STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 15-05
Issued: February 5, 2015

TEAMSTERS LOCAL UNION 340,
Complainant

v.

OXFORD COUNTY
Respondent.

 

DECISION AND ORDER

 

	  Teamsters Local Union 340 filed a prohibited practice 
complaint with the Maine Labor Relations Board on July 15, 2014, 
alleging that the Oxford County Sheriff eliminated outside detail 
assignments effective July 1, 2014, as retaliation against 
bargaining unit members for exercising their rights, thereby 
violating  964(1)(A) of the Municipal Public Employees Labor 
Relations Law (the "Act").  Specifically, the complaint alleges 
that the Sheriff eliminated all outside details for the Oxford 
County Deputies for July and August of 2014 because the Teamsters 
prevailed in a grievance concerning the manner in which outside 
details were assigned.
  	
     An evidentiary hearing was held on November 13, 2014, with 
the Union represented by Teamsters Business Agent Ray Cote, and 
the County represented by Labor Consultant Annalee Rosenblatt.  
Chair Abigail C. Yacoben presided at the hearing, with Employer 
Representative Robert W. Bower, Jr., and Employee Representative 
Wayne W. Whitney serving as the other two Board members.  Both 


[end of page 1]


parties were able to examine and cross-examine witnesses, to 
offer documentary evidence at the evidentiary hearing, and to 
provide oral argument at the close of the hearing.  The parties 
elected not to file post-hearing briefs, but did submit a joint 
exhibit after the close of the hearing that provided information 
on the outside details scheduled and those actually worked by 
each employee during July and August of 2014.  The Board 
deliberated this matter on December 30, 2014.
 

                           JURISDICTION
 
     Teamsters Local Union 340 is a bargaining agent within the 
meaning of 26 MRSA  962(2), and Oxford County is the public 
employer within the meaning of 26 MRSA  962(7).  The jurisdiction 
of the Board to hear this case and to render a decision and order 
lies in 26 MRSA  968(5). 
  
                               
                              FACTS
 

1.  Teamsters Union Local 340 is the certified bargaining agent 
    for the bargaining unit of patrol deputies in the Oxford 
    County Sheriff's Department.  The Teamsters took over 
    representing this unit in the fall of 2013. 
 
2.  Teamsters Union Local 340 and Oxford County are in the 
    process of negotiating their first collective bargaining 
    agreement for the patrol deputies unit.  The parties are 
    operating under the terms of a collective bargaining 
    agreement that was negotiated by the predecessor union.
 
3.  Outside details are not part of a regularly assigned work 
    shift but occur when the department provides services to a 
    contracting party needing security or other assistance.  


[end of page 2]

  
4.  The outside detail "Stonegarden" is a contract with the U.S.  
    Department of Homeland Security to assist in matters related 
    to border security.  The "frag orders" issued by Homeland 
    Security identify the specific border security operations 
    that the Sheriff's office, the state police, or the game 
    wardens will participate in, and specifies the number of 
    hours and an allotted amount of money for the period covered. 
    "Frag orders" specify the number of hours that can be worked, 
    but the specific schedule for working those hours is left to 
    the discretion of the Sheriff. 
     
5.  The Stonegarden "frag order" in effect during the summer of 
    2014 ran from the end of June until early September.  This 
    order included 91 hours, 20 of which were used by the Rumford 
    Police Department, and the allotment was just over $20,000. 
  
6.  The "White Mountain" outside detail was through a contract 
    with the U.S. Fish and Wildlife Department, and ran from June 
    through Labor Day. The allotment for this detail was $8,500. 
 
7.  Outside Details are scheduled in addition to the deputy's 
    regular shift, and are paid at time and one half of the 
    deputy's regular hourly rate.  The assignment of outside 
    details is addressed in Article 10 of the collective 
    bargaining agreement.
  
     Article 10, paragraphs B and C state:

       B.  An outside detail announcement will be posted.  
       Assignments to outside details shall be made by the 
       Sheriff or designee, in the following order:
	       1.  First preference to certified, off duty, full 
	   time deputies on a rotation basis from the seniority 
           list.
	       2.  If the detail is not filled in the manner 
           described in  1 above, then a part-time deputy can be 
           used to fill the detail.


[end of page 3]


	       3.  If the detail is not filled in the manner 
           described in either  1 or 2 above, then the regular 
           full-time deputy on a rotation basis normally assigned 
           to the zone where the detail is located can be 
	   assigned.

       C.  A refusal will place the employee on the bottom of the 
       rotation list.

8.  The Sheriff tries not to schedule deputies to work outside 
    details on their days off, so he will generally schedule the 
    detail to back up with their assigned shift. Also, the 
    Sheriff does not schedule details on vacation days, and 
    Article 12,  K does not permit an employee who is out sick to 
    work an outside detail. 
 
9.  The Sheriff posted the July and August 2014 outside detail 
    schedules on June 19, 2014. 
 
10. Michael Halacy, a road patrol deputy at the Oxford County 
    Sheriff's Office, is the Teamsters' shop steward.  Mr. Halacy 
    filed a grievance on April 10, 2014, contesting the Sheriff's 
    filling of an outside detail with a part-time employee.  The 
    grieved incident occurred when, on April 4, 2014, a deputy 
    refused an outside detail that was assigned to him for April 
    9, 2014.  This outside detail was then filled by a part-time 
    deputy.  The grievance contended that Article 10 B(1) 
    required the Sheriff to use the seniority rotation list to 
    try to fill this refusal before he could call a part-time 
    employee to fill the refused shift. 
 
11. The Sheriff met with the Union on April 24, 2014, and by memo 
    dated May 1, 2014, denied the grievance.
 
12. The grievance was appealed to the County Administrator, who 
    held a hearing on the matter with the Union on May 23, 2014. 


[end of page 4]


    On June 23, 2014, the grievance was granted in a memo written 
    by Annalee Rosenblatt for the County Administrator.  The memo 
    granting the grievance stated, in part: 

         ...
 
           While the contract does not either permit or 
         prohibit the filling of all known outside details 
         at the same time, it does require that full time 
         bargaining unit deputies be given the first 
         opportunity to fill all of them before reserves are 
         offered the detail.  Both the intent and the 
         accepted practice for administration of this type 
         of seniority rotation are common in collective 
         bargaining agreements.  While all the outside 
         details for the month could be filled on the same 
         day, each deputy?s name who was next on the list 
         had to be offered the opportunity to be assigned to 
         each detail.

         ...

           The method used to assign the details in this 
         situation did not allow the opportunity for 
         deputies to decline a detail or when an outside 
         detail was declined to have it offered to the next 
         senior deputy on the list. When Deputy Wyman 
         refused the April 9 outside detail his name should 
         have gone on the bottom of the list and the next 
         deputy on the list offered the assignment. Only 
         when the list is exhausted and no full time 
         bargaining unit deputy has accepted the outside 
         detail, can the outside detail be offered to a part 
         time deputy.

         ...

           Therefore, the grievance is granted to the extent 
         that all full time bargaining unit deputies will be 
         given an opportunity to work outside details before 
         any part time deputy is permitted to do so....


13. Shortly after noon on June 25, 2014, Mr. Halacy sent an email 
    to the Sheriff stating:

       Sheriff,
 

[end of page 5]


            I wanted to touch base with you and speak about an 
       issue that has been brought up on filling of overtime 
       and details. I would prefer to sit and talk about this 
       but this is a quicker way than trying to match our 
       schedules on free time. 
	    First I want to say that this concept of how we are 
       now filling vacancies and details is following the 
       contract more closely and I understand the enormity of 
       the task that you, the Chief and Sgt. Baker is now 
       taking on under your direction. 
	    With anything new there will no doubt be a couple 
       of unforeseen bumps in the road. We as a group are 
       trying to figure out how our overtime hours are being 
       tracked, how we are charged on a refusal, how or what 
       hours are charged when a person works a refusal ... etc. 
       Maybe an informational email or even better a Department 
       meeting would be beneficial in explaining all this to 
       the Road Patrol people. 
            Also, I see that non-Bargaining Unit Members 
       (probationary employees) are being called and offered/ 
       accepting OT shifts and Details. . . . 

    After citing the relevant articles of the contract, Halacy 
    continued with: 
    
      No one in the Union will have any complaint with the 
      Probationary Employees being asked to fill a vacant 
      shift or detail after ALL of the Bargaining Unit members 
      have been asked and refused but they should not be on 
      the overtime rotation list for the reasons listed in the 
      above articles of the contract.

14. Mr. Halacy received a response from the Sheriff that the 
    issue had been rectified the previous night.
 
15. At 3:39 p.m. on June 25, 2014, Sheriff Gallant posted the 
    following notice:  
      From: Gallant, Wayne (0900) To: Agency - 0900 
      Subject:  July and August Outside Details

                Scheduled Outside Detail Cancellation
      
      The scheduled details for July and August are temporarily 


[end of page 6]


      suspended. This includes the White Mountain and the 
      Operation Rumford Vigilance details. To be clear there are 
      no longer any outside details scheduled for July and August 
      as of today's date. Any details that are scheduled in the 
      month of June can still be worked.  I will be working with 
      the County, Border Patrol and 't permently [sic] lost.
      Article 10 -E of the bargaining unit agreement that you have 
      with the County states in the event of a cancellation of an 
      outside detail for which an employee was assigned, if less 
      than forty-eight (48) [sic] notice of such cancellation is 
      given to the employee than [sic] the employee would be 
      eligible for two (2) hours detail pay. This notice is given 
      well beyond the 48 hours so this article does not apply.
      You can be assured that I will go through the overtime 
      rotation list and cancel all the detail hours that were 
      entered for every deputy for the July and August schedules.
      901 
      Posted 06/25/2014 @ 1539 hours

16. On June 26, 2014, Mr. Halacy sent Sheriff Gallant the 
    following email:

    Subject: RE: Question about filling of vacancies

    Sheriff the Union is requesting a [sic] explanation as to 
    why all the outside details have been cancelled for the next 
    two months. Was my alerting you to a violation in the 
    contract the reason for a suspension of all outside details 
    for the next two months? What are the "many conflicts" you 
    allude to in your email to me?

17. On June 27, 2014, Sheriff Gallant sent Mr. Halacy and others 
    the following email:

    Subject: RE: Question about filling of vacancies

    Mr. Halacy:

      Your "alerting" me to a violation has nothing to do with 
    outside details that are contracted with the County 
    Commissioners and the Sheriff.  I am confused by your 
    message. Is it you or the union that is asking this? I find 
    it insulting the union would even suggest I suspended the 
    detail because of a grievance. I believe in the grievance 
    process especially when in good faith I'm believing they are 
    coming from a majority consensus or vote by your membership. 
    By my count you currently have a membership of 17.  So under 

[end of page 7]

    good faith I'm believing when these grievances are presented 
    that the membership is aware and a majority are in 
    agreement.
      I have no problem with Annalee ruling that a part-timer 
    should not have been scheduled a detail.  In fact I have 
    been saying to you and your membership for the last seven 
    and a half years that I could never figure why you have 
    reserves even mentioned in your contract.
      What has caused the "many conflicts" that you say I 
    "alluded" to is Annalee ruling beyond the unions position in 
    grievance 2014-5 ( I have not attached the grievance 
    assuming you all have read it). Her ruling on how she thinks 
    I should be filling the outside details is her biased 
    opinion and is not written in your contract. Based on her 
    opinion for me to schedule and call every individual for 
    each detail before posting it would take up to 57 hours of 
    calling time for the 71 details. She ruled that I should 
    call first before scheduling to see if the available people 
    on the rotation list want that individual detail.
      Her opinion isn't written in your contract nor based on 
    past practice scheduling has that [sic] ever been done as 
    long as I have been Sheriff. In fact, prior to me being here 
    you did not even go by a posted rotation list. You didn't 
    have one! Recently we even created a new spread sheet that
    is current showing hours charged using the seniority 
    rotation list. Prior to me being elected as Sheriff you let 
    a part timer work the White Mountain Details most every 
    detail. I guess you don't recall I stopped that practice to 
    get you more in line with the contract so that details went 
    to full time bargaining unit members. Stonegarden was not 
    even part of your vocabulary then either.
      The scheduling has been fair all these years but now 
    Annalee goes beyond your grievance request and just 
    arbitrarily makes scheduling rules up that are not written 
    in the contract. A few examples to the "many conflicts" by 
    Annalee. She says before putting anyone's name on the 
    scheduled overtime detail list I have to call to give 
    everyone an opportunity to accept or reject. I don't see 
    where the contract spells it out like that. And a few other 
    things not written. What number do I call, private number, 
    home number or department number. How many times do I let it 
    ring? If there is voice mail do I leave a message? If a 
    message is left how long do I wait for a return call? When 
    does one get charged for a refusal on a telephone call? I 
    wonder how long that might take some day just to fill one 
    detail let alone 71. 
       You are all going through contract negotiations with the 


[end of page 8]


    County. As much as I dislike side-bar agreements I recently 
    suggested the county might work with the union in coming up 
    with a temporary side-bar agreement with the union that 
    would get us through outside detail scheduling until a 
    contract can be ratified. I am not part of contract 
    negotiations like you all are but my understanding is that 
    you turned that offer down.
      And finally I can't stress enough. The reason the details 
    are temporality [sic] suspended is that I do not have a free 
    50 to 60 hours a week to be making calls for outside details 
    based on what Annalee has ruled. It has nothing to do [sic] 
    Mike Halacy's opinion: "Was my alerting you to a violation 
    in the contract the reason for a suspension of all outside 
    details for the next two months". 
 
18. There were 91 details allotted under the Stonegarden contract 
    for the period from June 30 to early September. Twenty of 
    them went to the Rumford Police Department, leaving 71 for
    Oxford County for the months of July, August, and part of 
    September.  Sheriff Gallant initially assigned 32 details (of 
    the 71) for the month of July and the other 32 for the month 
    of August, with 10 Rumford details each month.  None of the 
    details were held in July, but 71 Stonegarden details were 
    scheduled and worked in August. In addition, Rumford had 20 
    details in August.
 
19. Sheriff Gallant filled the August outside details in the same 
    manner as he had prior to the June 23, 2014, grievance 
    decision, except that he did not assign part-time deputies 
    until the shift had been offered to all deputies on the 
    rotation list.  
 
20. The Union did not object to the manner in which the details 
    were filled for August nor did it object when the September 
    details were assigned.
 
21. Sheriff Gallant testified that when the grievance decision 


[end of page 9]


    issued, there was very little time to address it before the 
    start of July.  Compounding the problem was the need to fix 
    his mistake of scheduling a probationary employee, the issue 
    that Mr. Halacy raised in his email of June 25, 2014.  The 
    Sheriff testified that he decided he just did not have the 
    time to redo the schedule in what was left of June, so he 
    cancelled it.  The Sheriff testified that after he had a 
    chance to reflect, he realized he did not have to call each 
    member individually for each outside detail.   
 
22. The Sheriff currently maintains a spread sheet to track the 
    hours each deputy works, the outside details they worked, as 
    well as the instances where a deputy refused an outside 
    detail.  The method of recording outside details offered and 
    refused was not in a very accessible format prior to the 
    spring of 2014. 
 
23. There were a total of 176 hours of outside detail work that 
    had been scheduled for July that were suspended.  Nearly all 
    of the 176 hours were later scheduled for August.
 
24. The number of outside detail hours actually worked by each
     bargaining unit member during August was generally not the 
    same as the number of hours that had been initially assigned 
    over both July and August. Some individuals actually worked 
    more hours, some worked less, and a few worked the same 
    number of hours.

  
                            DISCUSSION
 
     The question presented in this case is whether the Sheriff's 
cancellation or suspension of the outside details for July and 
August interfered with, restrained or coerced the unit employees 


[end of page 10]


in the exercise of their rights under the Act where the 
cancellation occurred shortly after the Union prevailed on a 
grievance. 
   
     Section 964(1)(A) of the Act prohibits an employer from 
"interfering with, restraining or coercing employees in the 
exercise of the 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.   

     The legal analysis of whether a public employer's conduct 
violates section 964(1)(A) by "interfering with, restraining or 
coercing employees in the exercise of the rights guaranteed by 
section 963" is well established: 
 
     Section 964(1)(A) prohibits an employer from engaging 
     in conduct which interferes with, coerces or restrains 
     union activity.  A violation of section 964(1)(A) does 
     not turn on the employer's motive, or whether the 
     coercion succeeded or failed, but on "whether the 
     employer engaged in conduct which, it may reasonably be 
     said, tends to interfere with the free exercise of 
     employee rights under the Act."  Jefferson Teachers 
     Association v. Jefferson School Committee, No. 96-24, 
     slip op. at 25 (Me.L.R.B. August 25, 1997); MSEA v. 
     Department of Human Services, No. 81-35, slip op. at 4-
     5, 4 NPER 20-12026, (Me.L.R.B. June 26, 1981)(quoting
     NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948)).  

Sanford Police Assoc. v. Town of Sanford, No. 09-04, Interim 
Order at 5 (Jan. 29, 2009), quoting Duff v. Town of Houlton, No. 
97-20 at 21 (Oct. 19, 1999), and citing MSEA v. State Development
Office, 499 A.2d 165, 169 (Me. 1985)(Law Court citing this
standard with approval). 


[end of page 11]
 
 
      Violations of  964(1)(A) include conduct such as attempting 
to interfere with the employee's right to serve on the union's 
bargaining team, MSEA v. Dept. of Human Services, No. 81-35, at 5 
(June 26, 1981), a supervisor's warning to an employee not to go 
to the "wrong people" and get "bad advice," Ouellette v. City of 
Caribou, No. 99-17, at 10 (Nov. 22, 1999), and a supervisor's 
threatening conduct toward employees interfering with their right 
to file and process grievances, William Single and Sanford Police 
Assoc. v. Town of Sanford, No. 85-04, at 4 (Oct. 18, 1984).  
       
      There is no question that using the grievance procedure, a 
mechanism for resolving issues regarding the application of the 
collective bargaining agreement, is conduct protected by  963.  
Here, the Sheriff cancelled the July and August outside details 
shortly after receiving the decision granting the grievance the 
Union had filed in April.  That grievance concerned an incident 
where the Sheriff used a part-time deputy to fill an outside 
detail that opened up when a full-time deputy could not work an 
assigned detail.  The Union won the grievance.  The question is 
whether the Sheriff's conduct was perceived as retaliation 
against the unit members for having exercised their rights to 
demand adherence to the terms of the collective bargaining 
agreement through a grievance.
 
      The Sheriff claims that he was overwhelmed by the amount of 
time it would take to schedule the outside details in accordance 
with what he thought was required by the grievance decision.  The 
Sheriff anticipated that it would take him over 50 hours to redo 
the schedule by offering each specific detail to the top person 
on the seniority list.  As noted above, the Board's long-standing 
analysis of whether particular conduct violates 1(A) does not 
rest on the motivation of the actor, but on whether the conduct 


[end of page 12]


can reasonably be said to restrain or interfere.  To determine 
this, we must look at what the employees saw, rather than what 
was inside the Sheriff's head.  
 
      The Sheriff informed the department of the cancellation of 
the outside details through a posted announcement.  The wording 
and tone of the posting is important in determining how the 
employees viewed his conduct.  The headline of the announcement, 
in bold print, stated "Scheduled Outside Detail Cancellation".  
While the first sentence of the announcement says the details are 
"temporarily suspended", and there is another reference to the 
Sheriff's hope that the details will not be permanently lost, the 
unequivocal effect of the memo was cancellation of the details.  
The Sheriff even explains that the employees are not entitled to 
any pay under Article 10E of the agreement which entitles an 
employee to two hours of detail pay if an outside detail is 
cancelled without a 48-hour notice.  The final sentence of the 
announcement reinforces the harsh tenor of the Sheriff's message:  
"You can be assured that I will go through the overtime rotation 
list and cancel all the detail hours that were entered for every 
deputy for the July and August schedules."
       
      It is the words of this announcement that the employees in 
the bargaining unit saw, not an explanation of how complicated it 
would be for the Sheriff to re-schedule the details.  We think 
that the answer to the question of whether such a memo could 
"reasonably be said to interfere" with the free exercise of 
employee rights is "yes."
	 
      The magnitude of the Sheriff's cancellation is also 
relevant, particularly in light of the alternatives that were 
available to him.  Clearly, time was of the essence, because had 


[end of page 13]


he waited a few days he would have incurred the cost of two hours 
of pay for each detail cancelled without 48 hours prior notice.  
Rather than cancel two full months of scheduled details, the 
Sheriff could have picked up the phone and called Mr. Halacy to 
discuss how he could approach the problem, or he could have 
called the County's labor consultant or someone else for advice. 
Alternatively, he could have cancelled the first week or two of 
the schedule to take the pressure off for issuing a revised 
schedule.  The cancellation of two full months of scheduled 
details seems to be a response made in anger and frustration. 
       
      We conclude that the Sheriff's cancellation of the outside 
details for July and August can reasonably be said to be conduct 
that "tends to interfere with the free exercise of employee 
rights under the Act," and is therefore a violation of 
 964(1)(A).  We will order the County to cease and desist from 
engaging in such conduct.
 
      When the Board concludes that a party has engaged in a 
prohibited practice,  968(5)(C) requires the Board to order the 
party 

      . . .to cease and desist from such prohibited practice and 
      to take such affirmative action, including reinstatement of 
      employees with or without back pay, as will effectuate the 
      policies of this chapter.  

      As we have stated frequently, a remedial order must be 
fashioned to seek "a restoration of the situation, as nearly as 
possible, to that which would have obtained" but for the 
prohibited practice.  Caribou School Department v. Caribou 
Teachers Association, 402 A.2d 1279, 1284 (Me. 1979).  Here, the 
Union argues that the Board's remedial order should require the 
payment of all 176 detail hours that had been scheduled for the 


[end of page 14]


month of July.  The County argues that no payment is required 
because the employees suffered no harm -- the outside details 
that were initially scheduled for July were all eventually worked 
during the month of August.  
       
      The Joint Exhibit submitted by the parties after the 
evidentiary hearing shows the outside detail hours for which each
deputy was initially scheduled and the hours actually worked in 
August.  This exhibit provides convincing evidence that some of 
the employees were harmed by the rescheduling of all of the 
outside details into one month.  Of the 18 bargaining unit 
employees listed, 9 of them worked fewer hours than they had 
previously been scheduled, while 9 of them worked either the same 
or more than the numbers of hours they had been initially 
scheduled.  The individuals who had a loss of outside detail 
hours must be made whole for those lost hours.  To provide the 
remedy the Union seeks of payment for all 176 hours lost in July 
would not restore the status quo ante, but would result in an 
inappropriate windfall for the employees.  Accordingly, we will 
order the County to restore the status quo ante by paying those 
individuals who lost outside detail hours for the specific number 
of hours they lost, as indicated in the Joint Exhibit. 


                               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 MRSA  968(5), we hereby ORDER the County to cease and 
desist from engaging in conduct that interferes with the 
employees' rights to use the grievance procedure.  We further 
ORDER the County to remedy its violation of the Act by paying to 
those individuals who had fewer outside details in August than 


[end of page 15]


they had been initially scheduled for July and August the outside 
detail pay for those lost hours.  The County shall confer with 
the Union to ensure the County's prompt payment of those lost 
hours as indicated by the figures in the Joint Exhibit.  If the 
parties are unable to agree on the number of hours for which 
compensation is due, they may request Board assistance within 20 
days of the date of issuance of this decision and order.
      

Dated at Augusta, Maine, this 5th day of February, 2015.

				   				

 

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

[signed] Abigail C. Yacoben
Chair

[signed] Robert W. Bower, Jr.
Employer Representative

[signed] Wayne W. Whitney
Employee Representative