Lundrigan v. Maine Labor Relations Board, No. CV-83-81 (Me. Super. Ct., Ken. Cty., July 25, 1983) (affirming Lundrigan v. State Department of Personnel and Maine State Employees Association, No. 83-03); aff'd, 482 A.2d 834 (Me. 1984). STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION Docket No. CV-83-81 W. E. LUNDRIGAN, ) ) Plaintiff ) vs. ) DECISION ) MAINE LABOR RELATIONS BOARD,) ) Defendant ) This is an appealpursuant to 26 M.R.S.A. 979 H(7) and M.R.Civ.P. 80B, from decision of the Defendant Maine Labor Relations Board (Board) dismissing Plaintiff W. E. Lundrigan's prohibited practice complaint against the State Department of Personnel (State) and the Maine State Employees Association (M.S.E.A.). In April 1979, Lundrigan was hired as the Assistant Director of Finance within the State of Maine Department of Educational Services. He applied for the position of Director of Finance in 1981. When another applicant was selected for the position, Lundrigan filed a grievance alleging that the State violated the collective bargaining agreement, acted arbitrarily and violated concepts of career service in failing to promote him to the position of Director of Finance. The grievance was unresolved through the lower levels of the grievance procedure, resulting in an arbitration proceeding. In a decision dated March 11, 1982, the arbitrator denied Lundrigan's grievance finding that the State had not violated the collective bargaining agreement in failing to promote Lundrigan to the position of Director of Finance and had not abused its discretion in violation of its management rights in filling the position. -1- Lundrigan filed a prohibited practices complaint with the Board on July 8, 1982. The complaint alleged that the M.S.E.A. breached its duty of fair representation in its presentation of Lundrigan's grievance before the arbitrator. The complaint also alleged that the State had engaged in a prohibited practice by threatening to give Lundrigan a poor evaluation if he filed a grievance because of the failure to appoint him to the Director of Finance position. In a decision dated April 29, 1983, the Board, without holding an evidentiary hearing, dismissed the complaint against the M.S.E.A. for failure to state a claim, finding that the facts alleged in the complaint do not set forth a cause of action for breach of the union's duty of fair representation. The Board dismissed the complaint against the State on the grounds that it had not been brought within six months of the act charged. 26 M.R.S.A 979 H(2). Lundrigan's first argument on appeal is that the Board erred in disposing of his complaint against the M.S.E.A. without holding a full evidentiary hearing on the matter. He claims that the Board's action denied him the opportunity to fully present his case and denied him due process of law in violation of the Constitutions of the United States and the State of Maine. 26 M.R.S.A. 979 H(2) authorizes either the Board or its executive director to dismiss a prohibited practices complaint without a hearing where the facts alleged do not, as a matter of -2- law, constitute a prohibited practice. Therefore, the Board did not exceed its authority in dismissing Lundrigan's complaint without a hearing. In determining the sufficiency of the complaint the Board accepted as true all of the factual allegations contained in the complaint. Therefore, introduction of evidence to support these allegations was not critical to Lundrigan's case. A review of the record indicates that Lundrigan was given ample opportunity to, and did, in fact, present numerous written memoranda to the Board. Therefore, the Court finds that the Board did not arbitrarily preclude Lundrigan from fully addressing the merits of his complaints, and the requirements of due process were not violated in this case. Lundrigan next argues that the Board erred in finding that the facts alleged did not support a finding that the M.S.E.A. had breached its duty of fair representation. Lundrigan claims that the M.S.E.A. violated its duty of fair representation by failing to properly present his grievance against the State at an arbitration hearing. The allegations upon which Lundrigan's complaint is based are that the M.S.E.A. attorney refused to obtain records which Lundrigan believed were relevant to the grievance, refused to present certain facts at the arbitration hearing and told Lundrigan that the arbitration hearing would be cancelled if Lundrigan attempted to address any matters except those about which he was asked. As the exclusive bargaining representative of its employees, the M.S.E.A. has a statutory duty to fairly represent all of those -3- employees, both in collective bargaining and in its enforcement of the collective bargaining agreement. Humprey v. Moore, 375 U.S. 335 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). A breach of this duty of fair representation occurs when a union's conduct towards a member is arbitrary, discriminatory or in bad faith. The union may not ignore a meritorious grievance or process it in a perfunctory manner. Vaca v. Sipes, 386 U.S. 171 (1967). The union is, however, entitled to some degree of discretion in deciding how to handle a grievance. Ford Motor Co. v. Huffman, supra. Poor judgment or negligence, without more, is insufficient to establish a breach of duty, N.L.R.B. v. Am. Postal Workers Union, 618 F.2d 1249, 1255 (8th Cir. 1980). In his prohibited practices complaint Lundrigan challenged the manner in which the M.S.E.A. attorney managed his grievance, particularly the presentation at the arbitration hearing. The attorney must use his discretion and professional judgment in determining how to proceed with and present a grievance. The attorney's actions will only be reviewed for arbitrariness, discrimination, bad faith or abuse of discretion. The Board held that the M.S.E.A. did not handle Lundrigan's grievance in a perfunctory manner or otherwise act arbitrarily or in bad faith. It found that the issues which the M.S.E.A. lawyer refused to raise and the evidence which he would not present had little, if any, relevance to Lundrigan's grievance. -4- A review of the record indicates that the Board's factual findings are supported by substantial evidence. The M.S.E.A. took Lundrigan's grievance all the way to arbitration, the final step in the grievance procedure. The M.S.E.A. attorney presented both oral and documentary evidence on Lundrigan's behalf at the arbitration proceeding as well as a written argument following the hearing. A number of the issues which Lundrigan sought to raise were not based on the contract, and were, therefore, outside of the arbitrator's jurisdiction. Other issues were of slight relevance to the grievance. The M.S.E.A. attorney did not abuse his discretion in failing to raise these issues. Since Lundrigan's allegations do not support a finding that the M.S.E.A. acted arbitrarily or in bad faith, the Court finds that the Board committed no error when it dismissed the complaint against the M.S.E.A. without a hearing for failure to state a claim. Lundrigan also contends that the Board erred in finding that his complaint against the State was tide barred. Lundrigan's claim against the State is based on acts which occurred in June 22, 1981. The complaint was not filed until July 8, 1982. 26 M.R.S.A. 979 H(2) states that "no hearing shall be based on any alleged prohibited practice occurring more than 6 months prior to the filing of the complaint." Since more than one year had elapsed between the acts complained of and the filing of the complaint, the Court finds that the Board committed no error in finding the claim time barred. -5- Upon the foregoing, the Court ORDERS that the appeal is DENIED. The decision of the Maine Labor Relations Board is AFFIRMED. Date: July 25, 1983 /s/______________________ MORTON A. BRODY Justice, Superior Court