Lundrigan v. State Department of Personnel and Maine State Employees
Association, No. 83-03 (Feb. 4, 1983); aff'd sub nom. Lundrigan v. Maine
Labor Relations Board, No. CV-83-81 (Me. Super. Ct., Ken. Cty., July 25,
1983); aff'd, 482 A.2d 834 (Me. 1984)

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 83-03
                                                   Issued:  February 4, 1983

____________________________________
                                    )
W. E. LUNDRIGAN,                    )
                                    )
               Complainant,         )
                                    )
  v.                                )
                                    )
STATE DEPARTMENT OF PERSONNEL       )                 DECISION AND ORDER
                                    )
  and                               )
                                    )
MAINE STATE EMPLOYEES ASSOCIATION,  )
                                    )
               Respondents.         )
____________________________________)


     This case comes to the Maine Labor Relations Board by way of a motion to
dismiss filed by the State Department of Personnel (State) and a motion for
summary judgment filed by the Maine State Employees Association (MSEA).  The
motions relate to a prohibited practices complaint filed pursuant to 26 M.R.S.A.
Section 979-H(2) on July 16, 1982 by W. E. Lundrigan, a former state employee.
On July 22, 1982 the Executive Director dismissed the complaint on the ground
that it did not allege facts that could constitute a violation of the State
Employees Labor Relations Act, 26 M.R.S.A. Section 979,1 et seq. (Act).
Lundrigan appealed the Executive Director's action on October 6, 1982,
including a "revised and more specific" complaint with his appeal, and on
October 20, 1982 we ordered that the revised complaint be treated as an
amended complaint and that a pre-hearing conference be scheduled on the case.

     A pre-hearing conference was held on November 30, 1982, Alternate
Chairman Donald W. Webber presiding.  On December 6, 1982 Alternate Chairman
Webber issued a Pre-Hearing Conference Memorandum and Order, the contents of
which are incorporated herein by reference.  The parties agreed at the pre-
hearing conference that if a fact hearing was required, the following issues
would be presented for determination:

                                     -1-

         "l. Did the Union breach the duty of fair representation in its
     decision not to present materials in evidence in the course of prose-
     cuting Complainant's grievance to arbitration?  What were these
     materials?

         "2. Did the Union refuse to seek to obtain certain materials not
     available to Complainant to be used as evidence in said arbitration
     proceeding?  If so, what were these materials?  If so, did such action
     constitute a breach of the duty of fair representation owed by the
     Union to the Complainant?

         "3. Did  Mr. Keenan, acting for the Union, admonish the Complain-
     ant with respect to the introduction of evidence, either prior to or in
     the course of the arbitration proceeding?  If so, did such action con-
     stitute a breach of the duty of fair representation?

         "4. Did the State Department of Personnel violate the provisions
     of 26 M.R.S.A., Sec. 979-C(1A) in a conversation between Mr. Raynolds
     of the Department of Education and Cultural Services and the Complainant
     on June 22, 1981?"

     The State's motion urges that the complaint should be dismissed as to the
State because consideration of the alleged prohibited practice by the State is
barred by the six months statute of limitations contained in Section 979-H(2)
of the Act and because the issue raised by Lundrigan has already been decided
by an arbitrator.  MSEA's motion contends that Lundrigan has not alleged facts
which could support a finding that MSEA has breached its duty of fair represen-
tation.  Lundrigan filed responses to the motions on January 5, 1983.

                                JURISDICTION

     W. E. Lundrigan was a state employee at the time of the events complained
of, and as such was authorized by Section 979-H(2) to file his prohibited
practices complaints.  The State Department of Personnel is a "public
employer" as defined in Section 979-A(5), and MSEA is the bargaining agent
for a number of State employee bargaining units, including the unit in which
Lundrigan was formerly a member.  The jurisdiction of the Maine Labor
Relations Board to decide this case and render a decision and order lies in
26 M.R.S.A. Section 979-H.

                                     -2-

                              FINDINGS OF FACT

     Upon review of the entire record, the Board finds:

     1. W. E. Lundrigan was hired as the Assistant Director of the Division of
Finance in the State's Department of Educational and Cultural Services in
April, 1979.  The Assistant Director position is included in the supervisory
services bargaining unit represented by MSEA.  In July, 1979 the Director of
the Division of Finance transferred to another position and Lundrigan was
designated the acting Director of the Division.  A new Commissioner of the
Department of Educational & Cultural Services, Harold Raynolds, Jr., was
appointed in the fall of 1979, and he asked Lundrigan to continue as acting
Director.

     2. In April, 1981 the State solicited applications for the position of
Director of the Division of Finance in the Department of Educational and
Cultural Services.  Lundrigan was one of a large number of applicants for the
position.  The Department of Personnel certified seven applicants, including
Lundrigan, as qualified for the position and six of these candidates,
including Lundrigan, were interviewed by a committee consisting of
Commissioner Raynolds, the former Director of the Division of Finance, and two
people from the Department of Educational and Cultural Services.  After all
the interviews had been conducted, the members of the interview committee
unanimously agreed that Stanley Sumner, then the Director of the Division of
Financial Processing and Records in the Department of Human Services, should
be hired as the Director of the Division of Finance.  Raynolds informed
Lundrigan in a letter dated June 18, 1981 that another candidate had been
offered the position and that Lundrigan would be returning to the Assistant
Director position.

     3. On June 22, 1981 Lundrigan met with Raynolds to discuss the reasons
why he had not been selected for the position.  Raynolds said that the
applicant selected was a little better qualified and had longer state service,
and also indicated that Lundrigan had some deficiency in interpersonal
relations.  Raynolds also indicated that even if the successful applicant
declined the position, Lundrigan would not receive it.  Lundrigan responded
that he could not accept that and that he had other avenues of appeal.
According to Lundrigan's allegations, Raynolds then became very angry, stating
that if his decision was grieved he would make it miserable for Lundrigan and
would give him bad references and low evaluations.  Raynolds then calmed down
and continued discussing the matter.

                                     -3-

     4. In July, 1981 Lundrigan filed a grievance alleging that the State's
refusal to promote him to the Finance Director position violated the super-
visory services collective bargaining agreement.  MSEA assigned one of its
attorneys, Shawn Keenan, to handle the case.  The grievance was denied at the
lower levels of the grievance procedure, and in September, 1981 MSEA notified
the State that it was taking the grievance to arbitration.

     5. In a memorandum to Keenan dated July 31, 1981 and in an arbitration
outline given to Keenan on November 30, 1981, Lundrigan requested that certain
documents and records be obtained from the State.  Keenan refused to seek some
of these materials, and also told Lundrigan not to send a letter to a State
official seeking to inspect and obtain copies of documents and records.  The
only document mentioned in the complaint which Keenan did not seek to obtain
is a letter from Sumner, the successful applicant, appealing the rating score
given to him by the Department of Personnel.  According to the allegations in
the complaint, on January 26, 1982 and February 3, 1982, the day of the
arbitration hearing, Keenan told Lundrigan that the hearing would be cancelled
if Lundrigan attempted to address any issue other than those about which he
was directly asked.  Keenan also refused to raise certain issues and present
certain facts which Lundrigan thought relevant during the hearing.  Among the
matters which Keenan refused to get into was the Director of Finance's
knowledge when Lundrigan was hired as Assistant Director that he would be
transferring to a new job, Lundrigan's perception that there was a continual
practice of promoting lesser qualified candidates to the Director's position,
Lundrigan's belief that Sumner was not on the certified register of employees
and that his application was not complete when submitted, Lundrigan's belief
that the selection of Sumner was not done in accordance with the Personnel
Rules, and Lundrigan's proposed arguments regarding career service and the
acting capacity article in the agreement.

     6. Keenan presented witnesses and jointly sponsored 34 exhibits at the
February 3rd arbitration hearing, and submitted a written closing argument
after the hearing.  MSEA argued that although Lundrigan had been led to
believe he would receive the Finance Director position he was denied the
position because he had previously filed a pay grievance and because
Commissioner Raynolds was hostile towards him.  Keenan urged that Raynolds had
asked Lundrigan an improper question before the interview committee in order
to cast Lundrigan in a bad light and that Lundrigan was better qualified for
the position than Sumner.  On March 11, 1982

                                     -4-

the arbitrator issued an award denying the grievance.  The arbitrator found
that even if Raynolds was hostile towards Lundrigan, the other 3 members of
the interview committee each exercised independent judgment in selecting
Sumner for the job.  The arbitrator noted that the agreement gives the State
broad discretion in the filling of competitive positions, and concluded that
the State did not violate the agreement or abuse its discretion by not
promoting Lundrigan to the Director of Finance position.

                                  DECISION

     At issue are the State's motion to dismiss and MSEA's motion for summary
judgment.  After carefully considering the motions, we conclude that both must
be granted.  We accordingly will dismiss Lundrigan's complaint.

     I. The State's motion to dismiss.  The State moves to dismiss Lundrigan's
allegation that the State violated Section 979-C(l)(A) of the Act on  the
ground, among others, that the allegation is time-barred by the six month
statute of limitations contained in Section 979-H(2), which states: "no
hearing shall be held based upon any alleged prohibited practice occurring
more than 6 months prior to the filing of the complaint with the executive
director."  Lundrigan alleges in his complaint that on June 22, 1981 he was
threatened with reprisal by Raynolds if he grieved his non-selection as the
Director of Finance.  Since Lundrigan did not file his original complaint in
this matter until July 16, 1982, it is obvious that the allegation against the
State is well outside the 6 months statute of limitations.  It therefore would
not be appropriate for us to conduct a hearing on and decide the allegation.
See, eg., Local Lodge No. 1424, Machinists v. NLRB., 362 U.S. 411, 416-417,
80 S.Ct. 822, 4 L.Ed.2d 832 (1960); Council 74, AFSCME v. City of Bangor, MLRB
No. 80-41 at 5 (Sept. 24, 1980), aff'd on other grounds 449 A.2d 1129 (Me.
1982).  The allegation involving the State must be dismissed.[fn]1
_______________

1/ Since the State has prevailed in its argument that the complaint is time-
   barred, we need not address its argument that dismissal is appropriate
   because the arbitrator has already decided the issue raised by Lundrigan.

                                     -5-

     II. MSEA's motion for summary judgment.  More difficult to decide is
MSEA's motion, which moves to dismiss the complaint on the ground that the
facts alleged therein do not as a matter of law support a finding that MSEA
breached its duty of fair representation imposed by Section 979-F(2)(E) and
Section 979-C(2)(A).[fn]2  Lundrigan's allegations against MSEA and its
attorney fall within 3 areas:

     1) Despite Lundrigan's requests, Keenan refused to attempt to obtain
records and documents which Lundrigan believed were relevant to the case.
The only document mentioned in the complaint which Keenan did not seek was
Sumner's letter appealing the score given to him by the Department of
Personnel.

     2) Keenan refused to present certain facts and address certain issues
during the February 3rd arbitration hearing.  The particular matters which
Keenan would not raise are set forth in Finding of Fact No. 5.

     3) On January 26 and February 3, 1982, Keenan told Lundrigan that the
arbitration hearing would be cancelled if Lundrigan attempted during the
hearing to address any matter except those about which he was directly asked.

     We have construed Lundrigan's pleadings as liberally as possible and have
taken all material allegations as true in determining whether Lundrigan could
be entitled to any relief on his duty of fair representation claim.[fn]3
Having carefully considered all allegations, we conclude that Lundrigan is
entitled to no relief under any of the facts which he has set forth.

     A breach of the duty of fair representation "occurs only when a union's
conduct toward a member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith."  Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct.
903, 17 L.Ed.2d 842 (1967).  As for the handling of grievances, "a union may
not arbitrarily ignore a meritorious grievance or process it in a perfunctory
fashion."  386 U.S. at 191.  The union must be accorded "[a] wide range of
reasonableness" to enable it to perform its duties effectively, however, with
its broad authority subject of course
_______________

2/  MSEA styled its motion as a "motion in the nature of a motion for summary
    judgment," but we treat it as a motion to dismiss.  In so doing, we take
    all material allegations in the complaint as admitted.  See, e.g., McNally
    v. Town of Freeport, 414 A.2d 904, 905 (Me. 1980).

3/  Most of the allegations concerning MSEA involve events which occurred
    either during the arbitration hearing on February 3, 1982 or shortly
    before this hearing.  These allegations thus fall within the six months
    statute of limitations and therefore were timely pleaded pursuant to
    Section 979-H(2).

                                     -6-

"to complete good faith and honesty of purpose in the exercise of its
discretion."  Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681,
97 L.Ed. 1048 (1953).  Or, as stated in Griffin v. International Union, UAW,
469 F.2d 181, 183 (4th Cir. 1972):

         "A union may refuse to process a grievance or handle the
     grievance in a particular manner for a multiple of reasons, but
     it may not do so without reason, merely at the whim of someone
     exercising union authority."

     Here the facts alleged by Lundrigan do not show that his grievance was
arbitrarily ignored or handled in a perfunctory manner by MSEA, nor do they
indicate that MSEA acted in an arbitrary, discriminatory or bad faith manner
toward Lundrigan.  Lundrigan's first contention is that MSEA breached its duty
when Keenan, the attorney handling the grievance, refused to seek certain
documents which Lundrigan had requested.  The only document mentioned in the
complaint which Keenan did not seek is the letter from Sumner, the successful
applicant, appealing the score given to him by the Department of Personnel.
MSEA contends in its answer that it did not seek the letter because it was not
necessary for the proper presentation of the grievance.

     In light the nature of the grievance, we must agree with MSEA that the
letter had little if any relevance.  The basis of the grievance was that
Lundrigan had not been appointed as the Director of the Division of Finance.
The collective bargaining agreement does not limit in any significant way the
State's discretion in filling competitive positions such as the Director's
position, and no provision of the contract granted Lundrigan as acting
Director any entitlement to the position.  MSEA thus was left to argue that
the State violated the seniority provision and an employees' rights clause by
not selecting Lundrigan.  We fail to see how Sumner's letter is relevant to
the issues raised by the grievance, and we therefore cannot say that Keenan
acted in an arbitrary or perfunctory manner by refusing to seek the letter.

     The same is true with regard to Lundrigan's allegations that Keenan
refused to raise certain facts and issues at the arbitration hearing.  Among
the matters which Keenan refused to get into was a) the Director of Finance's
knowledge when Lundrigan was hired as Assistant Director that he would be
transferring to a new job, b) Lundrigan's perception that there was a
continual practice of promoting lesser qualified candidates to the Director's
position, c) Lundrigan's belief that Sumner was

                                     -7-

not on the certified register of employees and that his application was not
complete when submitted, d) Lundrigan's belief that the selection of Sumner
was not done in accordance with the Personnel Rules, and e) Lundrigan's
proposed arguments regarding career service and the acting capacity article in
the agreement.  In response, MSEA urges that a) inquiry into the Director's
knowledge when Lundrigan was hired was not necessary to the proper presenta-
tion of the grievance, b) the facts do not support an allegation that the
Department had a policy of promoting lesser qualified candidates and, even if
they did, such an argument would not be relevant to the grievance, c) the
facts do not support Lundrigan's belief that Sumner was not on the certified
register and that his application was not complete, d) Lundrigan's interpreta-
tion of the Personnel Rules is incorrect, and e) the proposed argument
regarding career service was not grounded in the contract while the proposed
acting capacity argument was directly contrary to the contract.

     Again we must agree with the reasons set forth by MSEA for its actions.
Some of the points which Lundrigan wished to inquire into were irrelevant to
his grievance while other proposed matters were not supported by the facts.
One of Lundrigan's proposed arguments was not grounded in the contract and
therefore could not have properly been considered by the arbitrator, while
another suggested argument was contrary to the contract and thus could not
have been helpful to Lundrigan's case.  In short, the facts do not show that
Keenan acted arbitrarily or in bad faith by refusing to present all the
matters which Lundrigan wanted raised; to the contrary, the facts indicate
that Keenan was trying to put the best possible face on the grievance by
weeding out the irrelevant and counter-productive points and focusing on the
points most solidly in Lundrigan's favor.  In this regard, we note that in
pressing the grievance through the final step of the grievance procedure
Keenan presented witnesses, jointly sponsored 34 exhibits, and presented a
written argument after the conclusion of the arbitration hearing.  These facts
show plainly that MSEA did not ignore the grievance or handle it in a
perfunctory manner.

     Lundrigan's final contention is that MSEA breached its duty when Keenan
told him that the arbitration hearing would be cancelled if Lundrigan
attempted during the hearing to address matters other than those about which
he was directly asked.  While Keenan's statement can be construed as a threat
to terminate the proceeding if Lundrigan insisted on raising the issues he
considered important, we do not think that the statement shows that Keenan
was acting arbitrarily or in bad faith.
                                       
                                     -8-

If Keenan could properly limit the hearing to those issues and arguments which
he, in his judgment as a union representative, thought relevant, then it
follows that he could properly caution Lundrigan not to raise the irrelevant
and counter-productive points.  As we have indicated, the record does not show
that any of the points and arguments Lundrigan wanted raised would have been
helpful to his grievance, nor is there any suggestion that his case was
prejudiced by Keenan's refusal to get into these matters.  We therefore
conclude that Keenan was acting within the range of reasonableness when he
warned Lundrigan not to bring up the extraneous issues.

     Since we have found that, accepting all of the facts pleaded by Lundrigan
to be true, there is no showing that MSEA handled the grievance in a
perfunctory manner or otherwise acted arbitrarily or in bad faith, we will
grant MSEA's motion to dismiss the complaint.  Because the facts as alleged
could not as a matter of law constitute a breach of the duty of fair
representation, dismissal will be with prejudice.

                                    ORDER

     On the basis of the foregoing findings of fact and discussion and by vir-
tue of and pursuant to the authority granted by 26 M.R.S.A.  979-H(4), it is
ORDERED:

          That the State's and MSEA's motions to dismiss are granted.
          W. E. Lundrigan's amended prohibited practices complaint
          filed in this proceeding on October 6, 1982 is hereby dis-
          missed with prejudice.

Dated at Augusta, Maine, this 4th day of February, 1983.

                                      MAINE LABOR RELATIONS BOARD


                                      /s/_______________________________________
The parties are advised of their      Donald W. Webber, Alternate Chairman
right, pursuant to 26 M.R.S.A.        
Section 979-H(7), to seek a
review by the Superior Court          /s/_______________________________________
of this decision by filing a          Don R. Ziegenbein, Employer Representative
complaint in accordance with
Rule 80-B of the Rules of
Civil Procedure within 15 days        /s/_______________________________________
after receipt of this decision.       Harold S. Noddin, Employee Representative


                                     -9-