An Act To Amend the Laws Governing Bargaining Agents for Public Universities and Colleges
Maine Legislature, Session 122, LD 0393
Committee: Labor
Sponsors: AUSTIN, SNOWE-MELLO, BRYANT-DESCHENES, CROSTHWAITE, FLETCHER, JOY, LANSLEY, MOORE
Amends: 26 MRSA §1025

Legislative Document 
No. 393 
H.P.295 
House of Representatives, January 25, 2005 
An Act To Amend the Laws Governing Bargaining Agents for 
Public Universities and Colleges 
Reference to the Committee on Labor suggested and ordered printed. 
Presented by Representative AUSTIN of Gray. 
'7Y/~ /J7.1J?dC~ 
MILLICENT M. MacFARLAND 
Clerk 
Cosponsored by Senator SNOWE-MELLO of Androscoggin and 
Representatives: BRYANT-DESCHENES of Turner, CROSTHWAITE of Ellsworth, 
FLETCHER of Winslow, JOY of Crystal, LANSLEY of Sabattus, MOORE of Standish. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 26 MRSA §1025, sub·§2, ~E, as enacted by PL 1991, c. 
and as amended by PL 2003, c. 20, Pt. 00, §2 and affected by 
§4, is further amended to read: 
E. 
The bargaining agent certified by the executive director 
or a designee as the exclusive bargaining agent for a unit 
is required to represent all the university, 
academy or 
community college employees within the unit without regard 
to membership in the organization certified as bargaining 
agent, 
except that 
any university, 
academy 
or 
community 
college employee may present at any time and at any step of 
any prescribed grievance procedure then in effect, including 
arbitrat~ that employee's grievance to the employer and 
have that grievance adjusted without the intervention of the 
bargaining agent, if the adjustment is not inconsistent with 
the terms of any collective bargaining agreement then in 
effect and the bargaining agent's representative has been 
given reasonable opportunity to be present at any meeting of 
the parties called for the resolution of that grievance. 
Sec. 2. 
MRSA §§1025·A, 1025·B, 1025·C and 1025·D 
are 
enacted to read: 
§1025-A. 
Duties of employers and bargaining agents 
1. 
Employer's 
~uty to recognize employee's exercise of 
rights; punitive damages. 
An employer shall recognize and accept 
the exercise by an employee of rights under this chapter and 
shall 
recognize 
and 
accept 
the 
employee 
and 
the 
employee's 
attorney as the grievant and representative for purposes of a 
grievance proceeding. If an employer fails or refuses to accept 
and process a valid grievance that is pursued by an employee 
wi thout representation by a bargaining agent in accordance with 
section 1025 at the employer is liable to the employee for all 
damages sustained by the employee as a result of that failure and 
the employer may be subject to punitive damages in a civil suit 
brought by the employee in Superior Court. 
2. 
Duty to notify emJ!.l2yj;!e. 
Upon the commencement of an 
employee's 
employment, 
the employer 
and 
the bargaining agent 
shall notify the employee of the rights granted to the employee 
under this section apd sections 1025 Bt 1025-C and 1025-D and, to 
the 
extent 
possible, 
these 
rights 
must 
be 
incorporated 
by 
reference 
in collective 
bargaining 
agreements 
negotiated 
and 
entered into between the bargaining agent and the employer. 
3. 
Bargaining agent's duty to represent employee; puni ti ve 
damages. 
If an 
employee 
requests 
that the bargaining agent 
Page l-LROOll (1) 
represent the employee in a grievance proceeding, the bargaining 
agent shall fairly represent the employee at every step of the 
grievance process. 
If a bargaining agent fails or neglects to 
fairly represent an employee., the bargaining agent is liable to 
~el!lPlQy.ee for 
aJ,..L_dam~g~ustained by the employee as 
a 
result of that failure and may be subject to punitive damages in 
a civil suit brought by the employee in Superior Court. 
§1025-B. 
Proceeding without representation by bargainiDg agent 
1. 
Same rights as Qargg~ning agent. 
If an employee elects 
to pursue a grievance without the intervention of the bargaining 
agent as provided in section 1025, subsection 2, paragraph E: 
A. 
The emplQyee has all the rights to present and prosecute 
the grievance fully and completely that the bargaining agent 
would 
have 
under 
the 
law 
and 
any 
existing 
bargaining 
agreement: and 
B. 
The employer shall accept and process the grievance and 
comply with any agreed-upon or ordered resolution of the 
grievance 
as 
if 
the 
grievance 
had 
been 
presented 
and 
~2-".._~R",o",1,~<LLl»argai~i~g ._~g~n=t~. __ 
I"-=f_a=n_e=m'l:'p-",l,-"o""y,-e,,,-,e,,---,e,,-,l,,,-e=c-,,,t-,,,s,--~t=o 
pursue 
a 
grievance 
independently of 
the bargaining agent 
as 
pro v ide d ins e c t ion 10 2 5------s up sec t io",..,n,--"2,-",--pl:'-"'a",r-"a"-,:g"-,r,,-,a,,,,p~h,--,,E,,--,-: 
A. 
The 
baJ;gg.tD_i-.n9--.Q~D~may not take an official position 
or in any way 
communicate an unofficial position to the 
employer on the pending grievance unless requested to do so 
by the employee; 
B. 
The bargaining agent may 
not in any way hinder or 
obstruct the grievance process; and 
C. 
The bargaining 
agen~j3.ll assist and cooperate fully 
with the employ_e.e in all matters relating to the grievance 
as reasonably requested by the employee, 
except that the 
bargaining agent is not required to act in a representative 
capacity 
on 
behalf 
of 
the 
employee 
in 
any 
proceeding 
relating to t~endi~ievance. 
§1025-C. 
Proce~gin~ in w~~~ employ~ 
__ initially requests 
re~esentation by bargainin~ent 
~a.i,~u~e~~efy.sa_:L_ tQ __ ~ep~e~e~t._ttIDP:LQy_ee iJL.g~ieyance-,,-
If the bargaining agent, citing a grievance's lack of merit, 
fails or refuses to represent 
~he employee at any s~~ 
proceeding, the employee may engage, at the employee's expense, 
an 
attorney 
to 
assist 
in prosecuting 
the 
grievance 
to 
its 
conclusion, including 
arbit~ation. 
If the employee prevails in 
the grievance, the bargaining agent shall reimburse the employee 
for all reasonable costs and expenses incurred by the employee, 
including attorney's fees. 
2. 
Te~ination of re»~esentative relationship. 
If, in the 
course of a grievance proceedin~in which the bargaining agent is 
representing the employee, the employee reasonably believes that 
the bargaining agent is not acting in good faith, the employee 
may terminate the representative relationship with the bargaining 
agent and independently pursue resolution of the grievance or 
engage, 
at the employee's expense, 
an attorney to assist in 
prosecuting 
the 
grievance 
to 
its 
conclusion, 
including 
arbitration. 
If the 
employee prevails 
in the grievance, 
the 
bargaining agent shall reimburse the employee for all reasonable 
costs and expenses incurred by the employee, including attorney's 
fees. 
3. 
Nonmember request for representation. 
If, at any s tel? 
of 
a 
grievance 
proceeding, 
an 
employee 
who 
has 
declined 
membership in and has not paid dues to the organization certified 
as the bargaining agent requests representation by the bargaining 
agent, the bargaining agent shall provide to the employee those 
services 
that 
the 
bargaining 
agent 
would 
provide 
to 
member 
employees under the same circumstances. 
An employee who requests 
representation under this subsection shall pay to the bargaining 
agent that amount that the employee would have paid in dues and 
fees had the employee joined the organization certified as the 
bargaining 
agent 
on 
the 
effective 
date 
of 
the 
collective 
bargaining agreement or on the actual date of commencement of the 
employee's employment, whichever is more recent. 
4. 
Rig~tL- of 
employee 
balanced 
against 
interests 
majority of members. 
In all proceedings under this section, 
bargaining agent shall regard the rights of 
the employee 
paramount, except that the bargaining agent may, in assessing 
merits of 
a 
grievance, 
consider the potential effect of 
resolution of that particular grievance on the best interests 
a majority of the other members of the bargaining unit. 
§1025-D. 
Potential conflict of interest 
of 
the 
as 
the 
the 
of 
1. 
Conflict of interest. 
To avoid a possible conflict of 
interest on the part of the bargaining agent, an employee may 
decline 
representation of 
the bargaining agent 
and 
engage 
a 
private attorney to pursue a grievance if: 
A . 
The 
p r i nc i pal par ty 
adve,-'r'-'s"-'e"'------"t-"'o_--'t"'-h~e"___'e""m'_'_""p-"l'-"o'_"y'_'e"-e"'-----"'i...,n'-------'t~h~e 
grievance is a person who possesses authority to resolve 
that grievance; or 
B. 
The 
princip~9S~dverse to the employee 
in the 
grievance is a dues-paying member of the bargaining agent. 
2. 
ReimQllrsement 
of costs. 
If 
an 
employee 
engages 
a 
N i vate 
attorneY---t-o--1lli-~su~--1lr ievance under this section, the 
bargaining agent shall reimburse the em~ee for all costs and 
expenses incurred in PRrsuing the gri~vance, including attorney's 
fees, whether or not the employee prevails. 
SUMMARY 
The purpose of this bill is to clarify the laws governing 
bargaining 
agents 
for 
employees 
at 
public 
universities 
and 
colleges in Maine. 
Under this bill: 
1. 
Public universities 
and 
cOlleges 
in this State are 
required to recognize and accept an employee and the employee's 
attorney as 
the grievant and representative, 
as well 
as 
the 
bargaining agent, for purposes of a grievance proceeding; 
2. 
If requested by an employee, the bargaining agent is 
required to fairly represent the employee at every step of the 
grievance process; 
3. 
An 
employee 
who 
elects to proceed with 
wi thout representation by the bargaining agent has 
rights to pursue the grievance that the bargaining 
have had; 
a grievance 
all of the 
agent would 
4. 
The role of the bargaining agent is set forth, both ln 
instances in which the employee has requested representation by 
the bargaining agent and instances in which the employee has 
declined such representation; and 
5. 
The 
issue 
of 
potential 
conflicts 
of 
interest 
is 
addressed.