STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 96-26 & 97-03
Issued: October 30, 1997
____________________________
)
LARRY M. CASEY, )
)
Complainant, )
)
v. )
)
MOUNTAIN VALLEY EDUCATION )
ASSOCIATION, )
)
Respondent. )
____________________________) DECISION AND ORDER
)
LARRY M. CASEY, )
)
Complainant, )
)
v. )
)
SCHOOL ADMINISTRATIVE )
DISTRICT NO. 43, )
)
Respondent. )
____________________________)
The above-named complaints were filed with the Maine Labor
Relations Board (hereinafter referred to as the "Board") by
Larry M. Casey against the Mountain Valley Education Association
("MVEA" or the "union") and School Administrative District No. 43
("SAD No. 43" or the "employer") on June 6 and July 11, 1996,
respectively.
Mr. Casey's complaint against SAD No. 43 alleges violations
of the Municipal Public Employees Labor Relations Law ("MPELRL"),
26 M.R.S.A. 964(1)(A) and (B).[fn]1 Specifically, Mr. Casey
____________________
1 Mr. Casey's complaint erroneously cites a violation of section
964(1)(D) regarding his termination for union activity. Such claims are
brought under section 964(1)(B). See Maine State Employees Association v.
State Development Office, 499 A.2d 165, 167-168 (Me. 1985). This issue has
not been raised at any stage of Board proceedings nor does it influence our
decision in any way. Allegations of violations of 26 M.R.S.A. 964(1)(C) and
964(1)(F) were dismissed by the executive director prior to hearing as a
matter of law. The section of the complaint which alleged violations of state
laws other than the MPELRL was dismissed on motion of the employer at the
prehearing conference.
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charges that the employer terminated him at the end of the 1995-
1996 school year in retaliation for his having won a grievance
challenging his layoff in 1992, and that the employer prevented
him from attending a union meeting concerning his termination by
refusing him entry onto school grounds.
Mr. Casey's complaint against the MVEA alleges a violation
of 26 M.R.S.A. 964(2)(A). Specifically, Mr. Casey charges that
the union failed to represent him since his return from layoff
status in 1992, and that this failure of representation
contributed to his eventual termination. Mr. Casey further
charges that the union's refusal to take his termination case to
arbitration was a violation of the duty of fair representation.
Prehearing conferences were conducted by Alternate Chair
Kathy M. Hooke on September 12, 1996, at which time these cases
were consolidated for hearing. In addition to consolidating the
cases Alternate Chair Hooke, upon agreement of the parties,
ordered that Complainant's and Respondents' presentations at
hearing be bifurcated to allow for the submission of motions to
dismiss by both Respondents after the presentation of
Complainant's case-in-chief. All of the union's proposed
exhibits and all of the employer's proposed exhibits were
admitted into evidence at the prehearing conference. The
Consolidated Prehearing Conference Memorandum and Order of
September 23, 1996, is incorporated herein and made a part of
this Decision and Order.
An evidentiary hearing was conducted on October 9, 1996, and
November 13, 1996, by Peter T. Dawson, Chair; Karl Dornish, Jr.,
Alternate Employer Representative; and Wayne W. Whitney,
Alternate Employee Representative. Mr. Casey was represented by
Wm. Thomas Hyde, Esq.; MVEA was represented by Shawn C. Keenan,
Esq.; and SAD No. 43 was represented by Bruce W. Smith, Esq.
Consistent with the prehearing order, the hearing was closed at
the end of the presentation of Complainant's case-in-chief to
allow for briefs from all parties on the issue whether Mr. Casey
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has met his burden of proof in either complaint. Mr. Casey was
provided full opportunity to examine witnesses,[fn]2 introduce
documentary evidence and present oral and written argument.
JURISDICTION
The jurisdiction of the Board to hear these cases and to
issue a decision and order lies in 26 M.R.S.A. 968(5)(C) (1988
and Supp. 1996). No objection has been raised to the Board's
jurisdiction.
FINDINGS OF FACT
Upon review of the entire record the Maine Labor Relations
Board finds the following facts:
1. Larry M. Casey was hired by SAD No. 43 in 1989 to teach
chemistry at the Mountain Valley High School. Previous to his
teaching position at SAD No. 43, Mr. Casey was employed for five
years as an analytical chemist in the private sector (paper
industry). During the 1989-1990 and 1990-1991 school years
Mr. Casey was evaluated twice by the high school principal,
Mr. Thomas Rowe. Mr. Casey's evaluations were positive and
Mr. Rowe found him to be "an excellent teacher."
2. Mr. Casey's teaching contract was renewed for a two-year
period at the end of the 1990-1991 school year. His January 1992
evaluation by Mr. Rowe was generally positive, but it noted a few
areas which needed improvement. In the spring of 1992, Mr. Casey
received a "Maine Science Teacher of the Year" award from the
Pulp and Paper Foundation at the University of Maine at Orono.
3. On May 20, 1992, Mr. Casey was informed by Superin-
tendent William H. Richards that he would be laid off at the end
of the 1991-1992 school year due to budgetary concerns which
required elimination of his position as science teacher.
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2 Respondents engaged in cross-examination of Complainant's witnesses.
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4. Ms. Jayne Costa, an English teacher and Vice President
and Grievance Chair of the MVEA, filed a grievance on behalf of
Mr. Casey to contest the decision to eliminate his position.
The grievance was denied by SAD No. 43 at every step. Shawn C.
Keenan, General Counsel for the Maine Education Association
(MEA), became involved in the grievance at the school board
level. After the grievance was denied at that level, the union
voted to take Mr. Casey's termination case to arbitration.
5. Mr. Casey testified: "Apparently because [he] was named
Maine Science Teacher of the Year, the community rallied behind
[him] and they essentially took over a budget meeting and a
member of the community motioned that enough money be reinstated
to reinstate [him] and he received quite substantial support from
the community for his motion." The motion did not pass.
6. In August, 1992, a biology teacher at SAD No. 43
resigned unexpectedly. By letter dated August 20, 1992,
Mr. Keenan advised Mr. Casey to apply for the "vacant high school
Biology teacher position" created by this resignation.
7. In a letter dated August 25, 1992, Superintendent
Richards informed Mr. Casey that he would be "recalled as a
science teacher." About six weeks later, Mr. Keenan sent a
letter to a representative of SAD No. 43 which reads:
This will confirm that the grievance of Larry Casey, as
heard by the SAD 43 School Committee on July 6, 1992,
will be withdrawn.
Mr. Casey's swift recall to a teaching assignment in
SAD 43 has rendered this grievance moot.
Thank you for your assistance.
8. Shortly after Mr. Casey returned to a teaching position,
the new high school principal, Mr. Richard Blackman, commented to
the local press that Mr. Casey was an asset to SAD No. 43, that
he (Blackman) particularly liked the way Mr. Casey made education
real to the students and that Mr. Casey's experience in the paper
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industry would help him do well in the chemistry curriculum at
the high school.
9. Upon his return to teaching in the fall of 1992,
Mr. Casey discovered that his class assignments had been changed
from all advanced placement chemistry to "three classes no one
wanted. Second year freshmen that could not pass science last
year." Mr. Ken Murray, head of the science department, taught
the advanced placement chemistry classes. At this same time,
Mr. Blackman replaced Mr. Rowe as principal and he, therefore,
became the primary evaluator of teachers. Both Mr. Casey and
Mr. Murray complained to Mr. Blackman about their difficulty in
working with each other. Mr. Blackman testified that he knew
there was definitely tension between these two gentlemen in their
working relationship.
10. Mr. Casey testified that Mr. Murray is "a science
department head with a lot of seniority and is known for kind of
like running the local" and that when he approached Mr. Murray
about perceived hostility between them after his return from lay-
off, Mr. Murray responded that Mr. Casey had "burned [his]
bridges and [Mr. Murray] didn't want [Mr. Casey] back."
Mr. Murray did not elaborate and Mr. Casey did not question him
further about this remark. Mr. Casey testified that "from that
point on [he] had no working relationship with the MEA."
11. Mr. Casey contacted the MEA UniServ Director, Donald
Belleville, concerning his course schedule and his belief that he
was "being punished." Mr. Belleville responded that since
everyone's schedule was different and all the science courses
were redistributed in some fashion since the prior year it was
his "best judgment and opinion that [Mr. Casey] [did] not have a
grievance." In February, 1993, Mr. Casey wrote to Ms. Linda
Hardenstein, who is employed by the National Education
Association in its legal services program. Mr. Casey's letter
reads, in part:
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. . . My situation began when my department head
[Ken Murray] made an administrative decision to
eliminate me in the Spring of 1992. . . . When I spoke
to Sean Keenan about this conflict of interest (the
department head, Mr. Murray, is on the MEA Board of
Directors and has held other high-ranking positions in
the MEA and pretty much runs the local union single-
handedly), Sean represented me. The case was pending
(through the grievance process) when I was reinstated
due to another teacher resigning.
. . . Upon my reinstatement I was given the worst
classes in the Science Department . . . . Mr. Murray
replaced my award-winning program with an environmental
Chemistry program. I spoke up about this. I have
since been evaluated by my principal and will be by my
superintendent . . . so that the administration would
have something on me.
When I told Sean Keenan about this, he said he
refused to represent me and that we had no future
working together. He said if he "never worked with me
again, it would be too soon." . . . [T]he local repre-
sentative and the Uniserv Director are good friends
with Ken Murray, and always interpret the facts/
contract in his favor . . . . There is no doubt in my
mind that Mr. Murray and the administration is starting
a "paper trail" on me. I need help - please help me.
. . .
12. Mr. Casey was placed on "clinical supervision" during
the 1992-1993 school year. This program consists of several
observations of a teacher by the principal and feedback
concerning the observations. There is no evidence pertaining to
the rationale for clinical supervision of Mr. Casey. Mr. Casey's
February 1993 evaluation done by Mr. Blackman was generally
positive, with a few areas noted as needing improvement. The
following comments were excerpted from the evaluation:
- I have concerns about our science curriculum being
followed when I observe a freshman and junior class
doing the same lab.
- Mr. Casey had some concerns when he started this
school year. He has been working on these.
- Mr. Casey has a positive attitude toward teaching.
He has expressed some philosophical concerns about the
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school and curriculum which are points for discussion.
- (Improvement goal) Develop an understanding of the
direction of our curriculum development and work to
implement that school-wide.
13. Mr. Casey testified that he did not detect any personal
hostility between himself and Principal Blackman and that the
only problem he had with Mr. Blackman was that he (Mr. Casey) was
being extensively evaluated and that Mr. Blackman "was not
listening to things [Mr. Casey] mentioned about the curriculum."
14. In June, 1993, Mr. Casey was placed on a "corrective
action plan" for the 1993-1994 school year. His notice reads, in
part:
The purpose of the Action Plan is to clearly identify
areas of deficiency that must be rectified satisfac-
torily and to provide you with the support necessary to
address these deficiencies. Failure to meet the
expectations identified in the Action Plan by January,
1994 will result in a recommendation of non-renewal of
your continuing contract.
15. Mr. Blackman testified that he decided to place
Mr. Casey on the corrective action plan because he had some
concerns, based on his own observations, about Mr. Casey's
teaching strategies and classroom management. The corrective
action plan included course work, conferences, peer support and
continuing classroom observations by the principal. Mr. Blackman
testified that department heads played no role in the evaluation
of teachers in their departments.
16. Mr. Casey filed a grievance concerning placement on the
corrective action plan. Mr. Casey dropped the grievance after
consulting with Ms. Costa, who advised him to work with the plan
for a year because "it's just a way of helping you . . . a way of
bettering yourself." Ms. Costa assured Mr. Casey that the union
would file a grievance and fight it very vigorously if the plan
was changed in any way or extended after one year. Ms. Costa
testified that she searched the contract and consulted with
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Mr. Donald Belleville, UniServ Director with the MEA, about
Mr. Casey's rights vis-a-vis the corrective action plan and the
contract, and she could not find any language in the contract
which would prohibit placement of Mr. Casey on a corrective
action plan.
17. As Mr. Casey's union representative, Ms. Costa met with
him whenever he met with the principal or superintendent
concerning the corrective action plan. Ms. Costa testified that
there were meetings on a weekly basis, sometimes twice a week,
and she was always there. "I insisted that I be there, and I
always made sure that Larry was well represented in those
meetings."
18. On February 1, 1994, Mr. Blackman recommended to
Superintendent Richards that Mr. Casey's corrective action plan
be continued until January 1995. Mr. Blackman was of the opinion
that there were still performance problems but that Mr. Casey
ought to be given additional time to improve "based upon
Mr. Casey's progress with respect to the deficiencies and his
potential to be an effective teacher." Superintendent Richards
was supportive of extending the action plan until January 1995.
19. Mr. Blackman left the principalship at the end of the
1993-1994 school year and was replaced in that position by
Mr. Danny Michaud. As principal, Mr. Michaud took over the role
of primary evaluator of teachers and was, therefore, responsible
for working with Mr. Casey on the corrective action plan. By
letter to Mr. Casey dated September 9, 1994, Mr. Michaud set
forth his expectations concerning the action plan process and
referred to a previous conference with Mr. Casey which was, in
his opinion, "positive and symptomatic of what should become a
productive school year for all parties concerned."
20. Mr. Michaud's first evaluation of Mr. Casey on
September 12, 1994, was mostly positive, but it indicated a few
areas which needed improvement. Mr. Casey testified that he felt
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this first evaluation was very good: "He seemed to really like
my teaching and things were going pretty well. We seemed to have
a good working relationship."
21. Mr. Casey was receiving advice from MEA's UniServ
Director at this point in time. Mr. Belleville advised Mr. Casey
to continue making his best efforts to comply with the action
plan, to make brief rebuttals where necessary, but to avoid being
perceived as attacking administration. Also, the local grievance
chair, Ms. Costa, was attending all meetings related to the
action plan.
22. Mr. Casey testified that his relationship with
Mr. Michaud began to rapidly deteriorate in December, 1994.
Mr. Michaud had done three classroom observations of Mr. Casey
and wrote very negative evaluations about each. Mr. Casey wrote
rebuttals to each evaluation which, in Mr. Casey's opinion,
caused Mr. Michaud "to become very angry . . . his anger seemed
to be like spinning out of control."
23. One of Mr. Casey's rebuttals, dated December 7, 1994 (in
response to Mr. Michaud's December 5, 1994, classroom observa-
tion) reads, in part:
First, it is incomprehensible to me that you can make
judgments over the entire lesson including planning,
introduction, practice, review and closure when you a)
did not schedule a pre-observations conference and b)
"popped in" for 40 minutes of a 90 minute lesson. Many
of the points that you noted as "not acceptable" on the
classroom evaluation report actually were part of the
lesson, occurring after your "premature" departure.
. . .
I find Dr. Michaud's understanding of this lesson and
the concepts involved to be totally lacking. . . .
. . .
It is clear that the complexity of the subject matter
of Chemistry at Mountain Valley High School is beyond
Dr. Michaud's understanding without pre- and post-
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observation conferences, In fact, in order to have a
true understanding of the subject matter and the manner
in which it is taught by myself, it may be best that
Dr. Michaud be accompanied by a Science-certified
teacher during any further observations/evaluations.
In summary, I request that Dr. Michaud re-evaluate the
lesson observed on December 5, 1994. . . . Again, it
may be best that Dr. Michaud be accompanied by a person
knowledgeable in Science/Chemistry.
24. Correspondence from Mr. Michaud to Mr. Casey, dated
December 8, 1994, reads, in part:
I appreciated the opportunity of meeting with you and
Mr. Morton to discuss my observation of your class on
December 6. My recommendation to you can be attained.
I hope that you incorporate what we discussed into your
instruction.
I did reflect on our meeting and came away from it with
a concern that is troubling to me. You indicated how,
on your return to class on Wednesday, December 7, you
reprimanded the group for not performing well during my
observation.
I find it totally inappropriate and clearly lacking of
professional judgment for the students to be
reprimanded for concerns that I discussed with you as a
result of the observation. . . .
The students behaved fairly well when I visited. To
tell them that they did not and to imply that you were
"reamed" for their behavior is inappropriate.
. . .
In my opinion, my visits of this class in the future
will be marred as a result of your actions. The
students will be needlessly placed on guard as a result
of your actions. The friction that may occur will be
unhealthy.
I insist that you refrain from similar actions in the
future.
25. Mr. Casey's December 26, 1994, rebuttal to Mr. Michaud's
December 15, 1994, classroom observation reads, in part:
. . . I was extremely proud of this lesson. . . .
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Lesson plans for your use were typed. I worked from
the program which was again on my desk under your
elbow. . . .
. . .
Instruction was given in a clear and precise manner.
Objectives were clear. However, a background is needed
to understand this lesson. Any person without an
understanding of the atomic model would feel lost
during this lesson. Students responded to this lesson
by saying, "This is easy." . . .
. . .
In conclusion, I propose to you that there exists a
program of Chemistry instruction at Mountain Valley
H.S. This program makes Chemistry fun and is designed
to teach like a pendulum swinging to the ability of
individual students. I understand and support any
efforts to improve instruction at Mountain Valley H.S.
However, I believe in this Chemistry program and
request your support for it. . . .
I believe the Chemistry instruction at Mountain
Valley HS is unique and first-rate. I request your
support for this program.
26. By letter to the General Counsel of the MEA, dated
December 22, 1994, Mr. Casey expressed an urgency to his
situation of constant negative evaluations and requested that
"a lawyer outside the [MEA] be provided at the [MEA's] expense.
I request that he be of my choice and that he be subsidized
by [MEA] funds until this case has been resolved to my
satisfaction. . . ."
27. Shawn Keenan, MEA's General Counsel, responded to
Mr. Casey by letter dated January 3, 1995. Mr. Keenan noted that
Mr. Casey was receiving advice from Mr. Belleville and wrote that
"[t]here is nothing that I, nor any attorney for that matter, can
add to Don's capable advice. In the event that SAD 43 tries to
non-renew your contract, your best recourse is to the grievance
procedure of your collective bargaining agreement. . . . You
will not be provided with a lawyer of your choice at MEA expense.
Legal services can only be provided in accordance with MEA and
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NEA guidelines. I enclose a copy . . . ."
28. The MEA's "Legal Services Plan" reads, in part:
The MTA will provide legal assistance to its members and
affiliates when it is determined that:
(a) the action at issue resulted or will result in
actual prejudice or injury to the member's
employment rights . . .
(b) there is a substantial likelihood that the
member/affiliate will be granted relief under
current policies, regulations and laws; and,
(c) where the procedures and standards described in
these guidelines have been followed and met.
The MTA may decline to provide representation or
continued assistance when:
. . .
(b) the member/affiliate does not fully cooperate
with MTA staff and attorneys;
. . .
(d) the member/affiliate rejects a settlement
proposal or other disposition of the case as
advised by staff and/or attorneys;
(e) the member/affiliate retains an attorney without
the knowledge and consent of the [MTA].
29. In a lengthy letter dated January 13, 1995, including a
17-point summary of "concerns related to your instruction of
students," and a 7-point summary of "other concerns," Mr. Michaud
informed Mr. Casey that he did not intend to recommend his
continued employment after the 1994-1995 school year. One of the
"other concerns" noted is "[y]our challenging of my expertise to
assess instruction despite my 12 years as an evaluator, my
educational training, and my efforts to be unbiased and honest in
my assessments of you."
30. On January 25, 1995, Mr. Casey wrote a rebuttal to
Mr. Michaud's letter which reads, in part:
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I was impacted in a reduction-in-force in 1992. I won
my grievance through recall rights. This return from
an almost impossible situation has made me somewhat of
a local hero. I love teaching Chemistry at Mountain
Valley High School. However I have felt threatened by
many of the circumstances surrounding my return. . . .
Mr. Casey, after responding to each of the 17 points first raised
by Mr. Michaud, addresses the "other concerns" and states:
. . .
Apparently, you have inadvertently forgotten these
conversations and meetings. Anyone who is familiar
with the position of High School Principal would
understand how overwhelming this new position would be
to you, especially during the time when the assistant
principal was not yet hired. There was also a period
in which you refused to meet with me because you stated
you could not be fair and unbiased due to the pressure
of your mother-in-law's final illness and subsequent
death. This was the same time frame as the staff
meeting in which you lost your temper with the entire
staff. . . .
. . .
In conclusion, I feel there are many physical and
political reasons for this decision. I propose that
few chemistry teachers could do better and most would
do worse in these circumstances. I pledge to work
cooperatively towards satisfying Dr Michaud's concerns.
31. Mr. Michaud's January 30, 1995, response to Mr. Casey's
last rebuttal reads, in part:
Do not intimate memory lapses on my part. Doing so is
unprofessional and not accurate. The death of my
mother-in-law never contributed to any lack of
professionalism on my part in dealing with you or other
faculty. I find this comment totally uncalled for,
wholly unprofessional and a personal affront.
32. Mr. Casey and Ms. Costa recall the meeting with
Mr. Michaud held in response to Mr. Casey's January 25, 1995,
rebuttal. At this meeting, Mr. Michaud referred to the part of
Mr. Casey's rebuttal which mentioned the death in Mr. Michaud's
family. Mr. Michaud drew a line down the center of a notepad,
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wrote the words "professional" and "personal" on either side of
the line and, visibly very upset, Mr. Michaud told Mr. Casey that
he had just crossed that line. Ms. Costa testified that, in her
opinion, Mr. Michaud was extremely upset with Mr. Casey's
rebuttal because Mr. Casey, essentially, was telling Mr. Michaud
that he was not doing his job. Mr. Casey describes this meeting
as "pivotal . . . he was very, very upset and said you crossed
this line, and everything from there has been hell."
33. On February 15, 1995, Mr. Casey and Ms. Costa met with
Mr. Michaud and the superintendent concerning Mr. Michaud's
recommendation to terminate Mr. Casey. Ms. Costa informed the
superintendent that she believed the district "did not have
enough to nonrenew him" and, if he adopted Mr. Michaud's
recommendation, "I'm going to file a grievance right away and I'm
going to take this all the way to arbitration because I just
don't really think you have a case."
34. Superintendent Richards did not adopt Mr. Michaud's
recommendation to terminate Mr. Casey. In a letter dated
March 7, 1995, Mr. Richards states:
Because I want to insure fairness and to give you every
opportunity to demonstrate to Dr. Michaud that your
skills as a teacher are acceptable, I informed you on
February 15 that we were willing to renew your contract
for the 1995-96 school year. It will be your burden to
demonstrate satisfactorily that all deficiencies have
been rectified by January 1996.
35. Mr. Casey asked the union to file a grievance about this
decision to extend the action plan for an additional year.
Mr. Casey testified that the union's response was that he "was
lucky to have a job."
36. By memorandum dated March 28, 1995, Mr. Michaud informed
Mr. Casey of his perception that Mr. Casey was not cooperating
with Mr. Murray "in defining the curriculum"; that he was
resisting Mr. Murray's efforts; and, that it seemed that
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Mr. Casey philosophically disagreed with Mr. Murray's "tact
regarding science instruction." Mr. Michaud indicated that
Mr. Casey's failure to cooperate with Mr. Murray "distresses
[him] immensely."
37. On April 19, 1995, Mr. Casey met with MEA's general
counsel. Mr. Casey recounted this meeting in a letter to
Mr. Keenan, dated April 23, 1995, which reads, in part:
A review of my situation presented to you . . .
was a description of the daily harassment by immediate
supervisors: Dr. Danny Michaud and Mr. Ken
Murray. . . .
. . .
You have counseled me that there is no action that
should be taken against SAD #43 at this time. I do
trust your decision. I will follow your counsel and
seek no second opinion on this matter; however, it must
be stated that if it comes to pass at a later date that
an action was warranted and possible or I am not
allowed to appeal the termination I am certain will
come to arbitration, this counsel will be regarded as
failure to represent me by the local and state levels
of your labor protective organization. I enjoyed your
friendly manner and I like you very much, but I feel
responsible to my family to enlist the most aggressive
help possible.
38. During the months of March through May 1995, Mr. Michaud
wrote ten memoranda to Mr. Casey concerning his classroom
observations and Mr. Casey's failure to write lesson plans to
Mr. Michaud's satisfaction. Ms. Costa's testimony about this
period of time included the following:
Larry would get very upset, and I would have to tell
him not to say anything. I was constantly telling him
to be quiet during meetings on a regular basis. We had
a weekly meeting that occurred on his action plan, and
he would get very upset and a lot of times I would have
to tell him to be quiet. And it did get to the point a
few times where I asked Larry to leave. I said:
Larry, just go, just leave, you know, this is getting
out of hand, this isn't good for you, you can't do
this; I can't represent you if you're going to try to
argue with the principal. . . .
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. . . he basically threatened that he was so mad at a
meeting that we had just had . . . he was so mad, he
said, at Dr. Michaud at that meeting that he just
thought that maybe he would just get up and punch him
in the face. And I said, you know, Larry, . . .
whatever you do . . . you can't lose your temper. It's
bad enough that you're arguing and we're getting into
arguments in these meetings . . . I says I can't help
you out if you do things like that.
I think in the beginning there was a real
willingness on [Mr. Casey's] part to try to do what he
was asked to do and to really try to improve his
instruction through the corrective action plan . . .
But as time went on I saw more and more that he started
to resist it and kind of fight it instead of just
accepting it and doing it. One of the things I
remember specifically was I had to sit down with Larry
and show him how to write a lesson plan. That was a
big thing. His lesson plans kept coming back as
unacceptable . . . And I sat down with Larry and
showed him how he needed to do it and gave him examples
and tried to teach him how to write the lesson plan the
way Dr. Michaud had asked for it. And he just said no,
this is a bunch of bullshit, I'm not going to do it
this way, I know how to write a lesson plan, I'm going
to do it my way. And I told him, listen, you don't
understand. You have to do it this way because that's
the way you've been asked to do it.
39. Dr. Edward Martin, a physician in Rumford, testified
that he had occasion to speak with Mr. Michaud about Mr. Casey in
early 1995. Dr. Martin recalls that Mr. Michaud's manner seemed
very vindictive.
He said that [Mr. Casey] was a very poor teacher, that
come February he was going to get him, that he would be
out, that he had compiled a tremendous number of
grievances against Mr. Casey, and that there would be
more, and that come February he'd be out, and if he
would resign voluntarily that he would not give him a
bad recommendation, but if he -- but if he didn't, he
would essentially destroy him.
When asked whether Mr. Michaud indicated to him why he was upset
about Mr. Casey, Dr. Martin responded:
Yes. He said that he felt that Mr. Casey was not a
good teacher, that he expected a higher degree of
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excellence in teaching in the school system than
Mr. Casey was giving the students. That's what he said.
40. In June, 1995, the superintendent received a complaint
against Mr. Casey filed by parents of one of his students.
Mr. Casey was ultimately reprimanded for this matter.
41. Superintendent Richards left SAD No. 43 at the end of
the 1994-1995 school year. Mr. Michaud was appointed to the
position of superintendent, and Mr. Howard Johnson was hired to
replace Mr. Michaud as principal of the high school. Mr. Michaud
advised Mr. Casey that he intended to continue as Mr. Casey's
primary evaluator, meeting with him once a week. Mr. Michaud
indicated that he would also ask the new principal to observe
Mr. Casey's classes a minimum of once a week and, in addition, he
would expect the new Director of Instruction, Ms. Mary Arno, to
visit Mr. Casey's classroom.
42. Mr. Johnson, who is no longer with SAD No. 43, testified
that in his initial discussion with Superintendent Michaud
concerning Mr. Casey the superintendent informed him that it was
his intention "to have Larry out by the half year." When asked
whether the superintendent indicated the basis upon which he had
made his decision, Mr. Johnson responded: " . . . he mentioned
lapses in Mr. Casey's judgment and in his ability to teach the
classes he had." Mr. Johnson testified that the superintendent
did not show any intention to credit Mr. Casey for any improve-
ment that may have been made under the corrective action plan.
43. Mr. Johnson further testified that in an early conversa-
tion with the superintendent, Mr. Michaud stated that the school
district "had wanted to get rid of Mr. Casey before that and that
they had used a reduction in force to do so, and then had come --
had had to take him back again, that it hadn't been successful."
44. Mr. Johnson denies that his discussions with the
superintendent influenced his evaluations of Mr. Casey. He
testified that he had concerns about Mr. Casey's performance and
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that Mr. Casey seemed to fail to grasp the concerns he raised.
"Mr. Casey often felt that the method that he was using was --
was well justified and that my suggestions would not have worked
as well." Mr. Johnson testified that Mr. Casey seemed to
deliberately try to provoke Mr. Michaud in their meetings.
Mr. Johnson stated that Mr. Casey and Mr. Murray seemed to
get along fine and that he could not recall any negative comments
from Mr. Murray about Mr. Casey. In fact, he recalled Mr. Murray
indicating "a willingness to help Mr. Casey."
45. Ms. Costa testified about this period of time as
follows:
. . . I'd say the last six months anyway it became, it
became more and more of a hostile situation. It became
harder for me because I tried to show him what he had
to do and it just seemed to me like he had already
decided he wasn't going to do it . . .
. . . I made many suggestions, one of them not to talk
to board members, which he decided to go ahead and do
anyway. There were many things that I suggested to him
to do in order for me to be able to keep his case going
that he just decided to ignore. So that jeopardized my
situation as his representative.
. . . it got to the point where Don Belleville stepped
in and he started getting involved in what was going
on, because we realized that this was something very
serious, and I called Don and I told him I needed some
help with it.
46. In September and October, 1995, Mr. Johnson received two
separate complaints filed against Mr. Casey, one by a student and
the other by a teacher. Mr. Johnson issued letters of reprimand
to Mr. Casey concerning both complaints.
47. The union filed a grievance on behalf of Mr. Casey
concerning these reprimands. In a letter to Mr. Casey, dated
October 17, 1995, Mr. Belleville, the UniServ Director for MEA,
states:
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. . .
Larry, I want to reiterate part of my conversation with
you on Wednesday, October 11, 1995. I told you that
you were to deal with me directly concerning any
grievances you may have. You are not to deal with
Jayne Costa, Vicki Amoroso [president of the local
association] or any other member of the Mountain Valley
Education Association. I thought I had made that
clear. . . .
Now, Larry, we have had this discussion before. As a
matter of fact, less than a year ago. If you are not
going to listen to my advice and my direction in this,
I will drop you like a hot potato. I cannot represent
someone who will not accept my advice in handling their
grievances. . . .
48. Between September and December, 1995, Mr. Casey was
evaluated many times by Mr. Michaud, Mr. Johnson and Ms. Arno.
None of the evaluations were favorable. In addition, Mr. Michaud
wrote several memoranda concerning the inadequacy of Mr. Casey's
lesson plans and one concerning "actions [which were] quite
disrespectful and insubordinate." Mr. Casey responded with
rebuttals.
49. In November, 1995, the assistant principal requested
that Mr. Johnson speak with Mr. Casey about conduct he considered
to be insubordinate. Mr. Casey was suspended for one day by
Mr. Johnson as a result of the complaint from the assistant
principal.
50. On January 16, 1996, Mr. Michaud informed Mr. Casey that
he intended to recommend that Mr. Casey's teaching contract not
be renewed following the end of the 1995-1996 school year. The
reasons given for this recommendation were:
* Failure to satisfactorily improve during the corrective
action plan
* Mr. Casey was uncooperative, oppositional and defensive
in his interactions with administrators and fellow staff
members
* His performance as a teacher in the classroom is not
adequately meeting the educational needs of district
students.
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51. Mr. Michaud made the decision to terminate Mr. Casey
solely because he had been displeased with Mr. Casey since
December, 1994, for reasons unrelated to his 1992 grievance.
There is no causal connection between Mr. Casey's termination and
any prior protected activity.
52. Mr. Casey was suspended by Mr. Michaud the following day
for his use of profanity directed at the superintendent (in the
presence of Ms. Costa) when he was advised of the termination
recommendation. The union did not file a grievance on behalf of
Mr. Casey challenging this suspension.
53. Mr. Johnson testified that he agreed with the
superintendent's recommendation based on his observations of
Mr. Casey in the classroom. " . . . I agreed that a change was
necessary. A decision I might add which gave me no pleasure."
54. On January 18, 1996, Mr. Belleville advised Mr. Casey
that he was of the opinion that they should keep all options open
and not dismiss out of hand any financial offer which may be
tendered by SAD No. 43 as the result of a grievance concerning
his termination. Mr. Belleville also indicated that he thought,
despite Mr. Casey's suggestion, that it would be "a grave
mistake" for Mr. Casey to "argue his case" at the school board
meeting scheduled for February 5, 1996, where the superintendent
would present his termination recommendation.
55. On February 1, 1996, Mr. Belleville informed Mr. Casey
that he would no longer be representing him. The reasons set
forth by Mr. Belleville in a letter of this same date are as
follows:
. . . This has not been an easy decision to make
however, given the circumstances, I feel I can no
longer effectively represent you. You informed me this
morning that you have hired an attorney and that,
although you want me at the School Board meeting on
Monday, you want your attorney to represent you.
We have discussed attorneys throughout the year and you
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have never been authorized to hire your own attorney
with MEA consent and approval. To the contrary, I have
advised you that at such time when it becomes necessary
to have an attorney represent you, I would make that
recommendation to the MEA. In my professional
judgment, you have not had the need for an attorney to
date.
I am sorry that over the last couple of years you have
not heeded my advice and you have constantly challenged
my professional judgment. I am disappointed that you
have not provided me with information I requested after
a hearing with the Superintendent of Schools concern-
ing one of your grievances. You have consistently
continued to do what you wanted to do. There seems to
be a lack of congruency between what you tell me and
your behavior which leads me to think you have been a
little less than truthful with me. It is very
difficult to represent you under such circumstances.
You also informed me this morning that you did not want
to listen to any offer of settlement - that you wanted
to fight this all the way. I have advised you to keep
an open mind and at least hear what the other side had
to offer. This is another example of your lack of
cooperation with me and a total disregard of my advice
and professional judgment.
For these reasons, I feel I can no longer represent you
effectively. I wish you the best of luck.
56. On February 5, 1996, the school board voted to adopt the
superintendent's recommendation to terminate Mr. Casey's
employment at the end of the 1995-1996 school year.
57. On February 6, 1996, Mr. Casey wrote to Mr. Belleville
and Mr. Keenan of the MEA, and Linda Hardenstein of the NEA, and
requested legal assistance in the matter of his termination. By
letter dated February 13, 1996, Ms. Hardenstein explained the
proper procedure for appealing to the NEA for assistance, and
referred him back to the Acting Executive Director of MEA for
review of the decision to deny him legal services.
58. Mr. Casey filed two grievances on February 14, 1996:
one concerning "harassment" and the other concerning his
termination.
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59. On February 29, 1996, Mr. Casey wrote to the Acting
Executive Director of the MEA. His letter reads, in part:
. . . I represented myself [at the first and second
steps of the nonrenewal grievance]. I am willing to
represent myself again at the third step, however, I
will need an attorney to represent me at the fourth
step.
Since I was named Maine Science Teacher of the Year by
the Pulp and Paper Foundation of the University of
Maine at Orono (Chemical Engineering Department) there
has been some jealousy from a senior union member in my
own department. This had led to a number of misunder-
standings . . . and lack of support from your legal
services department. . . .
. . .
Please provide me with an attorney . . . .
60. On March 4, 1996, there was a suspected gas leak in
Mr. Casey's laboratory during the school day. Mr. Casey placed
a call to the principal's office in response to students'
complaints that a gaseous odor was making them feel ill. There
was no response to Mr. Casey's call. Mr. Johnson testified that
the secretary who took Mr. Casey's call said he had not indicated
a gas leak but just asked for a custodian to come to his lab.
Mr. Casey decided to check around his lab. He shut off the
gas, searched for a leak and, finding nothing, turned the gas
back on and continued to teach. Upon further complaints from
students, Mr. Casey called the principal's office again. This
time, Mr. Johnson learned about a possible gas leak and ran
toward Mr. Casey's lab. When he smelled a gaseous odor near the
stairway leading to Mr. Casey's lab, he immediately turned around
and called the fire department. Mr. Johnson then ran to the lab
and evacuated the students.
Once the fire department arrived, tests were performed and
it was determined that there was no appreciable level of toxicity
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in the school. Later tests done by the gas company confirmed a
gas leak and tracked it to a faulty valve in Mr. Casey's lab.
61. On the same day as the gas leak incident, Mr. Casey was
placed on indefinite administrative leave with pay as a result of
the manner in which he handled the situation. Mr. Michaud
informed Mr. Casey that, during this leave, Mr. Casey was to
remain off school premises and if, for any reason, it was
necessary for Mr. Casey to enter the school, he should contact
the principal to make arrangements. Mr. Casey followed this
procedure on one occasion to attend his daughter's dance recital.
62. By letter dated March 15, 1996, the Acting Executive
Director of the MEA responded to Mr. Casey's February 29, 1996,
correspondence. Her response reads, in part:
We held a hearing on Thursday regarding your
appeal for MEA legal services. . . . [T]here are three
grounds for the denial of your appeal:
1. There is a substantial likelihood that relief
cannot be granted. Your relationship with MSAD 43 has
been disintegrating for some time and is so damaged now
that there is no realistic prospect for a successful
working relationship. In addition to the non-renewal
issue, there is now a negligence charge which fortifies
the District's position for non-renewal. There have
been so many ongoing problems that to mediate and
remedy each of them would be useless in the face of
this antagonistic environment.
2. You do not fully cooperate with MEA staff. You
have not heeded the advice that Don Belleville, UniServ
Director for District 5, has given you. Don and your
local Mt. Valley representatives have counseled you for
a resolution to this situation and you have consistently
either ignored their counsel or have sought outside legal
assistance without authorization from MEA. You have
consulted with attorneys in an attempt to resolve
problems which could easily have been dealt with by Don
Belleville. You brought an attorney to a school board
meeting at which Don could have more than adequately
represented you. Don has justifiably refused to
represent you further.
3. You have rejected settlements and other
disposition as advised by MEA staff and General Counsel.
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By your own admission you have rejected any attempt to
reach a settlement proposed by either the School Board's
attorney or by the MEA. In view of your damaged
relationship with the School District a settlement would
have been in your best interest as well as the district's.
A settlement could provide a win-win situation by which
both you and the district could save face.
In view of these ongoing problems the MEA is
refusing to represent you in any further action to seek
your reinstatement as a teacher at MSAD 43. We deem
that it would not be in anyone's best interests to
pursue this avenue.
However, we are willing to help you obtain an
honorable severance settlement. The terms are as
follows: You will retain your own attorney who will
negotiate a settlement and we will reimburse you for
part of the attorneys fees and costs when the
settlement agreement is signed. . . .
. . . It has become abundantly clear that MEA's
perception of an acceptable and reasonable resolution
to this situation is not compatible with your desires.
It is time for you and the MEA to seek closure on this
matter. . . .
63. On March 22, 1996, Mr. Casey's attorney filed a notice
of appeal of grievance level 3 and a demand for arbitration with
the president of MVEA, Ms. Vicki Amoroso. Mr. Hyde's correspond-
ence states: " . . . [I] am not writing for the purpose of
threatening any action, but merely to urge you to get on board in
this grievance."
64. On this same date, Mr. Hyde wrote to the Chairman of the
school board and to the superintendent to inform them that
Mr. Casey contested the disposition of his grievance and claimed
his right to submit the grievance to arbitration. He requested
their cooperation in selecting a mutually acceptable arbitrator.
65. On March 28, 1996, the attorney for SAD No. 43 advised
Mr. Hyde that, pursuant to the collective bargaining agreement,
only the MVEA may invoke arbitration and that, therefore, the
District declined Mr. Casey's request to submit his grievance to
arbitration.
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66. Article 14 of the Agreement between the MVEA and SAD No.
43 pertains to the grievance procedure. Section (E)(4)(a) reads,
in part: "If the aggrieved person is not satisfied with the
disposition of his/her grievance at Level III, the Association
may, within five (5) days of receipt of the Level III decision,
submit the grievance to arbitration by so notifying the Board in
writing." Section (F) (2) reads: "Any party in interest may be
represented at levels two and three of the formal grievance
procedure by a person of his/her own choosing. When a teacher is
not represented by the Association, the Association shall have
the right to be present and to state its views at all stages of
the procedure."
67. On April 8, 1996, Mr. Hyde wrote to the Deputy Executive
Director of the MEA. His correspondence reads, in part:
. . .
Mr. Casey advises us that, in good part, the Mountain
Valley Local provided him with only token represen-
tation . . . . He attributes this lack of support to
his non-inclusion in the "in group" which operates to,
in his instance, place its friends and supporters in
his prior position.
We have requested of the local that it proceed to
arbitration, but have heard nothing . . . .
. . . [w]e see very little to use to force any kind of
settlement or severance package. If you have some ideas
on this matter, I would appreciate reviewing them.
Finally, we appeal to you to use whatever influence you
have to bring the matter to arbitration . . . . It seems
that this particular teacher, while being represented by
your Union, has found himself fighting as much with the
Union as fighting to keep his position.
68. MEA's General Counsel responded to Mr. Hyde's letter on
April 11, 1996. Mr. Keenan's response reads, in part:
. . .
Mr. Casey has been supported by his local and state
associations for the past several years. We have saved
his job on more than one occasion. The enclosed
correspondence recounts how difficult it has become to
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continue to represent Larry during the past few months.
Mr. Casey has already been informed that his local will
not support bringing his grievance(s) to arbitration.
This decision was entirely lawful.
There are statutory remedies available to deal with
teacher nonrenewal. I think you will find that Larry's
current 2 year continuing contract is not due to expire
until August 1997. See what Bruce Smith has to say about
that and try to negotiate a buyout for 1 year's salary.
69. On April 19, 1996, Mr. Casey wrote to the President of
MVEA, Ms. Amoroso, and requested that he be allowed to "bring my
case before the membership. Please arrange for a meeting of the
entire MVEA and clear my attendance with administration, as they
have threatened to arrest me if I step onto school grounds. . . .
If I do not hear from you by April 26, 1996, I will note MVEA and
MEA officials have failed to represent me . . . ."
70. Ms. Costa testified that the president of the local
association brought Mr. Casey's appeal to the executive board of
the local, and that the decision was made to not respond to
Mr. Casey's request. Ms. Costa testified that the decision was
based on a feeling that it would not be in Mr. Casey's best
interest to go in front of the whole association "and cause a
scene." It was felt that Mr. Casey "might come in and cause a
horrible hostile situation."
71. Ms. Costa testified that she considers herself an
aggressive advocate for teachers and that she had won eight
consecutive grievances prior to Mr. Casey's situation. Ms. Costa
states that she is not aware of any retaliation by the adminis-
tration of SAD No. 43 against any of the people who won these
grievances.
DISCUSSION
Mr. Casey's complaints against SAD No. 43 and the Mountain
Valley Education Association are factually intertwined and
present the same procedural question: whether Mr. Casey has met
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his initial burden of proving the elements of each complaint at
the close of his case-in-chief to require the employer and the
union to go forward with their evidence in defense of Mr. Casey's
claims. Based on the entire record before us, including the
documentary evidence admitted at the prehearing conference,
Mr. Casey's documentation admitted into evidence at the hearing,
the testimony of Mr. Casey's witnesses and the parties' post-
hearing briefs, we find that Mr. Casey has not met his burden of
proof in either case and we dismiss both complaints.
COMPLAINT AGAINST SAD NO. 43
We will first address Mr. Casey's allegation that SAD No. 43
violated section 964(1)(B) when it terminated his employment at
the end of the 1995-1996 school year.[fn]3 Mr. Casey claims
there existed an "institutional bias" against him ever since he
"won" a grievance in 1992 pertaining to his lay-off, and that his
termination was the result of years of harassment motivated by
this union activity in 1992.[fn]4 The employer denies any anti-
union bias and contends Mr. Casey's inadequate job performance
warranted close supervision and eventual termination.
There is no dispute about the legal standard of proof for
violations of section 964(1)(B). The complainant has an initial
burden of proving by a preponderance of the evidence that: (i)
he engaged in protected activity; (ii) the employer knew about
this protected activity; and (iii) there is a causal connection
____________________
3 Section 964(1)(B) prohibits public employers, their representatives and
agents from "encouraging or discouraging membership in any employee
organization by discrimination in regard to hire or tenure of employment or
any term or condition of employment." The termination of an employee because
they have filed a grievance pursuant to a collective bargaining agreement is
considered to "discourag[e] membership in [an] employee organization." See
Maine State Employees Association v. State Development Office, 499 A.2d 165,
167-168 (Me. 1985).
4 Mr. Casey also claims that his science department head, an influential
union member, played a part in the employer's scheme to terminate his
employment. This allegation will be addressed when we discuss Mr. Casey's
claim against the union.
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between the protected activity and an adverse employment action
or, put another way, the protected activity was a substantial or
a motivating factor in the adverse employment action. Teamsters
Union Local #340 v. Rangeley Lakes School Region, No. 91-22, slip
op. at 18, 14 NPER ME-23005 (Me.L.R.B. Jan. 29, 1992).
If the complainant succeeds in proving these three elements,
the employer may avoid liability if it can prove by a prepon-
derance of the evidence that the adverse employment action was
based on unprotected activity as well and that the complainant
would have suffered the adverse employment action in any event.
Maine State Employees Association v. State Development Office,
499 A.2d 165, 168-169 (Me. 1985).
In this case, there is no dispute of fact concerning the
first two elements. The factual issue in contention is whether
there was a causal connection between Mr. Casey's protected
activity and subsequent adverse employment actions. We conclude
that Mr. Casey has not met his burden of proving a causal
connection and, even if he had, there is substantial evidence on
the record to support a conclusion that Mr. Casey would have been
terminated in 1996 even if he had not filed the grievance in 1992.
We turn now to the facts which persuade us to dismiss
Mr. Casey's claim against SAD No. 43. In order to examine
Mr. Casey's claim of a series of discriminatory actions resulting
from his grievance in 1992, the Board considered evidence of his
employment status before and after the grievance. Evaluations of
Mr. Casey's classroom performance prior to his layoff in 1992
were positive. There was no suggestion that the decision to lay
him off was based on poor job performance. There was evidence
presented, however, that Mr. Casey's employment situation was not
entirely satisfactory prior to the decision to lay him off and,
thus, prior to the filing of his grievance.
Mr. Howard Johnson, formerly a principal at Mountain Valley
High School, testified that he was told by Superintendent Michaud
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that the employer "wanted to get rid of Mr. Casey" when it laid
him off in 1992. In addition, Mr. Casey testified that the
science department head did not want him back after he was
recalled to employment. Something unrelated to union activity
was already amiss for Mr. Casey early on in his teaching career
at Mountain Valley High School. Mr. Casey contends there was a
degree of professional jealousy of him on the part of the science
department head as a result of Mr. Casey's having received the
Maine Science Teacher of the Year award just prior to his lay-
off. Mr. Casey's claim is unsubstantiated; however, assuming it
to be true, it supports our conclusion that Mr. Casey's
employment situation prior to his union activity was precarious.
Mr. Casey did not "win" his 1992 grievance. The grievance
was denied by SAD No. 43 at every step and was headed to arbi-
tration when another teacher unexpectedly resigned. Documentary
evidence proves that Mr. Casey was recalled to a teaching
position not as a result of his prevailing on the merits of his
grievance, but as a result of a vacancy created by the other
teacher's resignation. Mr. Casey's grievance was withdrawn, not
won. Any suggestion that the employer was spiteful to Mr. Casey
because he succeeded in proving their decision to lay him off was
in violation of the collective bargaining agreement is quickly
dispelled by these undisputed facts.
Moreover, we heard evidence that the high school principal,
Mr. Blackman, graciously welcomed Mr. Casey back from his short-
lived layoff. Mr. Blackman's comments to the press about
Mr. Casey in the fall of 1992 sound hopeful, not spiteful.
Mr. Casey testified that he did not detect any personal hostility
from Mr. Blackman as a result of his grievance and, with comments
such as those attributed to Mr. Blackman, we can understand why.
Mr. Casey's claim of an "institutional bias" sounds hollow at
this juncture, soon after the filing of his grievance when one
would expect such bias to be at its strongest.
Mr. Blackman placed Mr. Casey on clinical supervision when
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he returned to a teaching position in the fall of 1992 for reasons
unclear from the record. Mr. Casey was obviously having problems
in his relationship with the science department head immediately
upon his return to work, which included philosophical disagree-
ments concerning the science curriculum and Mr. Casey's concern
that the more challenging chemistry courses were taken away from
him and reassigned to the department head. Mr. Blackman was well
aware of the tension between Mr. Casey and the department head
and notes it in his February, 1993, evaluation of Mr. Casey.
We do have evidence that Mr. Blackman placed Mr. Casey on a
corrective action plan for the 1993-1994 school year based on his
concerns about Mr. Casey's teaching strategies and classroom
management.
Mr. Casey does not attribute a discriminatory motive to
Mr. Blackman's decisions, nor is there any evidence that
Mr. Blackman was negatively impressed by Mr. Casey's union
activity. He may have been motivated by the apparent inability
of a teacher and his department head to get along;[fn]5 however,
that is not for us to determine. We only conclude that there is
no evidence that these decisions were motivated by animus against
the union or against Mr. Casey's exercise of any right protected
by the MPELRL.
In February, 1994, Mr. Blackman recommended to Superintend-
ent Richards that Mr. Casey's corrective action plan be continued
for the 1994-1995 school year. The superintendent was supportive
of this recommendation. We credit Mr. Blackman's testimony that
Mr. Casey had potential to become an effective teacher and had
made progress in target areas, but that he had continued concerns
about Mr. Casey's teaching skills.
____________________
5 In fact, Mr. Casey's theory is that the department head instigated his
eventual termination. Mr. Casey presented no evidence to support his claim
that the department head played any part in the decisions which affected
Mr. Casey. Even if he had, Mr. Casey failed to prove that the department head
intended to discriminate against Mr. Casey because of his 1992 grievance.
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Mr. Casey contends that the decision to extend the
corrective action plan to another school year was a part of SAD
No. 43's continuing course of retaliatory conduct. We do not
see it that way. If the employer was intent on terminating
Mr. Casey's employment in retaliation for the 1992 grievance, it
seems to us that Mr. Blackman could have emphasized the negative
aspects of Mr. Casey's performance at this point in time and
recommended termination rather than continued employment under a
corrective action plan. If there existed an "institutional
bias," as Mr. Casey contends, the superintendent could have
rejected Mr. Blackman's recommendation and moved forward with a
recommendation to terminate Mr. Casey based on the negative
aspects of the principal's evaluations. Neither of these avenues
were taken to terminate Mr. Casey at a point in time closer to
the grievance.
Mr. Blackman left SAD No. 43 at the end of the 1993-1994
school year. Mr. Casey began the 1994-1995 school year with a
corrective action plan administered by the high school's new
principal, Mr. Michaud. By Mr. Casey's own account, he had a
good working relationship with Mr. Michaud when the school year
began. Mr. Michaud indicated to Mr. Casey that he felt their
first conference together was positive and, he hoped, indicative
of a productive school year ahead. Mr. Michaud's first
evaluation of Mr. Casey was mostly positive; Mr. Casey felt this
first evaluation was very good. Once again, we are not persuaded
by Mr. Casey's "institutional bias" theory in light of the good
working relationship between the new high school principal and
Mr. Casey early in their first school year together.
We credit Mr. Casey's testimony that his relationship with
Mr. Michaud began to rapidly deteriorate in December 1994. The
sequence of events and the correspondence between Mr. Michaud and
Mr. Casey set forth in findings of fact 22-25 certainly reflect
a rapid deterioration in their relationship. A review of the
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substance of these communications between Mr. Casey and
Mr. Michaud easily reveals a growing, mutual disrespect.
Any interest Mr. Michaud may have had in working with Mr. Casey
at the beginning of his tenure as principal seems to have
disappeared in the face of Mr. Casey's challenge to the
principal's expertise to evaluate science classes and criticism
of Mr. Michaud's perceived lack of interest in the "program of
chemistry instruction." Matters became worse when Mr. Casey
blamed his students for a negative classroom observation.
Shortly after this series of accusatory memoranda between
Mr. Michaud and Mr. Casey, Mr. Michaud recommended that Mr. Casey
be terminated at the end of the 1994-1995 school year. Mr. Casey
recalls a "pivotal" meeting with Mr. Michaud in January, 1995,
after he learned of this recommendation. According to Mr. Casey,
"everything from there has been hell." Mr. Casey apparently
"crossed the line" with Mr. Michaud when he attributed
Mr. Michaud's failure to meet with him to the stresses of
dealing with a family member's terminal illness and death.
In the face of strenuous objections raised by the union's
local grievance chair, Superintendent Richards elected not to
adopt Mr. Michaud's recommendation. Mr. Casey's corrective
action plan was extended for another school year to "insure
fairness." While Mr. Casey considers this extension of the
corrective action plan to be evidence of continued harassment
based on his 1992 grievance, we see it differently. Clearly, at
this point in time, the only alternative to extension of the
corrective action plan was Mr. Casey's termination based on ample
evidence of deterioration in the relationship of Mr. Casey with
his principal. Mr. Casey was given yet another chance to change
his ways, to conform to the advice and suggestions of his
superiors, whether or not he agreed with them. Mr. Casey did
not choose to conform.
During the last few months of Mr. Casey's 1994-1995 school
year, he received numerous negative classroom observations and
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extensive criticism of his inability to write adequate lesson
plans. In June, 1995, Superintendent Richards received a
complaint against Mr. Casey filed by parents of one of his
students for which he was reprimanded. Mr. Casey's employment
problems were multiplying yet there is no evidence that any of
these problems were driven by his 1992 grievance. Instead, we
were presented with testimony from two of Mr. Casey's witnesses
which would support the conclusion that his 1992 grievance had
nothing to do with his employment problems.
Dr. Martin testified that in a conversation with Mr. Michaud
in early 1995, Mr. Michaud, in a very upset and vindictive
manner, indicated that he had compiled a record against Mr. Casey
and that he intended to terminate Mr. Casey. When asked whether
Mr. Michaud indicated to him why he was so upset about Mr. Casey,
Dr. Martin testified that Mr. Michaud expressed his belief that
Mr. Casey was not a good teacher and that he "expected a higher
degree of excellence in teaching." Mr. Howard Johnson, who
became principal during the 1995-1996 school year when Mr. Michaud
replaced Mr. Richards as superintendent, testified that
Mr. Michaud candidly told him he wanted Mr. Casey out by the half
year because, in his (Michaud's) opinion, there were lapses in
Mr. Casey's judgment and in his ability to teach.
Mr. Casey's problems escalated in the 1995-1996 school year,
with complaints filed against him by a student and a teacher, an
incident of insubordination, reprimands, suspensions and numerous
unfavorable classroom observations by the superintendent, the
principal and the director of instruction. In early 1996,
Mr. Michaud recommended for a second time that Mr. Casey's
employment be terminated and his recommendation was adopted by
the school board.
We have closely scrutinized the facts surrounding the
deterioration of the relationship between Mr. Michaud and
Mr. Casey in order to determine whether there is any evidence to
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support Mr. Casey's factual claim of a causal connection between
his 1992 grievance and his treatment at the hands of his
department head and administrators. Unless Mr. Casey can connect
his troubles to his 1992 grievance, it is not our task to
determine whether Mr. Casey was right or wrong about the
curriculum and his lesson plans, or whether he was treated fairly
and in a manner consistent with the collective bargaining
agreement. This Board has no authority to judge those matters in
the abstract. Faced with evidence of a specific turning point in
the relationship between Mr. Michaud and Mr. Casey, totally
unrelated to the earlier grievance, we cannot conclude that
subsequent adverse employment decisions made by Mr. Michaud were
substantially motivated by Mr. Casey's union activity in 1992.
We find as a fact that Mr. Michaud made the decision to
terminate Mr. Casey because he had been displeased with Mr. Casey
since December 1994 for reasons unrelated to his 1992 grievance.
We specifically find that Mr. Michaud is solely responsible for
the termination decision based on problems which arose during his
tenure as principal and superintendent. Our factual findings are
supported by the complete lack of evidence of an "institutional
bias" against Mr. Casey. Mr. Casey advanced this theory to over-
come the employer's contention that the length of time between
his grievance and his termination and the complete changeover in
administration during this period of time negate any inference of
retaliation. We do not think that length of time necessarily
negates an inference of retaliatory motive, but the combination
of the passage of time and changeover in personnel support our
factual determination that there is no causal connection between
Mr. Casey's grievance and his termination.
In further support of our conclusion, we note that none of
the eight district employees who have filed grievances in recent
years have complained about discrimination or retaliation
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motivated by their union activity.[fn]6 Mr. Casey argues in his
post-hearing brief that he was treated differently than these
other grievants because his layoff was "an obvious public
embarrassment" to SAD No. 43 and that the district suffered
further public embarrassment in that "the public came to [his]
defense" after he was laid off. Assuming this to be true, this
would be a motive completely unrelated to the filing of a union
grievance and one this Board has no authority to redress.
Based on the foregoing facts and conclusions, we dismiss the
portion of Mr. Casey's complaint alleging a violation of section
964(1)(B).
We briefly address Mr. Casey's claim that SAD No. 43
prevented him from attending a Mountain Valley Education Asso-
ciation meeting by refusing him entry onto school grounds in
violation of section 964(1)(A).[fn]7 The evidence reveals that the
employer restricted but did not refuse Mr. Casey's access onto
school grounds where union meetings are typically held. This
restriction did not prevent him from attending union meetings.
Mr. Casey could have made arrangements with the principal to
attend union meetings, just as he did to attend a dance recital.
In any event, there was no union meeting planned or conducted for
the purpose of addressing Mr. Casey's concerns after restricted
access was imposed; therefore, the employer's action did not
prevent him from attending one. Accordingly, we dismiss
Mr. Casey's complaint of a violation of section 964(1)(A).
____________________
6 Given Ms. Costa's vigorous prosecution of these other grievances and
her efforts on behalf of Mr. Casey, we are impressed by the fact that she has
never sensed an intent on the part of the school district to retaliate against
her or others actively involved in the union.
7 Section 964(1)(A) prohibits employers from interfering with employees
in the exercise of rights guaranteed by the MPELRL, including the right to
participate in union meetings.
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COMPLAINT AGAINST MOUNTAIN VALLEY EDUCATION ASSOCIATION
Mr. Casey claims that the union violated its duty to fairly
represent him over the course of several years and unlawfully
refused to take his termination case to arbitration. The union
contends that it offered representation to Mr. Casey throughout
his employment with SAD No. 43 and at all stages of the termi-
nation grievance process prior to arbitration, but that Mr. Casey
was uncooperative and resistant to their advice. The union
contends that its refusal to take Mr. Casey's termination case
to arbitration was legitimate and does not, as a matter of law,
constitute a failure to represent Mr. Casey.
A union's duty to fairly represent employees in enforcement
of the collective bargaining agreement arises under section 964
(2)(A).[fn]8 Whitzell v. Merrymeeting Educators' Association,
No. 80-15, 3 NPER 20-12004 (Me.L.R.B. Nov. 6, 1980), aff'd sub
nom. Whitzell v. Merrymeeting Educators' Association and MLRB,
No. CV-80-124 (Me. Super. Ct., Sag. Cty., Dec. 28, 1982). There
is no dispute concerning the well-established legal standard for
proving a violation of section 964(2)(A):
To constitute a breach of the duty of fair represen-
tation, the union's conduct toward its members must be
arbitrary, discriminatory or in bad faith. Thus, the
union may not ignore a meritorious grievance or process
it in a perfunctory manner. [citation omitted]
Nevertheless, a "wide range of reasonableness must be
allowed" and "mere negligence, poor judgment or
ineptitude are insufficient to establish a breach of
the duty of fair representation."
Lundrigan v. Maine Labor Relations Board, 482 A.2d 834, 836 (Me.
1984) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73
S.Ct. 681, 686, 97 L.Ed. 1048 (1953)).
Mr. Casey contends that the union's conduct toward him was
arbitrary, discriminatory and in bad faith. His theory is that
____________________
8 Section 964(2)(A) prohibits public employee organizations from inter-
fering with employees in the exercise of rights guaranteed in the MPELRL.
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the union failed to represent him because the science department
head, an influential union member, was professionally jealous of
Mr. Casey and wanted him out of the department. Mr. Casey has
failed to substantiate this claim.
There is no evidence in the record concerning the science
department head's standing in the union (the local organization
or MEA), or his reaction to Mr. Casey's Science Teacher of the
Year award, or any conduct evidencing jealousy and collusion with
union leadership or school administration against Mr. Casey.
In fact, Mr. Blackman credibly testified that department heads do
not influence teacher evaluations and Mr. Johnson credibly testi-
fied that the science department head indicated a willingness to
assist Mr. Casey when he was so obviously in trouble. This is
inconsistent with the theory that he was instigating Mr. Casey's
demise.
Even if Mr. Casey had substantiated this claim of profes-
sional jealousy and collusion, the evidence proves that his local
association represented him vigorously and to the best of their
ability, that the MEA's UniServ Director attempted to represent
Mr. Casey to the best of his ability but was thwarted by
Mr. Casey's failure to cooperate and his distrustful manner, and
that there were legitimate reasons to deny Mr. Casey represen-
tation at the arbitration stage of his termination grievance.
We turn now to the facts which persuade us to dismiss
Mr. Casey's claim against the union.[fn]9 We note at the outset
that the union was prepared to take Mr. Casey's 1992 layoff to
arbitration. The only reason his case did not go to arbitration
was his quick recall to a teaching position which, in the MEA
General Counsel's opinion, mooted the grievance. Mr. Casey can
____________________
9 We admitted evidence pertaining to events which occurred prior to the
six-month period immediately preceding the filing of this complaint "to shed
light on the true character of matters occurring within the limitations
period." See Teamsters Local 48 v. City of Waterville, No. 80-14, slip op. at
2-3, 2 NPER 20-11017 (Me.L.R.B. April 23, 1980).
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not complain about the union's handling of his layoff grievance.
Immediately upon his recall to employment, Mr. Casey
complained to MEA's UniServ Director about his course assign-
ments. Mr. Belleville did not treat Mr. Casey's complaint in a
perfunctory manner. He investigated it and determined that
Mr. Casey's situation did not warrant a grievance.
The Board does not usually undertake to decide the merits of
a grievance, as distinct from the manner in which it was handled
by the union, in order to determine whether a union has violated
its duty of fair representation. Whitzell v. Merrymeeting
Educators' Asociation, slip op. at 9. On the other hand, an
understanding of the merits is at least helpful and, at the
extreme, very important. Failure to process a clearly meritorious
grievance would definitely be an influential factor in our
ultimate determination. Id. at 9.
We were not presented with any evidence that there was a
basis for a grievance over this course assignment issue, let alone
that such a grievance would have been "clearly meritorious."
We do not consider Mr. Belleville's treatment of Mr. Casey's
complaint to constitute an unlawful failure to represent him.
We consider Mr. Belleville's decision to come within the "wide
range of reasonableness" which is allowed under Lundrigan.
We consider Ms. Costa's representation of Mr. Casey
throughout the 1993-1994 and 1994-1995 school years to be more
than adequate. We find as a fact that her representation of
Mr. Casey was vigorous and commendable: attending hostile weekly
meetings with principals and superintendents, personally
attempting to assist Mr. Casey in drafting lesson plans which
would satisfy his superiors, and wisely counselling Mr. Casey
concerning his demeanor. While Mr. Casey believed that the
corrective action plans should be grieved, Ms. Costa, after
studying the contract and consulting with the UniServ Director,
determined there was no basis for a grievance.
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We were not presented with any evidence that there was a
basis for a grievance at this point in Mr. Casey's employment.
It is reasonable to assume that if there were any basis for
winning a grievance which would end Mr. Casey's corrective action
plans Ms. Costa would have filed one, if only to make her own
life easier throughout this period of time. Even if there was a
basis for a grievance, and we determined that Ms. Costa's decision
was not wise, Ms. Costa gave Mr. Casey's situation her full
attention and her decision was definitely not an arbitrary or
perfunctory one. We cannot conclude that Ms. Costa would have
gone to the lengths she did, in furtherance of some union-wide
scheme to harm Mr. Casey because of one member's professional
jealousy. Once again, we find this representation to be well
within the scope of the Lundrigan standard.
We believe that Mr. Casey would have been terminated by
Mr. Michaud in 1995 had it not been for the forceful represen-
tation of him by Ms. Costa. Somehow Ms. Costa convinced the
superintendent to reject the principal's recommendation.
Ms. Costa's efforts could not have pleased the principal of her
school, yet she was ready, willing and obviously able to
challenge him on behalf of Mr. Casey. Mr. Casey's claim that the
union should have grieved the extension of his corrective action
plan at this juncture is without merit and misses the point
entirely. In light of the deterioration of his relationship with
the principal, the union's impression that Mr. Casey was lucky to
have his job was not an unreasonable one.
In the beginning of his final year of employment, the union
filed a grievance on behalf of Mr. Casey concerning the reprimands
he received in response to complaints filed against him by a
student and a teacher. Mr. Belleville undertook representation
of Mr. Casey because Ms. Costa considered the situation to be
escalating and determined Mr. Casey needed the expertise of a
UniServ Director. This tactical decision on the part of the
union evidences a concern for Mr. Casey's well-being and an
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interest in providing Mr. Casey with the best possible
representation. Yet, there is evidence that Mr. Casey resisted
the advice of the UniServ Director almost from the start of their
relationship. Mr. Belleville was very clear with Mr. Casey in
October, 1995, that if he did not heed Mr. Belleville's advice he
would be dropped "like a hot potato."
The February 1, 1996, letter to Mr. Casey from Mr. Belleville,
and the March 15, 1996, letter to him from the Acting Executive
Director of the MEA, set forth rational reasons for their
decisions to discontinue their representation of him. Mr. Casey
did not even suggest, let alone prove, that the reasons set forth
in these letters were not, in fact, true.
The reasons given for withdrawing representation of Mr. Casey
conform with the union's legal services plan. There is nothing
unlawful about this plan. Public employees do not have an
absolute right to have a grievance go to arbitration. Holmes v.
Maine State Employees Association, No. 80-52, slip op. at 3,
2 NPER 20-11040 (Me.L.R.B. Sept. 8, 1980). It is fair to
conclude that any other employee in the same circumstances would
have been treated just as Mr. Casey was, according to the plan;
therefore, this decision was not arbitrary.[fn]10 The union made
a judgment call that was theirs to make and we see no basis for
concluding that their decision was arbitrary, discriminatory or
in bad faith.
Finally, the union did not completely abandon Mr. Casey.
It offered to assist him in obtaining other legal representation
for the purpose of attempting to settle Mr. Casey's termination
grievance. We cannot conclude, based on these undisputed facts,
that the union violated its duty of fair representation at any
____________________
10 It is well-established that where a collective bargaining agreement
permits only the union to take a grievance to arbitration, the employee has no
further remedy when the union decides against proceeding to arbitration unless
he can prove that the union breached its duty to fairly represent by acting
arbitrarily, maliciously, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190-
191, 64 LRRM 2369 (1967).
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point, or unlawfully decided against taking Mr. Casey's termination
to arbitration.
ORDER
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. 1996), it is hereby ORDERED that the complaints
filed by Larry M. Casey on June 6, 1996, against the Mountain
Valley Education Association and July 11, 1996, against School
Administrative District No. 43 be, and hereby are, DISMISSED.
Dated at Augusta, Maine, this 30th day of October, 1997.
The parties are hereby advised MAINE LABOR RELATIONS BOARD
of their right, pursuant to 26
M.R.S.A. 968(F) (Supp.
1996), to seek review of this
decision and order by the /s/______________________________
Superior Court. To initiate Peter T. Dawson
such a review, an appealing Chair
party must file a complaint
with the Superior Court within
fifteen (15) days of the date
of issuance of this decision /s/______________________________
and order, and otherwise Karl Dornish, Jr.
comply with the requirements Alternate Employer Representative
of Rule 80C of the Maine Rules
of Procedure.
/s/______________________________
Wayne W. Whitney
Alternate Employee Representative
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