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.                           )
      and                           )
                 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


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

     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


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

     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


             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

     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


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.

     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


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
                                               William E. McKinley
                                             Justice, Superior Court