Norman P. Whitzell v. Merrymeeting Educators' Assoc. and MLRB, CV-80-124, affirming Board No. 80-15 STATE OF MAINE SUPERIOR COURT SAGADAHOC, SS CIVIL ACTION DOCKET NO. CV 80-124 NORMAN P. WHITZELL, ) ) Plaintiff ) ) v. ) ) MERRYMEETING EDUCATORS ASSOCIATION ) DECISION AND ORDER ) and ) ) MAINE LABOR RELATIONS BOARD, ) ) Defendants ) Plaintiff filed a prohibited practice complaint with the Maine Labor Relations Board (MLRB) alleging that defendant Merrymeeting Educators Association (MEA) breached its duty of fair representation by processing plaintiff's employment grievance in an arbitrary, discriminatory and bad faith manner. MLRB held that MEA owed plaintiff a duty of fair representation but determined it had not breached this duty. From that decision, plaintiff appealed to this Court pursuant to 80B M.R.C.P. The Court reviews a decision by the MLRB only for errors of law and to determine whether the Board's decision is supported by substantial evidence on the record. Sanford Highway Unit v. Town of Sanford, Me., 411 A.2d 1010, 1014 (1980). Applying this standard, the Court finds that the decision of the Board is adequately supported by the record and denies plaintiff's appeal. Plaintiff was employed by Maine School Administrative District #75 (MSAD) under a first year teacher probationary contract for -1- ______________________________________________________________________________ the 1977-78 academic year. Subsequently, plaintiff was rehired for the 1978-79 academic year under an identical probationary contract. As a probationary employee, plaintiff was subject to dismissal with or without just cause. MLRB Finding No. 2. In March, 1979, plaintiff was notified that his contract would not be renewed. At all times relevant to this litigation, plaintiff was a professional public employee of MSAD and a member of the collective bargaining unit. See 26 M.R.S.A. 962(3); 968(5)(B). Defendant MEA was the sole bargaining agent for this unit, MLRB Finding No. 1, and thus owed plaintiff a duty of fair representation in processing his employment grievance. MLRB Op., pp 8-9. In response to his notice of non-renewal, plaintiff filed a grievance with MEA alleging that the Superintendent had utilized improper evaluation procedures contrary to the collective bargaining agreement. Through MEA, the grievance was submitted to the Superintendant which constituted levels I and 2 of the grievance procedure. The grievance was denied. MLRB Finding No. 17. Plaintiff subsequently met with a portion of the Professional Rights and Responsibilities Committee (PRR), an administrative arm of the MEA, to determine whether to transmit the grievance to level 3. PRR voted to forward the grievance which required a meeting with the School Committee. MLRB Finding No. 18. After hearing, the School Committee voted to deny the grievance. Plaintiff concedes that MEA's handling of the grievance was satisfactory through the first three levels of procedure. MLRB Op., p. 9. The MLRB further found that Delmont Perry, an agent of MEA, had served as an excellent advocate for plaintiff 's -2- ______________________________________________________________________________ grievance. MLRB Op., p. 9; MLRB Finding No. 18. Plaintiff's complaint against MEA is based upon the decision by PRR not to take the grievance to arbitration. Plaintiff was not invited to attend the meeting on May 15, 1979 at which PRR voted unanimously that the grievance lacked merit and that PRR would not invoke arbitration on plaintiff's behalf. Consistent with past practice, PRR offered to arbitrate the grievance if plaintiff would provide a letter that he would pay the expenses of the procedure. MLRB Findings No. 22, 23, 25. Although indicating a willingness to pay costs, plaintiff failed to provide this letter and the date for invoking arbitration lapsed. MLRB Op., p. 10. Plaintiff claims that the failure of PRR to permit plaintiff's attendance at the May 15 meeting, at which plaintiff's request for arbitration was denied, constituted a breach of duty of fair representation. A union owes a duty of fair representation to its members and that duty is breached when a union's conduct toward a member is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 US 171, 190 (1967). Poor judgment or negligence, without more, is insufficient to establish a breach of duty. Ford Motor Co. v. Huffman, 345 US 330 (1953) ; NLRB v. Am. Postal Wkrs. Union, 618 F2d 1249, 1255 (8th Cir. 1980). Plaintiff first maintains that he had a contractual right to be present at the meeting. Plaintiff relies on Article III(F)(3) of the bargaining agreement which provides: All meetings and hearings under this procedure shall be conducted in private and shall include only such parties in interest -3- ______________________________________________________________________________ and their designated and selected re- presentatives, heretofore referred to in this grievance procedure. The MLRB interpreted this provision as limiting the participants at a meeting; it does not require the presence of any person. Op., p 11. Plaintiff argues that the relevant provision compelled his attendance. The Court finds that the instant contract provision is ambiguous. See T-M Oil Co., Inc. v. Pasqale, Me., 388 A2d 82, 85 (1978). The MLRB, as trier of fact, could thus consider extrinsic evidence, including past practice and bargaining history, to determine the contract's meaning. Lewiston Fire Assn. v. City of Lewiston, Me., 354 A2d 154, 163 (1976). The MLRB found that the PRR had a past history of not including a grievant to be present. Op., p 12. Further, the Superintendent or other representative of the school was not asked to attend, though equally a "party in interest" to the proceeding. Pl. Ex. I, Art. III (a). The Court finds that MLRB's construction of the contract was not clearly erroneous and that plaintiff did not have a contractual right to attend the PRR meeting. See 26 M.R.S.A. 968 (5) (F) . The Court further finds that in view of PRR's past practice of denying a grievant admission to such meetings that MEA did not act arbitrarily or disciminate against plaintiff. Plaintiff next claims that, absent a contractual right, due process compels plaintiff's right to attendance to present his grievance before the PRR Committee. Due process is a flexible concept and must be examined in light -4- ______________________________________________________________________________ of the facts of each case. Giberson v. Quinn, Me., 445 A2d 1007 (1982). Plaintiff had previously met with a portion of the PRR to fully explore the basis for his grievance. At that meeting, plaintiff was further represented by an agent of MEA who served as an "excellent" advocate. MLRB Op. p 9. The committee was adequately apprised of the basis for the grievance, MLRB Op. p. 11, and plaintiff has failed to demonstrate any material evidence that had not previously been presented to the committee. The Court finds that the procedures adopted by the committee complied with the dictates of due process and that plaintiff has failed to demonstrate prejudice from the procedures utilized. In Re Maine Clean Fuels, Me., 310 A2d 736, 751 (1973). Plaintiff argues that the committee chairman was biased against plaintiff based upon a prior disagreement between the two, in their professional capacities, concerning placement of a child in a classroom. MLRB expressly found that the chairman properly presented the grievance before the committee, MLRB Op. p. 12, and there is no evidence that the isolated professional dispute impacted upon the conduct of the meeting. Plaintiff further contends that PRR discriminated against him because he was a non-dues paying member of the bargaining unit. PRR never discussed plaintiff's membership status, MLRB Finding No. 23, and at least one committee member was not aware of it. MLRB Op., p. 14. While plaintiff attributes various discriminatory comments to members of the MEA, the MLRB found that the MEA never made these statements. MLRB Op. pp. 12-13. -5- ______________________________________________________________________________ These findings by the trier of fact will stand unless clearly erroneous. See Lewiston Firefighters Assn. v. City of Lewiston, Me., 444 A2d 1009 (1982). The Court sustains the findings of the MLRB since they are supported by competent evidence on the record. The Court next examines the merits of plaintiff's grievance. While a consideration of the merits is not dispositive of a claim for breach of fair representation, such review places defendant's actions in proper perspective. See Simberlund v. Long Island RR Co., 421 F2d 1219 (2nd Cir, 1970). Plaintiff was a probationary teacher for MSAD. Under the bargaining agreement, he was subject to termination with or without just cause. MLRB Finding No. 37. Plaintiff's grievance alleged that the Superintendant failed to follow proper evaluation procedures. Plaintiff expressly requested, however, that the Superintendent utilize a different evaluation form from that specified in the agreement. The request was granted. MLRB Finding No. 8. MEA could reasonably conclude that the evaluation procedure, as modified by plaintiff's request, could not serve as a basis for finding a breach of the bargaining agreement. Further, no Maine Teacher's Association had ever successfully obtained reinstatement, through arbitration, of a probationary teacher. MLRB Finding No. 37. By direct discussions with MSAD, through the lower levels of the grievance procedure, MEA made a good faith effort to promote plaintiff's grievance. MEA could reasonably conclude, however, that an independent arbitrator would not support plaintiff's grievance on the merits. MEA's decision to require plaintiff to -6- ______________________________________________________________________________ bear the costs of arbitration was consistent with past practice, MLRB Op. p. 10, and indicates a lack of discriminatory intent by MEA. Further, even assuming MEA changed its mind regarding the validity of plaintiff's grievance, that, without more, does not establish arbitrary action or a breach of duty of fair representation. Simberlund, supra, at 1226. Plaintiff next contends that he consented to pay the costs of arbitration, as requested by MEA, but that the union failed to invoke arbitration and permitted the time for filing to lapse. As a condition precedent to arbitration, and to avoid potential liability for costs, MEA expressly requested that plaintiff submit a letter verifying his willingness to pay the expenses. MLRB Finding No. 30. Plaintiff failed to provide this letter prior to the lapse of the arbitration date. MLRB Finding No. 31. Plaintiff cannot now use his own neglect as a basis for claiming arbitrary action by MEA. The Court finds plaintiff's further claims to be without merit. The entry is: Plaintiff's appeal DENIED. Dated: December 28, 1982 /s/___________________________________ William E. McKinley Justice, Superior Court -7- ______________________________________________________________________________