Stephen Collier v. Penobscot Bay Teachers Association, MLRB No. 92-30 
(Sept. 25, 1992), aff'd, No. CV-92-478 (Me. Super. Ct., Ken. Cty., 
Apr. 10, 1993)

					    Case No. 92-30
					    Issued:  September 25, 1992

STEPHEN COLLIER,                   )
		    Complainant,   )
	 v.                        )          DECISION AND ORDER
ASSOCIATION/MTA/NEA,               )
		    Respondent.    )

     On March 4, 1992, Complainant Stephen Collier (Collier), a certified
teacher employed by the Blue Hill Consolidated School (Blue Hill), filed a
prohibited practice complaint with the Maine Labor Relations Board (Board)
alleging that the Respondent Penobscot Bay Teachers Association/MTA/NEA
(Union) has violated 26 M.R.S.A.  964(2)(A) (1988), by refusing, on the
basis of his lack of Union membership, to allow him to vote on the nego-
tiating positions to be taken by the Union in on-going contract negotiations
respecting Blue Hill teachers. More specifically, Collier alleges that the
Union's conduct in this regard violates its duty to represent him in good
faith without regard to union membership, and coerces him with regard to
his right to join or not join the Penobscot Bay Teachers Association
(Association) as well as in his exercise of free political speech
guaranteed by the United States and Maine Constitutions. Additionally,
Collier alleges that by refusing his request to be admitted to membership
in the Association without having to become a member of its affiliates, the
Maine Teachers Association (MTA) and the National Education Association
(NEA), the Union has "coerce[d him] in the exercise of his right to join
[the] Association . . . as well as in his exercise of the right to engage
in free political speech guaranteed by the United States and Maine
Constitutions." Collier states that:

	  The proposed collective bargaining agreement on which
     Stephen Collier sought to vote would control the amount of his

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     earnings and other conditions of his employment for the fore-
     seeable future. . . . [Title] 26 M.R.S.A.  967, requires that
     the union afford him the opportunity to vote on what is to be
     included in a proposed collective bargaining agreement. Given
     that voting constitutes the Respondent's established procedure
     for ranking the employees' contract priorities, to bar non-
     members from voting is to ignore their preferences with regard to
     the conditions of their employment. A "non-vote" cannot be
     tallied and therefore is not "represented" or "heard".

     Collier contends that the fundamental facts of this matter are essen-
tially undisputed and that the case presents a question of law being
"whether or not a [unit member who is not a member of the Association]
ha[s] a right to vote and participate in union meetings." Collier requests
the Board issue an order requiring the Union "to give due notice of its
meetings to all certified teachers it represents" and "to allow full par-
ticipation including voting privileges, . . . without regard to . . . mem-
bership in the [Union], in all meetings at which contract issues are to be
discussed." Collier also requests that the Board compel the Union "to adopt
due provisions in its bylaws for allowing any teacher it represents to
become a member of the local Association, without requiring simultaneous
membership in any other organization."
     In its March 24, 1992, Response, the Union avers that the facts in the
complaint do not constitute a prohibited act as a matter of law and that
the Board "has no jurisdiction to regulate . . . [its] conditions for mem-
bership, voting privileges, and admission to meetings where the internal
business of the organization is conducted." Moreover, the Union contends
that the Board cannot grant relief upon any of the asserted claims without
violating the Union's "right to freedom of association under the First and
Fourteenth Amendments to the United States Constitution." By way of
counterclaim, the Union states that Collier in his capacity as a member of
the Surry School Committee (Surry) is a public employer within the meaning
of the Municipal Public Employees Labor Relations Law (MPELRL) and that
Collier "seeks to influence the progress or outcome of [MTA/NEA affiliate]
collective bargaining in Surry by coercing Respondent [Union] into
extending voting privileges on negotiating positions and strategy to non-
members in Blue Hill." Additionally, the Union avers that Collier "seeks
to weaken the political, economic and collective bargaining resources of
				- 2 -

[the Union] and its affiliates by coercing Respondent into changing its
bylaws to allow local [Association] membership without requiring simulta-
neous membership in any other organization, including MTA and NEA." The
Union contends that Collier's above-mentioned conduct constitutes unlawful
interference with, restraint and coercion of the Union respecting free
exercise rights guaranteed by the MPELRL as well as unlawful domination and
interference with the formation, existence and administration of the Union
in violation of 26 M.R.S.A.  964(1)(A) and (C) (1988), respectively.

     On Tuesday, April 14, 1992, Chair Peter T. Dawson conducted a pre-
hearing conference in this matter. The April 23, 1992, Prehearing
Conference Memorandum and Order issued by Chair Dawson is incorporated in
and made a part of this Decision and Order. On Thursday, May 28, 1992, the
Board, consisting of Chair Dawson, Employer Representative Howard Reiche,
Jr., and Employee Representative George W. Lambertson, conducted a full
evidentiary hearing in the matter. The parties were afforded full oppor-
tunity to present evidence and to make any desired argument with respect to
the material issues. Mr. Collier was represented by Attorney Sandra
Hylander Collier. The Association was represented by Attorney Shawn C.
Keenan. Mr. Collier testified in his own behalf and the Union elicited
testimony from Union Vice President Janice Snow.

     Both parties requested the award of attorney's fees and costs.
On May 21, 1992, Collier withdrew that portion of his complaint which
addresses the Union policy requiring membership in state and national
affiliates of the Association. The transcript of the proceeding was
completed June 4, 1992, and the last of the parties' post-hearing sub-
missions was filed July 2, 1992. The Board deliberated the case on Friday,
July 10, 1992.


     The Board has jurisdiction to hear evidence and to determine the
issues in this case and to render a decision and order pursuant to
26 M.R.S.A.  968(5) (1988 & Supp. 1991). The Penobscot Bay Teachers
Association is a bargaining agent within the meaning of 26 M.R.S.A.
 962(2) (1988). Collier is a public employee within the meaning of
26 M.R.S.A.  962(6) (1988 & Supp. 1991). Neither party has objected to

			       - 3 -
the Board's jurisdiction over this matter.

     Stephen Collier, a resident of Surry, Maine, teaches fourth grade at
the Blue Hill Consolidated School, where he has been employed for four
years. In 1989, Collier declined in writing and continues to decline
joining the Penobscot Bay Teachers Association because, as he was informed
in January of 1989 by Union building representative Gary Wilson, to do so
would require additional and simultaneous memberships in the Maine Teachers
Association and the National Education Association under their "unified
membership rule." Collier has been an elected member of the Surry School
committee for the past five years. The Surry and Blue Hill Schools are
administered by different superintendents in separate school unions.
Collier desires to avoid any appearance of conflict of interest which might
arise from his membership on the Surry School Committee, which engages in
collective bargaining with a Surry Teachers Union affiliated with the
MTA/NEA. Additionally, Collier thinks he can "serve [his] profession
better by being a school board member than he [can] by being a union
member." Collier also has reservations about becoming a Union member
because he doesn't "like to affiliate with groups that purport to speak for
[him]," and because their endorsements of political candidates and certain
of their lobbying activities make him uncomfortable. Initially, Collier's
school committee service constituted the primary reason for Collier's
avoidance of MTA membership.
     Surry's practice has been to designate one member to negotiate with a
representative of its teachers. That designee reports to the full commit-
tee monthly during negotiations. In his capacity as a Surry School
Committee member, Collier has not participated in collective bargaining
negotiations. As a member of the Surry School Committee, Collier receives
information from the Maine School Management Association concerning teacher
contracts throughout the state. Collier has voted to ratify a negotiated
contract. Surry contract negotiations during Collier's tenure have never
required arbitration.
     Collier is an attorney licensed to practice in Maine. Collier and his
law firm have represented towns, although not in labor relations. Collier

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does not feel that it would be difficult to represent a school board in
collective bargaining matters while being a member of the MTA. Collier
feels he could keep his Surry School Committee obligations and any possible
professional affiliations separate and states further that he would not act
as a decisionmaker in matters affecting himself as a Blue Hill teacher.
     When Collier began teaching at Blue Hill in 1988, "there was no objec-
tion to nonmembers attending association meetings and voting." During the
second year of his employment, nonmembers were barred from voting, par-
ticipation and attendance, upon objection by Union members. The Union's
practice from 1989 until January 31, 1992, was to exclude nonmembers from
its meetings. Any attendance of nonmembers, from 1990 until the Union's
receipt of Collier's letter in January of 1992, was inadvertent.
     At a January 6, 1992, brainstorming session conducted in response to
the Superintendent's request to reopen the parties' contract, the Union
circulated a ballot with all alternatives raised at the session, for a vote
among the entire thirty-nine member Blue Hill staff.1  Collier freely
expressed his opinions at that session. The Union used the list of alter-
native budget cuts approved by a majority of the staff in its January 21
informal negotiating session with the school committee. On January 22,
sixteen Union members present at an association meeting voted unanimously
to reopen negotiations and elected a five-member negotiations team.
Nonmembers were not permitted to attend that meeting. On January 27, a
vote was taken on authorizing the negotiators to agree on furloughs.
The measure passed by a favorable vote of fourteen to two.
     Collier asked to be allowed to participate and was at first refused
during the flurry of contract-related activity by the Union and the School


     1No violation of the duty of fair representation has been charged in
this matter predicated upon the Union's having ascertained and advanced the
desires of a majority of the Blue Hill School Committee's entire workforce,
including employees which the Union is not certified to represent. The
record does not establish or suggest that the interest of bargaining unit
members were different from or submerged by those of non-unit members of
the larger population. Moreover, there is no allegation of lack of
authority for such activity or that objection was made thereto by any
bargaining unit member.

				 - 5 -

Committee, during the winter of 1992, which resulted from the State budget
crisis and a shortfall of State funding of the Town of Blue Hill. On
January 30, 1992, Collier wrote and also orally contacted Chief Negotiator
Della Martin and Building Representative Cathy Snow stating that his legal
research concerning the Union's duty to represent all unit members
regardless of union membership compelled him to ask that they reconsider
his request on penalty of his further pursuit of a "ruling" on the issue.
Both Martin and Snow agreed they would raise the issue before the next
Union meeting. Martin informed Collier that although there was generally
no objection to nonmembers attending, some members opposed voting by non-
members. However, Martin told Collier that if the bylaws permitted it,
nonmembers would be allowed to vote. On January 30th, in response to
Collier's letter requesting that nonmembers be allowed to attend meetings
and participate, the Union membership voted to allow nonmembers to attend
and initiated an inquiry concerning the bylaws2 which resulted in the
conclusion that nonmembers could not vote regarding Association matters.
The Association's Constitution in Article 4 Section (1)(b) states that
"[o]nly active members shall be eligible to vote, hold office or serve on
any committee of this Association."3  Upon a vote of the membership, non-
members were permitted to attend and speak, but not vote at meetings.

     Collier attended Union meetings which involved discussions of the Blue
Hill School Committee's request that the contract be reopened in order that
unit members might forego a pay raise. What the Union might require as a
quid pro quo for acquiescence in the re-opening of the contract was the
primary subject of discussion; however, at these meetings individuals also
suggested issues which they wanted included in negotiations and votes were
taken concerning whether and in what priority those issues would be
advanced with the School Committee. Collier and other nonmembers were
allowed to attend Union meetings and to speak on any subject, but not to
vote. Collier attended three such meetings and was prevented from making


     2Although the parties both referred to the bylaws, it is the
Association's Constitution which addresses the issue of voting generally.

     3There is no indication of the method of amendment, if any, of the

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motions to advance for consideration both issues affecting his individual
wages,4 and affecting the unit as a whole. Collier was extended the oppor-
tunity to speak on any motion before the Union membership. Collier raised
a personal pay scale concern directly with the Superintendent and obtained
partial satisfaction. Collier did not request that the Union grieve the
unsuccessful portions of the matter on his behalf. Collier suggested to
the Union negotiator, Trisha Rhodes, that she raise his pay parity issue in
negotiations if she had a chance. The Union has never otherwise refused to
handle a request by Collier on the basis of his lack of membership.
     On January 31st, the Union voted on, then presented its final salary
package to the School Committee. On February 3, the Union voted to submit
a package and salary agreement to the Committee. On February 6, by a vote
of nine to three, the Union agreed to ask for the dates of March 20,
April 27 and June 19 as furlough days. Collier did not attend the
February 6 meeting. On February 11, the negotiators submitted a ballot to
the membership with language concerning five negotiation language issues.
Nonmembers were not permitted to vote. The Union proposed at a February 24
negotiation session that five in-service days be eliminated, reducing the
school year from 185 to 180 days. The School Committee countered with a
threat to close down the school for lack of funds and to implement a reduc-
tion in force if the Union did not open up the contract. On March 2, the
Union voted to reopen negotiatiations in the fall of 1992, to work 180
days, to accept flat funding, to accept up to four furlough days and to
give up all of its language proposals. Collier attended the March 2 Union
meeting. The parties' agreement was memorialized on March 9. The Union
membership ratified the negotiated agreement with "reluctant unanimity."
There were some changes in the contract as a result of reopener nego-
tiations between the Union and Blue Hill, including furlough days and a
salary freeze. Collier would have voted for ratification as the
Association did.


     4Collier desired to urge the Union to pursue his theretofore unavailing
individually advanced contention that his law degree should, upon the
Superintendent's evaluation, earn him the equivalent of Ph.D. pay.

				 - 7 -

     Collier does not desire to possess the right to sit on the Union's
negotiating team, to participate in the selection of negotiation team mem-
bers, or to run for Union office. Although Collier's "prime focus is the
[sic] issues that are to be discussed in the [sic] bargaining," Collier
also desires to vote on issues such as whether to invoke mediation, arbi-
tration and fact-finding services (both arranged for on a fee-for-service
basis) and whether the Union should pay for grievances or negotiator
     The Penobscot Bay Teachers Association includes members and teachers
who are employed by School Unions in Castine, Brooksville and Penobscot,
who are covered by separate collective bargaining agreements. Including
Blue Hill, the Association's units total about fifty teachers, only five of
whom are not Union members. Collier is one of three nonunion members of
the twenty-nine teacher Blue Hill bargaining unit. Collier has never asked
the Union for any form of associate membership, leave of absence or other
membership on the basis or in recognition of his school board membership.
The Union has never asked for and Collier has not offered to pay a "fair
share" contribution to cover a pro rata portion of the collective
bargaining services provided by the Union.
     The pending PPC has not been discussed formally at a Union meeting.
At least two people have told the Union negotiators that they are not going
to pay dues "if [as a result of Collier's quest] no one else has to." The
Penobscot Bay Teachers Association regularly submits collective bargaining
issues to its membership for vote. Annual Union dues are $25. There are
additional dues associated with MTA/NEA membership amounting to about $10
per paycheck. Tne Union's bylaws authorize the Union to pursue purposes
other than representation of teachers as a collective bargaining agent;
however, the representation of teachers in collective bargaining is the
Union's primary purpose. Debby Carter, a teacher in another town, serves
as the chair of the Blue Hill School Board.

     Although the negotiators who negotiated the last contract received a
stipend, the chief negotiators for previous contracts, dating back to 1981,
were not compensated. Blue Hill's ten teacher aides, custodians and
secretaries are not organized.

				 - 8 -

     As is more fully explained below, we hereby hold that unless it has
obligated itself by constitution, bylaw or otherwise, a collective
bargaining agent is not compelled by the MPELRL to allow nonunion, non-
fair-share bargaining unit members to vote on negotiating positions to be
taken in collective bargaining.5  In so holding we do not deprive Collier
of the right to affect the bargaining process by which the terms and con-
ditions of his employment are established. Collier has in the past and
assumedly will in the future continue to apprise the Association of his
concerns and suggestions. He may also attempt to convince other unit mem-
uers to remove or replace the incumbent agent through Board representation
proceedings. Additionally, the Board's prohibited practice complaint pro-
cedures are available to Collier to redress violations of the Union's duty
to represent all of the members of the bargaining unit without discrimina-
tion based on union membership. Finally, Collier may always join the
Association and avoid the disenfranchisement resulting from his voluntary
nonmembership. We conclude that the union membership prerequisite to
voting on negotiations matters, at issue in this case, neither violates the
MPELRL on its face nor as applied.
     We have been cited to no case establishing a statutory or constitu-
tional right of nonunion unit members to participate on equal footing with
union members in voting on negotiation proposals or strategies. There is
no allegation in this case that there was no meaningful or adequate oppor-
tunity for consideration of the views of nonmembers, or that the con-
sideration given any expressed view was perfunctory. It is undisputed that
Collier and other nonmembers were afforded access to Union decisionmakers
during stages of negotiation preparations which immediately preceded voting
on collective bargaining proposals. There is no evidence which convinc-
ingly indicates whether votes taken were of the Union's membership serving
as a bargaining position formulation "committee of the whole," or whether

     5We make no finding beyond this narrow issue and do not comment upon
whether nonunion fair-share contributors may properly be excluded from
voting respecting negotiating positions to be taken in collective

				- 9 -

the vote constituted merely a poll of the Union membership, subsequently to
be considered by an individual or committee charged with the responsibility
of formulating bargaining positions representing the interests of the
bargaining unit as a whole.6

     Collier has failed to establish by direct evidence or reasonable
inference, either: intent to ignore his or other nonunion unit members'
interests; circumstances suggesting a lack of any rational argument for
rejection of any bargaining position advanced by himself or fellow nonunion
unit members; or, that the voting procedure used results in disregard of
his interests or those of fellow nonunion unit members. There is no evi-
dence suggesting that bargaining positions taken or contract provisions
reached affect Collier or any other nonunion unit members differently from
Union members. Accordingly, we shall apply the "general presumption . . .
that the union's representative obligation has been performed in good
faith." Pennsylvania Labor Relations Board v. Eastern Lancaster County
Education Association, 427 A.2d 305, 309 (Pa. Commw. Ct. 1981) (citing
Branch 6000, National Association of Letter Carriers v. NLRB, 595
F.2d 808, 812 (D.C. Cir. 1979)).

     There are no MPELRL provisions which deal directly with union or unit
voting procedures or with other internal union matters.7  The National

     6The February 24, 1992, ballot (R-12) which the Union used urges "MTA
members" to talk over appended language proposals "with a colleague." It
further requests that members "vote [their] preference" concerning whether
four contractual subjects ought to be negotiated. We distinguish this
ballot from the procedure found violative in the Branch 6000 case, cited
herein, on two bases. In Branch 6000 a union's decision respecting
bargaining proposals based solely on the bald compilataion of the personal
desires of union members present and voting was found to have neglected any
consideration of the interests of the bargaining unit as a whole. Here,
there is no indication whether the preference sought to be expressed was a
personal or "collective" one. The ballot on its face asks Union members
to consult with a "colleague" before making an election. Secondly, in the
instant case, voting Union members were adequately apprised of the views of
any nonmembers wishing to express them. Although the ballot might have
been more artfully worded, we do not find it violative in light of the com-
munication process which preceded it.

     7Compare Section 447.309(1) & (4), Florida Statutes (1981) which require
ratification of collectively-bargained agreements by bargaining unit members.

				- 10 -

Labor Relations Act (NLRA) similarly contains no franchise availability or
voting procedure provisions although the Landrum-Griffin Labor Management
Reporting and Disclosure Act (LMRDA) contains provisions which address
voting procedures applicable to votes among union members.8  Federal stat-
utes in specified circumstances authorize the government to submit the
employer's last offer to all bargaining unit employees both as a means of
inducing settlement of a dispute over a new contract9 and in the case of
presidentially determined emergencies when a related strike has been
enjoined by a United States District Court.10

     Lacking controlling statutory or caselaw authority, we are required to
determine whether the Association should be required to accord Collier
equal participation in all matters affecting collective bargaining nego-
tiations, regardless of his lack of membership in the Union, based on the
purpose and free exercise provisions of 26 M.R.S.A.  961 and 963 (1988).
We have reviewed Collier's constitutional arguments and find them unper-
suasive. We believe that the limited infringement on individual rights
implicit in the grant of exclusive representational capacity to a majority
elected collective bargaining agent "is justified by the compelling state
interest in the orderly resolution of labor disputes." Pennsylvania Labor
Relations Board v. Eastern Lancaster County Education Association, 427 A.2d
305, 310 (Pa. Commw. Ct. 1981), (citing, Abood v. Detroit Board of
Education, 431 U.S. 209 (1977)). Even if, as Collier analogizes in his
brief, "the state empowers the union to exercise authority over the non-
member in employment matters in a way that is comparable to the authority
of the government [more specificially, the legislature] over its citizens,"
we conclude, as did the District Court in the case of Lear Siegler, Inc.


     8The LMRDA's Bill of Rights of Members of Labor Organizations 29 USC
 411 (a)(1) (1976) provides, in pertinent part, that "[e]very member of a
labor organization shall have equal rights and privileges within such orga-
nization to . . . vote in elections or referendums of the labor organiza-
tion . . . ." There is no Maine statutory equivalent of the LMRDA.

     9Labor Management Relations Act (Taft Hartley Act of 1947) (LMRA)
Section 203(c). 29 USC  173(c) (1976).

    10LMRA  209(b), 29 USC  179(b) (1976).

			       - 11 -

v. United Auto Workers, Local 330, 287 F. Supp. 692, 697 (W.D. Mich. 1968),
aff'd in part, 419 F.2d 534 (6th Cir. 1969)11 that the United States Supreme
Court's doctrine of "one man one vote" is applicable only to the election
of political representatives and does not give citizens [or unit members]
the right to a democratic vote on each action taken by their elected
     We conclude that the Union's actions in restricting voting on nego-
tiations matters to Union members does not violate its duty of fair repre-
sentation. Neither do we find any action by the Union electorate in the
exercise of decisionmaking authority to constitute a violation of the duty
of fair representation. The Municipal Public Employees Labor Relations Law
(MPELRL) grants to a certified agent the exclusive right to bargain for
unit employees. Because employees' individual negotiating rights are
eclipsed by those of the majority representative, a correlative duty of
fair representation applies. There is no dispute that the Union owes a duty
of fair representation to all members of its Blue Hill teachers' bargaining
unit--union members and nonmembers alike. Lundrigan v. State, No. 83-03,
slip op. at 6-7, 5 NPER 20-14013 (Me.L.R.B. Feb. 4, 1983), aff'd, 482 A.2d
834 (Me. 1984); Bradbury v. Washburn Teachers Association, No. 82-08, slip
op. at 4-5, 4 NPER 20-13014 (Me.L.R.B. Mar. 15, 1982); Whitzell v.
Merrymeeting Educators' Association, No. 80-15, slip op. at 9, 3 NPER
20-12004 (Me.L.R.B.  Nov. 6, 1980), aff'd, No. CV-80-124 (Me.Super.Ct. Sag.
Cty., Dec. 28, 1982). "The duty of fair representation imposes upon the
bargaining agent an obligation to represent fairly the interests of all
employees in the bargaining unit, in good faith and without arbitrariness
or invidious discrimination." Branch 6000, National Association of Letter
Carriers v. NLRB, 595 F.2d 808, 811 (D.C. Cir. 1979). The duty applies
from the formulation of bargaining proposals, through the acceptance of
collective agreements to and including grievance handling. See International
Brotherhood of Teamsters, Local No. 310 v. NLRB, 587 F.2d 1176, 1181
(D.C. Cir. 1978). The rule establishing the duty of fair representation


     11In Lear-Siegler the Court dismissed for lack of standing an employer's
objection to a union's contract ratification procedures based on the Union
Members' Rights provisions of the LMRDA, referred to in footnote 8, supra.

				- 12 -

announced in Vaca v. Sipes, 386 U.S. 171, 190 (1967) and subsequently
adopted by this Board applies to all union activity and requires the union
to represent employees "adequately as well as honestly and in good faith."
Airline Pilots' Association, International v. O'Neill, No. 89-1493, 59
L.W. 4175, 4176-8 (Mar. 19, 1991).12  Called upon to represent employees who
often possess different and sometimes even competing interests, a collec-
tive bargaining agent "may agree to terms favorable to some employees and
unfavorable to others, provided it acts in good faith." Williams v.
Pacific Maritime Association, 617 F.2d 1321, 1333 (9th Cir. 1980) (citing
cases). In the facts of this case we find nothing in the Union's decision
to restrict voting on contract proposals and strategy, or in the results
reached pursuant to that restriction to be arbitrary, capricious or invid-
iously discriminatory. We think it is reasonable for the Union to
conclude that restriction of voting privileges to its dues-paying mem-
bership is necessary to the Union's economic survival. It cannot be gain-
said that the effectiveness of a collective bargaining agent and indeed the
success of the statutory public sector collective bargaining process itself
is in large measure directly dependent on the fiscal soundness of the union.

     Both the NLRB and the courts have been highly deferential to the exer-
cise by unions of managerial control over their internal union affairs. In
the federal private sector neither Section 101(a)(1) of the Labor Management
Reporting and Disclosure Act, 29 U.S.C.  411(a)(1), nor the provisions of
the National Labor Relations Act require modifications of a collective
bargaining agreement to be submitted to the membership for ratification in
the absence of a union constitutional requirement. Leary v. Western Union
Telegraph Co., 570 F. Supp. 1384 (S.D.N.Y. 1983). Striking down an NLRB


    12The duty of fair representation requires that a collective bargaining
agent acting in its negotiating capacity refrain from behavior which is so
unreasonable as to be irrational. See Airline Pilots Association,
International v. O'Neill, Nos. 89-1749, 59 L.W. 4175, 4179 (Mar. 9, 1992);
Ackley v. International Brotherhood of Teamsters Local 337, 948 F.2d 267
(6th Cir. 1991). In ALPA v. O'Neill the Court further explained, at page
4176, that, "a union's actions are arbitrary only if, in light of the fac-
tual and legal landscape at the time of the union's actions, the union's
behavior is so far outside a 'wide range of reasonableness,' Ford Motor
Company v. Huffman, 345 U.S. 330, 338 (1953), as to be irrational."

				 - 13 -

rule requiring that nonunion unit members be allowed to vote on the affil-
iation of their collective bargaining agent with another union, the United
States Supreme Court stated:
     A union makes many decisions that "affect" its representation of
     nonmember employees [such as to] . . . ratify a collective
     bargaining agreement, [to affiliate where there is no question of
     representation] or [to] select union officers and bargaining
     representatives. [However,] . . . dissatisfaction with represen-
     tation is not a reason for requiring the union to allow nonunion
     employees to vote on union matters . . . .  Rather, the Act
     allows union members to control the shape and direction of their
     organization, and "[n]on-union employees have no voice in the
     affairs of the union."

N.L.R.B. v. Financial Institution Employees of America, Local 1182, 475
U.S. 192, 205 (1986) (citing Allis-Chalmers Mfg. Co., 388 U.S. 175, 191
     In the federal private sector the means of contract ratification is
left to the discretion of the exclusive representative. Houchens Market v.
NLRB, 375 F.2d 208, 212 (6th Cir. 1967). A collective bargaining agent may
reserve to its membership the right, acting on behalf of the interests of
the collective bargaining unit as a whole, to ratify a negotiated collective
bargaining agreement. Lear Siegler, Inc. v. UAW, Local 330, 419 F.2d 534,
535 (6th Cir. 1969). See also, Gilliam v. Independent Steelworkers Union,
572 F. Supp. 168 (N.D.W.Va. 1983); Pennsylvania Labor Relations Board v.
Eastern Lancaster County Education Association, 427 A.2d 305 (Pa. Commw.
Ct. 1981); Daigle v. Jefferson Parish School Board, 345 So.2d 583 (La. App.
1977), writ refused, 347 So.2d 260 (La. 1977). We conclude that the union's
ability to reserve to its membership the authority to determine, on the
basis of the interest of the unit as a whole, what subjects and language
are to be proposed in negotiations and the priority in which they will be
pursued, is a logical derivative of the right of exclusive representation.
     Just as Congress never intended unions to be equal partners in the
management of the enterprise in which its members are employed, see First
National Maintenance Corp., 452 U.S. 666, 676 (1981), we think nonunion
unit members were never intended to be equal partners in the internal

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affairs of the union.13  We consider voting on contract ratification and
voting on what will be proffered in negotiations to be of identical dimen-
sions. Accordingly, we regard as equally applicable in the instant case
the following portion of the analysis of the hearing examiner in Public
Employees Federation/AFL-CIO and Muragali, No. U-4626, 3 NPER 33-14617
(H.O. Decision N.Y. PERB Nov. 13, 1980), aff'd, 3 NPER 33-13036 (N.Y. PERB
May 8, 1981), a case involving the issue of whether non-union bargaining
unit members possess a right of access to information destined to be used
by union members in a contract ratification vote restricted to union mem-
bers only. With respect to the restriction of the ratification vote to
union members alone the hearing officer opined, in pertinent part:
     Surely there is no logical reason to determine that the union as
     exclusive representative consists solely of its officials. And
     once the union as a whole, officials and members both[,] is con-
     sidered the statutory agent, then a ratification vote within that
     entity can be viewed as another act of the bargaining agent, on a
     par with decisions concerning proposals during bargaining. It is
     simply another function within the negotiations process which the
     Act reserves to said agent.

     The argument to extend ratification voting rights to non-union
     unit members is not without merit. It rests on the discrimina-
     tion inherent in a members-only vote and the view of ratification
     as closely connected to the employment relationship. As to the
     job-related nature of a ratification vote, clearly, ratification
     affects the employment relationship of non-union unit members:
     the results of such a vote can set their terms and conditions of
     employment and preclude them from filing a representation peti-
     tion for up to three years. Yet this argument is not sufficient
     to extend the right to ratify. All actions of the bargaining
     agent regarding the unit affect unit members' terms and con-
     ditions of employment that is the very purpose of a bargaining
     agent. Yet no one can argue that each and every action of the
     bargaining agent must be subject to direct approval by unit mem-
     bers. Nor is there any dispute that the present limitation on
     eligibility to participate in a ratification vote distinguishes
     between union and non-union unit members. However, since I have
     determined that for the purposes of a ratification vote union
     members are part and parcel of the bargaining agent statutorily
     assigned the power to reach agreement with the employer, the
     distinction made between union members and non-members in this
     context is valid.


    13This is not to say that the Union cannot extend the franchise to all
bargaining unit members if it so desires.

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(Footnotes deleted)

     Although we have determined that the members-only voting restriction
herein does not violate the MPELRL we hasten to add that the Union is not
free to disregard the interests of nonunion unit members. Proper
fullfillment of the fair representation duty "requires the bargaining agent
to function in a representative capacity, with a fair understanding of the
interests of all represented employees. The union has responsibility as
exclusive bargaining agent to formulate the employees' position on terms
and conditions of employment. This responsibility may be delegated by the
union membership. Such delegation is an internal union procedure from
which nonunion employees properly may be excluded. However, the delegates,
once selected, must in turn function as a representative for all the
employees in the bargaining unit. If a representative's negotiating deci-
sions are motivated solely by self-interest, then there is a breach of the
duty of fair representation." Branch 6000, National Association of Letter
Carriers v. NLRB, 595 F.2d 808, 813 (D.C. Cir. 1979).

     The Board's prohibited practice complaint procedures are always
available for redress of violations of the duty of fair representation.
There is, however, a range of managerial discretion in the internal affairs
of unions in which this Board, absent circumstances not present in the
instant case, is reluctant to intervene. Such matters are best addressed
definitively by union decisionmakers subject to and mindful of the availa-
bility of Board decertification election procedures.

     In Waiters Union Local 781 of Washington D.C. v. Hotel Association of
Washington, 498 F.2d 998 (D.C. Cir. 1974), the United States Circuit Court
for the District of Columbia made the following comments, which we think
bear repeating here:

     The duty of fair representation must be applied realistically in
     the context in which union officials resolve internal union
     disputes, even though a decision in favor of one . . . faction
     . . . arouses keen resentment in the hearts of the other . . . .
     The duty of fair representation implies some consideration of the
     position of the members involved . . . . But there is no require-
     ment of formal procedures. The fiduciary principle precludes
     arbitrary conduct, but it must not be stretched so far as to
     "judicialize" the conduct of the affairs of the union, and to cut
     athwart a common sense and practical approach toward resolution

				- 16 -
     of problems and disputes that is fair in its essence without
     being rigid in its procedures.

Id. at 1000. A "bargaining agent is not required to carry out the wishes
of non-union employees; it suffices that [it] is available to ascertain
them and to take them into account . . . . [However, although a collective
bargaining agent must provide] communication access for employees with a
divergent view . . . there is no requirement of formal procedures."
Branch 6000, National Association of Letter Carriers v. NLRB, 595
F.2d 808, 813 (D.C. Cir. 1979.

     We have carefully considered the Association's countercomplaint in
light of the evidence presented and conclude that no violation of 26 M.R.S.A.
 964(1)(A) or (C) (1988) has occurred. Collier's status as a member of
the Surry School Committee is an insufficient basis upon which to designate
him a public employer with respect to the Union or its represented employees
in Blue Hill. Moreover, Collier's actions, assuming, arguendo, they were
taken for the purposes alleged of them by the Union constitute at best
attempted interference, restraint or coercion, which actions we cannot
conclude in the facts of this case to have a reasonable tendency to inter-
fere with, restrain or coerce employees or the Union in the exercise of
statutorily protected rights. Finally, we conclude that there is no merit
in the Union's countercomplaint of violation of 26 M.R.S.A.  964(1)(C)
(1988). We have repeatedly noted in analyzing changes based on the language
contained in that and identical provisions of Maine's other public sector
acts that Section 964(1)(C) "is directed at the evil of too much financial
or other support of, encouraging the formation of, or actually participating
in, the affairs of the union and thereby potentially dominating it."
Hendsbee v. Department of Public Safety, No. 89-11, slip op. at 26, 12 NPER
ME-21005 (Me.L.R.B. Jan. 16, 1990); Teamsters Local Union No. 48 v. Town of
Fort Fairfield, No. 86-01, slip op. at 13, 9 NPER ME-17008 (Me.L.R.B. Jan. 24,
1986); Teamsters Local Union No. 48 v. Town of Kittery, No. 84-25, slip op.
at 4, 7 NPER 20-15018 (Me.L.R.B. July 13, 1984). Since Collier is not a
public employer with respect to Blue Hill employees or the Union in its
representation of them, the Union's charge states a claim upon which relief
cannot be granted. We do not find the award of attorney's fees or costs

				  - 17 -

warranted in this case.


     On the basis of the foregoing findings of fact and discussion and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A.  968(5) (1988 & Supp. 1991), it is
hereby ORDERED that Collier's March 4, 1992, Complaint and the Association's
March 24, 1992, Countercomplaint be, and hereby are, DISMISSED.

Dated at Augusta, Maine, this 25th day of September, 1992.


The parties are advised of          Peter T. Dawson
their right pursuant to             Chair
26 M.R.S.A.  968(5)(F)
(Supp. 1991) to seek review
of this decision and order
by the Superior Court by            /s/______________________________
filing a complaint in               Howard Reiche, Jr.
accordance with Rule 80C            Employer Representative
of the Maine Rules of Civil
Procedure, within 15 days of
the date of this decision.
				    George W. Lambertson
				    Employee Representative

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