on Whitzell's behalf or not.

    32.  A few days later, around May 24, 1979, Whitzell met with Perry at
         the latter's office.  The two discussed the situation.  According
         to Whitzell, Perry defended the conduct of the MEA regarding his
         grievance saying "It's known that the Association [MEA] does not
         support nonmembers.  If (you] were a member, we would have gone all
         the way with you."  Whitzell prevailed on Perry on the basis of
         their past friendship to try to arrange it so that Whitzell could
         get to arbitration.  According to Perry, it was a very unpleasant
         meeting because Whitzell was very unhappy and aggressive about the
         way things had been handled.  They disagreed over whether it was a
         good case or not.  Perry said that "if he had been a member I could
         use that as a leverage perhaps with the local to do him a favor."


         Perry was referring to the possibility of going back to the
         PR&R Committee even though they had already voted that there
         was no merit to the grievance.  Perry elaborated that if
         Whitzell had been a member of the MEA, he could plead for a
         favor from the MEA to vote to support the case to arbitration.
         This was the only time Perry made a statement to Whitzell re-
         lating to his membership status.

    33.  It is uncontested that at the close of this meeting Perry drafted
         two letters designed to help Whitzell get to arbitration.  Both
         letters were undated and for Rollins' signature:  one was addressed
         to Ulmer notifying him that the Association was requesting the
         American Arbitration Association (AAA) to provide an arbitrator
         since the parties had been unable to mutually agree; the second
         was addressed to the AAA notifying it that the MEA was making the
         grievance procedure available to Whitzell and requesting on his
         behalf that the AAA provide an arbitrator.  Perry had his secre-
         tary stay late to type these.  He mailed the original to Rollins
         and gave copies to Whitzell before he left that night.

    34.  When Rollins received the letters, he did not sign them because
         he did not receive an unconditional letter from Whitzell agree-
         ing to pay all the costs of arbitration.  Rollins called Whitzell
         after receiving the letters that Perry had drafted for him and
         asked him for such a letter.  Whitzell responded that he already
         had submitted a letter to that effect (of May 21st), that he would
         pay, and that Rollins only had to request arbitration.  Whitzell
         understood that the time limit to invoke arbitration had already
         passed.  Rollins testified that the sole reason he did not send
         these letters was the failure of Whitzell to provide the uncondi-
         tional letter.

    35.  Sometime in late May, after the 21st, or in early June 1979, Rollins
         and Szumowski consulted with an attorney about their duty to pro-
         cess the grievance.  Rollins asked about the merits of the grievance,
         the obligation to nonmembers, and whether Whitzell could go ahead
         on his own.

    36.  Whitzell claimed that at one point he asked Rollins if he could
         join the MEA but that Rollins said no, that enrollment was only an
         option in the fall.  Whitzell also said he had never been asked to
         join.  In contrast, Rollins said Whitzell had never asked him to
         join, that people can join the MEA at any time, and that individuals
         are not solicited personally, but just at a general meeting in the

    37.  Perry made it known to Whitzell throughout the grievance process
         that the grievance had serious problems since, because of his
         probationary status, the School Committee could discharge him
         for any reason or for no reason.  No teachers association had ever
         successfully obtained the reinstatement of a probationary teacher
         in any arbitration under Maine law.

    38.  Whitzell's contract of employment expired on August 31, 1979.  He
         filed this prohibited practice complaint on November 14, 1979.


     The threshold issue In this case is whether or not there is a duty of
fair representation enforceable through the prohibited practice complaint
process under the Municipal Act.  We conclude that there is.  Thus, the
primary issue is whether the MEA has breached that duty, and therefore
violated 26 M.R.S.A.  964(2)(A).  We conclude that it has not.


     I.  The Duty of Fair Representation.

     The U. S. Supreme Court has definitively ruled that a labor organization,
which has rights as the exclusive bargaining representative of all the
employees in a bargaining unit, also has a duty to represent all of these
employees in good faith and with honesty of purpose.  Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554 (1976); Vaca v. Sipes, 386 U.S. 171 (1967);
Humphrey v. Moore, 375 U.S. 335 (1964); Ford Motor Co. v. Huffman, 345 U.S.
330 (1953).  The labor organization breaches this duty when its conduct "is
arbitrary, discriminatory, or in bad faith."  Vaca, supra, 386 U.S. at 190.

     The National Labor Relations Board (N.L.R.B.) had belatedly recognized
this duty for the first time in 1962 in Miranda Fuel Co., 140 NLRB 181, 51
LRRM 1584 (1962).  The theory was that Section 7 of the National Labor
Relations Act (NLRA), 29 U.S.C.  157, gives employees the right to be free
from unfair, irrelevant or invidious treatment by their exclusive bargaining
agent in matters affecting their employment.  (Section 9(a) of the NLRA
establishes the bargaining agent as the exclusive bargaining representative
of all employees in the unit.)  Accordingly, the N.L.R.B. determined that it
was a violation of Section 8(b)(1)(A) of the NLRA to take any action which
violates this duty.  This principle is now well established in numerous
subsequent cases.

     Maine's Municipal Public Employees Labor Relations Act has similar
parallel provisions to the NLRA.  Section 964(2)(A) prohibits public employee
labor organizations from interfering with, restraining or coercing employees
in the exercise of rights guaranteed in Section 963.  The latter section
states that no one shall interfere with or discriminate against public
employees in the free exercise of any right in the Municipal Act.  Section
967(2)(para. 5) states that the exclusive bargaining agent organization shall
be required to represent all the public employees within the unit without
regard to membership in the organization.  We think these sections provide
the same basis for a similar duty imposed on public employee labor organiza-
tions as the NLRA imposed on private sector labor organizations.  Therefore,
to the extent that prior decisions of this Board hold to the contrary, i.e.,
Windsor Teachers Association v. Windsor School Committee, PELRB No. 74-08
(Feb. 11, 1974); Boothbay Teachers Association v. Boothbay School Committee,
PELRB No. 74-04 (April 30, 1975); Prentiss v. Sandy River Education Associa-
tion, PELRB No. 75-15 (Aug. 8, 1975), they are overruled.[fn]4  Indeed, in
light of the Opinion of the Justices, 401 A.2d 135 (Me. 1979), this conclusion
is compelling.

     Since "the bargaining agent is under the obligation, statutorily imposed,
to represent all the employees within the bargaining unit 'without regard to
membership in the organization . . . . ,'" 401 A.2d at 147, and since it is
fair that each employee be required to share in the costs of these mandatory
services, id., then it is obvious that the employee has a right to this
representation.  This right is enforceable through Section 963, by Section
964.  The appropriate standard for this representation is that set forth in
the federal courts in the well-developed theory of the duty of fair repre-
sentation.  Since it is proper for this

4.  The MEA conceded candidly that it owed Whitzell some duty of representa-
    tion under law and did not contest this point.


Board to follow the federal courts' interpretation of the NLRA, see, e.g.,
Caribou School Department v. Caribou Teachers Association, 402 A.2d 1279,
1284 (1979), we take this opportunity to adopt the parameters of the federal
duty of fair representation except to the extent that it may appear in the
future that such should not be applied.

     II. The Alleged Breach of the Duty.

     Our Inquiry begins within the broad framework of determining whether the
MEA's conduct towards Whitzell was "arbitrary, discriminatory, or in bad
faith" or whether it processed his grievance in a "perfunctory fashion."
Vaca, supra, 386 U.S. at 190, 191.  Within this context, the parties have
contested the relevance of the merits of the grievance itself, as distinct
from the way it was handled by the union.  While we agree that "a breach of
the duty of fair representation is not established merely by proof that the
underlying grievance was meritorious," 386 U.S. at 195, this does not mean
that the merits of the grievance itself are not relevant to the determination.
Rather, an understanding of the merits will be necessary or at least helpful
both in understanding the various actions being contested and in placing them
in proper context.  At the extremes, the merits of a grievance would be very
important.  For example, a clearly meritorious grievance would definitely be
an influential factor.  Similarly, a clearly frivolous grievance should
dictate the dismissal of the complaint.  Indeed, the N.L.R.B. employs such an
approach.  E.g., Glass Bottle Blowers Association, 240 NLRB No. 29, 100 LRRM
1294 (1979).

     In the vast majority of cases failing between these extremes we would not
decide the merits of the grievance, however.

     It is clear that the grievance filed at the behest of Whitzell is not
clearly frivolous.  The primary objective of the grievance, however, does
appear to be frivolous.  That is, while the grievant could conceivably
convince an arbitrator that S.A.D. #75 violated the Agreement, we see no legal
basis for an arbitral remedy of reinstatement or pay for any period after the
expiration of his probationary contract.  Cf., Board of Trustees of Junior
College District No. 508 v. Cook County College Teachers Union, Local 1600,
343 N.E.2d 473 (Ill. 1976).  Thus, while it is tempting to view the case as
frivolous, the theory is not clearly so.  Accordingly, we must turn to key


     It is clear at the outset that the MEA did not give perfunctory treatment
to this grievance.  Rather, it was given full treatment and attention.  While
Whitzell alleges that resistance to processing the case began at the outset,
he concedes that the actual handling of the grievance through the first three
steps was quite satisfactory.  Perry's advocacy of the case was excellent.

     Whitzell pointed to the failure of the Association to file a grievance
immediately after the adverse evaluation was received as indicative of the
resistance.  This was clearly not a situation of ignoring or resisting a bona
fide grievance, however.  Rather, it was a practical strategy in light of the


admitted ultimate objective, i.e., saving Whitzell's job.  Perry's judgment at
the time, to avoid a direct confrontation with Ulmer that would result from
the filing of a grievance, was certainly the best decision at the time.  Even
if it were not the wisest decision at the time, it was definitely not a
perfunctory decision.

     The focus of whether the MEA was arbitrary[fn]5 towards Whitzell centers
on the decision not to take the grievance to arbitration.[fn]6  The complain-
ant has raised a large number of factors which, he argues, point to the
conclusion that the conduct was arbitrary.

     (1)  It is suggested that it was inconsistent on the one hand for Perry
to advocate the strength of the grievance so strongly with the employer but on
the other hand to drop the grievance as having no merit.  We do not agree with
the promise of this argument because an advocate usually aims to present the
case to the adversary in its best light.  We are certain that Whitzeil was not
so naive as to think that his case was a strong one.  We also doubt that Perry
would have had any reason to mislead him.  As Perry testified, he had grave
doubts about the chance of success of this grievance and conveyed those to

     (2)  It is suggested that it was arbitrary for the PR&R Committee to vote
no merit, but to then vote to let Whitzell proceed at his own expense.  This
type of resolution was not without precedent, however.  It had successfully
been employed in the past.  Thus we do not believe that the MEA abdicated its
responsibility in this regard.  In fact we believe that this conduct was well
intentioned, even if a somewhat undesirable course.  If it had decided not to
take the case solely because it believed that Whitzell could by rights proceed
on his own (which is a mistaken notion), that would be a different question.
Such was not the case here, however.

     (3)  The failure to file the proper papers to permit Whitzell to proceed
to arbitration on his own is also complained of.  Under all the circumstances,
however, we conclude that it was not unreasonable of Rollins to request from
Whitzell an unconditional letter undertaking the costs, particularly since it
was clear at that point that Whitzell could become a potential adversary.
Most importantly, however, Rollins got Whitzell's consent to deliver such a
letter, but he never did.

     (4) It is also pointed out that the minutes of the PR&R Committee meeting
showed no discussion of the Agreement.  This meeting lasted 55 minutes.  The
written minutes amounted to one half of a page.  It is plain that a meeting of
that length involving 13 people cannot be reduced to a few words without
omitting great chunks  of discussion.  These minutes do not pretend to capture
the discussion itself.  Rather, we are convinced by the testimony that
Agreement provisions

5.  "A union may refuse to process a grievance or handle the grievance in a
     particular manner for a multitude of reasons, but it may not do so with-
     out reason,  merely at the whim of someone exercising union authority."
     Griffin  v. U.A.W., 469 F.2d 181, 183, 81 LRRM 2485 (4th Cir. 1972);
     accord, Teamsters Local 315 (Rhodes & Jamieson Ltd.), 217 NLRB No. 95,
     89 LRRM 1049, 1052 (1975), enforced, 545 F.2d 1173, 93 LRRM 2747 (9th
     Cir. 1976).

6.  The six-month limitations period, 26 M.R.S.A.  968(5)(B), bars the con-
    sideration of any activity prior to May 15, 1979, other than as revealing
    of the motive and character of the alleged unlawful conduct on May 15th
    and after.


were covered and discussed.

     (5)  It is also argued that one of the PR&R Committee members did not
look at the Agreement itself.  While it is incumbent upon any union's
decision-making entity to actually decide on the basis of the merits and all
that such a notion entails, it is not to be held to the standard of profes-
sional conduct.  A wrong decision, or a negligent decision on the merits, or
even incompetence will not breach the duty of fair representation.  E.g.,
Walden v. Teamsters, Local 71 468 F.2d 196 (4th Cir. 1972); Boyorte v. United
Transportation Union, 429 F.2d 363, 872 Od Cir. 1970).  It is enough in this
instance that the Agreement provisions were discussed in general.

     (6)  The complainant urges that it was improper for the monetary cost to
be considered as a factor in the decision to not take the case to arbitration.
We disagree; cost is a proper and practical consideration in the arbitration
decision.  It obviously should not be the controlling concern but it was only
one of the factors involved in this case.

     (7)  Although Whitzell was denied ad hoc membership on the PR&R
Committee, we reject his claim that membership on the Committee was open to
anyone.  It was clear from the testimony that only a member of the Association
could serve on one of its committees.  But, more importantly, we see no
significance to membership on this committee.  It would not alter in any way
the employer's duty to arbitrate the case. The Agreement (Article III(D)(4)
(b)) only refers to action by the PR&R Committee, not one of its members.

     (8)  Whitzell also points to the lack of an independent investigation of
the grievance by the PR&R Committee.  We are satisfied that the committee
members were adequately appraised of the merits of this grievance by Szumowski
who was present at all stages of the grievance and was fully conversant with
the considerations involved.  As chair of the committee it is enough that she
was in a position to report the results of the entire process of the grievance
and the underlying problems.  Moreover, there was no question in this
grievance but that the facts and arguments were fully explored.

     (9)  We also reject the notion that there is any arbitrariness revealed
from the fact that Rollins did not indicate the reason why the MEA would not
take the grievance to arbitration in his letter to Whitzell of May 16, 1979.
We think the notice was reasonable.  There is also no indication that Whitzell
had any problem thereafter obtaining further information about the vote.
Indeed, the reason should have been obvious based on the language of the
Agreement and on prior discussions of the grievance that Whitzell was
involved in.

    (10)  We also reject the claim based on Art. III(F)(3) of the Agreement
that Whitzell had the right to attend the meeting of the PR&R Committee when
they decided whether to go to arbitration.  This section limits the partici-
pants at a meeting; it does not require the presence of any person.

     In contrast, there are some factors which indicate that the processing of
this complaint were less than ideal: primarily, the absence of Perry from the
PR&R Committee meeting at the point of decision.  It was unfortunate in an
ideal sense that he was not present.  His knowledge of the grievance and its
legal ramifications was


superior to that of the local officials.  His presence, however, was not
essential since it is ultimately a matter for the local to decide and they
were adequately informed as to the merits.

     We note as well the fact that Perry was surprised that Whitzell had not
been invited to the meeting.  Apparently most locals in Perry's district
invite the grievant to participate in the final decision process in some
fashion.  We also note, however, that the MEA has followed his practice in the
past.  And even more importantly, we see no basis for requiring his presence.

     This is not an issue of due process of law; there is no formula or
prescribed method of reaching a judgment as to whether to proceed to arbitra-
tion.  Rather, there is only a requirement that the decision be reached
honestly, without discrimination, and in a manner which is not arbitrary.
The process followed by the MEA in this case was not arbitrary.


     With respect to hostility or bad faith (as distinct from discrimination),
it was established that Szumowski had in the past had an argument with
Whitzell, acting in their professional capacities, regarding the placement of
a student in her class.  She had raised her voice at the time.  There was no
claim, however, that any personal feelings of hostility had continued between
the two.  We were impressed with Szumowski's testimony regarding her handling
of the grievance and do not believe that Whitzell's grievance suffered in any


     A number of issues need to be confronted with respect to whether the
MEA's decision not to take the case to arbitration was motivated by discrimi-
nation against Whitzell because he was not a dues-paying member of the

     Whitzell attributes to Rollins and Perry a number of comments that show
a discriminatory attitude towards him.  He claims that Rollins said, in the
very first conversation they had concerning the grievance, that it would be
difficult to support his grievance because he was not a member of the MEA.
Rollins allegedly made a similar comment later on.  Perry, it is claimed,
also made discriminatory comments, one, that it would be "very hard sledding"
to have the PR&R Committee take the grievance of a non-dues-paying unit
member.  The second of Perry's comments testified to by Whitzell was that it
was a known fact that the MEA does not support nonmembers and that "we"
would have gone all the way to arbitration if you were a member.

     If these comments were actually made, it would cast an entirely different
light on the case.  It would be hard to believe other than that discriminatory
motives and attitudes had seriously tainted the processing of the grievance.

7.  We do not view discrimination on the basis of nonmembership status as a
    separate and distinct additional violation of 26 M.R.S.A.  964(2)(A).
    The breach of the duty of fair representation described in this decision
    encompasses discrimination on this basis as an integral part of its pro-


Rollins and Perry clearly denied making such comments.  And we have determined
that they were credible witnesses.  We therefore find as a fact that Perry and
Rollins did not make these comments.

     Whitzell was prone to hear things he wanted to hear and not others.  He
also tended to testify to what he felt as opposed to what was said.  For
example, he testified that he had received no serious criticism from Superin-
tendent Ulmer and that Ulmer encouraged Whitzell to return for a second year.
Ulmer, who was a credible witness, had a contrary view of this, however.  He
did not encourage Whitzell to return but merely was hopeful that the problems
that existed could be worked out in a second year.  Whitzell also must have
been aware that he was partially responsible for serious problems at the
school.  In addition we are convinced, despite Whitzell's denial, that Ulmer
told Whitzell on February 21, 1979, that he was not going to renew his
contract.  Indeed, Whitzell and Perry had seen the writing on the wall when
they met the night before, on February 20th.  Ulmer's subsequent conduct is
totally consistent with his rendition of these events.  Whitzell's conduct in
tearing this page out of his diary, however, is not at all consistent.  We
simply do not believe that Whitzell tore this page out solely because of the
"unprintable" things Whitzell had written about the incident.  In short,
Whitzell's claim that Ulmer did not notify him of the nonrenewal is
unbelievable.  All things considered, we reject much of Whitzell's testimony.

     There are two comments by Perry that do require consideration, however,
because they do relate to Whitzell's membership status.  The first involved
Perry advising Whitzell at some point before April 26th that he had to write
a letter to the president of the MTA requesting the permission of the MTA for
Perry to work on his case.  This request had to be made because Whitzell was
not a member of the MTA.  Perry explained that this procedure was used because
the MTA Executive Board's approval of such a request would then insulate Perry
from direct criticism for expending time and effort on behalf of a nonmember.
Whitzell wrote such a letter; but a copy of the letter or of any response was
not made part of the record.

     While this requirement would be a problem if the MTA were the bargaining
agent, it is the MEA, and not the MTA, that has the duty to represent all
employees in the unit without discrimination.  Accordingly, the MTA was
exercising permissible restraint before it directed its employee, Perry, to
work on the case.  Presumably the MEA could also ask Perry to assist it in
handling the case and did so at some point.  But Perry was clearly not acting
as an agent of the MEA in dealing with Whitzell with respect to the MTA's
authorization of Perry's work on his case.  The MTA had no obligation to
Whitzell other than that which it voluntarily assumed.  We also note that this
conversation regarding the letter took place before Perry had had his first
contact with the MEA about Whitzell's grievance.  We conclude that the MEA was
not involved in Whitzell's dealings directly with the MTA and that the MTA's
conduct with respect to alleged discrimination need only be scrutinized when
the MTA is the bargaining agentor has the burden of representation.

     The final comment by Perry that related to Whitzell's nonmembership


was when, on May 24, 1979, Perry and Whitzell met after the PR&R Committee had
decided not to pursue the grievance on Its own account, and after Rollins and
Whitzell had exchanged letters regarding Whitzell's attempt to proceed on his
own.  Whitzell called Perry to arrange the meeting in Perry's office.
Whitzell was very unhappy with what had happened and was unpleasant and
agressive with Perry about the way things had gone.  Whitzell thought that he
had a good case and disagreed with Perry on this.  At one point Perry said
that if Whitzell had been a member, Perry could go back to the MEA and try to
plead with or to persuade the PR&R Committee to do him a favor by taking the
case to arbitration.

     The final day for the filing of the arbitration request, however, was two
days earlier, on May 22, 1979.  This conversation was only a postmortem.
Thus, even if Whitzell had been a member and Perry had gone to the PR&R
Committee at that time and succeeded in convincing the Committee to revote and
conclude that the case had merit, it would still have been untimely, a fact
certain to be seized upon by Ulmer and the School Committee, who were
resisting this grievance totally.  We are also convinced that this
hypothetical plea by Perry would have been to no avail, however, since the
decision was based in the first instance on the lack of merit.  Perry, who
also honestly believed that the case had no merit, would only have been
pleading with the PR&R Committee to change their vote on the ground that they
should do a member a favor.  At least one of the PR&R Committee members, Linda
Millay, did not know that Whitzell was not a member when she voted; there may
have been others.  We conclude that such an attempt by Perry would have made
no difference and does not alter our conclusion that the MEA did not breach
its duty to Whitzell to treat his grievance without discrimination.


     In reviewing the entire set of facts from the broadest perspective, so as
to avoid obfuscation of the issue by over-categorization, we remain convinced
that the MEA did not violate the Act in this case.  We therefore issue the
following Order:  the complaint is dismissed.

Dated at Augusta, Maine, this 6th day of November, 1980.

                                      MAINE LABOR RELATIONS                       

                                      Edward H. Keith, Chairman

                                      Don R. Ziegenbein
                                      Employer Representative

                                      Harold S. Noddin
                                      Alternate Employee Representative