STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Case No. 14-27 & 15-08
Issued: March 10, 2016
AFSCME COUNCIL 93, AFL-CIO
Complainant,
v.
PENOBSCOT COUNTY
SHERIFF'S OFFICE,
Respondent.
DECISION AND ORDER
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.
JURISDICTION
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
him.
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
evidence.
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
arbitration.
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.
DISCUSSION
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
period.
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]
ORDER
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.
MAINE LABOR RELATIONS BOARD
Katharine I. Rand, Esq.
Chair
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
NOTICE
AS A RESULT OF THE FILING OF A PROHIBITED PRACTICES CASE AGAINST
THE COUNTY AND THE SHERIFF, IT HAS BEEN DETERMINED THAT WE
VIOLATED THE LAW ON OCTOBER 31, 2013. IN ACCORDANCE WITH OUR
INTENTION TO COMPLY WITH THE BOARD'S ORDER, YOU ARE NOTIFIED
OF THE FOLLOWING:
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
MAINE LABOR RELATIONS BOARD
90 STATE HOUSE STATION, AUGUSTA, MAINE 04333 (207) 287-2015
________________________________________________________________
THIS IS AN OFFICIAL GOVERNMENT NOTICE
AND MUST NOT BE DEFACED.
________________________________________________________________
[end of page]