MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	148	
Docket:	   Ken-15-466	
Argued:	   May	4,	2016	
Decided:	  October	6,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Dissent:	  JABAR,	J.	
	
	
                        STATE	OF	MAINE	et	al.	
                                  	
                                 v.	
                                  	
         MAINE	STATE	EMPLOYEES	ASSOCIATION,	SEIU	LOCAL	1989	
	
	
HJELM,	J.	

      [¶1]	 	 The	 State	 of	 Maine	 and	 the	 Department	 of	 Health	 and	 Human	

Services	 (collectively,	 the	 State)	 appeal	 from	 a	 judgment	 entered	 in	 the	

Superior	Court	(Kennebec	County,	Murphy,	J.)	denying	their	motion	to	vacate	

an	arbitration	award	reinstating	Susan	Berube	to	her	employment	position	at	

DHHS.	 	 During	 the	 grievance	 process,	 which	 included	 the	 arbitration	

proceeding,	 Berube	 was	 represented	 by	 the	 Maine	 State	 Employees	

Association,	SEIU	Local	1989.		On	this	appeal,	the	State	argues,	inter	alia,	that	

the	 court	 erred	 when	 it	 concluded	 that	 the	 arbitrator	 did	 not	 exceed	 her	

powers	 by	 determining	 that	 the	 grievance	 was	 arbitrable	 even	 though	 the	

arbitration	 request	 was	 filed	 after	 the	 deadline	 established	 in	 the	 Collective	
2	 	

Bargaining	Agreement	as	enlarged	by	agreement	of	the	State	and	MSEA.		We	

agree,	 vacate	 the	 judgment,	 and	 remand	 with	 instructions	 to	 vacate	 the	

arbitration	award.	

                                   I.		BACKGROUND	

       [¶2]	 	 The	 following	 facts	 are	 undisputed	 and	 are	 drawn	 from	 the	

arbitrator’s	 June	 2014	 interim	 arbitration	 award	 and	 her	 January	 2015	 final	

arbitration	award.		See	Stanley	v.	Liberty,	2015	ME	21,	¶	3,	111	A.3d	663.			

A.	    Collective	Bargaining	Agreement	

	      [¶3]		At	relevant	times	during	Berube’s	employment	at	DHHS,	MSEA	and	

the	 State	 were	 parties	 to	 a	 Collective	 Bargaining	 Agreement	 (CBA)	 that	

covered	employees	in	the	professional	and	technical	services	bargaining	unit,	

including	 Berube.	 	 Article	 33	 of	 the	 CBA	 contains	 the	 procedures	 for	 a	

four-step	employee	grievance	process.		The	first	three	steps	consist	of	an	oral	

grievance	 to	 the	 employee’s	 immediate	 supervisor,	 a	 written	 grievance	 to	 a	

designated	 agency	 official,	 and	 an	 appeal	 to	 the	 Chief	 Counsel	 Office	 of	

Employee	Relations.		The	fourth	step—which	is	at	issue	here—is	arbitration.		

As	the	CBA	provides,	

       [i]f	 the	 grievance	 has	 not	 been	 satisfactorily	 resolved	 at	 Step	 3,	
       then	 MSEA-SEIU	 may	 submit	 the	 grievance	 to	 arbitration	 by	
       submitting	a	request	for	arbitration	to	the	Chief	Counsel	Office	of	
       Employee	 Relations	 as	 well	 as	 a	 statement	 of	 the	 grievance	
      	                                                                            3	

    specifying	the	Article,	section	or	clause	of	the	contract	alleged	to	
    have	 been	 violated,	 along	 with	 the	 concise	 statement	 of	 facts	
    surrounding	 the	 issue	 and	 the	 remedial	 action	 requested.	 	 The	
    request	for	arbitration	shall	be	received	by	the	Office	of	Employee	
    Relations	through	personal	service	or	by	mailing	by	registered	or	
    certified	 mail	 within	 fifteen	 (15)	 workdays	 of	 the	 receipt	 of	 the	
    Step	3	decision.			
    	
(Emphasis	added.)	

          [¶4]		Article	33	also	contains	the	following	general	provisions	regarding	

the	grievance	procedures:		

    3.2	 All	 of	 the	 time	 limits	 contained	 in	 this	 Article	 may	 be	
    extended	by	mutual	agreement	of	the	parties	and	such	extensions	
    shall,	in	order	to	be	effective,	be	confirmed	in	writing.		The	parties	
    may	mutually	agree	to	bypass	steps	of	the	grievance	procedure.		
    	
    3.3	 In	 no	 event	 can	 a	 grievance	 be	 taken	 to	 the	 next	 or	 any	
    succeeding	 step	 of	 this	 procedure	 unless	 the	 employee	 and/or	
    his/her	 representative	 meets	 the	 time	 limits	 or	 extensions	
    thereof.		
    	
(Emphasis	added.)		Section	2.4(c)	in	Article	33	of	the	Agreement	provides	that	

“[t]he	arbitrator	shall	have	no	authority	to	add	to,	subtract	from	or	modify	any	

provisions	of	this	Agreement.”			

B.	       Berube’s	Termination	and	the	Grievance	

          [¶5]		Berube	was	employed	by	DHHS	from	1984	to	June	2013,	when	she	

was	terminated	for	having	alcohol	on	her	breath	while	meeting	with	a	client.		

This	case	arises	out	of	Berube’s	termination.	
4	 	

       [¶6]	 	 Berube	 was	 the	 subject	 of	 a	 separate	 disciplinary	 action	 in	 2002	

for	consuming	alcohol	at	work.		As	a	result	of	that	incident,	Berube,	MSEA,	and	

the	 State	 entered	 into	 a	 “Last	 Chance	 Agreement,”	 which	 resulted	 in	 Berube	

being	 suspended	 for	 one	 week.	 	 Pursuant	 to	 the	 terms	 of	 the	 Last	 Chance	

Agreement,	 Berube	 agreed	 that	 “[as]	 a	 condition	 of	 her	 employment,”	 she	

would	 “neither	 possess	 nor	 consume	 alcohol	 or	 any	 illegal	 drug	 at	 any	 time	

she	 is	 receiving	 compensation	 .	 .	 .	 and	 that	 a	 violation	 of	 these	 conditions	

would	result	in	termination	of	her	employment	with	the	State.”	

       [¶7]	 	 In	 2005,	 Berube	 became	 a	 case	 manager	 working	 with	 DHHS	

clients	who	receive	mental	health	services.		On	March	26,	2013,	Berube	drove	

from	the	DHHS	Regional	Office	in	Machias,	where	she	worked,	to	a	residential	

facility	 where	 a	 client	 lived	 in	 order	 to	 complete	 some	 paperwork.	 	 Upon	

arriving	 at	 the	 residence,	 two	 employees	 of	 the	 social	 services	 organization	

that	 managed	 the	 residence	 detected	 a	 strong	 odor	 of	 alcohol	 on	 Berube’s	

breath.	 	 The	 employees	 reported	 the	 information	 to	 the	 organization’s	

Director	 of	 Community	 Services,	 who	 then	 notified	 Berube’s	 supervisor	 at	

DHHS	 and	 sent	 a	 written	 request	 that	 Berube	 be	 removed	 from	 other	 cases	

involving	the	organization’s	clients.		DHHS	investigated	the	incident,	found	the	
   	                                                                                       5	

allegations	 to	 be	 credible,	 and,	 in	 June	 2013,	 terminated	 Berube	 from	

employment.	

       [¶8]	 	 Following	 Berube’s	 termination,	 MSEA	 initiated	 the	 grievance	

process	on	her	behalf.		The	grievance	proceeded	through	Step	3,	with	results	

adverse	to	Berube.		The	Step	3	decision	arrived	at	MSEA’s	office	on	August	29,	

2013,	 and	 a	 receptionist	 signed	 the	 certified	 mail	 receipt	 acknowledging	

delivery	and	placed	it	in	an	in-box.			

       [¶9]	 	 Two	 MSEA	 employees	 were	 responsible	 for	 keeping	 track	 of	

grievance	steps	and	deadlines.		During	parts	of	August	and	September	2013,	

including	the	time	when	the	Step	3	decision	in	Berube’s	grievance	arrived	at	

MSEA’s	office,	those	employees	were	on	leave,	and	their	responsibilities	were	

assigned	to	a	temporary	secretary.		When	the	Step	3	decision	in	Berube’s	case	

arrived	at	MSEA’s	office,	the	temporary	secretary	took	the	decision	from	the	

in-box,	and	then	date-stamped	and	filed	it,	but	did	not	inform	anyone	else	that	

the	 decision	 had	 arrived	 and	 did	 not	 enter	 the	 information	 in	 a	 computer	

program	that	MSEA	used	to	track	the	status	of	grievances.			

       [¶10]		MSEA’s	Director	of	Field	Mobilization	had	been	concerned	about	

the	possibility	that	the	absence	of	the	two	employees	could	result	in	mistakes	

in	 MSEA’s	 processing	 of	 grievances.	 	 As	 a	 result,	 he	 notified	 the	 State	 of	 the	
6	 	

employees’	 absence	 and	 requested	 a	 temporally	 limited	 waiver	 of	 the	

deadlines:		

      [B]oth	 of	 our	 Member	 Support	 Specialists	 are	 out	 of	 work	 for	 at	
      least	the	next	two	weeks.		I	am	doing	the	best	I	can	to	stay	on	top	
      of	 timelines,	 but	 as	 you	 know	 this	 is	 work	 they	 would	 typically	
      administer.		These	absences	began	earlier	this	week	with	both	of	
      them	 being	 out	 on	 the	 morning	 of	 Tuesday	 8/27.	 	 I	 do	 not	
      normally	 do	 this	 work	 and	 there	 is	 potential	 for	 me	 to	 make	 a	
      mistake.		I	am	doing	the	best	I	can	and	really	don’t	anticipate	any	
      mistakes,	but	I	would	appreciate	it	if	you	could	give	us	a	break	on	
      the	enforcement	of	timelines	in	the	interim	during	the	time	when	
      they	 are	 both	 out.	 	 I	 believe	 one	 will	 be	 returning	 by	 Sept.	 12.	 	 I	
      know	we’ve	done	this	in	the	past,	so	if	that	is	acceptable	please	let	
      me	know.			
      	
In	response,	the	Chief	Negotiator	for	the	State’s	Office	of	Employee	Relations	

replied:	

       Of	 course	 we	 will	 work	 with	 you/MSEA	 while	 the	 Member	
       Support	 Specialists	 are	 out.	 	 I	 will	 notify	 everyone	 in	 this	 office	
       and	 the	 Department	 HR	 Directors	 that	 we	 are	 waiving	 time	
       requirements	[from]	8/27	through	9/13	.	.	.		
       	
       Let’s	plan	to	pick	up	the	timelines	on	Monday	9/16.		We	can	touch	
       base	later	if	this	needs	to	change.			
	
(Emphasis	added.)		None	of	the	parties	requested	or	agreed	to	any	additional	

changes	to	the	deadlines.	

C.	    Arbitration	

	      [¶11]	 	 On	 October	 22,	 2013—twenty-six	 workdays	 after	 the	

September	16	reinstatement	of	timelines	agreed	to	by	the	Chief	Negotiator	for	
   	                                                                                   7	

the	 Office	 of	 Employee	 Relations—MSEA	 filed	 a	 request	 for	 arbitration	 on	

behalf	of	Berube	pursuant	to	Step	4	of	the	grievance	procedure,	even	though	

at	 that	 time,	 the	 MSEA	 employees	 who	 were	 responsible	 for	 tracking	

grievance	 timelines	 still	 had	 not	 learned	 that	 a	 Step	 3	 decision	 had	 been	

issued.	

       [¶12]		After	an	arbitrator	was	assigned	to	the	case,	the	State	challenged	

the	 timeliness	 of	 the	 demand	 for	 arbitration,	 and	 the	 State	 and	 MSEA	

submitted	 arguments	 on	 that	 issue.	 	 The	 arbitrator	 entered	 an	 interim	

arbitration	 decision	 in	 June	 2014,	 concluding	 that	 Berube’s	 grievance	 was	

arbitrable.		The	arbitrator	found	that	the	parties	had	agreed	to	a	waiver	of	the	

deadlines	 in	 accordance	 with	 the	 CBA	 and	 that	 the	 language	 in	 the	 email	

exchange	addressing	deadlines	was	not	“so	exact	or	precise,”	as	shown	by	the	

State’s	 statement	 that	 it	 was	 willing	 to	 “touch	 base	 later	 if	 this	 needs	 to	

change.”		The	arbitrator	stated	that	it	would	be	“unacceptable”	if	Berube	were	

denied	 the	 right	 to	 an	 arbitration	 hearing	 because	 of	 an	 internal	

administrative	error	committed	by	a	temporary	employee	who	was	unfamiliar	

with	the	process.			

       [¶13]	 	 In	 August	 and	 September	 2014,	 the	 parties	 proceeded	 to	 an	

arbitration	hearing	on	the	merits	of	Berube’s	grievance,	and	in	January	2015,	
8	 	

the	 arbitrator	 issued	 her	 decision	 reinstating	 Berube	 to	 her	 position.	 	 The	

arbitrator	found	that	although	Berube	did	have	alcohol	on	her	breath	during	

the	March	2013	incident,	the	Last	Chance	Agreement	could	not	form	the	basis	

for	Berube’s	termination	because	although	the	Agreement	did	not	recite	how	

long	 it	 would	 be	 effective,	 its	 duration	 was	 for	 only	 a	 reasonable	 amount	 of	

time	 and,	 having	 been	 executed	 in	 2002,	 no	 longer	 governed	 Berube’s	

employment.	 	 Accordingly,	 the	 arbitrator	 directed	 that	 the	 State	 restore	

Berube	 to	 her	 position	 at	 DHHS	 with	 full	 back	 pay	 and	 issue	 a	 written	

reprimand.	

        [¶14]		In	March	2015,	the	State	filed	in	the	Superior	Court	a	motion	to	

vacate	the	award	pursuant	to	14	M.R.S.	§	5938(2)	(2015).		The	State	argued	in	

part	 that	 the	 arbitrator	 exceeded	 her	 powers	 by	 concluding	 that	 the	 State	

agreed	to	waive	deadlines	to	an	extent	that	would	allow	the	Step	4	arbitration	

request	 to	 be	 deemed	 timely.1	 	 See	 id.	 §	 5938(1)(C).	 	 The	 court	 denied	 the	

State’s	 motion	 to	 vacate,	 concluding	 that	 the	 arbitrator	 did	 not	 exceed	 her	

authority	 when	 she	 found	 that	 Berube’s	 request	 for	 arbitration	 was	 not	

   1		 The	 State	 also	 asserted,	 as	 it	 does	 here,	 that	 the	 arbitrator	 exceeded	 her	 authority	 by	
concluding	that	the	Last	Chance	Agreement	was	no	longer	in	effect	as	of	March	2013;	and	that	as	a	
matter	 of	 public	 policy,	 Berube	 should	 be	 terminated	 anyway	 because	 the	 arbitrator	 found	 that	
Berube	 did	 not	 testify	 truthfully	 when	 she	 denied	 that	 she	 had	 had	 alcohol	 on	 her	 breath	 and	
explained	that	the	odor	of	alcohol	may	have	been	caused	by	her	use	of	an	electronic	cigarette	that	
had	either	a	red	wine	or	champagne	flavor.		Because	we	decide	this	appeal	on	other	grounds,	we	do	
not	reach	these	contentions.	
    	                                                                                    9	

time-barred,	 and	 affirming	 the	 entirety	 of	 the	 arbitrator’s	 award.	 	 The	 State	

appealed	pursuant	to	14	M.R.S.	§	5945(1)(C)	(2015).	

                                    II.		DISCUSSION	

	       [¶15]	 	 The	 State	 contends	 that	 the	 court	 erred	 by	 concluding	 that	 the	

arbitrator	did	not	exceed	her	authority	when	she	concluded	that	MSEA	filed	a	

timely	request	for	arbitration	and	that	the	grievance	therefore	was	arbitrable.		

Our	review	of	an	arbitrator’s	finding	of	substantive	arbitrability	is	for	errors	

of	law,	see	Champagne	v.	Victory	Homes,	Inc.,	2006	ME	58,	¶	8,	897	A.2d	803,	

and	 “[w]e	 will	 uphold	 the	 Superior	 Court’s	 confirmation	 of	 an	 arbitration	

award	unless	the	court	was	compelled	to	vacate	the	award,”	see	Dep’t	of	Corr.	

v.	AFSCME,	Council	93,	2000	ME	51,	¶	8,	747	A.2d	592.			

        [¶16]		The	standard	of	review	used	to	determine	whether	an	arbitrator	

exceeded	her	power	is	“extremely	narrow.”		Id.	¶	9.		The	Uniform	Arbitration	

Act,	 14	 M.R.S.	 §§	 5927-5949	 (2015),	 “provides	 the	 exclusive	 grounds	 for	 a	

court	to	vacate	an	arbitration	award,”	HL	1,	LLC	v.	Riverwalk,	LLC,	2011	ME	29,	

¶	 28,	 15	 A.3d	 725.	 	 As	 relevant	 here,	 “the	 court	 shall	 vacate	 an	 award	

where	.	.	.	[t]he	arbitrators	exceeded	their	powers.”		14	M.R.S.	§	5938(1)(C).	

	       [¶17]	 	 The	 arbitrator’s	 function	 is	 limited	 to	 interpreting	 and	 applying	

the	collective	bargaining	agreement.		Caribou	Bd.	of	Educ.	v.	Caribou	Teachers	
10	 	

Ass’n,	 404	 A.2d	 212,	 214	 (Me.	 1979).	 	“It	 is	 the	 arbitrator’s	 construction	 of	 a	

contract	 that	 is	 bargained	 for.”	 	 Dep’t	 of	 Transp.	 v.	 Maine	 State	 Emps.	 Ass’n,	

SEIU	 Local	 1989,	 606	 A.2d	 775,	 777	 (Me.	 1992).	 	 An	 arbitrator	 exceeds	 her	

powers,	however,	when	she	bases	her	conclusion	on	a	“manifest	disregard	of	

the	contract,”	id.,	and	instead	applies	“[her]	own	individual	concept	of	justice	

in	the	particular	area	involved,”	Caribou	Bd.	of	Educ.,	404	A.2d	at	214;	see	also	

Dep’t	 of	 Corr.,	 2000	 ME	 51,	 ¶	 8,	 747	 A.2d	 592	 (stating	 that	 an	 arbitration	

award	 will	 be	 sustained	 “if	 any	 rational	 construction	 of	 the	 agreement	 could	

support	 the	 award”);	 Westbrook	 Sch.	 Comm.	 v.	 Westbrook	 Teachers	 Ass’n,	

404	A.2d	204,	209	(Me.	1979)	(stating	that	a	court	can	vacate	an	arbitrator’s	

award	 only	 when	 it	 “is	 so	 palpably	 faulty	 that	 no	 judge,	 or	 group	 of	 judges,	

could	ever	conceivably	have	made	such	a	ruling”	(quotation	marks	omitted)).		

“General	 rules	 of	 contract	 interpretation	 apply	 to	 questions	 of	 substantive	

arbitrability.”		Champagne,	2006	ME	58,	¶	8,	897	A.2d	803.	

        [¶18]	 	 It	 is	 undisputed	 that	 MSEA	 did	 not	 file	 a	 request	 for	 arbitration	

until	 after	 the	 expiration	 of	 the	 deadline	 created	 in	 the	 CBA	 as	 enlarged	 by	

mutual	agreement	of	MSEA	and	the	State.		The	salient	question	is	whether	the	

arbitrator	 exceeded	 her	 powers	 when	 she	 concluded	 that	 the	 State	 had	
   	                                                                                   11	

waived	 the	 deadline	 to	 an	 additional	 extent	 that	 would	 allow	 the	 arbitration	

request	to	be	deemed	timely.			

       [¶19]	 	 In	 her	 email	 communications	 with	 an	 MSEA	 representative,	 the	

State’s	 Chief	 Negotiator	 explicitly	 consented	 to	 waive	 grievance	 process	

deadlines	 from	 August	 27	 through	 September	 13,	 2013.	 	 In	 that	 email,	 the	

Chief	Negotiator	also	wrote,	“Let’s	pick	up	the	timelines	on	Monday	9/16.		We	

can	touch	base	later	if	this	needs	to	change.”		The	Step	3	decision	in	Berube’s	

grievance	 arrived	 at	 MSEA’s	 office	 on	 August	 29—a	 date	 within	 the	 period	

covered	by	the	State’s	agreement.		Therefore,	based	on	the	parties’	agreement,	

the	 period	 in	 which	 Berube,	 through	 MSEA,	 was	 entitled	 to	 invoke	 Step	 4	

arbitration	 under	 Article	 33	 of	 the	 CBA	 commenced	 on	 September	 16—the	

date	that	the	State’s	Chief	Negotiator	had	agreed	to	“pick	up”	the	deadlines—

and	ended	fifteen	workdays	later,	on	October	7.		MSEA	did	not	file	its	request	

for	arbitration	until	October	22.		

       [¶20]	 	 The	 arbitrator	 found	 that	 the	 parties	 had	 agreed	 to	 a	 waiver	 to	

extend	 the	 deadline	 even	 beyond	 the	 October	 7	 deadline	 based	 on	 the	

sentence	 in	 the	 State’s	 Chief	 Negotiator’s	 email,	 “We	 can	 touch	 base	 later	 if	

this	 [waiver	 of	 deadlines	 through	 September	 13]	 needs	 to	 change.”	 	 The	

arbitrator	reasoned	that	the	State’s	willingness	to	“touch	base”	to	consider	a	
12	 	

further	 enlargement	 of	 deadlines	 signified	 “an	 intent	 to	 continue	 it,	 if	

circumstances	 required.”	 	 As	 the	 arbitrator	 also	 found,	 however,	 there	 were	

no	further	deadline-related	communications	between	the	parties—MSEA	did	

not	 request	 any	 further	 extensions	 of	 time	 or	 waivers	 of	 deadlines,	 and	 the	

State	did	not	consent	to	any.		

        [¶21]		The	CBA	explicitly	requires	that	the	parties	may	extend	deadlines	

by	mutual	agreement—but	that	“such	extensions	shall,	in	order	to	be	effective,	

be	confirmed	in	writing.”		The	CBA	also	states	that	an	“arbitrator	shall	have	no	

authority	 to	 add	 to,	 subtract	 from	 or	 modify	 any	 provisions	 of	 [the]	

Agreement.”		

        [¶22]	 	 Through	 their	 exchange	 of	 emails,	 the	 parties	 satisfied	 the	

requirements	governing	extensions	of	deadlines	when	they	agreed	to	toll	the	

commencement	 of	 filing	 periods	 until	 September	 16,	 because	 that	 extension	

was	 the	 product	 of	 mutual	 consent	 and	 was	 memorialized	 in	 writing.	 	 There	

was	 no	 basis,	 however,	 for	 the	 arbitrator’s	 finding	 that	 any	 additional	

agreement	 by	 the	 State	 to	 extend	 the	 duration	 of	 the	 waiver	 met	 the	

requirements	of	the	CBA	that	any	such	agreement	be	“in	writing”—much	less	

for	a	finding	that	the	State	actually	agreed	to	a	further	extension	of	deadlines,	

when	the	State	indicated	only	that	it	would	be	open	to	“touch[ing]	base	later.”		
   	                                                                                   13	

       [¶23]	 	 By	 attributing	 to	 the	 State	 an	 agreement	 to	 waive	 deadlines	

beyond	the	date	to	which	it	in	fact	consented,	and	then	enforcing	a	waiver	that	

is	 necessarily	 deficient	 under	 the	 CBA,	 the	 arbitrator,	 in	 effect,	 re-wrote	 the	

terms	 of	 the	 CBA.	 	 Instead,	 under	 any	 “rational	 construction”	 of	 the	 CBA,	 see	

Dep’t	 of	 Corr.,	 2000	 ME	 51,	 ¶	 9,	 747	 A.2d	 592,	 MSEA’s	 Step	 4	 arbitration	

request	 on	 behalf	 of	 Berube	 cannot	 be	 viewed	 as	 timely.	 	 Because	 the	

arbitrator’s	 contrary	 determination	 represents	 a	 “manifest	 disregard”	 of	 the	

CBA,	 the	 arbitrator	 exceeded	 her	 powers	 and—reasoning	 that	 it	 would	 be	

“unacceptable”	 if	 Berube	 were	 denied	 an	 arbitration	 hearing	 under	 the	

circumstances	 presented	 here—imposed	 her	 “own	 individual	 concept	 of	

justice.”		See	Caribou	Bd.	of	Educ.,	404	A.2d	at	214.			

       [¶24]	 	 We	 acknowledge	 the	 commendably	 cooperative	 attitude	 of	 the	

parties	that	resulted	in	the	waiver	of	deadlines	to	the	extent	specified	in	their	

emails.		Equally	commendably,	the	parties	agreed	to	a	waiver	that	was	in	the	

form	 of	 a	 written	 agreement	 as	 required	 by	 the	 CBA,	 and	 that	 contained	 a	

clear	end	date,	with	an	explicit	agreement	of	the	date	when	the	times	would	

begin	running	again.			

       [¶25]	 	 The	 grievance	 process	 and	 Berube’s	 employment	 rights	 are	

governed	by	the	CBA	that	the	State	and	MSEA	bargained	for	at	the	negotiating	
14	 	

table,	not	by	the	arbitrator’s	individual	concept	of	justice.		We	must	conclude,	

given	 the	 undisputed	 facts,	 that	 no	 rational	 construction	 of	 the	 CBA	 can	

support	the	arbitrator’s	determination	that	MSEA’s	request	for	arbitration	on	

behalf	 of	 Berube	 was	 timely.	 	 Consequently,	 pursuant	 to	 section	 3.3	 of	

Article	33	 of	 the	 CBA,	 Berube	 is	 not	 entitled	 to	 arbitration.	 	 We	 therefore	

vacate	 the	 judgment	 and	 remand	 for	 entry	 of	 a	 judgment	 vacating	 the	

arbitration	award.	

        The	entry	is:	

                     Judgment	 vacated.	 	 Remanded	 to	 the	 Superior	
                     Court	 for	 the	 entry	 of	 a	 judgment	 vacating	 the	
                     arbitration	award.		
                     	
                               	       	     	        	   		

                                            	
JABAR,	J.,	dissenting.		

	       [¶26]	 	 I	 respectfully	 dissent	 because	 a	 rational	 inference	 from	 the	

relevant	 language	 of	 the	 Collective	 Bargaining	 Agreement	 (CBA)	 and	 the	

emails	in	question	supports	the	arbitrator’s	decision.		

        [¶27]	 	 It	 is	 well	 settled	 that	 in	 Maine,	 the	 Court’s	 review	 of	 an	

arbitration	award	is	a	narrow	one,	and	that	we	will	uphold	an	award	if	“any	

rational	construction	of	the	[a]greement	could	support	[it].”		City	of	Lewiston	v.	

Lewiston	 Firefighters	 Ass’n,	 IAF,	 Local	 No.	 785,	 629	 A.2d	 50,	 52	 (Me.	 1993)	
   	                                                                                    15	

(citations	omitted)	(emphasis	added).		Further,	in	determining	if	an	arbitrator	

exceeded	 her	 authority	 in	 rendering	 a	 decision,	 we	 will	 “construe	 the	

underlying	 contract	 broadly,	 resolving	 all	 doubt	 in	 favor	 of	 finding	 that	 the	

arbitrator	 acted	 within	 [her]	 power.”	 	 Union	 River	 Valley	 Teachers	 Ass’n	 v.	

Lamoine	Sch.	Comm.,	2000	ME	57,	¶	5,	748	A.2d	990.		As	such,	the	Court	will	

only	 vacate	 an	 award	 if	 the	 Superior	 Court	 itself	 was	 compelled	 to	 do	 so.		

AFSCME,	 Council	 93	 v.	 City	 of	 Portland,	 675	 A.2d	 100,	 102	 (Me.	 1996)	

(emphasis	added).		

         [¶28]		The	issue	before	us	centers	upon	the	language	contained	within	

two	emails	between	the	parties,	interpreted	in	light	of	the	CBA	governing	the	

contested	 arbitration	 proceedings.	 	 On	 August	13,	 2013,	 a	 Maine	 State	

Employees	Association	(MSEA)	representative	contacted	the	Chief	Negotiator	

for	the	State’s	Office	of	Employee	Relations	seeking	a	waiver	of	deadlines	for	

certain	cases	then	pending	in	the	grievance	process.		In	his	email,	he	explained	

that:	

         Due	 to	 deaths	 in	 the	 family	 and	 sick	 leaves,	 both	 of	 our	 Member	
         Support	 Specialists	 are	 out	 of	 work	 for	 at	 least	 the	 next	 two	
         weeks.		I	am	doing	the	best	I	can	to	stay	on	top	of	timelines,	but	as	
         you	 know	 this	 is	 work	 they	 would	 typically	 administer.	 	 These	
         absences	began	earlier	this	week	with	both	of	them	being	out	the	
         morning	 of	 Tuesday	 8/27.	 	 I	 do	 not	 normally	 do	 this	 work	 and	
         there	is	potential	for	me	to	make	a	mistake.		I	am	doing	the	best	I	
         can	 and	 really	 don’t	 anticipate	 any	 mistakes,	 but	 I	 would	
16	 	

        appreciate	 if	 you	 could	 give	 us	 a	 break	 on	 the	 enforcement	 of	
        timelines	in	the	interim	during	the	time	when	they	are	both	out.		I	
        believe	one	will	be	returning	by	Sept.	12.		I	know	we’ve	done	this	
        in	the	past,	so	if	that	is	acceptable	please	let	me	know.			
	
(Emphasis	 added.)	 	 The	 Chief	 Negotiator	 agreed	 to	 the	 request,	 and	
replied:		
      	
      Of	 course	 we	 will	 work	 with	 you/MSEA	 while	 the	 Member	
      Support	 Specialists	 are	 out.	 	 I	 will	 notify	 everyone	 in	 this	 office	
      and	 the	 Department	 HR	 directors	 that	 we	 are	 waiving	 time	
      requirements	form	[sic]	8/27	through	9/13.		
      	
      Let’s	plan	to	pick	up	the	timelines	on	Monday	9/16.		We	can	touch	
      base	later	if	this	needs	to	change.			
	
(Emphasis	added.)	
	
      [¶29]	 	 An	 arbitrator	 could	 rationally	 conclude	 that,	 under	 the	

circumstances	 described	 by	 the	 MSEA	 representative,	 and	 based	 on	 the	

language	of	both	the	CBA	and	the	emails	in	question,	the	State	granted	MSEA	a	

waiver	 of	 the	 State’s	 enforcement	 of	 deadlines	 for	 the	 cases	 MSEA	 received	

between	 August	 27,	 2013,	 and	 September	 13,	 2013,	 and	 that	 the	 email	

exchange	 was	 not	 merely	 a	 request	 for	 an	 “enlargement”	 or	 a	 “tolling”	 of	

deadlines	for	those	cases.			

        [¶30]	 	 In	 holding	 that	 the	 email	 exchange	 in	 question	 constituted	 an	

extension	 of	 timelines	 only,	 the	 Court	 relies	 on	 the	 language	 of	 article	 33,	

section	3.2	of	the	CBA	providing	that	the	parties	may	extend	time	limits	if	the	
    	                                                                                                                  17	

arrangement	 is	 mutually	 agreed	 upon	 and	 reduced	 to	 writing.	 	 That	 same	

section,	 however,	 also	 provides	 that	 “[t]he	 parties	 may	 mutually	 agree	 to	

bypass	 steps	 of	 the	 grievance	 procedure.”2	 	 With	 regard	 to	 this	 section,	 the	

arbitrator	 noted	 in	 her	 interim	 decision	 that	 “[n]ot	 all	 collective	 bargaining	

agreements	 have	 language	 such	 as	 that	 in	 Section	 3.2	 permitting	 waivers	 of	

deadlines,”	concluding	that	such	language	evidenced	the	parties’	intent	to	be	

accommodating	 in	 “fact	 specific	 circumstances	 and	 the	 desire	 to	 treat	 each	

other	reasonably.”		

        [¶31]		The	language	of	the	email	exchange	between	the	parties,	in	light	

of	 the	 terms	 of	 the	 CBA	 providing	 for	 flexibility	 in	 the	 grievance	 process,	

supports	 the	 arbitrator’s	 finding	 that	 the	 State	 granted	 MSEA	 a	 waiver	 of	

deadlines	for	the	purposes	of	remedying	problems	arising	out	of	the	absence	

of	key	MSEA	personnel.		In	his	email,	the	MSEA	representative	conveys	to	the	

State’s	 Chief	 Negotiator	 his	 fear	 that	 the	 absence	 of	 staff	 responsible	 for	

docketing	 the	 grievances	 could	 adversely	 affect	 employees	 with	 pending	

cases.	 	 In	 response	 to	 his	 concerns,	 the	 State’s	 Chief	 Negotiator	 responded	

“[o]f	 course	 we	 will	 work	 with	 you/MSEA,”	 and	 informed	 him	 that	 “we	 are	

   2	 	 The	 full	 text	 of	 article	 33,	 section	 3.2	 is	 as	 follows:	 “All	 of	 the	 time	 limits	 contained	 in	 this	

Article	may	be	extended	by	mutual	agreement	of	the	parties	and	such	extensions	shall,	in	order	to	
be	 effective,	 be	 confirmed	 in	 writing.	 	 The	 parties	 may	 mutually	 agree	 to	 bypass	 steps	 of	 the	
grievance	procedure.”	
18	 	

waiving	 the	 time	 requirements	 form	 [sic]	 8/27	 through	 9/13.”	 	 (Emphasis	

added.)	 	 The	 State’s	 Chief	 Negotiator	 added	 further	 that	 they	 could	 “touch	

base	later	if	this	needs	to	change.”			

        [¶32]	 	 Although	 the	 Court	 concludes	 that	 the	 agreement	 between	 the	

State	 and	 the	 MSEA	 constituted	 an	 extension	 of	 deadlines,	 nowhere	 in	 the	

email	 exchange	 did	 either	 party	 mention	 the	 term	 “extension,”	 or	 “tolling.”		

Rather,	the	State	granted	MSEA	a	“waiver”	of	deadlines	for	the	cases	received	

during	the	timeframe	in	question.		There	is	an	important	difference	between	

the	 terms	 “waiver”	 and	 “extension.”	 	 While	 Merriam-Webster	 defines	 the	

word	“extension”	as	“stretching	out	or	stretching	forth,”	it	defines	“waiver”	as	

the	“act	of	.	.	.	intentionally	.	.	.	abandoning	a	known	right,	claim	or	privilege.”		

Webster’s	 Third	 New	 International	 Dictionary	 of	 the	 English	 Language	

Unabridged	 (2002).	 	 As	 such,	 under	 the	 circumstances,	 it	 was	 reasonable	 for	

the	arbitrator	to	conclude	that	the	State	chose	to	“intentionally	abandon”	the	

requirement	that	the	cases	in	question	be	timely	filed.		

        [¶33]		Thus,	given	the	circumstances	relating	to	the	string	of	absences,	

the	terms	of	the	CBA	providing	for	the	modification	and	bypass	of	grievance	

procedures,	 and	 the	 language	 of	 the	 emails	 in	 which	 the	 State	 purported	 to	

waive	or	grant	MSEA	a	“break	on	the	enforcement	of	deadlines”	for	the	cases	
    	                                                                                               19	

received	 during	 the	 timeframe	 at	 issue,	 the	 arbitrator	 acted	 rationally	 in	

concluding	that	Berube’s	grievance	was	arbitrable.		

        [¶34]		It	may	be	true,	however,	that	a	rational	interpretation	of	the	CBA	

in	light	of	the	email	exchange	supports	the	conclusion	that	the	operative	effect	

of	 the	 emails	 was	 to	 extend	 the	 time	 limits,	 not	 waive	 them.	 	 But	 that	 is	 just	

one	rational	interpretation.		It	was	also	rational	of	the	Arbitrator	to	interpret	

the	 emails	 to	 constitute	 a	 waiver	 by	 the	 State	 of	 time	 limits	 for	 the	 cases	 in	

question	 so	 as	 to	 combat	 problems	 arising	 from	 the	 absence	 of	 key	 MSEA	

employees.	 	 It	 is	 not	 up	 to	 us	 to	 impose	 our	 judgment	 as	 to	 what	 the	 best	

interpretation	 is.	 	 Instead,	 our	 review	 is	 limited	 to	 determining	 whether	 the	

arbitrator’s	award	was	based	on	any	rational	interpretation	of	the	agreement.		

If	 we	find	that	it	was—as	 I	 believe	 is	 the	 case	 here—then	 we	 must	 conclude	

that	 the	 arbitrator	 acted	 within	 her	 power	 when	 she	 found	 the	 case	 to	 be	

arbitrable,	and	thus	we	should	have	addressed	the	merits	of	the	case.3	

	       	       	       	       	       	
	
	
	
	
	
	

    3		Because	my	colleagues	did	not	get	past	the	issue	of	arbitrability,	I	will	not	address	the	merits	

of	the	other	issues	raised	by	the	State	on	appeal.		
20	 	

	
On	the	briefs:	
	
      Julie	 McKinley	 Armstrong,	 Esq.,	 and	 Nicholas	 P.	 Laskey,	 Esq.,	 Office	 of	
      Employee	 Relations,	 Augusta,	 for	 appellants	 State	 of	 Maine	 and	
      Department	of	Health	and	Human	Services	
      	
      Anne	 F.	 Macri,	 Esq.,	 Maine	 State	 Employees	 Association,	 Augusta,	 for	
      appellee	 Maine	 State	 Employees	 Association,	 Service	 Employees	
      International	Union	Local	1989	
	
	
At	oral	argument:	
	
      Julie	 McKinley	 Armstrong,	 Esq.,	 for	 appellants	 State	 of	 Maine	 and	
      Department	of	Health	and	Human	Services	
      	
      Anne	 F.	 Macri,	 Esq.,	 for	 appellee	 Maine	 State	 Employees	 Association,	
      Service	Employees	International	Union	Local	1989	
	
	
	
Kennebec	County	Superior	Court	docket	number	CV-2015-27	
FOR	CLERK	REFERENCE	ONLY	
         	
         	
