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Brown v. MSEA
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
1997 ME 24
Docket:  HAN-96-456
Argued December 3, 1996
Decided February 14, 1997




	[¶1]  Ronald Brown appeals from a judgment entered in the Superior
Court (Hancock County, Mead, J.) dismissing his complaint against the
Maine State Employees Association (MSEA) seeking to recover for his
damages flowing from the alleged negligent failure on the part of an attorney
for the union to file in a timely manner a demand for arbitration of Brown's
grievance with the Maine Labor Relations Board.  On appeal, Brown
contends, inter alia, that he has pleaded a viable cause of action and that the
court erred in dismissing his complaint for the failure to state a claim on
which relief may be granted.  Unpersuaded by Brown's contentions, we
affirm the judgment.
	[¶2]  Brown worked as the director of the psychology department at
the Bangor Mental Health Institute from 1989 until 1993.   In October
1993, Brown was the subject of a disciplinary action and, following that
action, was reprimanded, suspended, and demoted.  Brown subsequently
began a grievance pursuant to a procedure that existed in the collective
bargaining agreement between the State of Maine and the MSEA.  The
MSEA provided an attorney to work on Brown's grievance.  At an
intermediate step of the procedure, the Bureau of Employee Relations
issued a decision denying Brown's grievance.  The attorney failed to timely
file a request to move forward to arbitration, the next step in the grievance
process, and as a result, Brown's grievance was dismissed. 
	[¶3]  On February 20, 1996, without filing a complaint with the Board
regarding the attorney's conduct, Brown filed suit in the Superior Court
against the MSEA and the lawyer alleging they had committed professional
malpractice by failing to file in a timely fashion the demand for arbitration. 
Brown amended the complaint to add a second count alleging that the union
had breached its duty of fair representation.  Subsequently, Brown and the
MSEA stipulated to a dismissal of the lawyer from the suit.{1}
	[¶4]  After a hearing, the court granted the MSEA's motion to dismiss
both counts.  The court concluded that Count I should be dismissed because
"no independent tort for professional (legal) negligence exists where an
employee of a union commits a negligent act in the representation of an
employee pursuant to a collective bargaining agreement."  The court
declined to exercise concurrent jurisdiction with the Board over Count II,
alleging a breach of the duty of fair representation, and in any event, found
that it was time barred by the six-month statute of limitations for filing a
complaint with the Board as provided in the State Employees Labor
Relations Act, 26 M.R.S.A. §§ 979 to 979-Q (1988 & Supp. 1996).  Brown's
appeal followed.  
	[¶5]  A motion to dismiss tests the legal sufficiency of the complaint. 
Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995).  We review a judgment
granting a motion to dismiss by treating the material allegations of the
complaint as true and examining the complaint in the light most "favorable
to the plaintiff to determine whether it alleges the elements of a cause of
action against the defendant or alleges facts that could entitle the plaintiff to
relief under some legal theory[.]"  Id. (citing Larrabee v. Penobscot Frozen
Foods, Inc., 486 A.2d 97, 99 (Me. 1984)).  
	[¶6]  The relationships among the employee, the public employer, and
the union are governed by the statutory scheme set out in the State
Employees Labor Relations Act, 26 M.R.S.A. §§ 979 to 979-Q (1988 & Supp.
1996).  The Legislature has granted the Board jurisdiction over both the
employer and the union to remedy prohibited practices.  26 M.R.S.A. § 979-
H (1) (1988).  A complainant must file a prohibited practices complaint with
the executive director of the Board no later than six months after its alleged
occurrence.  26 M.R.S.A. § 979-H (2) (1988).  Prohibited practices include
prohibiting a union from "[i]nterfering with, restraining or coercing
employees in the exercise of the rights guaranteed in section 979-B . . . ."
26 M.R.S.A. § 979-C(2)(A).{2}  
	[¶7]  We have said that a union commits a prohibited practice by
breaching its statutory duty to fairly represent its members.  Lundrigan v.
Maine Labor Relations Board, 482 A.2d 834 (Me. 1984).  In Lundrigan, we
concluded that a union breaches its "duty of fair representation" when 
the union's conduct toward its members [is] arbitrary,
discriminatory or in bad faith.  Thus, the union may not ignore a
meritorious grievance or process it in a perfunctory manner. 
Nevertheless, a "[w]ide range of reasonableness must be allowed"
and "[m]ere negligence, poor judgment or ineptitude are
insufficient to establish a breach of the duty of fair

Id. at 836. (citations omitted); see Vaca v. Sipes, 386 U.S. 171 (1967). 
"Freeing a union from liability for ordinary acts of negligence in the
performance of its representational responsbilities requiring judgment on
its part, reflects a balance of the union's organizational interest against the
individual interests of its members."  Peterson v. Kennedy, 771 F.2d 1244,
1255 (9th Cir. 1985).  In Vaca, the United States Supreme Court stated that
"[u]nder [the duty of fair representation], the exclusive agent's statutory
authority to represent all members of a designated unit includes a statutory
obligation to serve the interests of all members without hostility or
discrimination toward any . . . ." 386 U.S. at 177.          
	[¶8]  Once the Board finds a prohibited practice, it "shall issue and
cause to be served upon such party an order requiring such party to cease
and desist from such prohibited practice and to take such affirmative action,
including reinstatement of employees with or without backpay, as will
effectuate the policies of this chapter." 26 M.R.S.A. § 979-H (3) (emphasis
added).  The Board's remedial powers are exercised in an attempt to restore
"'the situation, as nearly as possible, to that which would have been
obtained' but for the unfair labor practice."  Caribou School Dep't v. Caribou
Teachers Ass'n, 402 A.2d 1279, 1284 (Me. 1979) (citations omitted).  In
the context of the analogous and nearly identical Municipal Public
Employees Labor Relations Act, 26 M.R.S.A. §§ 961-974 (1988 & Supp.
1996), we have concluded that "[t]he Board has broad discretion in
fashioning appropriate relief for the employer's prohibited practices . . . ."
City of Bangor v. American Fed'n of State, County, and Mun. Employees
Council 74, 449 A.2d 1129, 1136 (Me. 1982); see also Council 74, American
Fed'n of State, County and Mun. Employees v. Maine State Employees Ass'n,
476 A.2d 699, 704 (Me. 1984) (Board ordered new election); Association of
Indep. Prof'ls v. Maine Labor Relations Bd., 465 A.2d 401, 411 (Me. 1983)
(suggesting that proper remedy for distribution of false and misleading
information to members is for the association to circulate an ameliorative
	[¶9]  In light of this comprehensive statutory scheme, we disagree
that Brown additionally was entitled to a common law action in the Superior
Court.  The Act creates and defines the rights of a public employee against
the employer and the union in the formation and exercise of collective
bargaining agreements, and Brown must look to the provisions of that Act
for his remedy.{3}  Brown could have filed a prohibited practices complaint
against the union alleging a breach of the duty of fair representation.{4}  Brown
also could have named the employer in his prohibited practices complaint,
and that inclusion would have enabled the Board, if it found a wrong, to
attempt to provide a remedy.  Accordingly, we decline to recognize a
common law action for the professional negligence of the union in addition
to the right created by the statute.{5}     
	[¶10]  Brown's labeling of his claim as one for attorney malpractice
does not alter this conclusion and does not accurately describe the
underlying, alleged wrong.  Although, in fact, the union provided an attorney
in this case, Brown did not enter into an attorney-client relationship with
that lawyer.  The choice to use a lawyer as opposed to another union worker
to process Brown's grievance was the union's decision.  In Peterson v.
Kennedy, 771 F.2d 1244 (9th Cir. 1985), the Ninth Circuit Court of Appeals
detailed the relationship between the attorney, the grievant, and the union
that exists in the present case:
We recognize that there are cases in which an attorney
represents the union in an arbitration proceeding, but the
underlying grievance belongs to a particular union member who
has a very real interest in the manner in which the grievance is
processed . . . Nevertheless, when the union is providing the
services, it is the union, rather than the individual business agent
or attorney, that represents and is ultimately responsible to the

Id.  at 1258.  Brown could not fire the union lawyer nor control his actions,
and the attorney's status as such was incidental to the services he performed
to process Brown's grievance.  In the absence of an attorney-client
relationship, the professional negligence claim against the union fails as a
matter of law.  See Fisherman's Wharf Assocs. II v. Verrill & Dana, 645 A.2d
1133, 1136 (Me. 1994) (citing Rowe v. Bennett, 514 A.2d 802, 804 (Me.
	[¶11]  The essence of Brown's claim is that the union did not fairly
represent him because it negligently missed a filing deadline that resulted in
the extinguishment of Brown's grievance.  That failure is covered within the
contours of the statutory duty of fair representation.{6}  Brown should have
filed a prohibited practices complaint with the Board, and Brown's failure to
do so in this case forecloses any remedy that he otherwise might have had.
	[¶12] The entry is:
									Judgment affirmed.

Attorney for plaintiff:

Barry K. Mills, Esq. (orally)
Hale & Hamlin
P O Box 729
Ellsworth, ME 04605

Attorney for defendant:

Jeffrey Neil Young, Esq. (orally)
McTeague, Higbee, MacAdam, Case, Watson & Cohen
P O Box 5000
Topsham, ME 04086-5000
FOOTNOTES******************************** {1} This dismissal is consistent with the generally accepted principle that union agents, including lawyers, are not personally liable to individual members for actions taken on behalf of the union during the collective bargaining process. See Breda v. Scott, 1 F.3d 908 (9th Cir. 1993); Montplaisir v. Leighton, 875 F.2d 1 (1st Cir. 1989); see generally Atkinson v. Sinclair Refining Co., 370 U.S. 238, 247-49 (1962) (immunity generally for union agents). {2} Section 979-B provides: § 979-B. Right of state employees to join labor organizations No one shall directly or indirectly interfere with, intimidate, restrain, coerce or discriminate against state employees or a group of state employees in the free exercise of their rights, hereby given, voluntary to join, form and participate in the activities of organizations of their own choosing for the purposes of representation and collective bargaining, or in the free exercise of any other right under this chapter. {3} Brown's rights arise from the creation of the Act. Absent the existing statutory scheme or some binding contract, Brown would have been a employee at will. {4} Brown filed his complaint in the Superior Court on February 20, 1996, eight months after an arbitrator dismissed his grievance as not timely filed. Thus, as of February 20, he was time-barred from filing a prohibited practices complaint with the Board. {5} Upholding the uniformity of the statutory scheme compels this result. The Act was created "to promote the improvement of the relationship between the State of Maine and its employees by providing a uniform basis for recognizing the right of state employees to join labor organizations of their own choosing and to be represented by such organizations in collective bargaining for terms and conditions of employment." 26 M.R.S.A. 979 (1988). The creation of a common law cause of action for negligence by the union undermines that purpose. For the same reasons, we conclude that the court correctly declined to exercise concurrent jurisdiction over Count II. The Act expressly provides for Superior Court review of a Board decision or order on appeal. 26 M.R.S.A. § 979-H (7) (Supp. 1996). Moreover, 26 M.R.S.A. § 979- H(6) (1988), allows a party making a prohibited practices complaint simultaneously to seek injunctive relief in the courts for blacklisting or an employee's engagement in a work stoppage, slowdown, or strike. 26 M.R.S.A. § 979-H(6) (1988). Inferring from these statutes, and in the furtherance of the interest in uniformity, we conclude that the exclusive jurisdiction for the breach of the duty of fair representation lies with the Board. {6} Because Brown could have had a remedy before the Board, the Superior Court's decision did not, as a matter of law, deprive him of a remedy for a wrong committed against him. Me. Const. art. I § 19; see Mathieu v. Bath Iron Works, 667 A.2d 862, 866 (Me. 1995) (worker had remedy under Workers' Compensation Act).