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
           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.


     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


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

     As the exclusive bargaining representative of its employees,
the M.S.E.A. has a statutory duty to fairly represent all of those


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.


     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.


     Upon the foregoing, the Court ORDERS that the appeal
is DENIED.  The decision of the Maine Labor Relations Board

Date:  July 25, 1983                           /s/______________________
                                                  MORTON A. BRODY
                                               Justice, Superior Court