Case No. 14-27 & 15-08
Issued: March 10, 2016







	 AFSCME Council 93 filed a prohibited practice complaint, 
docketed as case No. 14-27, on April 10, 2014.  The Complaint 
alleged that the Penobscot County Sheriff's treatment of a union 
official in the Corrections Supervisory Bargaining Unit was 
discriminatory and interfered with, restrained or coerced unit 
employees in the exercise of their rights, thereby violating 
both §964(1)(A) and §964(1)(B) of the Municipal Public Employees 
Labor Relations Act (the "Act"), 26 MRS §961 et seq.  On August 
12, 2014, AFSCME filed a related prohibited practice complaint, 

[end of page 1]

case No. 15-08, alleging that the Sheriff's conduct during 
grievance processing and while investigating issues involving 
the union official were further violations of 26 MRS §964(1)(A) 
and §964(1)(B).
     Representing Complainant AFSCME Council 93 throughout the 
proceedings for both complaints was Shawn Sullivan, Esq., and 
representing Respondent Penobscot County was John Hamer, Esq.


     The Penobscot County Sheriff and the Penobscot County 
Commissioners are both public employers within the meaning of 26 
MRS §962(7) and AFSCME Council 93 is a bargaining agent within
the meaning of 26 MRS §962(2).  The jurisdiction of the Board to 
render a decision and order lies in 26 MRS §968(5).   

                      PROCEDURAL BACKGROUND

     With respect to Complaint No. 14-27, the Board's Executive 
Director provided the Complainant two opportunities to amend the 
complaint and the County responded to both submissions.  The 
Executive Director issued a sufficiency ruling on August 1, 
2014, dismissing certain portions of the Complaint that failed 
to state a violation of the Act.  The Complainant appealed that 
decision to the Board, which affirmed the Director's decision in 
parts and reinstated certain parts of the Complaint that had 
been dismissed.  A substantial portion of those parts reinstated 
were for events occurring beyond the 6 month limitations period 
and, as such, will be considered not to prove a violation of the 
Act, but only to the extent that those events may "shed light on 
the true character of matters occurring within the limitations 
period."  Teamsters v. Waterville, 80-14 at 3 (April 23, 1980).

[end of page 2]

     At the prehearing conference of October 3, 2014, the Board 
Chair ruled that Complaint No. 15-08 should be combined with 
Complaint No. 14-27 and heard during the same evidentiary 
hearing as a matter of efficiency.  In addition, the parties 
agreed that the cases should be stayed pending the completion of 
an arbitration proceeding that involved several issues raised in 
the Complaints.  
     The second prehearing conference was held at the Board's
offices on April 2, 2015, after the arbitration decision was 
issued.  The parties established a procedure for presenting 
arguments to the full Board on whether the Board should defer to 
the arbitration decision.  The parties agreed that the 
arbitration directly addressed certain issues raised in the 
two Complaints and that the Board should not hear those matters.  
The parties disagreed on whether other portions of the Complaint 
were resolved by the arbitration decision.  After discussing 
various options, the parties agreed that the Respondent would 
file a Motion to Strike specific paragraphs, with argument 
supporting its position that the Board should defer to the 
arbitration decision, to which the Complainant would respond.  
The Board would receive the written argument and a copy of the 
arbitration decision in advance of the evidentiary hearing, and 
would hear oral argument at the start of the hearing.  The Board 
would rule on the matter at that time and then proceed with the 
evidentiary hearing.
     The Board heard the parties' oral argument on the 
Respondent's Motion to Strike at the start of the hearing on 
September 24, 2015. The Board conferred, then denied the motion 
as the arbitration decision was not central to issues presented

[end of page 3]

in the two prohibited practice cases.  The Board ruled that  
with the exception of the paragraphs that the parties already 
agreed were addressed by the arbitration decision, the Board 
would hear evidence on the remaining paragraphs in the two 
prohibited practice complaints.            

                         FINDINGS OF FACTS
1.   AFSCME Council 93 represents the Penobscot County Sheriff's 
     Office Corrections Supervisory Bargaining Unit as well as 
     several other bargaining units of Penobscot County 
     employees.  Ms. Sylvia Hebert is the AFSCME Staff 
     Representative assigned to the Corrections Supervisory Unit 
     and had served in that capacity since 2011.  A different 
     AFSCME Staff Representative, Mr. Jim Mackie, represents the 
     Corrections Line Unit.
2.   Mr. William Gardner had been the Chapter Chair for the 
     Supervisory Unit since the 1990's and handled all 
     grievances and issues arising in the unit.  While others 
     had been involved in negotiations, and there appeared to 
     have been others who held union positions such as secretary 
     and even a co-chair at one point, Mr. Gardner was clearly 
     the face and voice of the bargaining unit for several 
     years.  For reasons not addressed in this complaint, Mr. 
     Gardner was demoted from his assistant shift supervisor 
     position and his rank of corporal in April, 2014, and, as a 
     result, moved from the Supervisory Unit to the Line Unit.

3.   Sheriff Glenn Ross worked for the Penobscot County 
     Sheriff's Department since he was a patrol officer in the 
     1970s. He was the Penobscot County Sheriff from 2002 until 
     his retirement in December, 2014.

[end of page 4]

4.   For several years, William Gardner had a commission as a 
     law enforcement officer that was issued to him by Sheriff 
     Ross.  This enabled him to work part-time as a patrol 
     officer for the Town of Orrington.  The commission was not 
     necessary to work as a corrections officer or in a 
     supervisory role at the jail.

5.   On July 24, 2013, Sheriff Ross issued a "General Order" 
     limiting overtime in both the Corrections Line Unit and the 
     Corrections Supervisory Unit.  The County Jail was 
     experiencing a significant budget shortfall and the Sheriff 
     believed that unless he took immediate action to reduce 
     overtime expenditures, layoffs would have to occur.  The 
     General Order identified certain shifts that would have the 
     first vacancy remain open and subject to a "Do Not Fill" 
     ("DNF") order.
6.   The Union and the Sheriff had an agreement in principle 
     regarding this general order.  Ms. Hebert and Mr. Gardner 
     recognized the significance of the budget shortfall but 
     also took the position that if there were an unscheduled 
     vacancy (an "inside unscheduled extra"), Article 17 of the 
     collective bargaining agreement required the Sheriff to 
     make 3 calls to unit employees on the rotating list to fill 
     that vacancy.  During the summer of 2013, Ms. Hebert and 
     Sheriff Ross attempted to draft a Memorandum of Under-
     standing ("MOU") to reflect the Union's willingness to 
     waive its right to file a grievance over this issue for a 
     2-month period while the Employer would review the 
     financial impact of the DNF order with the Union for that 
     same period.  Sheriff Ross and Ms. Hebert exchanged draft 
     MOU's, but did not resolve the matter until 2014.

[end of page 5]

7.   On August 15, 2013, Corporal Gardner learned that he would 
     be needed in court on August 20, 2013, for a few hours.  He 
     informed the Lieutenant of his expected absence so the 
     vacancy could be posted.  In September, Corporal Gardner 
     received various requests from command staff for details 
     concerning this court appearance, specifically whether it 
     related to County business or if it was a case from 
     Orrington.  Corporal Gardner felt that these inquiries were 
     harassing in nature.

8.   On September 3, 2013, Ms. Sylvia Hebert wrote to Sheriff 
     Ross expressing her concerns regarding safety issues raised 
     by a recent decision (later rescinded) to operate the jail 
     with a lieutenant serving as the supervisor.  She was 
     worried that failing to provide sufficient supervisory 
     staff would jeopardize the safety of the employees.  In 
     response, Sheriff Ross wrote that only individuals who were 
     trained and qualified would be assigned as a supervisor, as 
     was permitted by the collective bargaining agreement.

9.   Near the end of September, Corporal Gardner requested a 
     vacation day to attend a funeral of a relative.  The date 
     of the funeral was changed, which required Gardner to 
     revise his request.  Corporal Gardner felt that the number 
     of questions from his supervisor and the level of detail 
     demanded over this request was harassing in nature.

10.  On Friday, October 4, and Monday October 7, 2013, Corporal 
     Gardner was ordered from off-duty status to work on two of 
     his scheduled days off.  Mr. Gardner sent an email to Ms. 
     Hebert on Monday stating his position that such a "force 
     out" is only supposed to happen in emergencies and that "if 
     it's an emergency this week then it is an emergency every 

[end of page 6]

     week."  He also stated in that email that he did not want 
     to sign the MOU on the 3-call issue.

11.  On October 15, 2013, Corporal Gardner filed a grievance
     following the first instance where the 3 calls had not been 
     made due to the DNF General Order.  The grievance was 
     denied by Sheriff Ross on October 16, 2013, and was then 
     appealed to the next step, the County Commissioners.  The 
     grievance hearing was scheduled for January 14, 2014.
12.  At some point during the summer or early fall of 2013, 
     complaints about Corporal Gardner were filed by three 
     members of the Corrections Line Unit.  The AFSCME Staff 
     Representative for the Corrections Line Unit, Jim Mackie, 
     suggested to the Sheriff that the County Commissioners 
     conduct an investigation of the matter.  In late September, 
     the County hired an outside attorney, Ms. Rebekah Smith, to 
     conduct this investigation.
13.  On October 16, 2013, Gardner was informed that the County 
     had hired an independent investigator to investigate the 
     three complaints of hostile work environment filed against 
14.  On October 31, 2013, Sheriff Ross held a general staff 
     meeting with the entire Supervisory Unit.  The purpose of 
     this meeting was to discuss the staffing needs of the 
     corrections officers and the scope of the DNF general 
     order.  The supervisors and assistant supervisors 
     (Sergeants and Corporals) were consulted about which shifts 
     needed full staffing of corrections officers and which 
     might be able to manage without filling an unscheduled 
     vacancy.  Toward the end of the meeting the discussion 
     turned to staffing levels of the Supervisory Unit.  The

[end of page 7]

     Sheriff sought the supervisors' input on which days and 
     times it was necessary to have both a corporal and a 
     sergeant on shift and when they could operate with either 
     one or the other.

15.  During this October 31, 2013, meeting, the Sheriff made a 
     comment which seemed to suggest that Ms. Hebert had agreed 
     that the 3-call was not needed all the time.  Ms. Hebert 
     spoke up and said she had not made any such agreement and 
     that until an MOU was finalized, the Union's position was 
     that the contract had to be adhered to which meant that the 
     3 calls needed to be made.

16.  As the discussion continued, Sheriff Ross singled out 
     William Gardner and made comments directly to him that he 
     was the only one in the room that had a problem with the 
     DNF situation by insisting that the 3 calls be made.  The 
     Sheriff polled the other unit members in the room in a 
     manner that highlighted Gardner as the only unit member who 
     thought 3 calls were necessary.

17.  Sergeant Nuttall testified that at the time he was serving 
     as Co-Chair with Gardner, and they both felt that it was 
     important to keep the 3-call rule in order to preserve the 
     overtime for unit members and to maintain proper coverage 
     in the jail.  The MOU was key to this objective, because 
     they could assist in addressing the budget overrun without 
     forgoing the right to insist on adhering to what they 
     considered to be an established practice.
18.  The Sheriff's polling of the supervisory employees during 
     this meeting created a very uncomfortable atmosphere for 
     the employees in the room.  It was clear to those present 
     who testified that Sheriff Ross was attempting to drive a 

[end of page 8]

     wedge between the unit members and Corporal Gardner.

19.  At some point after this meeting, Mr. Gardner spoke with 
     the Sheriff about his concerns about one aspect of the DNF 
     policy.  He believed that inconsistent treatment or 
     favoritism would arise by giving the duty officer the 
     discretion to let people go home when the inmate population 
     or the workload was low, even when a particular shift 
     needed to be filled according to the policy.  The Sheriff 
     disagreed that favoritism would be an issue, but agreed to 
     change the policy to address Gardner's concern.

20.  On November 18, 2013, Corporal Libby wanted to go home 
     early because it was very slow at the jail.  After the duty 
     officer called the Sheriff at home, Libby was told that he 
     would have to work the full shift.  When Sergeant Nuttall 
     came in, Corporal Libby spoke to him about his frustration 
     with not being allowed to go home and attributed it to the 
     "Bill Gardner rule."  Later that day, Sheriff Ross 
     approached Sergeant Nuttall and stated that he had wanted 
     to let Corporal Libby go home, but he had an agreement with 
     Gardner which would not allow it.  Sergeant Nuttall 
     considered it very unusual for the Sheriff to approach him 
     to discuss such a matter.

21.  Sergeant Nuttall testified that it was the general sense
     among the unit membership that there was a conflict between 
     Bill Gardner and the Sheriff, and that the unit members 
     were being made to work shifts they did not want to work as 
     a result of that conflict.

22.  On January 14, 2014, the County Commissioners held the 
     grievance hearing on the 3-call grievance.  During the 
     discussion, Sheriff Ross referred to the October 31, 2013, 

[end of page 9]

     meeting and said that the 3-call issue was just a Bill 
     Gardner issue.  One of the Commissioners asked why the MOU 
     had not been signed and Sheriff Ross said Bill Gardner 
     refused to sign it because he was angry that he had been 
     forced to work on his scheduled days off.
23.  The MOU was eventually signed by Sheriff Ross, Corporal 
     William Gardner, and Ms. Sylvia Hebert on February 6, 2014.

24.  Attorney Rebekah Smith sent her investigative report to the 
     County's attorney, Mr. Frank McGuire, on January 29, 2014.  
     Her cover letter referred to the "letter of understanding" 
     (her terms of engagement), which provided that the three 
     complainants and the "alleged discriminatory official" (Mr. 
     Gardner) would receive copies of the report from Mr. 
     McGuire.  Her cover letter also cited the condition of her 
     investigation that the report is to remain confidential 
     but, "[t]he parties may, however, agree that the report may 
     be admissible in a subsequent legal action."
25.  On February 11, 2014, Mr. McGuire sent Ms. Hebert the copy 
     of the report for Mr. Gardner.  The cover letter stated 
     that he was being provided with a copy of the report 
     because he was identified as "the alleged discriminatory 
     official" in the employee complaints of a hostile work 
     environment.  The letter further stated:

          For that reason, in accordance with Ms. Smith's 
          terms of engagement, the report is herewith 
          provided to you. It will also be provided to the 
          complaining parties.  Ms. Smith has requested 
          that the report otherwise be kept confidential, 
          consistent with terms of her engagement.

     The letter also indicated that the report was being 
     provided to Sheriff Ross.  Mr. McGuire emailed a copy of 

[end of page 10]

     the report to Sylvia Hebert late on February 12, 2014.
26.  Mr. McGuire sent the three complainants a copy of the 
     report about a week later.  The cover letter informed each 
     complainant that the report is confidential and that it had 
     been provided to the other two complaining parties, as well 
     as Mr. Gardner and Sheriff Ross.  He also included a copy 
     of the cover letter Ms. Smith had sent to him with her 
     report which described the confidentiality issue.
27.  On February 13, 2014, at 2:00 p.m., Sheriff Ross called 
     Corporal Gardner to his office in the middle of his shift.  
     The Sheriff explained that he was putting him on paid 
     administrative leave based on the independent 
     investigator's conclusion that there was a hostile work 
     environment on Corporal Gardiner's shift arising from his 
     reliance upon "belittling, humiliating, and negative 
     treatment, often directed at female subordinates but also 
     directed at individuals perceived as weak."  The Sheriff 
     informed Gardner that he would be scheduled for an 
     evidentiary hearing in accordance with departmental 
     policies and the collective bargaining agreement.  The 
     Sheriff also suspended Corporal Gardner's commission and 
     notified the Orrington Patrol Supervisor that Gardner not 
     be assigned any patrol duties until the Sheriff had 
     reauthorized such assignments.  The Sheriff provided 
     Gardner with a letter formalizing the administrative leave 
     and suspension of his commission.

28.  Corporal Gardner's meeting with Sheriff Ross did not last 
     very long, as the Sheriff did not want to get into a 
     discussion of anything beyond the specifics described in 
     his letter.  Gardner was told to pack up his personal
[end of page 11]

     belongings and leave.
29.  Mr. Gardner went to the office area to collect his 
     belongings.  A lieutenant came to his work area a few 
     minutes after Sheriff Ross had put him on leave and told 
     him he should be leaving the building.
30.  At 14:22 (2:22 p.m.) an electronic message (a "pass-on") 
     was issued stating "Effective 02-13-14 at 14:00 hours, Cpl. 
     William Gardner will not be scheduled for duty, until 
     further notice."  This message was accessible by all staff 
     at the county jail.

31.  Most, but not all, instances of discharge or discipline of 
     employees occurred either at the start of the shift or by 
     bringing the employee in for a special meeting, rather than 
     sending the person home in the middle of a shift.  
     Similarly, "pass-ons" regarding an individual's employment 
     status or authorization to work were typically issued after 
     the employee had left the premises.

32.  About a week after Mr. Gardner was put on administrative 
     leave, Sheriff Ross contacted Ms. Hebert about the 
     materials he had compiled that might be used in the 
     evidentiary hearing on Gardner?s discipline, which had been 
     scheduled about a week or so later.  He said the file box 
     was in Capt. Clukey's office and Gardner should go there to 
     get it.
33.  Mr. Gardner picked up the box of materials, which included 
     about 800 pages of documents.  He and Ms. Hebert spent two 
     full days trying to organize and make sense of the 
     documents.  The file included about 150 to 200 pages of 
     grievances filed by Gardner, other documents and included a 
     confidential settlement agreement from a prohibited

[end of page 12]

     practice complaint that Gardner had filed in 2009.  Because 
     of the volume of documents included, Ms. Hebert requested,
     and was granted, a postponement of the hearing date. It was 
     rescheduled for March 14, 2014.

34.  By letter dated February 27, 2014, Sheriff Ross scheduled 
     the evidentiary hearing regarding the impact of "an 
     independent outside human rights investigation regarding 
     complaints of a hostile work environment created by you 
     [Gardner] over a period of time."  The letter detailed the 
     various policies alleged to have been violated and 
     scheduled the hearing for Monday, March 14, 2014, in 
     Captain Clukey's office.  The letter further stated, 

          The available evidence (including information 
          from our Human Rights Compliance files) regarding 
          this matter has been provided to you.  It is 
          preferable that you come to the evidentiary 
          hearing with a prepared written position 
          regarding the charges, whereas you have been 
          provided all information regarding this situation 
          and no new information will be added to the 

35.  At the start of the hearing on March 14, 2014, the Union 
     objected to the use of the documents in the box previously 
     provided to Gardner.  The management representative said 
     the documents would not be used.  This box of materials was 
     not provided to the attorney-investigator at any stage in 
     her investigation.  While the documents themselves all 
     existed prior to Mr. Gardner being placed on administrative 
     leave, there is no evidence that the Sheriff had maintained 
     a centralized file of Gardner-related materials.  The box 
     was assembled for the purpose of identifying potential 
     evidence to be used in the upcoming evidentiary hearing.

[end of page 13]

     It was a compilation of materials kept in different 
     locations that had some relation to William Gardner, 
     including files kept that were related to compliance with 
     various human rights laws.
36.  On March 20, 2014, Sheriff Ross denied Gardner's request to 
     attend a training session scheduled for April which was 
     required for those holding a deputy commission.  Sheriff 
     Ross testified that it did not seem appropriate to have 
     someone on administrative leave to attend this training, 
     and that there would be another training session offered 
     later in the year.  The commission was not required to 
     function as a corrections supervisor, but it was required 
     for Gardner's part-time patrol officer position with the 
     Town of Orrington.
37.  On April 14, 2014, the decision to discipline was issued 
     resulting in Mr. Gardner's demotion from his position as an 
     assistant supervisor to a corrections officer.  Mr. Gardner 
     filed several grievances at this time:  one over the 
     demotion itself, one over the length of time taken to 
     complete the investigation, one over his loss of 
     commission, and one related to seniority rights.

38.  Sometime in late April, 2014, the AFSCME Staff Represent-
     ative for the Corrections Line Unit, Jim Mackie, spoke to 
     William Collins, the County Administrator, about two of 
     Gardner's grievances that were headed to Step II of the 
     grievance procedure, that is, a presentation to the County 
     Commissioners.  Mr. Mackie indicated that because it was 
     clear that the grievances would go to arbitration, it made 
     sense to skip the Step II process and proceed directly to 
     arbitration.  On that basis, Collins made the recommend-

[end of page 14]

     ation and, on April 29, 2014, the Commissioners voted to

39.  A letter dated May 2, 2014, from William Collins to Sylvia 
     Hebert informed her of the unanimous decision of the 
     Commissioners to skip Step II of the grievance procedure 
     and go directly to arbitration on Gardner's grievances.  
     Ms. Hebert called Mr. Collins to inquire how this came 
     about and he said it was Jim Mackie's suggestion.  Once  
     Ms. Hebert objected, the County reversed that decision, and 
     the grievance hearing was scheduled.

40.  On May 20, 2014, Mr. Gardner received a letter from the 
     Maine Human Rights Commission informing him that a 
     complaint had been filed against him.  Included with this 
     letter was the original complaint filed by that individual 
     along with the complainant's documentation, which included 
     a copy of the investigative report completed by Attorney 
     Rebekah Smith.

41.  There were two days on which Mr. Gardner's grievances were 
     heard by the County Commissioners, May 27 and June 17, 
     2014.  When Mr. Gardner attempted to present the demotion 
     grievance, he and Ms. Hebert felt that the Commissioners 
     were being very rude to him, interrupting frequently and 
     showing extreme impatience with him.  When Mr. Gardner 
     started to describe the issues he would present related to 
     this grievance, he stated a couple of times that it would 
     take a long time.  One of the commissioners noted that he 
     was reading his testimony and suggested that it would be 
     better if he submitted the testimony, rather than just read 
     it aloud.  The demeanor of several of the commissioners was 

[end of page 15]

     such that Ms. Hebert believed that they were not listening 
     to Mr. Gardner or giving him a fair hearing.  Ms. Hebert 
     asked for a break in the proceedings and she spoke to Mr. 
     Collins, the County Administrator, in the hall expressing 
     her serious concerns with how Mr. Gardner was being 
     treated.  The hearing reconvened and Mr. Gardner was 
     allowed to present his case without further interruption.

42.  After the complaint against Mr. Gardner was filed at the 
     Maine Human Rights Commission, there was some disagreement 
     on whether the County would pay for Mr. Gardner's legal 
     defense.  Initially, Captain Clukey told Mr. Gardner that 
     the County would be paying for his defense, which was the 
     norm when lawsuits were filed against jail employees.  Then 
     Mr. Gardner was informed that the Captain did not have the 
     authority to make that decision.  The Commissioners 
     considered the matter and were informed by their risk pool, 
     which provided the County's liability insurance, that the 
     risk pool provided coverage for tortious conduct and 
     negligence, but not for human rights cases.  At some point, 
     the Commissioners decided to pay for half the cost of 
     Gardner's legal counsel.  Mr. Gardner engaged a private 
     attorney who wrote a letter to the County Commissioners 
     about his representation of Mr. Gardner.  By early June, 
     the County Commissioners decided that Mr. Gardner should be 
     provided with counsel appointed by the risk pool.  Mr. 
     Gardner testified that his private attorney charged him 
     $800 for the services provided.
43.  On May 5, 2014, Mr. Gardner was at work using one of the 
     ten computer terminals at the jail from which corrections 
     officers can access pass-ons and the data systems.  He 

[end of page 16]

     noticed certain confidential documents were visible on the 
     computer.  He accessed these by clicking on the desktop 
     icon for Adobe Reader, which produced a list of "recently 
     opened" or "recently scanned" files.  Mr. Gardner saw a 
     list of documents, many of which were clearly confidential, 
     some having to do with medical records and others documents 
     or correspondence specifically related to Gardner's 
     grievances.  He saw that clicking on any individual file 
     listed brought that file up.

44.  Sheriff Ross testified that access to these scanned 
     documents was an error caused by some sort of technical 
     problem related to the scanner and the computer system.  He 
     indicated that the problem had been fixed.  Sergeant 
     Nuttall testified that he had recently seen a similar list 
     with some (but not all) of the documents still accessible.


     The crux of this case is whether the Sheriff's treatment of 
William Gardner, the Union Chair of the Supervisory Bargaining 
Unit, was "interfering with, restraining or coercing employees 
in the exercise of the rights guaranteed" by the Act, in 
violation of §964(1)(A) or was discriminatory with respect to 
his terms and conditions of employment in violation of 
§964(1)(B).  While these two provisions are similar in that they 
both provide protections to employees, the legal standards are 
different and must be presented and analyzed separately. 

     Section 964(1)(A) prohibits an employer from "interfering with, 
restraining or coercing employees in the exercise of the
[end of page 17]

rights guaranteed in section 963."  Section 963, in turn, 
protects the right of public employees 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.

     Interference, restraint or coercion violations are either 
derivative or independent violations.  A derivative violation 
occurs when the employer violates the Act in some other fashion 
and that illegal conduct, in turn, has the effect of restraining 
employees in the exercise of their 963 rights.  An independent 
violation of 964(1)(A), however, is not incidental to another 
violation but occurs when the conduct itself directly interferes 
with the exercise of rights granted under the Act.  The 
allegations in the Complaint before us are of the latter sort.
     This Board has found a violation of §964(1)(A) based on 
conduct that directly interfered with employees' rights on 
several occasions.  For example, the Board found a violation 
where the employer attempted to interfere with the employee's 
right to serve on the union's negotiating team.  MSEA v. Dept. 
of Human Services, No. 81-35 (June 26, 1981).  Similarly, a 
police chief's admonition that an employee should not go to the 
"wrong people" and get "bad advice" was found to be a direct 
violation of §964(1)(A), independent of any other violation.  
Ouellette v. City of Caribou, No. 99-17 at 10 (Nov. 22, 1999).  
It is important to note that an interference, restraint, and 
coercion violation under §964(1)(A) of the Act does not turn on 
the employer's motive or level of courtesy or on whether the 
coercion succeeded or failed.  The test is whether the 
employer's conduct "reasonably tends to interfere with the 
[end of page 18]

free exercise of employee rights under the Act."  See MSEA et 
al. v. State Development Office, 499 A.2d 165, 169 (Me. 1985)
     Section 964(1)(B) of the Act prohibits an employer from 
"encouraging or discouraging membership in any employee 
organization by discrimination in regard to hire or tenure of 
employment or any term or condition of employment."  A violation 
of §964(1)(B) occurs when the Union proves that: (i) the 
employee engaged in protected activity; (ii) the decision-makers 
knew of the employee's participation in protected activity; and 
(iii) there is a relationship, or causal connection, between the 
protected activity and the adverse employment actions against 
the employee.  See, e.g., MSEA v. Maine Turnpike Authority, No. 
12-08 at 19 (Feb. 12, 2013); Litchfield Educational Support 
Assoc. v. Litchfield School Committee, No. 97-09, at 22 (July 
13, 1998) citing Casey v. Mountain Valley Educ. Assoc. and SAD 
43, Nos. 96-26 & 97-03, at 27-28 (Oct. 30, 1997) and Teamsters 
Union Local #340 v. Rangeley Lakes School Region, No. 91-22, at 
18 (Jan. 29, 1992).  
     There are several instances of conduct that the Complainant 
alleges violated the Act.  We will address each in chronological 
order.  We note that we have considered the evidence of conduct 
occurring beyond the six month period of limitations to the 
extent that it sheds light upon conduct occurring within that 
     The first incident alleged to have violated the Act was the 
conduct of Sheriff Ross during the staff meeting on October 31, 
2013.  The Union raised two issues in the complaint regarding 
this meeting, the first of which was the Sheriff's comment that 

[end of page 19]

he and Ms. Hebert had an agreement to a resolution of the 3-call 
issue.  The Union alleges that the Sheriff's statement that he 
and Ms. Hebert had come to an agreement on the 3-call issue was 
intended to make Mr. Gardner appear to be the only person not 
willing to come to an agreement.  The County asserts that the 
Sheriff merely misspoke and it was simply a poor choice of 
words.  Once Ms. Hebert corrected him, as she did immediately, 
the Sheriff acknowledged that their agreement was to work on a 
memorandum of understanding regarding the 3-call issue.
     The second component of the October 31, 2013, staff meeting 
that the Union alleges was an interference, restraint or 
coercion violation was the Sheriff's conduct in polling the 
employees about their sentiments on the 3-call issue.  The three 
Union witnesses testified that the Sheriff went around the room 
and asked each employee whether he or she supported Mr. 
Gardner's view on the 3-call issue.  The witnesses indicated 
that it was quite tense in the room as the Sheriff did this, and 
it was clearly an attempt to create division between the 
membership of the unit and its leader, William Gardner.  The 
Sheriff pointed out to the membership that Gardner was the only 
one who considered the 3-call issue a problem.  We note also 
that by the second week of October, the Sheriff knew that 
Gardner's irritation with being forced to work on his days off 
was the reason why there was no progress on finalizing the MOU.  
We conclude that attempting to poll each of the unit employees 
on their respective positions on the dispute over the 3-call 
issue would reasonably tend to interfere with the exercise of 
their rights under the Act, in violation of §964(1)(A).  We 
would reach the same conclusion regardless of our conclusion on 
the impact of the Sheriff's statement that he had already come 

[end of page 20]

to an agreement with Ms. Hebert on the matter.
     The Union also alleges that the conduct described above 
also violated §964(1)(B).  There is no dispute that Mr. Gardner 
engaged in protected activity and that the Sheriff (the decision 
maker) knew of Gardner's activity as the Unit Chair and long-
time vocal supporter of the Union.  The third element of a 
discrimination violation is an adverse employment action.  As 
there is no evidence of any adverse employment action taken 
against Mr. Gardner at this juncture, we conclude that the 
County's conduct at the October 31, 2013 staff meeting did not 
violate §964(1)(B). 
     The second alleged violation raised in the complaint 
relates to the incident when Corporal Libby was not permitted to 
go home on a particularly slow night. In what was alleged to be 
another effort to drive a wedge between Mr. Gardner and the rest 
of the bargaining unit, both Mr. Gardner and Sergeant Nuttall 
testified that Corporal Libby told them that he was not allowed 
to go home because of the "Bill Gardner rule."  Sheriff Ross 
denies that he blamed it on Mr. Gardner, but merely told them 
that they needed to talk to Gardner about it.
     Sheriff Ross's explanation that the denial of Corporal 
Libby's request to go home occurred due to a policy change made 
to address Mr. Gardner's concern that the duty officer would 
show favoritism was not refuted by the Union.  With that in 
mind, we consider it entirely natural for the Sheriff to refer a 
unit member to the unit chair if they had a concern about an 
agreement made which affected them.  Further, since Sergeant 
Nuttall was an elected official of the unit, there is nothing
[end of page 21]

unusual about the Sheriff approaching him to discuss the issue, 
as the Sheriff knew Corporal Libby was upset with his decision.  
Referring to the agreement made with Mr. Gardner was simply a 
statement of fact.  As Mr. Gardner was the face, the voice and 
the primary decision maker of the Union, it would have been odd 
for Ross to refer to the agreement as 'an agreement with your 
Union' or some other way not using Gardner's name.  We conclude 
that the Sheriff's conduct in explaining the reason for the 
denial of Corporal Libby's request was not interference, 
restraint or coercion with respect to anyone's rights under the 
Act, and therefore not a violation of §964(1)(A).[fn]1
     In the third allegation in the complaint, the Union 
contends that the manner in which Mr. Gardner was put on
administrative leave on February 13, 2014, violated §964(1)(A), 
(B) and (E).  There are two aspects to this portion of the 
complaint.  The first is that Mr. Gardner was summoned to the 
Sheriff's office in the middle of his shift and required to pack 
his belongings and vacate the building while all of his co-
workers were present.  The second issue is that his departure 
was broadcast on the jail's electronic messaging system before 
he had left the building.  We conclude that neither of these 
rise to the level of conduct that would reasonably tend to 
interfere with the exercise of rights under the Act.
     Sheriff Ross met with Gardner and placed him on adminis-
trative leave within hours of receiving the investigator's 
report, and after discussing how to proceed with Ms. Hebert.
[fn]1  The Union's assertion that this conduct also violated §964(1)(B) and 
§964(1)(E) was not accompanied by any argument and is without merit.

[end of page 22]

The reasons for placing Gardner on administrative leave were 
serious findings of misconduct as a supervisor that the Sheriff 
had an obligation to address promptly.  There is no evidence of 
a similar situation to which this can be compared that would 
demonstrate that the process used in placing Gardner on paid 
administrative leave was at all unusual.  Similarly, the posting 
of the "pass-on" indicating that Gardner would not be on the 
schedule does not rise to the level of a violation of the Act.  
The meeting with the Sheriff was very brief and it was not 
unreasonable to expect Mr. Gardner to gather his belongings and 
leave the premises within 20 minutes.  We conclude that the 
Sheriff's conduct in putting Mr. Gardner on administrative leave 
and announcing the change on the messaging system was not inter-
ference, restraint or coercion with respect to anyone's rights 
under the Act, and therefore not a violation of §964(1)(A).[fn]2
     The Union's fourth allegation that denying Mr. Gardner's 
request to attend a training session while he was on 
administrative leave constituted a violation of the Act is not 
supported by the evidence.  The Sheriff had never faced a 
similar situation of a request from someone on administrative 
leave and his decision to deny the request was reasonable in the 
circumstances, particularly since there would be another 
training session offered in the fall.  The denial of the request 
to attend training was not interference, restraint or coercion 
of Gardner's rights under the Act, and therefore not a violation 
of §964(1)(A).  Similarly, the denial cannot be considered 
discriminatory in violation of §964(1)(B) because there is no 
causal connection to Mr. Gardner's union activity; rather, the
[fn]2  The Union's assertion that this conduct also violated §964(1)(B) and 
§964(1)(E) was not accompanied by any argument and is without merit.

[end of page 23]

denial was a result of him being on administrative leave.
     The next allegation concerns the box of evidence that was 
provided to Mr. Gardner in anticipation of the evidentiary 
hearing on whether he should be disciplined for various 
violations of the Sheriff's Office Code of Conduct.  The Union 
alleged that keeping a "secret file" on a union official is 
interference, restraint or coercion in violation of §964(1)(A) 
and that it also violates §964(1)(B) and (E).    
     The letter to Gardner scheduling the evidentiary hearing 
stated "[t]he available evidence (including information from our 
Human Rights Compliance files) regarding this matter has been 
provided to you" and indicated that no new information would be 
added to the evidence.  The Union contends that this file had 
been in existence for some time as a "secret file" used to 
monitor Gardner's union activities.  The Sheriff testified that 
because the violations were related to the investigator's 
findings of a hostile work environment created by Gardner over a 
long period of time, the material gathered for the hearing was 
quite extensive and covered a long period as well. 
     The evidence indicated that the material put in this box of 
evidence was assembled specifically for the evidentiary hearing 
by Captain Clukey but did not exist as a compiled body of 
material prior to that time.  We regard the failure to limit the 
evidence to those issues related to the hostile work environment 
issues as a lapse in judgement, but not a violation of the Act.  
There is no evidence that this over-inclusive compilation was 
undertaken for an improper purpose, such as making Gardner's 
defense preparation more time consuming or to obfuscate the
[end of page 24]

issues.  The Union's concern that the file (including a 
confidential settlement agreement from a PPC Gardner filed in 
2009) was provided to the investigator is not supported by the 
evidence.  The parties stipulated that this file was not 
introduced as evidence or used at all in the evidentiary hearing 
held on his discipline.  Likewise, the evidence is clear that 
the material was not provided to the investigator, as the file 
was created after her investigation was completed and her report 
clearly identifies the documents used in her investigation.  We 
conclude that the County's conduct with respect to this box of 
evidence did not violate §964(1)(A), (B) or (E).
     The next allegation in the complaint[fn]3 concerns the County's 
release of the investigative report to the three individuals who 
filed a complaint with the Sheriff regarding Corporal Gardner's 
conduct.  The Union argues that in other instances of internal 
investigations, the substance of the investigation was always 
kept confidential and a complainant would only receive 
information on the issues he or she complained of, not issues 
raised by other complainants.  The Union contends that this 
action interfered with, restrained or coerced employees in the 
exercise of their rights under the Act in violation of 
§964(1)(A), was discriminatory in violation of §964(1)(B), and 
was a refusal to bargain in violation of §964(1)(E).
     This situation cannot be compared to an internal 
investigation because the investigation of Corporal Gardner was 
an investigation conducted by an outside attorney.  The 
protocols of such an investigation were not determined by 
internal policies of the Sheriff's Department, but, rather, were
[fn]3  This is actually the first allegation in PPC No. 15-08.

[end of page 25]

set by the arrangement between the attorney conducting the 
investigation and the County Commissioners.  This attorney chose 
to use the procedures established by the American Arbitration 
Association specifically for fact-finding investigations into 
charges of sexual harassment.  Both she and the County's 
attorney complied with that framework in issuing and 
distributing the report.  The County cannot be held responsible 
for the use of the investigative report by any of the three 
complainants.  We conclude that the County's distribution of the 
investigator's report did not violate §964(1)(A).[fn]4  
     The Union next alleges that the conduct of the County with 
respect to scheduling Gardner's grievance meeting with the 
Commissioners and their behavior toward them at that meeting 
constituted interference, restraint and coercion in violation of 
§964(1)(A) and was discriminatory in violation of §964(1)(B).  
The County Administrator and the County Commissioners decided to 
skip the step two grievance meeting with the Commissioners at 
the suggestion of Jim Mackie, the AFSCME Staff Representative 
who represented the interests of the Line Unit.  It is not clear 
whether Mackie led the County Administrator to believe that he 
had already spoken to Ms. Hebert about this, or if the 
Administrator just assumed that Mackie had her approval.  In 
either case, we do not think the initial decision to skip the 
grievance meeting with the Commissioners constituted a violation 
of the Act, but was simply an error in judgment.  
     With respect to the Commissioners' behavior during the 
grievance hearing, the Union alleges that one of the 

[fn]4  The Union's assertion that this conduct also violated §964(1)(B) and 
§964(1)(E) was not accompanied by any argument and is without merit.

[end of page 26]

Commissioners was rude and disrespectful to Mr. Gardner, 
interrupting him and asking him not to read from his prepared 
statement.  While we would prefer all encounters between a union 
and management to be polite and respectful, we cannot hold that 
rude and disrespectful behavior (even if a disinterested party 
would see it as that) constitutes a violation of the Act.  Rude 
and disrespectful behavior is a matter of perception, and is not 
in itself a violation of the Act.  This charge is dismissed.
     The Union also alleges that the Sheriff's department 
violated the Act by leaving confidential documents related to 
Mr. Gardner accessible on the computers used by jail staff.  
According to the Sheriff's testimony, this occurred because of a 
technical error in the setup of the Department's centrally 
located scanner.  He testified that it was corrected as soon as 
they found out about it.  Whether or not it was successfully
fixed, we fail to see how a technical snafu without more can 
constitute a violation of §964(1)(A), (B) or (E).
     The final issue raised in the complaint is the County's 
initial refusal to supply Mr. Gardner with an attorney to defend 
him against the complaint filed at the Maine Human Rights 
Commission.  The County presented credible testimony that the 
initial failure of the county to provide an attorney was because 
of a concern for liability, not because of Mr. Gardner's union 
activity.  The County had never faced this situation before 
where employees filed a complaint at the Human Rights Commission 
against a County supervisor and its concern about liability was 
not unreasonable.  We dismiss this portion of the complaint as 
there is no basis for concluding that the County violated the 
Act by failing to provide an attorney when first asked.

[end of page 27]

     On the basis of the foregoing discussion, and by virtue of 
and pursuant to the powers granted to the Maine Labor Relations 
Board by 26 MRS §968(5), it is ORDERED:
          That the Penobscot County Sheriff's Department 
     cease and desist from interfering, restraining or 
     coercing employees of the Corrections Supervisory 
     Bargaining Unit in the exercise of their rights under 
     the Act by attempting to create divisions within the 
     Unit through polling employees on mandatory subjects 
     of bargaining.
          That the Penobscot County Sheriff's Department 
     post the attached notice for 10 days at all locations 
     where notices to Corrections Supervisory employees      
     are customarily posted.  

Dated at Augusta, Maine, this 10th day of March, 2016.


The parties are advised of their right pursuant to 26 M.R.S.A. §968(5)(F) to seek a review by the Superior Court of this decision by filing a complaint in accordance with Rule 80C of the Rules of Civil Procedure within 15 days of the date of this decision.


Katharine I. Rand, Esq.

Amie M. Parker
Employee Representative

Richard L. Hornbeck, Esq.
Employer Representative


 [end of page 28]

                            STATE OF MAINE
                      MAINE LABOR RELATIONS BOARD
                         Augusta, Maine 04333


         We will cease and desist from interfering, 
         restraining and coercing members of the 
         Penobscot County Corrections Supervisory 
         Bargaining Unit by attempting to create
         divisions within the Unit through polling 
         employees on mandatory subjects of bargaining.

         We will post this notice for 10 days.

         We will notify the Board of the date of 
         posting and of compliance with its order.

                                          Penobscot County                          
     Dated: ____________		  			Sheriff's Department 

                         STATE OF MAINE
   90 STATE HOUSE STATION, AUGUSTA, MAINE 04333  (207) 287-2015

                    AND MUST NOT BE DEFACED.

[end of page]