Case No. 92-14
                                        Issued:  May 7, 1992

                     Complainants,  )
                                    )      DECISION AND CONSENT ORDER
        v.                          )
                      Respondents.  )

     On December 11, 1991, Council 93, AFSCME, AFL-CIO and the Penobscot
County Sheriff's Department Employees (AFSCME) filed a prohibited practice
complaint with the Maine Labor Relations Board (Board)1 alleging that the
Penobscot County Commissioners (County) have violated 26 M.R.S.A.
 964(1)(A), (B) and (C) (1988), by processing the grievance of Edward
Arthurs, a privately represented unit employee, without adequate notice as
required by 26 M.R.S.A.  967(2) (1988) and in contravention of the
grievance/arbitration procedures set forth in the parties' collective
bargaining agreement. The complaint alleges that the union was notified of
the grievance hearing moments before it was conducted. The complaint also
alleges unlawful discrimination, stating that two employees who were union
members represented by the union at grievance merely obtained reductions in
previously administered discipline while Arthurs obtained a reversal of
disciplinary measures previously imposed for the same incident and secured
the purging of his records.

     In its answer, filed January 6, 1992, the County alleges as affirm-
ative defenses that the Board lacks jurisdiction over the subject matter,
that AFSCME lacks standing, that the Equal Protection and Due Process

     1AFSCME filed an amended complaint on December 16, 1991.


guarantees of the Constitutions of the United States and the State of Maine
preserve Arthur's right to legal representation of his own choice, that
30-A M.R.S.A.  501 preserves the right, power and duty of the County
Commissioners to entertain disciplinary hearings attended by the grievant's
legal counsel of choice and that the parties' Collective Bargaining Agent
fails to abrogate a non-union employee's constitutional right to legal
representation of choice.

     On January 24, 1992, Chair Peter T. Dawson convened a prehearing con-
ference in this matter. At the prehearing the parties reached agreement
upon the terms of a settlement and a request for consent order. On
February 4 and March 9, 1992, respectively, the parties submitted a stipu-
lation and revised stipulation.


     The Board has jurisdiction to hear evidence and determine the issues
in this case and to render a decision and order pursuant to 26 M.R.S.A.
 968(5)(A) (1988). The Respondent County is a public employer within the
meaning of 26 M.R.S.A.  962(7) (Supp. 1991). AFSCME is a bargaining agent
within the meaning of 26 M.R.S.A.  962(2) (1988).

                             FINDINGS OF FACT

     The parties have entered into a stipulation of the facts underlying
the charges in the instant case. The Board hereby accepts the parties'
factual stipulation as the factual basis supporting the Consent Order
requested of the Board by the parties. The parties' stipulation of fact is
as follows:

          COME NOW the undersigned parties to this matter by and
     through their counsel, and stipulate to the following facts based
     on the amended prohibited practice complaint dated December 13,
     199[2], as filed by the Complainant.

          The numbered paragraphs below relate to the paragraphs as
     numbered in the amended Prohibited Practice Complaint.

          1.-21.  The parties stipulate as fact the allegations in
     paragraphs 1-21. [The full text of paragraphs one through
     twenty-one are as follows:]


      1.  Council 93, American Federation of State, County and
     Municipal Employees (AFSCME) is the bargaining agent as
     defined in 26 M.R.S.A., section 962([2]) for a unit of
     employees in the Sheriff's Department of Penobscot County,

      2.  The Penobscot County Commissioners are employers as
     defined in 26 M.R.S.A., section 962(7).

      3.  The current Collective Bargaining Agreement between
     AFSCME and the County of Penobscot does not expire until
     December 31, 1992.

      4.  Article Eleven (11), Grievance Procedure, current
     contract, is the only means for employees to resolve 
     their grievances.

      5.  At approximately 9:15 a.m. on Tuesday, October 29,
     1991, John C. Basso, Staff Representative for AFSCME,
     Council 93 received a phone call from Thomas Johnston,
     Attorney to the Penobscot County Commissioners.

      6.  Attorney Johnston informed Mr. Basso that he was on
     his way to a hearing at the Penobscot County Commissioners'
     Office. He stated the hearing involved a grievance
     concerning a corrections officer named Edward Arthurs.

      7.  Mr. Basso informed Mr. Johnston that he was never
     notified either in writing or orally of this hearing
     and that the Union was the only entity that could file
     a grievance on Mr. Arthurs' behalf.

      8.  Mr. Johnston indicated to Mr. Basso that it was his
     understanding that Mr. Arthurs was being represented by
     a private attorney. He stated that he knew this was a
     violation of the law and he was going to inform the
     Commissioner[s] of this fact.

      9.  Mr. Basso informed Mr. Johnston that if this hearing
     took place the Union would have no recourse but to file
     a prohibited practice complaint against the Penobscot
     County Commissioners.

     10.  Mr. Johnston stated that he understood this and he
     would do everything he could to prevent this hearing
     from occurring.

     11.  On October 30, 1991, the Bangor Daily News printed
     an article which stated that the Penobscot County
     Commissioners met in executive session to hear the
     grievance of Edward Arthurs.

     12.  This newspaper article indicated that present at this
     hearing were N. Laurence Willey, Attorney for Ed Arthurs,
     the commissioners legal council [sic], Thomas Johnston,
     and Chief Deputy Carl Andrews of the Penobscot County
     Sheriff's Department.

     13.  On October 30, 1991, John Basso, after reading the
     newspaper article, telephoned Kathy W. Walker, County
     Clerk. Mr. Basso told Mrs. Walker of his telephone
     conversation with Mr. Johnston. Mr. Basso inquired as
     to whether Mr. Johnston informed the Commissioners that
     the hearing was in violation of the contract and the
     law and if so, why the hearing took place.

     14.  Mrs. Walker told Mr. Basso that Mr. Johnston did
     indeed tell the Commissioners that AFSCME was the
     bargaining agent for these employees and that they could
     not allow Mr. Arthurs to be represented by private council
     [sic].  Mrs. Walker stated that the Commissioners rejected
     Mr. Johnston's advise [sic] and agreed unanimously to
     allow a private attorney to represent Mr. Arthurs with
     his grievance.

     15.  On October 30, 1991, Mr. Basso met with Mr. Johnston.
     At this meeting Mr. Johnston informed Mr. Basso that what
     Mrs. Walker had told him was correct. He stated that the
     Commissioners decided to reject his advice and allow the
     hearing to take place. He also indicated that if the
     Union filed a complaint, the Commissioners would probably
     have to seek other legal council [sic] because of his
     position in the matter.

     16.  On November 8, 1991, the Commissioners issued a
     decision in favor of Mr. Arthurs. This decision was in
     the form of a letter mailed to Mr. Joseph L. Ferris,
     Ferris, Dearborn and Willey, Attorneys at Law and carbon
     copied to Mr. John Basso.

     17.  On November 14, 1991, the Bangor Daily News printed an
     article indicating that Mr. Arthurs had prevailed in his
     grievance and had his six weeks suspension rescinded and
     his record purged of any record of this discipline.

     18.  This same newspaper article also stated that two other
     employees disciplined for the same incident had their
     discipline lessened but not rescinded.

     19.  This same newspaper article also stated that of the
     three employees, Mr. Arthurs was the only one who didn't
     belong to the union and who did not have union represen-
     tation. This article stated he filed his complaint through
     an attorney.


     20.  Based upon this newspaper article the Union through
     personal contact and phone contact, received numerous
     complaints from the members of this local.

     21.  These complaints questioned as to [sic] how Mr. Arthurs,
     a correctional officer, could be represented by anyone other
     than AFSCME, Council 93. The local felt that by their
     action, the commissioners were undermining the Union's


     The Board has reviewed the parties' request for Consent Order. The
Board finds the parties' stipulations of both fact and of prohibited prac-
tice violations, and the parties' mutual request for withdrawal of AFSCME's
charge of violation of 26 M.R.S.A.  964(1)(B) and (C), to promote the pur-
poses of the Municipal Public Employees Labor Relations Law.

     The parties have stipulated that in the facts of this case the
Penobscot County Commissioners violated 26 M.R.S.A.  964(1)(E) (1988) by
allowing Mr. Arthurs to be represented by someone other than the legal
bargaining agent in violation of the parties' existing collective
bargaining agreement. The parties have also stipulated that the Penobscot
County Commissioners' actions in this regard also violated 26 M.R.S.A.
 964(1)(A) (1988), by interfering with and restraining employees in their
exercise of rights under the existing collective bargaining agreement.
Accordingly, as requested by the parties, the Board endorses as its own the
following Consent Order based upon the County's admission of violations of
the prohibited practice provisions contained in 26 M.R.S.A.  964(1)(A)
and (E) (1988).


     On the basis of the foregoing stipulations of facts and violations and
by virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A.  968(5) (1988 & Supp. 1991), it is
hereby ORDERED:

     1.  That the Penobscot County Commissioners cease and desist from
         interfering with or restraining employees in the exercise of


         contractually established rights in violation of 26 M.R.S.A.
          964(1)(A) (1988).

     2.  That the Penobscot County Commissioners cease and desist from
         refusing to bargain in violation of 26 M.R.S.A.  964(1)(E)
         (1988), by disregarding the lawful provisions of the parties'
         collectively-bargained agreement.

     3.  That the Penobscot County Commissioners shall post for sixty
         (60) days in conspicuous places where notices to Penobscot
         County Sheriff's Department employees are customarily posted,
         and at times when such employees customarily perform work at
         those places, copies of the attached notice to employees
         which states that the Penobscot County Commissioners will
         cease and desist from the actions set forth in paragraphs one
         and two and will take the affirmative action set forth in
         paragraphs three and four. Copies of the notice shall be
         signed by a duly authorized representative of the Penobscot
         County Commissioners prior to posting and shall be posted by
         the Penobscot County Commissioners immediately upon receipt.2
         The Employer shall take reasonable steps to ensure that the
         notices are not altered, defaced, or covered by other

     4.  That the Penobscot County Commissioners shall notify the
         Board by affidavit or other proof of the date of posting and
         of final compliance with this order.

Seen and agreed to, by:

/s/_____________________________________         /d/____4/24/92____
John C. Basso                                    Date
AFSCME Staff Representative

/s/_____________________________________          /d/____4-17-92____
Jeffrey M. Silverstein, Esq.                      Date
for Penobscot County Commissioners

     2In the event that the Board's Decision and Order is appealed and is
affirmed by the Maine Superior Court, the words in the Notice "Posted by
Order of the Maine Labor Relations Board" shall be altered to read "Posted
by Order of the Maine Labor Relations Board, affirmed by the Maine Superior


Dated at Augusta, Maine, this 7th day of May, 1992.

                                        MAINE LABOR RELATIONS BOARD

The parties are advised
of their right pursuant                 /s/___________________________
to 26 M.R.S.A.  968(5)(F)              Peter T. Dawson
(Supp. 1991) to seek review             Chair
of this decision and order
by the Superior Court by
filing a complaint, in
accordance with Rule 80C                /s/___________________________
of the Maine Rules of Civil             Howard Reiche, Jr.
Procedure, within 15 days               Employer Representative
of the date of the issuance
of this decision.

                                        George W. Lambertson
                                        Employee Representative


                                 NOTICE TO


                        MAINE LABOR RELATIONS BOARD

          WE WILL cease and desist from interfering with or restraining
          employees in the exercise of contractually established rights in
          violation of 26 M.R.S.A.  964(1)(A) (1988).

          WE WILL cease and desist from refusing to bargain in violation of
          26 M.R.S.A.  964(1)(E) (1988), by disregarding the lawful provi-
          sions of the collective bargaining agreement.

          WE WILL post this notice of the Board's Order for 60 days.

          WE WILL notify the Board of the date of posting and final
          compliance with its Order.

______________________        ______________________________________________
Date                          Penobscot County Commissioners' Representative

This notice must remain posted for 60 consecutive days from the date of
posting. Any questions concerning this notice or compliance with its pro-
visions may be directed to:

                              STATE OF MAINE
                        MAINE LABOR RELATIONS BOARD
        STATE HOUSE STATION 90, AUGUSTA, MAINE 04333 (207) 289-2015
                          AND MUST NOT BE DEFACED.