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STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case Nos. 18-10 & 19-02
Issued: July 24, 2019

York County Patrol Association
Complainant,

v.

York County,
Respondent.

DECISION AND ORDER


Fraternal Order of Police
Complainant,

v.

York County,
Respondent.

 

     I.  Statement of the Cases

These consolidated cases present two prohibited practice 
complaints filed by the Fraternal Order of Police (Union) alleging 
that York County (County), and in particular the York County 
Sheriff's Office, violated the Municipal Public Employees Labor 
Relations Law (Act) by retaliating against certain employees for 
their union-related activity.  The Union also alleges the County's
actions interfered with the free exercise of activity protected 
under the Act.

Although these cases present evidence of some hostility between 
senior management and certain employees who are active within the 
union, the Board finds this evidence insufficient to establish a 
violation of the Act where the record, as a whole, failed to 


[end of page 1]


establish that the employer's conduct was motivated by protected 
activity or could have reasonably interfered with such activity.


     II. Procedural History

On December 1, 2017, the Union[fn]1 filed a prohibited practice 
complaint (MLRB No. 18-10) against the County. The Union amended 
this complaint on March 3, 2018.  On September 27, 2018, the Union 
filed a new prohibited practice complaint (MLRB No. 19-02) against 
the County.  These two complaints were consolidated for hearing.

A prehearing conference for these cases was held on December 19, 
2018, with Katharine I. Rand, Neutral Chair, presiding.  On 
December 21, 2018, Chair Rand issued a Prehearing Conference 
Memorandum and Order.  In part, the Order limited the scope of 
issues in the cases, under the stated assumption that the other 
issues were resolved by the parties unless raised at the hearing.[fn]2  

The issues that remain pending in this consolidated case are 
whether the County violated 26 M.R.S.A. 964(1)(A), (B) and (D) by 
(1) inquiring into Giglio impairment[fn]3 status for Deputy Travis 
Jones and Sergeant Mathieu Nadeau, (2) requiring Sgt. Nadeau to 
write a "term paper" on a two-day training he received, (3) 
improperly subjecting Dep. Robert Carr, Jr. and Sgt. Steven 
Thistlewood to internal investigations and (4) denying Dep. Carr's 
request to participate in drug enforcement activities involving a 
confidential informant.[fn]4


[fn]1  The original complaint was filed by the York County Patrol Association.  Following 
the initial filing, the York County Patrol Association affiliated with the Fraternal Order 
of Police, which assumed control of the complaint.

[fn]2  The Prehearing Conference and Order also included a Protective Order regarding 
documents or testimony concerning 1) law enforcement intelligence or investigative 
techniques or procedures not known by the general public or 2) complaints, charges or 
accusations of misconduct against county officers.

[fn]3  Giglio impairment refers to Giglio v. United States, 405 U.S. 150 (1972) and related 
issues involving the credibility of law enforcement officers.  A fuller explanation of 
Giglio is provided in the Facts section of this Decision and Order.

[fn]4  While this fourth allegation was not included within the scope of the case as


[end of page 2]

 
A hearing for this case was held on February 11, 2019, with 
Katharine I. Rand, Neutral Chair, presiding, and with Employer 
Representative Robert W. Bower, Jr. and Employee Representative 
Amie M. Parker.  The Union was represented by John Chapman, Esq. 
and the County by Timothy O'Brien, Esq.  The parties were given 
a full opportunity to examine and cross-examine witnesses, 
introduce evidence, and to make argument.  Additionally, both 
parties filed post-hearing briefs, which have been duly considered 
by the Board.


     III. Facts


     A. Background


        i. Sheriff's Office and Union Members at Issue in 
           Complaint

The York County Sheriff's Office provides certain law enforcement 
operations for the County.  Sheriff William L. King, Jr., is the 
elected head of the Sheriff's Office.  The Sheriff's second-in-
command is Chief Deputy Thomas Baran, followed by Major Paul 
Mitchell.

The Union represents a bargaining unit of law enforcement 
officers, including deputies and sergeants, within the Sheriff's 
Office.  Deputy Robert Carr, Jr. is the current president of the 
union and was elected to that position June 9, 2017.  Carr has 
worked for the Sheriff's Office since 2010.  During the majority 
of his employment, Dep. Carr has held various union executive 
board positions.  He has successfully advanced a number of 
contract grievances and has been active in collective bargaining 
agreement negotiations.


[fn4, cont'd]  described in the Prehearing Conference Memorandum and Order, since it was 
included in the complaint for MLRB No. 19-02 and was addressed during the hearing it is in 
compliance with the Order and may be considered properly within the scope of the case.


[end of page 3]


Deputy Travis Jones is the vice president of the union and was 
elected to that position on June 9, 2017.  Jones previously held 
office as union president from 2015 to 2016.

Sergeant Mathieu Nadeau is a York County Sheriff's Office employee 
and has served on the union's executive board in various 
capacities.  In 2015, then-Deputy Nadeau received a Deputy of the 
Year award from the Sheriff's Office, and was soon thereafter 
promoted to Sergeant.

Sergeant Steven Thistlewood is a York County Sheriff's Office 
employee and a member of the union's bargaining unit.


       ii. 2016 Prohibited Practice Complaint

In part, this case involves an allegation that the County 
retaliated against certain employees in connection to their 
participation in a 2016 prohibited practice complaint, MLRB No. 
17-08.  This complaint involved the County's response to a 
November 11, 2016, union meeting that Sheriff King attended in 
order to discuss a proposed work schedule change.  

Following the meeting, the County issued "Notice of Counseling" 
memoranda to the sergeants in attendance, including Nadeau and 
Thistlewood.  In part, the memoranda stated: "To make it very 
clear, sergeants are representatives of management, therefore it's 
imperative you set an environment that supports management 
positions and directions.[fn]5

On December 14, 2016, the Union filed a prohibited practice 
complaint (MLRB No. 17-08) against York County regarding the above 
matter.  In the case's Prehearing Conference Memorandum and Order, 

[fn]5  This quote comes from the memo to Sgt. Nadeau; Sgt. Thistlewood's memo included 
almost identical language to this effect. 


[end of page 4]


Dep. Carr and Dep. Jones were listed as witnesses for the 
Complainant and Respondent, respectively.  This prohibited 
practice complaint was ultimately settled by the parties and 
withdrawn on April 11, 2017.


      iii. History of Alleged Anti-union Animus


Apart from the subject matter at issue in MLRB No. 17-08, the 
Union asserts certain evidence indicates a long-standing anti-
union animus from Sheriff King and others in the Sheriff's Office.[fn]6

Most of this evidence involved multiple interactions between 
senior management and Sgt. Nadeau.  One such incident occurred in 
January of 2017, when Maj. Mitchell told Sgt. Nadeau that there 
was no need for him to submit talking points memos after his 
meetings with management, but that he should keep them for his own 
records.  In February of 2017, Chief Deputy Baran interpreted 
language from Nadeau in an email, "I'd request someone from 
administration relay that to him," as a showing of "discourtesy" 
to ranking officers.  Sgt. Nadeau initially received a written 
reprimand for the incident, which was subsequently withdrawn as 
part of the settlement of the earlier discussed prohibited 
practice complaint, MLRB No. 17-08.  

In an April of 2017 incident, after Sgt. Nadeau sent an email to a 
Maine State Police lieutenant, expressing appreciation for the use 
of a State Police canine, Chief Dep. Baran and Sheriff King told 
Nadeau that he should not be communicating directly with the State 

Police and that senior management should be the source of such 
communications.  Chief Dep. Baran also criticized Sgt. Nadeau for


[fn]6  Although these events are outside of the 6-month statute of limitations for both 
prohibited practice complaints, the Board may consider them to the extent that they shed 
light on the actions at issue in these cases.  Teamsters Local 48 v. City of Waterville, 
No. 80-14, slip op. at 2-3, (April 23, 1980), citing Machinists Local 
Lodge No. 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 416 (1960).


[end of page 5]

 
another email he had sent to his subordinates regarding dispatcher 
appreciation week, accusing Nadeau of grandstanding and attempting 
to draw attention to himself.  Around that same time, Maj. 
Mitchell called Nadeau in to a meeting to express the Sheriff's 
outrage that Nadeau had signed off in an email responding to a 
request for information about a certain deputy's job performance 
from the Sheriff with the term "Respectfully," which the Sheriff 
had taken to mean the opposite of respectfully. 

On June 1, 2017, Sheriff King noted via email that Sgt. Nadeau's 
emails to management were frequently after 2:00 a.m., alluding to 
overtime being incurred by Nadeau and his team, and wondered with 
disapproval whether Nadeau had "abdicated" all of his supervisory 
responsibility by allowing Dep. Jones and Dep. Carr to perform 
duties that the Sheriff believed should be Nadeau's.  Sgt. Nadeau 
submitted a memo to management responding to the overtime 
assumption and explaining how the apparent delegation had 
happened, and there was no resulting discipline.  In another 
interaction, Maj. Mitchell told Sgt. Nadeau that he knew he was a 
driving force behind a recent prohibited practice complaint (MLRB 
No. 17-08).  During the hearing for the current case, Nadeau 
stated that while the comment had seemed strange, it was not said 
in a threatening or harassing manner.

In October and November of 2017, Sgt. Nadeau was the subject of an 
internal investigation regarding his actions overseeing the 
investigation of a suicide by firearm.  The Sheriff's Office 
initiated its investigation of Nadeau after related contact from 
the Medical Examiner's Office.  The internal investigation 
sustained findings that Sgt. Nadeau had violated the Attorney 
General's Office protocols for investigation of deaths, probable 
deaths and missing persons and failed to maintain sufficient
competence.  Senior management initially determined a one-day 


[end of page 6]


suspension without pay as discipline, but, after a grievance to 
the Sheriff and then to the County Manager, Nadeau ultimately 
received no discipline.  

Another conflict between Sgt. Nadeau and senior management 
occurred in early 2018, regarding Sgt. Nadeau's insistence on his 
right under Article 34 of the parties' collective bargaining 
agreement to submit a written rebuttal in connection with his 
annual performance evaluation.  After Maj. Mitchell twice returned 
Nadeau's rebuttal with notations for changes, Nadeau was 
eventually able to get his rebuttal included in his personnel file 
by contacting Human Resources.  Maj. Mitchell stated that he was 
unaware of the contract provision or else he would not have 
objected.

The Union presented additional evidence of the County's alleged 
anti-union bias involving other employees.  In particular, Dep. 
Carr was the subject of an internal investigation, in October of 
2017,[fn]7 for his response to a possible Operating Under the Influence 
(OUI) traffic accident, including whether Dep. Carr was truthful 
regarding his asserted contact with his supervisor.  Following the 
investigation, the truthfulness issue was resolved as unfounded 
and the Sheriff notified Carr that he would subsequently redact 
that portion of the investigation.  The investigation sustained a 
violation of the Office's courtesy policy regarding Dep. Carr's 
email correspondence with an Assistant District Attorney.  No 
discipline resulted from the incident, though senior management 
recommended that Carr attend a class in order to learn how to 


[fn]7  Although this incident arguably falls within the limitations period for one of the 
prohibited practice complaints, it was not put forward in the complaint nor addressed in 
the Union's pre-hearing or post-hearing briefs.  As such, we examine this evidence for 
background information purposes only.  Even if this incident were to be incorporated as a 
claim, the evidence is insufficient to establish any violation of the Act.


[end of page 7]


write more courteously and required Carr to attend an OUI 
refresher course.  

As to another incident, Carr testified that Maj. Mitchell stated 
that he wanted to choke Carr every time he looked at a pile of 
documents compiled in response to the case at hand. 

The Union also put forward a partially disputed claim that Dep. 
Jones was asked in 2015 whether he would be willing to step aside 
from his leadership role in the union (Jones was president at the 
time) during Jones's interview for a Sergeant promotion.  Jones 
testified that he told the oral board that he would step down from 
the union if he received the promotion.  Nadeau, also a union 
representative at the time, was eventually awarded the promotion.  
Nadeau testified that he did not receive any similar question 
about union participation.  

Union representatives testified at the hearing regarding their 
perception of an anti-union atmosphere.  They testified that 
employees in their bargaining unit were reluctant to serve on the 
union's executive board for fear of putting a "target on their 
back," so the same individuals keep serving on the board.  There 
was testimony that employees in another bargaining unit in the 
Sheriff's Office had been unable to fill three of the four 
executive board vacancies because of this perception that the 
Sheriff would look more favorably on an employee that was not a 
"union person."  There was also testimony about "a general fear of 
retaliation" in regard to defying the Sheriff.

There is evidence from both the Union and the County that a tense 
labor-management relationship exists at the Sheriff's Office.  
This tension can be illustrated by two quotes from the hearing 
testimony--one from Sgt. Nadeau: "The sheriff, right, wrong or 
indifferent, has a vision of where he wants the agency to go, and 


[end of page 8]


he's not willing to bend or change that vision or work with the 
union.  He wants it to go the way he wants it to," and one from 
Maj. Mitchell: "I've been told by a union leader that anything 
that we do, specifically the sheriff does, it's going to be met 
with resistance."


       iv. Giglio Impairment

In Giglio v. United States, 405 U.S. 150 (1972) (Giglio), the U.S. 
Supreme Court held that the Due Process clause of the Fourteenth 
Amendment to the Constitution of the United States requires a 
prosecutor to disclose to the defense any exculpatory evidence in 
the form of potential impeachment information regarding a witness 
the prosecutor plans to use at trial.  Any evidence going to the 
potential truthfulness of a law enforcement officer falls under 
this requirement, and a prosecutor has the affirmative duty to 
provide this information to the defense.  Practically speaking, a 
prosecutor will not use a law enforcement officer that has a 
credibility issue, i.e. is Giglio impaired, as a witness.  Such a 
designation severely handicaps the ability of a law enforcement 
officer to do an essential component of an officer's job, 
testifying as to potentially criminal behavior in court, and can 
be a career-ending situation for such an officer.

The York County Sheriff's Office has adopted the Maine Chiefs of 
Police Association Model Policy regarding Giglio determinations.[fn]8  
Under the Office's policy, the agency must disclose all relevant 
information that may adversely affect the credibility of law 
enforcement officers to all relevant prosecutors.  Prior to 
submitting any "potential Giglio information" to a prosecutor, the 
Chief Law Enforcement Officer is required under the policy to 


[fn]8  The two policies do not match verbatim in all respects, but appear to be 
substantively equivalent. 


[end of page 9]


first notify the respective law enforcement officer and provide 
the officer with an opportunity to address the information.  The 
term "Giglio information" is defined in the policy, and includes 
"any sustained finding that establishes a record of untruthful-
ness, bias, and/or commission of crimes."  The definition 
specifically excludes "allegations, rumors or other inconclusive 
information."


        v. The "three-day rule"

Under Article 36 ("Employee Rights"), Section A, of the parties' 
2014-2017 collective bargaining agreement, an employee subject to 
an internal investigation must be notified of the existence of 
such investigation within three days of the start of the 
investigation.  At the hearing, the parties referred to this as 
the "three-day rule."  The Union successfully argued grievances 
when senior management failed to provide an employee with notice 
of a formal investigation within three days of the start of an 
investigation.  Based on the outcome of these prior contract 
grievances, County management has taken the position that 
questioning an employee about a certain matter triggers a three-
day period in which to initiate an internal investigation.  In 
other words, failure to commence an investigation within the 
three-day period after questioning an employee waives management's 
right to conduct an investigation and to render any subsequent 
discipline to the employee on the matter.[fn]9  As a result, Maj. 
Mitchell testified that the County's default position is to 
conduct an internal investigation.
  

     B. Sheriff King's Giglio Inquiries for Jones and Nadeau


[fn]9  The record reflected some contention about this interpretation of the 
"three-day rule."  Sgt. Nadeau and Dep. Carr testified that this was the County's 
interpretation.  Dep. Carr testified that the County has three days in which it can have a 
preliminary discussion with an employee about an issue and then must decide, within the 
three days, to conduct a formal investigation. 


[end of page 10]


On May 2, 2017, Dep. Jones, in the course of his duties, was 
involved in a traffic accident with a member of the public.   
Subsequently, Sgt. Nadeau submitted an accident report which 
concluded that Dep. Jones was not at fault.  Due to a technical 
mishap by Sgt. Nadeau, the electronic report erroneously reflected 
that Dep. Jones had conducted the investigation of his own 
accident.  After an insurance submission to the Maine County 
Commissioners Association Risk Pool, the risk pool manager 
contacted the Sheriff's Office questioning the findings of the 
report and noting his concern with what appeared to be Dep. Jones 
self-investigating.  Based on the risk pool manager's suggestion, 
the Sheriff's Office requested that the Maine State Police do an 
independent investigation of the accident.  The Sheriff's Office 
also initiated an internal investigation of the incident, to 
include review of the State Police findings.  

The Maine State Police subsequently issued a report finding, in 
part, that Dep. Jones was at fault for the accident.

On June 2, 2017, Maj. Mitchell issued the internal investigation 
report regarding Jones's accident.  Noting discrepancies in the 
findings of the original accident report by Sgt. Nadeau and the 
investigation by the State Police, most notably with respect to 
who was ultimately at fault for the accident, the report sustained 
a finding of three separate violations of the Office's policies 
and procedures.  Initially, the Sheriff's Office determined that 
Dep. Jones should receive a six-day suspension for 1) violation of 
rules regarding professional responsibility, 2) violation of rules 
for operation of police vehicles, and 3) concerns with Jones's
statement and written report in light of the Maine State Police 
report.  Dep. Jones appealed the discipline through the contract 


[end of page 11]


grievance process and ultimately was issued a corrective memo, but
was not suspended.

On Friday, June 9, 2017, Dep. Jones was elected as vice president 
of the union and the results of that election were provided to 
senior management later that same day.  On the morning of Monday, 
June 12, Sheriff King was in email contact with the chief of 
investigations for the Attorney General's Office, following up on 
an earlier communication that included transmittal of the internal 
investigation report concerning the Dep. Jones traffic accident.[fn]10  
It is unclear from the record when Sheriff King first contacted 
the Attorney General's Office--it could have occurred anywhere from 
the issuance of the report on June 2 to that morning of June 12.  
The subject of this and following communications between the 
Sheriff and the Attorney General's Office was the Sheriff's 
seeking advice about whether the report presented issues that 
warranted a Giglio review of Dep. Jones and Sgt. Nadeau, based on 
the discrepancies between the Sheriff's Office accident report and 
the Maine State Police's report.  In his inquiry, the Sheriff also 
alluded to some prior "bad" acts on the parts of Dep. Jones and 
Sgt. Nadeau, though the record does not provide clarity on what 
the Sheriff was referring to.  

Based on the information presented by Sheriff King, the chief of 
investigations and the chief prosecutor in the Attorney General's 
Office both expressed concern with the possibility of 
untruthfulness for Dep. Jones and Sgt. Nadeau.  They recommended 
that the York County Sheriff's Office conduct an internal 
investigation on the issue of the officers' truthfulness or, at 
the very least, follow up with the York County District Attorney's 


[fn]10  Brian MacMaster, the chief of investigations for the Attorney General's Office, 
testified that he commonly receives inquiries from agency heads, police chiefs, sheriffs 
and District Attorneys throughout the State for advice regarding potential Giglio 
impairment for law enforcement officers. 


[end of page 12]


Office.  The Sheriff subsequently contacted the District Attorney, 
Kathryn Slattery, who stated some concern regarding truthfulness 
on the part of Dep. Jones but who was uncertain about any 
truthfulness concerns with respect to Sgt. Nadeau.  D.A. Slattery 
ultimately decided that she did not have enough information to 
commence with a Giglio determination.  

The Sheriff continued with his Giglio inquiries in a July 18, 
2017, email to the County's attorney, the County Manager, the 
Attorney General's chief of investigations and District Attorney 
Slattery regarding his concerns with Sgt. Nadeau's handling of the 
Dep. Jones traffic accident.  In that email, the Sheriff stated 
that the internal investigation had a sustained finding of a lack 
of candor concern for Dep. Jones.  In actuality, there were no 
sustained findings to that effect, and lack of candor was not even 
identified as an issue under investigation in the report.  The 
draft decision of discipline transmitted to the Attorney General's 
Office includes a "lack of candor" concern as one basis for 
imposing discipline on Dep. Jones, and the initial discipline 
decision Jones received included this as one basis for the 
discipline.  However, the record indicates that the chief of 
investigations at the Attorney General's Office was aware of the 
lack of any sustained findings regarding truthfulness or lack of 
candor.[fn]11  There is no evidence that the Sheriff moved forward with 
any further internal investigations on the matter.[fn]12


[fn]11  E.g., Brian MacMaster wrote in a June 21, 2017 email to the Sheriff: "While I 
recognize that there has yet to be a sustained finding of untruthfulness or lack of 
candor, the information you have is indicative of such."


[fn]12  Notably, on June 21, 2017, the County Manager emailed Sheriff King regarding Sgt. 
Nadeau stating: "[F]rom the perspective of the County as a whole, we do not think that 
the initiation of an IA [internal investigation] is the most appropriate way to proceed 
because of the possibility of further claims of retaliation, the possibility of a 
prohibited practices complaint, and because even the State Police Investigator's report 
acknowledged that the driver of the other vehicles acknowledged her fault at the time of 
the accident and in the follow up interview.  Because of that observation, any personnel 
action that might be based on the preparation of the report by Nadeau will be subject to 
challenge through the grievance and arbitration process and the ability to prevail at 
arbitration is far from certain."  In an email later that day the Sheriff expressed


[end of page 13]


     C. Assignment of "Term Paper" to Nadeau

The above-referenced 2016 "Notice of Counseling" letters issued to 
Sgt. Nadeau and Sgt. Thistlewood included a suggestion that the 
sergeants take a leadership training class.  In 2018, Sgt. Nadeau 
requested and was approved for a two-day leadership training 
course.  After the course, Maj. Mitchell asked Nadeau to write a 
memo summarizing the training.  Unhappy with the short synopsis 
provided by Nadeau, Mitchell asked for a more in-depth 
description, akin to what was described as a "term paper."  In 
response, Sgt. Nadeau produced a 10-page memo summarizing what he 
had learned in the class and applying it to his work and his 
observations of management approaches at the York County Sheriff's 
Office.  In a follow-up meeting, Mitchell expressed his 
displeasure at Nadeau's memo, and relayed that the Sheriff and 
Chief Dep. Baran were also displeased.  No other employee of the 
Sheriff's Office had ever been required to write such a memo after 
receiving training.


     D. Internal Investigations of Carr and Thistlewood

On April 4, 2018, Dep. Carr was involved in an undercover drug 
enforcement operation in New Hampshire.[fn]13  Carr was invited to 
participate by another York County Deputy who was involved in the 
operation as a sworn federal agent temporarily assigned to a 
Federal Bureau of Investigations (FBI) task force.  Also 
participating in the operation from the Sheriff's Office was a


[fn 12, cont'd] concern about a lack of support from County management regarding a follow-up
internal investigation.

[fn]13 New Hampshire is outside of the normal jurisdiction of the York County Sheriff's 
Office.


[end of page 14]


sergeant and a County corrections officer.  Evidence indicated 
that Carr had a legitimate purpose in being present at the operation.

Several weeks before the operation, Dep. Carr informed his 
supervisor, Sgt. Thistlewood, and received tentative approval to 
participate.  On April 3, 2018, Dep. Carr contacted Thistlewood 
for final approval to participate in the operation, which would 
involve overtime.[fn]14  Thistlewood was out of the office on vacation 
that day, and had questioned whether approval of the overtime was 
in line with Article 14 of the collective bargaining agreement.[fn]15  
After consulting with other members of the union's executive 
board, including Sgt. Nadeau and Dep. Jones, Dep. Carr reassured 
Sgt. Thistlewood there was no compliance issue with the overtime 
provisions of the contract and Thistlewood subsequently approved 
his participation.  There is no evidence that command staff was 
notified by Thistlewood or Carr of Carr's participation in the New 
Hampshire drug enforcement operation.[fn]16

A copy of the operations memorandum, which included specific 
reference to Dep. Carr's involvement in the operation, was 
provided to senior management prior to the operation.[fn]17  Maj. 
Mitchell testified to the effect that he did not read the 
memorandum until after the operation had already occurred.  Senior 
management was aware of and had approved the participation of the 
other Sheriff's Office employees involved in the operation, but, 


[fn]14 Dep. Carr testified at the hearing that he had already notified Sgt. Thistlewood 
three weeks prior to the operation and that Sgt. Thistlewood had preliminarily approved his 
participation pending notice of the exact date of when it would occur.

[fn]15 Article 14 of the collective bargaining agreement provides that available overtime 
shifts must be directed to full-time, off-duty and available employees on a rotating list 
by seniority in rank.

[fn]16 The Union asserts that this notification was unnecessary because Dep. Carr's role was 
described in an operations memorandum submitted prior to his engagement in the operation 
and his participation should have been assumed pursuant to the confidential informant 
policy.
  
[fn]17 Maj. Mitchell testified that a hard copy of the operations memorandum was placed on 
his desk either the day before or the day of the operation.


[end of page 15]


according to Maj. Mitchell, was not aware of and had not approved 
Dep. Carr's participation in the operation.

On the day of the operation, the County sergeant involved in the 
operation questioned Dep. Carr about his presence at the operation 
and whether it complied with the collective bargaining agreement's 
overtime provisions.  On April 6, 2018, management commenced an 
internal investigation into issues around Dep. Carr's 
participation in the operation, including investigation into 
whether Carr had made the appropriate notifications to management 
and into the issue of Carr's "truthfulness."  Dep. Carr testified 
at the hearing that he had spoken with Maj. Mitchell about the 
truthfulness issue in the investigation.  By Carr's account, 
Mitchell had told him that he didn't see any truthfulness issues, 
and he pointed across the office to the Sheriff, indicating that 
the Sheriff had requested it be added to the investigation.  At 
the hearing though, Maj. Mitchell testified that he always adds 
"truthfulness" as a default element of an internal investigation 
to preserve the issue so that it will be possible to address any 
truthfulness issues that may come up during the course of the 
investigation.[fn]18  The internal investigation report recommended a 
finding that the concerns were unfounded and not sustained.  Dep. 
Carr did not receive any discipline in connection with the 
investigation.

Sgt. Thistlewood was subject to an internal investigation for his 
approval of Dep. Carr's involvement in the undercover drug 
enforcement operation in New Hampshire.  The investigation 
included a concern that Thistlewood had "allowed the union 
executive board to make the decision regarding the appropriateness 


[fn]18 Interestingly, Maj. Mitchell did not include truthfulness within the scope of the
internal investigation of the Travis Jones traffic accident, which he completed almost a
year before this investigation of Dep. Carr.  


[end of page 16]


of ignoring the call list."  As with Carr, the investigation of 
Thistlewood also included the issue of "truthfulness."  The final 
outcome of the investigation was a finding that the concerns were 
unfounded and not sustained, and Thistlewood received no 
discipline.

In contrast to the allegedly discriminatory investigations above, 
evidence at the hearing established that the Sheriff's Office 
employee who has been subject to the majority of internal 
investigations, and who has received the most discipline, is a 
deputy who is not a union representative and who was "not a big 
advocate for the union." 


     E. Denial of Carr's Request to Participate in Drug Enforcement 
        Operations

On April 17, 2018, Dep. Carr requested permission from Maj. 
Mitchell to participate in another drug enforcement operation 
involving a confidential informant.  Mitchell told Carr that he 
would not be permitted to participate, and he notified him that 
the confidential informant policy was being temporarily suspended 
while a new policy was drafted.  Maj. Mitchell told Carr that his 
name "brings up a lot of things around here" and that the policy 
would be suspended "until the dust settled."  Carr later confirmed 
with Chief Dep. Baran that the policy was being suspended. Despite 
this, Carr was aware of the subsequent use of a confidential 
informant in another drug enforcement operation by the Sheriff's 
Office deputy temporarily assigned to the FBI task force, as well 
as the signing up of a new confidential informant by that deputy.[fn]19  


     III.  Analysis 

     A.  Jurisdiction


[fn]19 Dep. Carr was permitted to accompany the deputy in the deputy's FBI vehicle in this 
instance, in order to serve as a witness.


[end of page 17]


The Fraternal Order of Police is a bargaining agent within the 
meaning of 26 M.R.S.A. 962(2), York County is a public employer 
within the meaning of 26 M.R.S.A. 962(7) and the employees 
involved are public employees within the meaning of 26 M.R.S.A. 
962(6).  The Board's jurisdiction to hear this case and to issue 
a decision and order derives from 26 M.R.S.A. 968(5).


     B. Discrimination and Retaliation

The Act protects certain union-related activity by employees.  See 
26 M.R.S.A. 963.  In turn, it prohibits public employers from 
"[e]ncouraging or discouraging membership in any employee 
organization by discrimination in regard to hire or tenure of 
employment or any term or condition of employment."  26 M.R.S.A. 
964(1)(B).  Likewise, an employer may not discriminate or 
retaliate against an employee for participating in any stage 
of a Maine Labor Relations Board proceeding.  26 M.R.S.A. 
964(1)(D); Southern Aroostook Teachers Ass'n. v. Southern 
Aroostook Community School Committee, No. 80-35 and 80-40 slip op. 
at 24 (April 14, 1982), citing NLRB v. Scrivener, 405 U.S. 117, 
121-125 (1972).

Although the discrimination described in paragraphs B and D are
independent violations, the analysis applied to determine a 
violation of either is effectively the same.  Specifically, the 
complainant has the burden of proving by a preponderance of the 
evidence that: (1) the employee engaged in protected activity; (2) 
the decision-makers knew of the employee's participation in 
protected activity; and (3) there is a relationship, or causal 
connection, between the protected activity and the adverse 
employment actions against the employee.  Litchfield Educational 
Support Ass'n. v. Litchfield School Committee, No. 97-09, slip op. 
at 22 (July 13, 1998) citing Casey v. Mountain Valley Educ. Ass'n 


[end of page 18]


and SAD 43, Nos. 96-26 & 97-03, slip op. at 27-28 (Oct. 30, 1997) 
and Teamsters Union Local #340 v. Rangeley Lakes School Region, 
No. 91-22, at 18 (Jan. 29, 1992); Holmes v. Town of Old Orchard, 
No. 82-14 (Sept. 27, 1982) (Board adopted the three-part test 
established in Wright Line and Bernard R. Lamoureux, 251 NLRB 1083 
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 
989 (1982), for issues that turn on employer motivation.) 

When applying this test, the Board examines whether the 
complainant has first put forward a prima facie showing sufficient 
to support the inference that protected conduct was a "substantial 
or motivating factor in the employer's decision." Ritchie v. Town 
of Hampden, No. 83-15, slip op. at 4-5 (July 18, 1983); Casey v. 
Mountain Valley Educ. Ass'n. and SAD 43, No. 96-26 & 97-03, slip 
op. at 27-28.  Proof of such unlawful motivation can be based on 
direct evidence or can be inferred from circumstantial evidence 
based on the record as a whole.  See Maine State Law Enforcement 
Association and Timothy McLaughlin v. State of Maine, Maine 
Department of Corrections, No. 13-15, slip op. at 9-10 (October 
31, 2013).

If the complainant succeeds in proving these three elements, the 
burden of proof shifts and the employer must prove by a 
preponderance of the evidence that the adverse employment action 
was based on unprotected activity as well, and that the 
complainant would have suffered the adverse employment action 
regardless of the protected conduct.  Maine State Employees Ass'n 
v. State Dev. Office, 499 A.2d 165, 167 (Me. 1985).  If the 
employer meets this burden then the claim fails, unless the 
complainant can demonstrate that the alternate reasons offered by 
the employer for the adverse action are merely pretextual.  See 
Teamsters v. Town of Kennebunk and MLRB, CV-80-413 (Me. Super. 


[end of page 19]


Ct., Kennebec Cty., October 18, 1985) (citing NLRB v. Great Dane 
Trailers, 333 U.S. 26 (1967)).



     1.  Analysis of discrimination claims

         a. Giglio inquiry on Jones and Nadeau

The Giglio inquiries into Dep. Jones and Sgt. Nadeau by Sheriff 
King meet the first two elements of the applicable standard, as 
the Sheriff was clearly aware of Jones's and Nadeau's exercising 
of their rights under the Act.  In particular, in addition to 
Jones's election as union vice president, it is undisputed that 
Jones filed a grievance in response to the proposed discipline 
related to his traffic accident.  See Teamsters Local Union Local 
340 v. Oxford County, No. 15-05, slip op. at 12 (February 5, 2015) 
("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."). 

As far as the protected activity of Sgt. Nadeau, senior management 
at the Sheriff's Office was aware of his participation in the 
prior prohibited practice complaint process (MLRB No. 17-08) which 
followed Nadeau's meeting with senior management regarding a 
perceived disrespectful tone towards the Sheriff at a union 
meeting in 2016.  Additionally, Sgt. Nadeau has been involved on 
the executive board of the union in various capacities.  The Union 
also points to Nadeau's insistence on submitting a written 
rebuttal in connection to his annual performance review, 
an attempt to enforce a right provided for in the collective 
bargaining agreement, as protected activity.[fn]20


[fn]20 Although, as cited above, the Board has recognized an employee's attempt to enforce 
the terms of a collective bargaining agreement through the formal grievance process


[end of page 20]


The next prong of the test is whether there is a causal connection 
between the protected activity and the adverse employment action 
against the employee or whether the adverse employment action was 
motivated by anti-union animus.  The analysis on this point is 
complicated by a preliminary question--is a Giglio inquiry of a law 
enforcement officer an adverse employment action?

The County makes conclusory arguments that neither the Giglio 
inquiries nor the various internal investigations involved in this 
case in and of themselves qualify as adverse employment actions, 
but neither party has provided any analysis of the issue.  The 
Board has previously noted that no violation of 964(1)(B) or (D) 
occurs absent an adverse employment action. See e.g., AFSCME, AFL-
CIO v. Penobscot County Sheriff's Office, No. 14-27 & 15-08, slip 
op. at 21 (March 10, 2016).  

In prior decisions, the Board has acknowledged the significant 
impact that internal investigations in themselves have on law 
enforcement officers.  See In Re: City Of Portland, Petition For 
Interpretive Ruling, No. 01-IR-01, slip op. at 7 (June 27, 2001) 
("[B]eing the target of an internal affairs investigation is a 
significant issue for a police officer."); Alfred Hendsbee and 
Maine State Troopers Ass'n. v. Dept. of Public Safety, Maine State 
Police, No. 89-11, slip op. at 25 (January 16, 1990) ("Because the 
consequences of any 'sustained' finding regarding charges upon 
which an IA investigation is initiated potentially include 
dismissal, everyone, as the Chief himself testified, is 'somewhat 
worried as a result of being involved in an internal [affairs] 
investigation.'").


[fn 20, cont'd] as protected activity under the Act, it has not explicitly done so regarding
an employee's attempts to enforce a term of the collective bargaining agreement outside of 
the grievance process.  As this distinction does not make an ultimate difference in the 
case before us, our analysis presumes, without holding, that Nadeau's insistence on 
exercising this contractual right is protected activity under the Act. 


[end of page 21]
 

Ultimately, however, we do not reach this question because even 
assuming, without holding, that the Giglio inquiries did meet the 
Board's standard for adverse employment action,[fn]21 the Union has not 
met its evidentiary burden to establish that these actions by the 
County were casually connected to protected activity or were 
otherwise motivated by anti-union animus.  The evidence 
establishes that the initial impetus for the internal 
investigation of Dep. Jones was the risk pool manager's 
independent recommendation that the State Police conduct an 
investigation, and the State Police's subsequent determination 
that Jones was at fault for the accident, not the Sheriff.  Given 
the inconsistent conclusions as to Jones's culpability reflected 
in Nadeau's report versus the State Police report, and given the 
vital importance of truthfulness to a law enforcement officer's 
job, it is reasonable that the Sheriff would seek advice about 
potential Giglio issues.  The evidence indicates that the 
Sheriff's inquiries were at a preliminary stage-the seeking of 
advice about further action, and not the seeking of a Giglio 
determination itself - a characterization that was backed up by 
chief investigator MacMaster of the Attorney General's Office at 
the hearing. Providing independent validation of the Sheriff's 
concerns, both MacMaster and the chief prosecutor for the Attorney 
General's Office had their own concerns with potential 
truthfulness on the part of Dep. Jones and Sgt. Nadeau and 
recommended further investigation by the Sheriff's Office and 
contacting the District Attorney. 


[fn]21 The National Labor Relations Board has defined "adverse employment actions" as 
actions that "reduce a worker's prospects for employment or continued employment, or worsen 
some legally cognizable term or condition of employment."  Bellagio, LLC v. Nat'l Labor 
Relations Bd., 854 F.3d 703, 709-10 (D.C. Cir. 2017) (citing Ne. Iowa Tel. Co., 346 NLRB 
465, 476 (2006)).  Based on the evidence in the record, the Board can dispose of the 
discrimination claims in these cases without the need to specifically adopt this or any 
other definition of "adverse employment action."


[end of page 22]


In support of its claim, the Union emphasizes the close timing of 
the inquiries to protected union activity.  Dep. Jones's election 
as vice president occurred on June 9, 2017, the Friday before the 
Monday morning correspondence between Sheriff King and the 
Attorney General's Office.  However, "timing is generally 
insufficient on its own to support a finding of discriminatory 
motivation."  Teamsters Union Local #340 v. Rangeley Lakes School 
Region, No. 91-22, slip op. at 20 (Jan. 29, 1992); Maine State 
Employees Association v. State Development Office, No. 84-21, slip 
op. at 11, (July 6, 1984), aff'd, 499 A.2d 165 (Me. 1985).  It is 
notable that the internal investigation report regarding the May 
7, 2017, accident was issued on June 2, 2017, a week before the 
election.  The record shows that Sheriff King had contacted the 
Attorney General's Office at some point prior to the Monday 
morning email, though it is unclear exactly when this happened.  
In light of the relatively short amount of time between the 
issuance of the June 2 report and the Sheriff's initial contact 
with the Attorney General's Office, the Board is unable to 
conclude that the timing of the Sheriff's contact is indicative of 
a retaliatory motive.  

With respect to the Jones grievance regarding discipline for the 
traffic accident, this occurred on June 26, 2017, at least two 
weeks after the Sheriff had contacted the Attorney General's 
Office.  As such, it could not have been the impetus for the 
initial inquiry.  Although the grievance could have arguably been 
motivation for the Sheriff's continuing to raise the potential 
Giglio issue with the Attorney General's Office, District 
Attorney's Office and County management, all of which were copied 
on an email from the Sheriff regarding the matter on July 18, 
2017, the Board does not find the evidence persuasive on that 
point given the undisputed evidence of a non-discriminatory basis 


[end of page 23]


for the original Giglio inquiries and the validation of the 
Sheriff's concerns by the Attorney General's Office.

The Union points to deviations from policy as evidence of anti-
union animus motivating the Sheriff's Giglio inquiries.  
Specifically, the information submitted by the Sheriff to the 
Attorney General's Office and the District Attorney regarding Dep. 
Jones and Sgt. Nadeau did not include any "sustained finding" 
establishing untruthfulness.  As such, under the policy it appears 
to be excluded from the "Giglio information" that must be first 
submitted to the respective officer under the adopted policy.  
Accordingly, the evidence fails to establish that the Sheriff 
violated the Office's policy when he inquired with the Attorney 
General's Office and the District Attorney's Office requesting 
advice about how to proceed with respect to the contradicting 
reports of the Jones traffic accident.  Importantly, Brian 
MacMaster, one of the drafters of the Maine Chiefs of Police 
Association Model Policy that the York County Sheriff's Office's 
Giglio policy is based on, verified during the hearing that under 
the model policy there was no need for notification of Dep. Jones 
and Sgt. Nadeau because a preliminary decision to make a Giglio 
determination had not yet been made.  

The Union also argued that the Sheriff provided the Attorney 
General's Office and the District Attorney with misleading 
information in order to improperly facilitate a Giglio 
determination.  The only notable inconsistency is found in the 
July 18, 2017, email from the Sheriff to the County attorney, 
County Manager, Attorney General's Office and York County District 
Attorney Kathryn Slattery in which the Sheriff states that the 
internal investigation of Dep. Jones had a sustained finding of a 
lack of candor concern, despite the fact that the lack of candor 
concern was not, in fact, even mentioned in the internal 


[end of page 24]


investigation report.  The lack of candor concern was, however, 
included in the draft decision of discipline transmitted to the 
Attorney General's Office, and was a partial basis in the 
discipline decision the Sheriff made with respect to Jones.  
Despite this discrepancy, it is clear from the record that the 
Attorney General's Office, County Manager and County attorney all 
had access to the internal investigation report, which reflected a 
lack of any sustained findings regarding a lack of candor.  The 
record is unclear exactly what information the Sheriff had pro-
vided to the District Attorney at this point, though it is clear 
in the July 18 email that the District Attorney had already 
evaluated the matter, at least preliminarily.  Given this 
knowledge by the parties, this inaccurate statement by the Sheriff 
is not such a significant discrepancy that it would support an 
inference that the overt justification for the Sheriff's inquiries 
into potential Giglio issues was mere pretext.  

Given all of the above, the Union has not met its evidentiary 
burden in establishing a link between the Giglio inquiries and an 
unlawful motive on behalf of the Sheriff.  
  

          b. Internal investigations of Dep. Carr and Sgt. Thistlewood

Turning to the discrimination claims with respect to the County's 
internal investigations of Dep. Carr and Sgt. Thistlewood 
regarding the drug enforcement operation in New Hampshire, it is 
clear that the first two prongs of the test are satisfied, as Dep. 
Carr and Sgt. Thistlewood have each participated in protected 
activity that management was aware of, including Carr's status as 
union president and Sgt. Thistlewood's involvement in the 2016 
prohibited practice complaint.


[end of page 25]


Again, the threshold issue of whether or not these actions by the 
County constitute "adverse employment action" arises.  The Board 
has examined a claim in a prior case that an internal 
investigation by a Sheriff's Office was unlawful discrimination in 
violation of the Act; however, the Board in that case never 
reached the issue of whether the investigation was an adverse 
employment action, determining instead that the requisite 
protected union activity was lacking.  Teamsters Local 340 v. 
Aroostook County, No. 03-09, slip op. at 26-27 (February 2, 2004) 
(Examining a challenge to a Sheriff's Office internal 
investigation of the circulation of a "no confidence" petition by 
county jail employees regarding a supervisor).  As stated above in 
the context of the Giglio claim, determination of this issue is 
not essential for the Board to conclude its analysis of this 
claim. 

Even assuming that the internal investigations of Carr and 
Thistlewood constitute adverse employment action, the Union has 
not met its evidentiary burden to demonstrate a connection between 
this action and the officers' protected activity.  The initiation 
of these investigations was reasonable given the unusual 
circumstances of Thistlewood's approval of Carr's overtime for an 
out-of-state operation while Thistlewood was out on vacation and 
the lack of specific notice being given to on-duty command staff.  
The investigations were launched because of a neutral, blanket 
policy to conduct an internal investigation after questioning an 
officer because of the "three-day rule," which the internal 
investigation report more or less explicitly states.[fn]22  Given these 


[fn]22 "This section has been interpreted in the past by county administration to mean that 
any questioning regarding a suspected violation of any rule or policy that could result 
in discipline is the commencement of an internal investigation.  ... Since Sergeant Hayes 
did question Carr about his involvement in the April 4 drug operation, Command notified 
Deputy Bob Carr that an IA [i.e., internal investigation] would be conducted on April 6.  
This notification was only made to satisfy the procedural guidelines that have been 
interpreted of late and the subject of previous successful grievances."


[end of page 26]


circumstances and management's application of the "three-day 
rule," there is a lack of connectivity between the employees' 
protected activity here and the employer's actions.

The most compelling evidence suggesting an improper motive for the 
investigations is that the other officers involved in the 
operation were not investigated.[fn]23  The significance of this 
disparity dissipates in light of the fact that command staff was 
aware of and had already approved their participation in the 
operation.

The Union points to the inclusion of truthfulness in the 
investigation as being a naked attempt to generate potential 
Giglio issues for the officers.  However, Maj. Mitchell testified 
that he always adds the issue of "truthfulness" to an internal 
investigation in order to preserve the issue so that it will be 
possible to address any truthfulness issues that may come up 
during the course of the investigation.  This practice comports 
with the County's interpretation of the "three-day rule," 
preserving issues for potential discipline with the launching of 
an internal investigation, which is based on the undisputed fact 
that the Union successfully grieved previous failures of the
County to properly notify employees of internal investigations. 
As discussed above, the inclusion of truthfulness in the scope of 
an internal investigation of a law enforcement officer can be a 
significant cause for worry for that officer.  However, in light 
of the "three-day rule," Maj. Mitchell's testimony and senior 
management's concerns with the notice and approval regarding Dep. 
Carr's participation in a relatively novel out-of-jurisdiction 
operation for the Sheriff's Office, the Union has not put forward 
sufficient evidence to support an inference that these 


[fn]23 There was testimony that the sergeant involved was not a union member at the time of 
the incident, though Maj. Marshall testified that he was not aware of this.


[end of page 27]


investigations were motivated by the protected activities of Dep. 
Carr and Sgt. Thistlewood.[fn]24


          c. Suspension of the confidential informant policy for 
             Dep. Carr

The Board does not find sufficient evidence to demonstrate that 
the suspension of the confidential informant policy was motivated 
by anything other than the County's desire to revise the policy in 
light of Dep. Carr's participation in what was the first use of 
the policy in the Sheriff's Office.  The Union claims that the 
County discriminated against Dep. Carr by suspending the 
confidential informant policy only with respect to Carr.[fn]25  Maj. 
Mitchell testified that the difference between allowing the other 
deputy to continue with confidential informant operations while 
suspending Dep. Carr from such operations was that the other
deputy was involved as a member of an FBI task force and as a 
federal agent.  There was no evidence of any other Sheriff's 
Office employees being permitted to participate in a confidential 
informant operation.  As such, there is an insufficient basis by 
which to conclude this decision was motivated by Dep. Carr's 
protected activity.


          d. Term paper for Nadeau

Even if one were to assume that Maj. Mitchell's requiring Sgt. 
Nadeau to write a memo, described as a "term paper,"  summarizing a 
two-day leadership training could be categorized as adverse 


[fn]24 It is notable that the employee who has been subject to the most internal 
investigations and disciplinary action at the Sheriff's Office is not a union 
representative or otherwise engaged in union-related activity.
   
[fn]25 In its complaint, the Union also claimed that Dep. Carr lost wages because of the 
suspension of the policy.  No evidence was presented as to this point, and financial 
relief was explicitly waived in the Union's post-hearing brief.  Regardless, the 
underlying claim is without merit.


[end of page 28]


employment action,[fn]26 the Union has failed to carry its burden with 
respect to establishing a causal link between Nadeau's protected 
activity and this action.  
 
The Union claims that this writing assignment was retaliation for 
Nadeau's protected activity.  The Union asserts, and the record 
supports, that no other employee of the Sheriff's Office had been 
required to write such a paper.  That said, there is also no 
evidence that other employees were similarly situated to Nadeau, 
insofar as they also attended a two-day leadership training.  Put 
another way, since the record shows that only Sgt. Nadeau attended 
such a training, the fact that others were not required to write 
term papers is irrelevant.  Indeed, the purpose of the training, 
as suggested by senior management and embraced by Nadeau, was to 
develop his leadership skills in what was a relatively new role as 
a supervisor.[fn]27  The Board cannot conclude that there was an 
improper motive on behalf of the employer based on the record
before us.


     C.  Interference, restraint or coercion

Public employers and their representative are prohibited 
from "[i]nterfering with, restraining or coercing employees in the 
exercise of the rights guaranteed in section 963."[fn]28  26 M.R.S.A. 
964(1)(A).  The analysis of an alleged violation of 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 


[fn]26 As with the analysis of the Giglio inquiries and internal investigations, the Board 
need not address this point as it is not determinative to the issue in the case at hand.

[fn]27 Rather than being manifest anti-union animus, senior management's frustration after 
receiving Sgt. Nadeau's "term paper" is most likely a result of Nadeau's direct criticism 
of them throughout.
  
[fn]28 26 M.R.S.A. 963 provides, in part, the right to voluntarily "[j]oin, 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..."


[end of page 29]


the free exercise of employee rights under the Act."  Duff v. Town 
of Houlton, No. 97-20, slip op. at 21 (Oct. 19, 1999) (internal 
quotation marks omitted); see also MSEA v. State Development 
Office, 499 A.2d 165, 169 (Me. 1985) (Law Court approving of this 
standard). 

A claim of unlawful interference, restraint or coercion can be 
either a derivative violation or an independent violation.  A 
derivative violation occurs when an employer's conduct violates 
another provision of the Act and that conduct also has the effect 
of interfering with, restraining or coercing employees with 
respect to the exercise of their rights under 963.  See 
International Brotherhood of Teamsters Local No. 340 v. Aroostook 
County, No. 03-09, slip op. at 19 (February 2, 2004).  An 
independent violation occurs when an employer's conduct directly 
interferes with employees' exercise of rights under the Act.  Id.  
As discussed above, the Board has found no violation of the Act 
with respect to the discrimination claims, which were the only 
other potential violations of the Act at issue in these cases.  
Accordingly, we must examine whether an independent violation of 
964(1)(A) has occurred.

While independent violations "most often occur during a union 
organizing campaign," the Board has found violations of 964(1)(A) 
in established union settings.  Teamsters Local 340 v. Aroostook 
County, No. 03-09, slip op. at 19-20 (February 2, 2004); See e.g., 
Ouellette v. City of Caribou, No. 99-17, slip op. at 10 (Nov. 22, 
1999) (Chief's admonition that employee should not go to the 
"wrong people" and get "bad advice" was an independent violation 
of §964(1)(A)); Alfred Hendsbee and Maine State Troopers Ass'n. v. 
Dept. of Public Safety, Maine State Police, No. 89-11 (January 16, 
1990) (Maine State Police policy of starting an Internal Affairs 
investigation every time an employee filed a contract grievance 


[end of page 30]


was unlawful interference with protected activity); Gordon 
Littlefield and Sanford Police Ass'n. v. Town of Sanford, No. 91-02 
(March 12, 1991) (Internal investigation of law enforcement 
officers that included questions into protected union activity was 
unlawful interference).

The Board has previously examined claims of unlawful interference 
by an employer's use of internal investigations.  In Gordon 
Littlefield and Sanford Police Ass'n. v. Town of Sanford, during 
the course of an internal investigation, the employer questioned 
law enforcement employees who were union officials about meetings 
they had discussing possible criminal charges for the Police 
Chief, who they felt had improperly intervened into a criminal 
matter involving the Chief's son.  No. 91-02 (March 12, 1991).  
The Board found the investigation to constitute illegal 
interference because it had clearly gone "beyond the right of the 
Town to make legitimate factual inquiries into possible employee 
misconduct" by questioning union officials about union business.  
Id., slip op. at 26.  

Unlike the improper investigation in Gordon Littlefield, the 
internal investigations in this case all involve pure performance 
issues, not questions into union activities.  Based on the 
internal investigation reports, it seems there may have been 
questions about Carr's checking with the union for the contract 
interpretation question regarding overtime as well as 
Thistlewood's reliance on this interpretation when he approved 
Carr's participation.  Although these circumstances approach the 
line, this situation differs from that in Gordon Littlefield 
because even assuming there were questions about union 
discussions, these were squarely within the County's prerogative 
in investigating potential misconduct--here, examining 
Thistlewood's basis for what was potentially improper approval of 


[end of page 31]


overtime for a subordinate.  This is also a different situation to 
that in Ouellette v. City of Caribou where a Police Chief's 
statement that an employee should not go to the "wrong people" and 
get "bad advice" was determined to be unlawful interference.  No. 
99-17, slip op. at 10.  Although the fact that the union was 
consulted is mentioned in the internal investigation, there is 
nothing in the report that discourages such consultation, and the 
focus of this aspect of the investigation is on Thistlewood's 
failure to communicate with command staff. 

In another case involving the use of internal investigations in 
law enforcement operations, Alfred Hendsbee and Maine State 
Troopers Ass'n v. Dept. of Public Safety, Maine State Police, the 
Board examined a claim of interference, restraint or coercion over 
a policy of the employer to initiate an internal investigation 
with the Internal Affairs division of the Maine State Police 
whenever a contract grievance was filed.  No. 89-11 (January 16, 
1990).  The Board found this policy to constitute unlawful 
interference, citing to the secrecy of Internal Affairs 
investigations as well as the troublesome implications that 
Internal Affairs investigations carried for law enforcement 
officers.  In Hendsbee, the link between the protected activity, 
filing a grievance, and the employer's conduct, initiating an 
Internal Affairs investigation, was direct and automatic.  Here 
there is no such link.  Under the County's "three-day rule" 
interpretation, the threshold for pulling the trigger, so to 
speak, on an internal investigation is arguably thin.  However, 
the investigations in the current case have been aimed directly at 
alleged misconduct by the respective employees, and not at the 
exercise of any protected right. As such, we do not find that the 
County's initiation of internal investigations here would 
reasonably chill employee's assertion of rights under the Act. 


[end of page 32]
  

Including the issue of truthfulness in the Carr and Thistlewood 
investigations may have heightened the subjective apprehension 
experienced by the officers during the process of the 
investigation, but the evidence is insufficient to establish this 
reasonably interfered with employees' rights under the Act.  There 
was testimony from Dep. Carr that the Sheriff himself had added 
truthfulness to the scope of the investigation, but this alone is 
not enough to establish interference, especially in light of the 
contradictory testimony from Maj. Mitchell, who stated that his 
practice is to add the issue of truthfulness as an element to all 
of his investigations in order to preserve the issue should it 
arise during the course of an investigation.  This preservation of 
the issue for potential discipline dovetails with the County's 
"three-day rule" policy for conducting internal investigations to 
preserve issues for potential discipline whenever potential 
misconduct has occurred.  It is, arguably, a heavy-handed approach 
to include the issue of truthfulness as a default issue for 
internal investigations, given the potential implications for a 
law enforcement officer.  However, the evidence in this case is 
insufficient to demonstrate any direct unlawful interference with 
protected union activity from the initiation of these internal 
investigations, or the inclusion of truthfulness therein, when 
applied as they are here in a blanket, non-discriminatory manner 
that is not directed at protected activity.

With respect to the claim of unlawful interference regarding the 
Giglio inquiries into Dep. Jones and Sgt. Nadeau, the Board is 
similarly unconvinced.  Even after the Sheriff's inquiries would 
have been widely known, the Board finds the unique circumstances, 
i.e., the contradictory traffic accident reports of Sgt. Nadeau 
and the State Police, to be a reasonable basis for this isolated 
response by the Sheriff, and accordingly finds the effort could 
not have reasonably chilled employees' union activities.


[end of page 33]


The Board finds the suspension of the confidential informant 
policy with respect to Dep. Carr to also not constitute unlawful 
interference.  Dep. Carr was the only non-federal agent to be 
denied participation in confidential informant operations, and the 
suspension of the policy was reasonable given senior management's 
stated intent to modify the policy given the issues raised by 
Carr's initial operation, which was also the first such use of the 
policy.

The "term paper" that Sgt. Nadeau was required to write similarly 
does not cause a reasonable inference of interference.  The record 
only shows that Nadeau received such an extensive leadership 
training, and the requirement to summarize the training was framed 
by management as a mutually sought skills-building exercise to 
improve Nadeau's performance as a supervisor.  This cannot be 
reasonably said to have interfered with employee's rights under 
the Act.

The standard for assessing an independent interference claim is an 
objective one.  Based on the evidence proffered in this case, both 
direct and circumstantial, the Board cannot conclude that a 
reasonable employee would be deterred from participating in union 
activities or otherwise asserting that employee's rights under the 
Act. 
 
  
	IV.  Conclusion

The Board has fully considered all the evidence in these cases, 
including the numerous interactions that fall outside the six-
month statute of limitations, and has given this evidence its due 
weight in considering the employer's conduct at issue in this 
case.  While it is clear that there is an acrimonious labor-
management atmosphere between the union employees here and senior 


[end of page 34]


management at the Sheriff's Office, the Board is unable to 
conclude that the employees' protected activity was a motivating 
factor for the County's actions in this case given the bulk of 
undisputed evidence.  Additionally, given the reasonable, non-
discriminatory bases for the County's actions, and the lack of a 
nexus between those actions and any protected activity, the Board 
does not find sufficient evidence that the County's conduct 
at issue in this case could be seen as reasonably tending to 
interfere with the Sheriff's Office employees' rights under the 
Act.  Though the Board does not endorse the management approach of 
the Sheriff's Office, the apparent hostility in labor-management 
relations does not at this point rise to the level of illegal 
conduct subject to remedial action by the Board.  See Teamsters v. 
Town of Kennebunk and Lt. Michael LeBlanc, No. 80-30, slip op. at 
7-8 (July 3, 1980), aff'd., Teamsters v. Town of Kennebunk and 
MLRB, CV-80-413 (Me. Super. Ct., Kennebec Cty., October 18, 1985) 
(Concluding that even given "substantial evidence of an anti-union 
atmosphere . . . such considerations did not infect" the adverse 
employment action at issue in that case, when the decision 
appeared to have been "well within the range of reasonableness" 
and raised no question about the employer's motive).  Despite 
this, the events described here build upon a narrative of 
hostility and distrust in the labor relations of this county 
office which, if continued, may do harm to the effectiveness of 
the vital public service the office provides.  We strongly 
encourage both sides to make a more strenuous effort at compromise 
in order to avoid this potentiality.


	V.  Decision

For all of the foregoing reasons, this case is dismissed.

[end of page 35]


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 M.R.S.A. 968(5), it is ORDERED that the complaints in 
Case Nos. 18-10 and 19-02 be, and hereby are, DISMISSED.

Dated at Augusta, Maine, this 24th day of July, 2019

      	                        MAINE LABOR RELATIONS BOARD
      
      
      
      	                        /s/_____________________________
      	                        Katharine I. Rand
      	                        Chair
      
      
      	                        /s/_____________________________
      	                        Robert W. Bower, Jr.
      	                        Employer Representative
      
      
                        	/s/_____________________________
      				Amie M. Parker
      				Employee Representative
      
      
The parties are advised of their right pursuant to 26 M.R.S.A.
 968(4) to seek a review of this decision and order by the Superior 
Court.  To initiate such a review, an appealing party must file a 
complaint with the Superior Court within fifteen (15) days of the date of 
issuance of this decision and order, and otherwise comply with the 
requirements of Rule 80(C) of the Rules of Civil Procedure.


[end of page 36]