STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 03-09
Issued: February 2, 2004
__________________________________
)
INTERNATIONAL BROTHERHOOD OF )
TEAMSTERS LOCAL NO. 340, et al., )
)
Complainants, )
) DECISION AND ORDER
v. )
)
AROOSTOOK COUNTY, et al., )
)
Respondents. )
__________________________________)
The prohibited practice complaint filed by the Teamsters
Local No. 340 ("Union") alleges that the Aroostook County Sheriff
violated 26 M.R.S.A. 964(1)(A) by conducting an internal affairs
investigation in response to a Sergeant's complaint that he was
the target of a no-confidence petition being circulated among
employees at the jail. The Complaint also alleges that the
Sheriff threatened the Union Shop Steward with a charge of
witness tampering if he had any further conversations with the
Sergeant, who was a member of the same bargaining unit as the
other jail employees. Both allegations charge a violation of the
Municipal Public Employees Labor Relations Law ("MPELRL") section
964(1)(A), which prohibits "interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed by
section 963." The County filed a response on February 18, 2003,
which included a Motion to Dismiss and a Motion to Defer to Arb-
itration. Complainant is represented by Howard T. Reben, Esq.,
and Respondent, by Clare Hudson Payne, Esq.
A Prehearing Conference was held on May 8, 2003, with Chair
Peter T. Dawson presiding. The Complainant objected to the
Respondent's Motion to Defer to Arbitration and its Motion to
Dismiss. The Respondent objected to the Complainant's request to
[-1-]
_________________________________________________________________
amend its complaint. Arguments were made on the record regarding
the Motion to Defer and the parties agreed to a schedule for
briefing both the deferral issue and the appropriateness of
allowing an amendment to the complaint. This briefing schedule
was set forth in the Prehearing Memorandum and Order dated
May 15, 2003. In the Supplemental Prehearing Order dated June
27, 2003, the Prehearing Officer allowed the amendment and denied
the Respondent's Motion to Defer to Arbitration. The Respondent
appealed the latter determination to the full Board, which
affirmed the decision on August 4, 2003. An evidentiary hearing
was held on August 13 and 27, 2003, at which the parties were
able to examine and cross-examine witnesses and offer documentary
evidence. Briefs and responsive briefs were all filed by
November 4, 2003. The Board deliberated on December 10, 2003.
JURISDICTION
Teamsters Union Local 340 is the bargaining agent, within
the meaning of 26 M.R.S.A. 962(2), for a bargaining unit of
full-time Corrections Officers employed by the Aroostook County
Sheriff's Department. The Department is the public employer,
within the meaning of 26 M.R.S.A. 962(7), of the employees of
that unit. The jurisdiction of the Board to hear this case and
to render a decision and order lies in 26 M.R.S.A. 968(5).
FACTS
1. James Madore is the Aroostook County Sheriff, Craig Clossey
is the Chief Deputy and James Foss is the Jail Administrator
for the Aroostook County jail in Houlton.
2. Teamsters Union Local 340 represents a bargaining unit
composed of Corrections Officers and Sergeants employed at
the Aroostook County jail. All of the named complainants
were in this bargaining unit and were members of the
-2-
_________________________________________________________________
Teamsters Union at the time of the relevant events. All of
the employees in the bargaining unit who had completed their
probationary period were also members of the Union. At the
time of the complaint, two of the named complainants were
Sergeants and the rest were Corrections Officers.
3. The jail is staffed by a crew consisting of four Corrections
Officers and a Sergeant. There are four crews who work
together on rotating 8-hour shifts so that there is coverage
24 hours a day, every day. Part-time Corrections Officers,
who are not part of the bargaining unit, are called upon to
fill shifts as needed and in accordance with the provisions
of the collective bargaining agreement. There are also two
full-time kitchen employees and a four-person support group
that covers the classifications, programs and bookings
functions at the jail.
4. Corrections Officers report to the Sergeant for their shift.
The four support group employees and all of the Sergeants
report directly to the Jail Administrator.
5. If the regularly-scheduled supervisor is not available, the
supervisory role is assumed by an "Acting Supervisor." Only
those Corrections Officers interested in serving as an
"Acting Supervisor" will be considered for that role. Jail
Administrator Foss has sole discretion over who is able to
serve as an Acting Supervisor and makes that decision after
discussing the employee's capabilities with the employee's
regular supervisor. Corrections Officers receive an
additional $1.37 per hour served as an Acting Supervisor.
6. Tim Ivey, who works in the support group, is the Shop
Steward for the jail. Mickey Maynard is the Teamsters
business agent covering the bargaining unit at the Aroostook
County jail, among others. Officer Randy McGary was acting
as a shop steward filling in at the negotiating table for a
-3-
_________________________________________________________________
shop steward who was on military leave.
7. During the summer of 2002, the parties were involved in
negotiating a new contract but progress was somewhat
stalled. The union had engaged in picketing in late July or
early August concerning the negotiations.
8. In late July or early August of 2002, Sgt. Stephen Wright
was informed by a Corrections Officer that a petition was
being circulated in the jail that was critical of Sergeant
Wright's performance. On August 2, 2002, Sgt. Wright wrote
a two-page memo to Chief Deputy Clossey describing what he
had heard about the petition. He wrote that once he got
confirmation from the officer who Wright had been told was
pressured to sign, "we can go after them" because it would
no longer be hearsay. He wrote:
. . . Every officer who signed this petition, is
guilty of breaking the departments policies, and
putting me in a great position to file an iron
clad hostile working environment law suit on them
all!
. . . But, if there is no problem with the way I am
working then these people are putting me into a hostile
working environment, and for that I will want some
people terminated!
9. Sergeant Wright addressed the first memo to Sheriff Madore
and Chief Deputy Clossey and slipped it under Madore's door.
In the memo, Sgt. Wright wrote:
The reason I'm writing you is because I wasn't
sure how soon I could talk to you, and according
to policy, I'm supposed to report this as soon as
I am aware of it. I went to you first with this
because I trust you, and I want to lay low on this
until I get some more information. It could be a
set up to make me look stupid. I didn't go to Jim
[Foss, the Jail Administrator] because frankly, I
was afraid he'd tell it around in order to diffuse
it before it goes very far. I don't want to
diffuse it. This is a very serious matter. If
I'm not doing the job right, I need to be told so
I can correct my behavior.
-4-
_________________________________________________________________
. . .
I don't care if you tell the Sheriff as he is a
man of honor too, but let me do some checking, and
I'll get in touch with you. If this is moved on to
quickly, it will only go underground, and we won't
get to the bottom of it.
10. On August 3, 2003, Sgt. Wright submitted another memo with a
subject line of "Formal complaint of Hostile working
environment, and or harassment." It was addressed to Jail
Administrator Foss, Chief Deputy Clossey and Sheriff Madore.
In this memo, Sgt. Wright's explanation of why he bypassed
the chain of command with the previous day's memo is
entirely different than the explanation quoted in the
paragraph above:
On 08-02-2002, I attempted to make contact with
the J.A. to advise him of information I received
concerning an illegal 'petition of no confidence'
being circulated around the jail about me. After
not being able to get a hold of the J.A., I
attempted to get a hold of the Chief Deputy,
again, I was not able to, so I outlined what I had
found out in letter form, and put it under the
Chief's door as I didn't know when the J.A. may
return.
At the evidentiary hearing, Wright simply testified that he
sent his memo to the next person in the chain of command.
11. The August 3rd memo identified two officers by name as being
behind the "conspiracy," Randy McGary and Wanda Folsom. It
also indicated that officers not willing to sign the
petition were getting "a real hard time." Sergeant Wright
requested a formal investigation and suggested that adminis-
tration move on it very rapidly, before evidence was
destroyed. He cited numerous policies that had been
violated. He stated a couple of times that people should be
terminated and that, "Some people need an ass kicking, and
others need to look for a new job!"
-5-
_________________________________________________________________
12. Sergeant Wright's August 3rd memo also threatened the County
with legal action if he was not satisfied with their
handling of the matter:
I wish to advise you that I will not let this die
on it's own. Clearly, there is a major problem
here and it needs to be addressed. I hate to
sound like an inmate but, I have had it, and if
the County doesn't do something satisfactory about
this situation, I will go to a lawyer, and fire a
lawsuit at everyone I can. I'm pissed gentlemen,
and it only gets worse from here.
I will be in to talk to you gentlemen Monday
morning, [Aug. 5th] to discuss this. I think
Officer McGary should be confronted in my
presence, and if he admits to it, suspend him on
the spot pending a full investigation. I will
advise you out of fairness that when I leave your
office Monday I will be going immediately to seek
legal advice on filing a hostile working environ-
ment, or harassment suit on all involved. I don't
need to tell you, I am stressing out big time!
13. Jail Administrator Foss did not learn of the no-confidence
petition until Sgt. Wright left a copy of the second memo at
his house on Saturday, August 3, 2003. On Monday, Mr. Foss
spoke with Chief Deputy Clossey and Sheriff Madore and they
decided to order Officer Hammond to produce the petition.
14. When Jail Administrator Foss ordered Officer Hammond to
produce a copy of the petition, Hammond went to get it and
spoke with some of the other officers, including Tim Ivey,
the Shop Steward. Ivey had not known anything about the
petition until this discussion. They decided to produce a
copy of the petition without any signatures. The original
was destroyed and Hammond gave the Jail Administrator a copy
without signatures.
15. The body of the no-confidence petition was typed on one and
a half pages. It began:
-6-
_________________________________________________________________
VOTE OF NO CONFIDENCE
Enough is enough! Write-ups, employee slams,
vulgar abuse, false accusations, name calling,
abuse of power and belittling subordinates are
examples of how Sgt. Stephen Wright has acquired a
vote of "no confidence" from his fellow union
members.
We have tolerated Sgt. Wright's harassing demeanor
because we respect the position, but not the man.
We felt that given enough time, administration
would address the problem of Sgt. Wright's
harassment of employees. Administration has not
addressed the problem, so now Sgt. Wright feels
that he is untouchable by superiors and that he
can do as he wishes to control and manipulate the
moral of his coworkers and subordinates.
The petition then stated that some employees refused to work
on Sgt. Wright's shift, that certain employees were
terminated because of him, and that he wrote up many
employees. It described how Sgt. Wright criticized the
other supervisors and the Jail Administrator. The petition
said that Sgt. Wright stated that "no one would dare fire
him because he has documentation on everyone," including the
Jail Administrator. The petition closed:
How many supervisors slam employees on other
shifts? Sgt. Wright is the one who calls Sgt.
Bell's men "dead woods", "do nothings" and
comments "they are all too old to give anybody
backup".
Age discrimination and a hostile working environ-
ment is what Sgt. Wright is all about. If nothing
is done to correct this problem, the Administra-
tion's lack of action will show approval of this
continuing harassment.
Our vote of "no confidence" and charges of age
discrimination and creating a hostile work
environment are here to stay. Sgt. Wright is the
main problem. Two solutions are available to
Administration to rectify this problem:
-7-
_________________________________________________________________
Solution #1 Immediate termination of Sgt. Stephen
Wright. (This option would be our second
choice of action.)
Solution #2 Immediately put Sgt. Wright on six
month's probation, while retaining his Sgt.'s
pay and status. Review at the end of six
months. If any written accusations or
complaints are leveled against Sgt. Wright
during this time from either coworkers,
subordinates or superiors, then Sgt. Wright
will be demoted to Line Officer pay and
status and assigned to a Line Officer
position.
Sgt. Wright is a very bad supervisor. Action
against Sgt. Stephen Wright is long overdue.
Harassment, causing a hostile working environment,
and age discrimination from a supervisor will not
be tolerated. Our following signatures attest to
our vote of "no confidence".
16. After Mr. Foss read the no-confidence petition, he wrote a
memo to the Sheriff recommending that something be done
about it because it was full of "lies and insinuations." He
noted various policies that employees had violated in
writing and distributing the petition.
17. The Corrections Officers involved in distributing the
petition had thought that if enough people signed it, the
problems with Sgt. Wright could be addressed. The decision
to stop the petition process was made because they could not
get what they considered to be enough signatures. They made
this decision on the Monday morning after Sgt. Wright made
his complaint, but before they knew that an internal affairs
investigation would be ordered.
18. The Union members involved in writing the petition were
generally aware of the internal union process that had been
used a few years previously when they wanted to remove and
replace their shop steward. None indicated any specific
knowledge of procedures available for filing complaints
-8-
_________________________________________________________________
against fellow Union members under the Teamsters Union
Local 340 Constitution and By-Laws.
19. The no-confidence petition was not addressed to any person
in particular nor did it specify whether it was intended to
be delivered to the Teamsters Union or to jail management.
20. On August 5, 2003, Chief Deputy Clossey sent a memo to
Sgt. Van Tasel, the Department's Internal Affairs
Investigation Officer, directing him to investigate the
petition concerning Sgt. Wright. The Chief Deputy wrote:
I would like you to investigate this issue. We
need to know who initiated this petition. We need
to know why the chain of command was not followed,
where is their supporting documentation, who
signed the petition, how were they approached, the
people that refused to sign were they pressured in
any way, etc. This is a serious issue. I need to
know who are the persons responsible for this
disruption of the corrections division and
interrupting the day to day operations of county
jail.
21. The Internal Affairs investigation process is used any time
the Sheriff and Chief Deputy think a complaint is signifi-
cant enough. It is often initiated when there is an alleg-
ation of a violation of policy or procedure made by either a
member of the public or an employee. In this case, the
investigation was initiated because of Sgt. Wright's claim
that he was subject to a hostile and harassing working
environment.
22. Sergeant Van Tassel had been with the Department for 18
years and had conducted 4 or 5 Internal Affairs investiga-
tions in 2002. He was also the Communications Supervisor
and the Shop Steward for the Law Enforcement Unit.
23. The investigation started on August 6, 2002, at 9:00 a.m.
On the Internal Affair Investigation form, Van Tasel
completed the section labeled "Description of allegation or
-9-
_________________________________________________________________
incident" with: "It is alleged that Randy McGary, Gerry
Hammond, and Wanda Folsom circulated a vote of no confidence
petition against Sgt. Steve Wright. This allegedly took
place while they were working."
24. The Internal Affairs investigation centered on who wrote the
petition and who circulated it. There was no investigation
of the substance of the employees' complaints described in
the no-confidence petition.
25. A total of 19 people were interviewed. All of the
interviews were done in Foss's office in his presence,
except when Sgt. Van Tasel interviewed Randy McGary at
McGary's home because of differing shift schedules. McGary
did not object to being interviewed at his home.
26. On August 15, 2002, Sgt. Van Tasel submitted his Internal
Affairs Investigation Report to the Sheriff. After
reviewing the report, the Sheriff and the Chief Deputy told
Van Tassel to go back to three employees who were viewed as
instrumental and advise them of the consequences of not
cooperating in an internal affairs investigation. Sergeant
Van Tasel re-interviewed the three officers and advised them
that giving a false statement and failure to answer
questions in an internal affairs investigation is a
violation of policy. The officers were more forthcoming in
the second interview. Sergeant Van Tasel's Supplemental
Report was submitted on August 19, 2002.
27. The Supplemental Report noted that Officer Hammond said that
the Corrections Officers had decided that if they were able
to get 15 signatures, they would take the petition to Jail
Administrator Foss. There was no other indication in the
Internal Affairs report of plans to take the petition to
either the Union or to the Jail Administrator.
28. At the hearing, the Union members testified that they had
-10-
_________________________________________________________________
planned on submitting the petition to the Union for its
internal union complaint process, and that they did not plan
to submit it to jail administration.
29. Shop Steward Ivey and Sgt. Wright are friends and have
socialized together in their off hours. Ivey had not been
called upon as the Shop Steward to file grievances against
any actions of Sgt. Wright. Ivey noted that "everybody
makes decisions from time to time that other people don't
agree with" and he considered the existence of disgruntled
employees to be just basic human nature.
30. When Teamsters Business Agent Mickey Maynard learned of the
no-confidence petition, he told Ivey to ask Wright to with-
draw his complaint, as he considered the issue an internal
union matter. On about September 6, 2002, Ivey asked Wright
to pull his complaint because contract negotiations were
stalled. Ivey told him that they "wanted to try to settle
the negotiations and then bring this up before the E Board,[fn]1
go through the Union instead of going through the Sheriff's
Department." Sergeant Wright gave no indication to Ivey
that he felt threatened by this request. Ivey considered
the conversation to be normal and congenial.
31. Sergeant Wright wrote a memo to Mickey Maynard regarding
Ivey's request of September 6, 2002, asking him to withdraw
his complaint. Wright summarized Ivey's request by saying
Ivey thought it "might be better to handle the situation
internally through the union. [Ivey] asked me if I would
speak to the Sheriff about it. I told him that I would see
what the Sheriff had to say." Wright's memo then summarized
the Sheriff's response that it was too late to withdraw
because there were issues of employees lying during the
____________________
1 The "E Board" refers to the Executive Board of Teamsters Union
Local 340.
-11-
_________________________________________________________________
internal investigation and policy violations. Wright
indicated he responded to the Sheriff's question by saying
it was just a request of Ivey and there was no pressure.
Wright also wrote to Maynard about his concern that
withdrawing his complaint would send the wrong message to
the other employees:
I am getting the feeling the union is trying to
protect these 'union brothers' who have attacked
me without reason or proof, more than protecting
me, who was attacked. . . Be advised that once the
Sheriff has [disciplined them], I will be
contacting you to see what the union will do about
disciplining these union brothers. . . I apologize
for any problems that this may cause you during
these trying contract negotiations. But, it needs
to be remembered that I am the one who was
attacked without provocation. I will speak to you
when the County has advised me they are done.
At the bottom of the letter Wright added a handwritten note,
"P.S. Micky, not one of them would try to put a stop to this
if the roles were reversed. At least I tried. S.W."
32. Sheriff Madore testified that Wright came to his office in
early September and said the Union had asked him to withdraw
his complaint because it was hindering negotiations. Wright
indicated to the Sheriff that he had no intention of with-
drawing the complaint but that he had been told to ask.
Sheriff Madore told Sgt. Wright that he would not be
permitted to withdraw it because the Sheriff wouldn't know
if Wright was being pressured and that there were issues
concerning policy violations. The Sheriff told Wright that
"if it made him feel any better he could tell the Union that
I told him it was too late."
33. Sergeant Wright's testimony at the hearing was noticeably
different regarding the nature of the Union's request.
Wright testified that Ivey had told him that the Union and
the Sheriff had an agreement to resolve Wright's complaint
-12-
_________________________________________________________________
internally with the Union and that all Wright had to do was
go to the Sheriff to withdraw it. Wright gave a detailed
account of the confusion at the start of his meeting with
the Sheriff caused by the explanation allegedly given to him
by Ivey. Wright testified that he thought the Union was
trying to "dupe" him into withdrawing his complaint. There
is nothing in either Ivey's or the Sheriff's testimony,
which we find to be credible, to corroborate Wright's
testimony on this point.
34. On September 18, 2002, the Sheriff imposed discipline on
three of the employees involved. Wanda Folsom, who had a
disciplinary record, was discharged and Randy McGary and
Jerry Hammond both received five-day suspensions. All three
disciplinary memos stated:
The investigation, in substance, confirmed that
[the disciplined employee] was instrumental in the
formulation and the circulation of a 'petition' in
an attempt to get Sgt. Wright suspended or fired.
The investigation further disclosed that
information contained in the 'petition' was known,
or should have [been] known,[fn]2 by him to be false
and that he contacted other employee(s) to
strongly suggest that they sign this 'petition'.
After listing various provisions in the department's Canon
of Ethics and Professional Responsibilities provisions
implicated, the disciplinary memo stated:
Your conduct constitutes a violation of the
following offenses:
Category I
e. disruptive behavior,
Category III
l. Participating in any kind of work slowdown or
sitdown or any other concerted interference with
County operations,
n. threatening or coercing employees or
____________________
2 The phrase "should have known" was not included in the
discipline of Wanda Folsom.
-13-
_________________________________________________________________
supervisors,[fn]3
s. Engaging in dishonest or immoral conduct that
undermines the effectiveness of the department's
activities or employee performance, whether on or
off the job,
v. Taking any action which will impair the
efficiency or reputation of the department, its
members, or employees,
z. Failure to answer questions specifically
directed and related to official duties or job
fitness. (Unless criminal prosecution is
contemplated).
The memo also cited four departmental rules included as
Appendix A to the collective bargaining agreement: 7, 12,
13, and 17. The four rules are listed in Appendix A as:
7. Violence, fighting, threatening, intimidating, coercing,
abuse or sexual harassment toward another employee is
prohibited. 12. Refusal or failure to perform work duties
assigned, insubordination or using abusive language toward
supervisors, other employees or the public is prohibited.
13. Pamphleteering, solicitation, or distribution of
literature by any employee or non-employee on Department
premises is prohibited. 17. Unauthorized distribution of
literature, written or printed matter on the Department
premises, or posting or removing of notices, signs, or
materials on bulletin boards is prohibited.
35. The Sheriff decided on the level of discipline to impose and
Jail Administrator Foss scheduled the suspensions. The
Sheriff told Foss he could try to minimize the impact of the
suspensions by scheduling the days to spread over two pay
periods.
36. The three employees disciplined on September 18, 2002, filed
grievances the following day. The collective bargaining
agreement requires that grievances be filed within 5 days of
____________________
3 This infraction was not listed for Jerry Hammond.
-14-
_________________________________________________________________
the employee's knowledge of the event being grieved.
37. Between October 16 and October 21, 2002, four other
employees were disciplined, with one receiving a reprimand
and three receiving five-day suspensions. Although one
suspended employee was found to have been very involved in
circulating the petition (but not writing it), the others
were disciplined for lying or refusing to answer questions
in the initial Internal Affairs interviews. These employees
filed grievances shortly after their discipline.
38. At his disciplinary meeting, Officer Hammond told the
Sheriff that he had been told by his supervisor, Sgt. Bell,
to write up the petition and circulate it because it would
be the best way to address the problem of Sgt. Wright's
behavior. Officer McGary said the same thing. Sheriff
Madore asked them both to put it in writing, which they did.
The Sheriff had not yet disciplined Sgt. Bell when he
received the two statements from Officers McGary and
Hammond, both of which were dated October 18, 2002.
39. Sergeant Bell was disciplined on October 28, 2002, with a 5-
day suspension and a demotion. His demotion precluded him
from applying for a supervisory position for the next two
years and prevented him from serving as an Acting
Supervisor. Sgt. Bell was the last one to be disciplined.
He filed a grievance on the same day he was disciplined.
40. Three employees who signed the petition were not
disciplined.
41. Shortly after Sgt. Bell was disciplined, Jail Administrator
Foss decided that the four people who had been supervised by
Bell should not be allowed to be Acting Supervisors. Foss
testified that he made this decision because he thought it
would send the wrong message to have employees who had
actively participated in the petitioning to assume positions
-15-
_________________________________________________________________
of responsibility. Ivey testified that it was Sgt. Bell who
brought to the attention of Foss the possibility of Bell
being supervised by former subordinates who were as heavily
involved as he had been. In spite of Ivey's complaint to
Foss that denying supervisory shifts to these employees was
adding punishment to discipline already imposed, Foss
implemented the prohibition which stayed in effect for six
months. A grievance on this matter was filed on Nov. 5th
and was denied at the first and second steps with the
explanation that management reserved the right to schedule
individuals as Acting Supervisors when needed.
42. The four employees prohibited from serving as Acting
Supervisors were McGary, Hammond, Kinney and Brunton. All
had been suspended for 5 days, but the latter two had been
disciplined for their behavior in the internal affairs
investigation, not for circulating the petition. The
employee who had been reprimanded (Corey) was allowed to
work as an Acting Supervisor. The supervisory status of the
Sergeant who had been suspended for 5 days but not demoted
(Raymond) was not affected.
43. On or about October 18, Sheriff Madore spoke on the phone
with Mickey Maynard who told the Sheriff that he was holding
a letter from Wright withdrawing the complaint. Sheriff
Madore then spoke to Sgt. Wright to clarify this and
confirmed that he had not withdrawn his complaint. Madore
did not see the letter Maynard was referring to until
November 13th at the Step 3 grievance meeting.
44. After the Sheriff had spoken to him, Sgt. Wright wrote a
follow-up memo to Mickey Maynard dated Oct. 18, 2002, with a
heading "Rumored withdrawal of complaint." Wright said the
Sheriff had called to tell him Maynard said he had a letter
stating Wright wanted to withdraw his complaint. He wrote
-16-
_________________________________________________________________
Maynard, "I don't know where you got it, but it wasn't from
me." Wright emphasized that he had not withdrawn the
complaint and he was getting quite angry about his
treatment. He also referred to another letter to Maynard
requesting that the Union start the investigative and
disciplinary process.
45. On October 28, 2002, the Sheriff also wrote to Maynard
recounting the phone call of October 18th and his subsequent
conversation with Wright. The letter summarized what the
Sheriff considered abusive language used by Maynard and that
he resented Maynard's description of his actions as "Hitler-
like" and terrorizing.
46. All of grievances filed for the eight employees disciplined
were denied at the first and second steps. The 3rd step
meeting was held on November 13, 2002, with the County
Commissioners. At that meeting, Mickey Maynard said that
Sgt. Wright had sent him a letter stating that he had
withdrawn his complaint. Initially, Maynard was reluctant
to show the letter to the Commissioners at this meeting but
eventually did so. Maynard testified that after leaving the
meeting, he was concerned that perhaps Wright had told the
Sheriff that he had not sent Maynard a letter and that
Maynard's disclosure of the letter might get Wright in
trouble. Maynard testified that he was concerned that
management would retaliate against Wright. The next day,
Maynard told Ivey to contact Wright and tell him the Union
was 100% behind him, and if management turned against him,
the Union would support him. Ivey contacted Wright and
relayed the message.
47. After this conversation with Ivey, Sgt. Wright went to the
Sheriff and asked him what was going on and how was it that
the County would be turning against him. The Sheriff said
-17-
_________________________________________________________________
he had no idea how anything that had occurred at the 3rd
step meeting could be turned around to get Wright in
trouble.
48. After Wright left, the Sheriff did some research on the
witness tampering statute. He concluded that it applied to
the arbitration hearings that were pending on the eight
grievances. He then called Tim Ivey to come over to his
office. The Sheriff told Ivey that Sgt. Wright had just
spoken to him and that Ivey's conversation with Wright
bordered on the criminal. The Sheriff told him he felt that
Ivey was tampering by trying to get Wright to withdraw his
complaint or recant his statements. The Sheriff handed Ivey
a copy of the relevant statute, 17-A M.R.S.A. 454, and said
Ivey could be charged with witness tampering. Ivey was
upset and asked him where he got this notion, was it
something Wright had suggested to him. Ivey objected
strongly and said that it would prevent him performing his
work as a shop steward and conducting Union business. The
Sheriff made it clear that he could talk to Wright about
anything except this case. The Sheriff made no distinction
between coercive or non-coercive statements but just
prohibited communication entirely. Following that meeting,
Ivey refrained from speaking to Sgt. Wright about anything
related to the no-confidence petition or the pending
arbitration. Ivey understood the restriction to apply to
the Teamster's Business Agent, Mickey Maynard, as well.
49. The eight grievances on the discipline were withdrawn prior
to the arbitration hearing.
DISCUSSION
The prohibited practice complaint contains two counts. The
first count alleges a 964(1)(A) violation based on the internal
-18-
_________________________________________________________________
affairs investigation and the resulting discipline as well as the
threat regarding the witness tampering statute. The second count
alleges the employer further retaliated against the employees by
prohibiting them from acting as shift supervisors. Analytically,
it is more appropriate to consider the Sheriff's statements
concerning the witness tampering statute separately from the
other actions. We will do so after we consider the legality of
the internal affairs investigation and the subsequent
disciplinary actions by the employer.
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 organ-
izations of their own choosing for the purposes of
representation and collective bargaining, or in the
free exercise of any other right under this chapter.
We have, on previous occasions, noted that interference,
restraint or coercion violations can be either derivative or
independent violations of the Act. See, e.g., Duff v. Town of
Houlton Police and MAP v. Town of Houlton Police, Nos. 97-20 &
97-21, at p. 24 (Oct. 19, 1999), and MSAD #46 Education
Assn./MEA/NEA v. Bd. of Directors, No. 02-09, at 5 (July 3,
2002). A derivative violation occurs when the employer violates
a different section of the Act and that illegal conduct, in turn,
has the effect of restraining employees in the exercise of their
963 rights. An independent violation of 964(1)(A) occurs when
the conduct itself directly interferes with the exercise of
rights guaranteed under the Act. This is the nature of the
charge in the present case.
This Board recently described the nature of independent
interference, restraint and coercion violations:
Independent violations most often occur during a union
-19-
_________________________________________________________________
organizing campaign when, for example, an employer
threatens employees with retaliation if they support
the union or withdraws benefits during an organizing
drive. See, Teamsters v. Town of Oakland, No. 78-30
(MLRB Aug. 24, 1978) (Town's discontinuance of
long-standing practice of paying for employees'
breakfasts after the employees worked through the night
violated 964(1)(A) as it may reasonably have been
interpreted by the employees as a form of retaliation
for their organizational activities.) Although more
unusual, independent violations of 964(1)(A) can occur
in an established union setting where, for example, the
employer attempted to interfere with the employee's
right to serve on the union's negotiating team. MSEA
v. Dept. of Human Services, No. 81-35 (MLRB June 26,
1981). See also MSEA v. Maine Dept. of Marine
Resources, No. 94-41 (MLRB July 3, 1995) (In light of
all the circumstances including tense labor-management
relations, supervisor's profane insults during
counseling session and warning that promotional
opportunities would be impaired by continued union
activity had tendency to interfere with employee's
union activity); Ouellette v. City of Caribou, No.
99-17, at 10 (MLRB 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).)
MSAD #46 Education Assoc., No. 02-09, at 6.
The focus of our analysis must be whether the employer
interfered with the jail employees' right 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." In this instance, the issue is not the right to join
or form a union, nor is it related to "the free exercise of any
other right under this chapter."[fn]4 The question is whether these
employees were participating in union activities for the purposes
of representation and collective bargaining.
____________________
4 Such as the right to vote freely in elections, to refrain from
union activities, and the right to seek assistance from the Board.
-20-
_________________________________________________________________
The Union contends that the creation of the no-confidence
petition was protected union activity because it was either an
internal union document or it was a document created in
preparation for filing a grievance. The Union argues that
because the creation of the petition was protected union
activity, the employer's action in conducting an internal affairs
investigation and the resulting discipline violated the Act.
The Board has never directly addressed the question of
whether creating a no-confidence petition is protected union
activity. After reviewing numerous Board decisions involving
charges of interference, restraint and coercion in cases where a
union was already certified, we have identified a few key
features. A recent case involving a 964(1)(A) violation in an
organized workplace was Litchfield ESP Assoc. v. Litchfield
School, No. 97-09 (July 13, 1998). In that case, the School
Principal attended a regularly-scheduled bus drivers' meeting and
was criticized by the bus drivers, who were part of a larger
bargaining unit. The Principal retaliated by implementing a new
evaluation program. The Board concluded that the meeting was not
protected activity because it was not a union meeting nor was it
called by the union on behalf of the bus drivers. It was just a
regular bus drivers' meeting. The Board noted "the MPELRL is not
as broad as the National Labor Relations Act, which protects any
concerted activity for the purpose of mutual aid or protection;
the MPELRL protects union activity." No. 97-09, at 40 (citation
omitted).
Similarly, the Board has addressed situations in which the
employer's alleged interference, restraint or coercion was
directed at meetings or discussions among employees about a work-
related issue. In Dana Duff v. Houlton & MAP v. Houlton, the
Board found a 964(1)(A) violation when the Police Chief said
"back room talk had no value" and that he knew more than they
-21-
_________________________________________________________________
thought he knew about what was said "back there," referring to
the break room where employees talked about grievances and work
problems. No. 97-20, at 30 (Oct. 19, 1999). Those comments were
found to have a chilling effect on union activity. In Gordon
Littlefield and Sanford Police Assoc. v. Town of Sanford, the
Police Chief ordered that summonses not be served in a criminal
matter involving his son. The Officer went to the union for help
and the union officials made a list of possible criminal charges
against the Chief. During a subsequent Internal Affairs invest-
igation, the employer questioned the union officials about the
meetings in which possible criminal charges were discussed. The
Board held that the union officials were involved because of
their status with the union and that the meetings were union
business and therefore protected union activity. No. 91-02, at
26 (March 12, 1991). In Susan Ouellette v. City of Caribou, the
Board held that the Police Chief's statement after disciplining
an employee that she should not go to "the wrong people" and get
"bad advice" was a 964(1)(A) violation. No. 99-17, at 10
(Nov. 22, 1999). The Board noted that discussing one's
contractual rights with co-workers and filing grievances was
protected activity. Id. at 11. See also Teamsters Union Local
#48 and Town of Kittery, No. 84-25 (July 13, 1984), and Single
and Sanford Police Assoc. v. Town of Sanford, No. 85-04 (Oct. 18,
1984).[fn]5 The Board also found a violation where the employer
interfered with the union negotiating team's communications with
its membership, Winthrop Educators Assoc. v. Winthrop School
Comm., No. 80-05 (Feb. 8, 1980), and where the employer used the
____________________
5 In Woodward v. Town of Yarmouth, the Board noted that circulat-
ion of a petition during non-working time was protected activity. No.
83-16, at 12 (Oct. 5, 1983). We do not view that decision as incon-
sistent with our holding today because the substance of that petition
was to get the employer to restore an alleged past practice regarding
shift assignments and was one of the issues addressed in a grievance
submitted by the same employee.
-22-
_________________________________________________________________
Internal Affairs investigation process to investigate grievances
Alfred Hendsbee and Maine State Troopers Assoc. v. Dept of Public
Safety, No. 89-11 (Jan. 16, 1990)(concluding that it would have a
chilling effect on employees' willingness to file grievances).
On the other hand, the Board has refused to find a
964(1)(A) violation where the activity in question was not union
activity or filing grievances but was simply employees
complaining in a concerted fashion. See Teamsters v. City of
Calais, No. 80-29 (May 13, 1980) and Litchfield, No. 97-09. In
the Calais case, there was a major crisis in management in the
police department. The union argued that the city violated
964(1)(A) when the City Manager made statements about employees
"causing upheaval" and not following the chain of command and by
his negative statement about filing a grievance. In its
analysis, the Board considered the nature of the crisis in the
department (which the Board specifically found was not union
related), the entire context of the comments, and concluded that
they would not reasonably tend to interfere with the employees'
protected rights. No. 80-29, at 6.
In looking at the Board precedent on interference, restraint
and coercion cases where there is already a certified union, the
distinguishing feature seems to be either the direct involvement
of the union or an attempt by an employee to enforce the
collective bargaining agreement.[fn]6 In all cases in which the
Board found a violation of 964(1)(A), at least one of these
factors was present. We consider this criteria to be consistent
with the stated purpose of the statute to protect union activity
and with the absence of language protecting "other concerted
____________________
6 We must emphasize that this requirement of a connection to the
union or to perceived rights under the collective bargaining agreement
does not apply during organizational stages where employees may be
attempting to form or join a union.
-23-
_________________________________________________________________
activity" that is found in the National Labor Relations Act.
In the present case, we conclude that the Union failed to
demonstrate that the formulation of the "no-confidence" petition
was protected activity. The Union's witnesses offered testimony
to support its claim that the "no-confidence" petition was an
internal Union document that the employees had intended to submit
to the Union's Executive Board. The Union's case seemed to be
that these employees had on a prior occasion turned to the Union
to get an unsatisfactory shop steward removed and thus they were
familiar with the Union's procedures for handling an internal
Union matter. We are not convinced. The wording of the no-
confidence petition itself belies this claim. The petition
repeatedly calls upon "administration" to do something about Sgt.
Wright. The remedy sought by the petition is either probation or
termination, both actions that can only be taken by management,
not by the Union. We think it is clear that the petition is
directed to jail administration, not the Union. The written
statements made by Officers McGary and Hammond just a few weeks
after the petition was created further support this conclusion.
Of perhaps even greater significance is the absence of any
evidence connecting the no-confidence petition or its creation
with the Union, the Union Steward, or an attempted enforcement of
the collective bargaining agreement. Neither the Shop Steward,
Tim Ivey, nor the Teamsters Business Agent, Mickey Maynard, knew
about the no-confidence petition until the Monday after Sgt.
Wright submitted his complaint. There was no evidence that the
petition was the result of any sort of Union meeting, nor was it
connected in any way to the collective bargaining process. The
petition itself describes various shortcomings in Wright's
management style and his integrity, but the petition never states
or even implies that any of the issues were potential violations
of the collective bargaining agreement. Had the employees sought
-24-
_________________________________________________________________
the assistance of their Union Shop Steward or the Business Agent
in this process, our view would likely be different.[fn]7 Given all
the evidence presented, we are unable to conclude that the no-
confidence petition itself or the process through which it was
created was protected union activity. Consequently, the
employer's internal affairs investigation and subsequent
discipline did not violate the MPELRL.
The Union's claim that the employer's denial of Acting
Supervisor shifts to some of the complainants violated 964(1)(A)
is also denied. The Union claims that this was a retaliatory
action taken in response to the filing of grievances over the
discipline. The only fact supporting this assertion is the fact
that the employer's action regarding the Acting Supervisor status
occurred after the grievances were filed. This is not sufficient
to prove retaliation. The timing of the employer's action is not
consistent with the Union's theory: the action followed the
demotion of Sgt. Bell, not the grievances. Two of the employees
affected were disciplined on September 18 and the other two were
not disciplined until October 21. Their grievances were filed on
September 19 and October 21, respectively. The employer's action
denying Acting Supervisor shifts to all four of these individuals
was taken at the same time, not in two stages following the two
pairs of grievances. Shop Steward Ivey's testimony was clear
that the decision was made after Sgt. Bell was disciplined and
____________________
7 Randy McGary, one of the employees who was very involved in the
creation of the petition, testified that he was filling in at the
negotiating table for a shop steward who was on military leave at the
time. There was no testimony from him or anyone else that his duties
as Acting Shop Steward went any further than participating on the
negotiating team. It was not clear how long he filled in. There was
no indication that he served as a shop-floor representative for the
unit members performing functions such as filing grievances or
relaying concerns to the Business Agent. Finally, there was no
suggestion that his involvement with the petition had any connection
to his role as Acting Shop Steward.
-25-
_________________________________________________________________
there was no evidence contradicting Ivey's testimony. The
employer's explanation that it denied supervisory status to Sgt.
Bell and the others it felt had acted irresponsibly is credible.
Similarly, there is no evidence that the employer had planned on
allowing these employees to begin serving as Acting Supervisors
any earlier than the six months that the prohibition continued.
There is therefore no basis for concluding that the prohibition
was continued in retaliation for filing this complaint.
The Union described the Employer's Internal Affairs
investigation into the no-confidence petition as a "witch hunt."
There may be some truth to this, as the employer's stated reasons
for its actions are somewhat inconsistent. The Chief Deputy's
memo identified many goals for the Internal Affairs investiga-
tion: To find out who initiated the petition, why the chain of
command was not followed, whether the officers had supporting
documentation, who signed the petition, if they were pressured,
and generally to determine who was responsible for the
"disruption of the corrections division and interrupting the day
to day operations of the county jail." The focus of the Internal
Affairs interviews was clearly on who created the petition, who
circulated it, who signed it, and whether anybody exerted
pressure on others to sign. On the other hand, the Internal
Affairs report says it was alleged that the petition was
circulated on work time, although that issue was not directly
addressed in the report.[fn]8 Some of the policies cited in the
disciplinary memos seem to relate to the circulation of the
petition on work time, although this connection is not clearly
drawn. Finally, four of the disciplinary memos stated that the
employee "knew or should have known that some of the statements
in the petition were false," but there is no indication in the
____________________
8 There is an indirect reference in the supplemental report that
Hammond continued to insist he typed the petition at home.
-26-
_________________________________________________________________
Internal Affairs report that this issue was investigated at all.
What is quite clear is that the Internal Affairs investig-
ation did not attempt to look into the validity of the complaints
about Sgt. Wright, nor was there any other effort on the part of
administration to consider those complaints. Jail Administrator
Foss was disturbed by the petition because it contained a number
of "lies and half truths." He and the Sheriff decided that the
situation was serious enough to call for an Internal Affairs
investigation because Wright complained that he was subject to a
"hostile work environment." Both the Sheriff and the Jail
Administrator stressed this point in testimony at the hearing:
Wright's assertion that he was being harassed and subject to a
hostile work environment was a serious allegation that required
attention. While it is laudable that they take claims of
harassment seriously, it would be even more commendable if the
employer had responded with equal attentiveness to the more
viable claims of age discrimination contained in the no-
confidence petition itself.[fn]9
The employer may have reacted to the no-confidence petition
in the manner that it did because of Sgt. Wright's threat "to sue
everybody in sight." It may have been a reaction caused by the
employer viewing criticism of a supervisor as criticism of
management more generally. It may have been in response to the
attempt at bypassing the chain of command. In any event, we need
not delve into the employer's reasoning in this case because the
no-confidence petition was not protected union activity. We
simply caution the employer that it would not take a major change
in the facts of this case to make the employer's rationale a
____________________
9 Wright's claim of "harassment" and a "hostile working
environment" did not mention any illegal basis for that harassment,
such as race or age discrimination. The no-confidence petition made
specific allegations of age discrimination by Sgt. Wright.
-27-
_________________________________________________________________
factor in our analysis. See Lewiston Police Dept. IBPO Local 545
v. City of Lewiston, No. 79-64, at 6 (Dec. 18, 1979)(Board must
balance the nature of the protected activity against the legit-
imacy of the employer's interest in controlling its operations).
We now turn to the action of the Sheriff in telling Shop
Steward Ivey that his conversation with Sgt. Wright violated the
witness tampering statute and then prohibiting Ivey from having
any further conversations with Sgt. Wright about the case. Both
the purpose and effect of this statement was to keep the Union
Steward from having any conversations at all with Sgt. Wright
about the issues related to the no-confidence petition. It is
not necessary for the Union to prove that the conversation would
have pertained to Union matters or to the collective bargaining
agreement nor is it necessary to show that it actually did
interfere with protected activities. The standard the Board
applies is whether the action "reasonably tended to interfere
with" protected activities. Wm. Single and Sanford Police Assoc.
v. Town of Sanford, No. 85-04, at 3-4 (Oct. 18, 1984), citing
MSEA v. Dept. of Human Services, No. 81-35, at 4-5 (June 26,
1981), quoting NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948).
It is hard to imagine how restraining a union steward from
talking to a bargaining unit employee could be anything but
interference with union activity. It is a more direct restraint
than the Police Chief's statement that the employee should not go
to the "wrong people" that the Board considered a 964(1)(A)
violation in Ouellette, No. 99-17. It is comparable to a similar
threat of criminal prosecution made by a Town Councilman in
Teamsters Union Local No. 340 v. Town of Orono, No. 91-03, at 9-
10 (Jan. 31, 1991). In that case, there were tensions at the
bargaining table. The day after an officer ticketed a Council-
man's wife for running a red light, the Councilman approached the
officer and insinuated that the officer had misused his power in
-28-
_________________________________________________________________
issuing the ticket because of the negotiation problems. The
Councilman said he would go see the District Attorney about it.
The Board found that action to be a 964(1)(A) violation. In the
present case, the Sheriff's statements to the Shop Steward
concerning the witness tampering statute and his action
prohibiting the Steward from talking to Sgt. Wright about the
case constitute a clear violation of 964(1)(A).
Having concluded that the Employer's action violated
964(1)(A) of the MPELRL, we will order such remedies as are
appropriate to effectuate the policies of the Act. 26 M.R.S.A.
968(5)(C). We will order the Employer to cease and desist from
prohibiting the Teamsters Union representatives from speaking
with bargaining unit employees about representation and
collective bargaining matters. We will also require the Employer
to post a notice to employees to that effect.
We have considered the Employer's Request for Costs,
Attorneys Fees and Sanctions and we conclude that they are
without merit. Accordingly, the Respondents' Request for
Sanctions is denied.
ORDER
On the basis of the foregoing findings of facts and
discussion and by virtue of and pursuant to the powers granted to
the Maine Labor Relations Board by the provisions of 26 M.R.S.A.
968(5), it is hereby ORDERED:
1. That the Aroostook County Commissioners and the
Aroostook County Sheriff cease and desist from
prohibiting the Teamster's Union steward or the
Teamster's business agent from speaking with bargaining
unit employees about issues of representation or
collective bargaining.
2. That Complainant's remaining allegations are
dismissed.
-29-
_________________________________________________________________
3. That the Aroostook County Sheriff shall post for
thirty (30) consecutive days copies of the attached
notice to employees which states that the Aroostook
County Sheriff will cease and desist from the actions
set forth in paragraphs one and will take the affirm-
ative action set forth in paragraphs three and four.[fn]10
The notice must be posted in conspicuous places where
notices to Aroostook County Corrections Officers are
customarily posted, and at all times when such
employees customarily perform work at those places.
Copies of the notice shall be signed by the Aroostook
County Sheriff prior to posting and shall be posted
immediately upon receipt. The Sheriff shall take
reasonable steps to ensure that the notices are not
altered, defaced, or covered by other materials.
4. That the Aroostook County Commissioners or the
Aroostook County Sheriff shall notify the Board by
affidavit or other proof of the date of posting and of
final compliance with this order.
5. That the Respondent's request for costs, attorney's
fees and sanctions is denied.
Dated at Augusta, Maine, this 2nd day of February, 2004.
MAINE LABOR RELATIONS BOARD
The parties are advised
of their right pursuant /s/______________________
to 26 M.R.S.A. 968(5)(F) Peter T. Dawson
(Supp. 2003) to seek review Chair
of this decision and order
by the Superior Court by
filing a complaint, in /s/______________________
accordance with Rule 80C Karl Dornish, Jr.
of the Maine Rules of Civil Employer Representative
Procedure, within 15 days
of the date of the issuance
of this decision. /s/________________
Carol B. Gilmore
Employee Representative
____________________
10 In the event that the Board's Decision and Order is appealed and
is affirmed by the Maine Superior Court, the words in the Notice
"Posted by Order of the Maine Labor Relations Board" shall be altered
to read "Posted by Order of the Maine Labor Relations Board, affirmed
by the Maine Superior Court."
-30-
_________________________________________________________________
NOTICE TO EMPLOYEES
POSTED PURSUANT TO AN ORDER OF THE
MAINE LABOR RELATIONS BOARD
AFTER A HEARING IN WHICH ALL PARTIES HAD AN OPPORTUNITY TO
PRESENT EVIDENCE, IT HAS BEEN DETERMINED THAT WE HAVE VIOLATED
THE LAW AND WE HAVE BEEN ORDERED TO POST THIS NOTICE. WE INTEND
TO CARRY OUT THE ORDER OF THE MAINE LABOR RELATIONS BOARD AND
ABIDE BY THE FOLLOWING:
WE WILL CEASE AND DESIST from prohibiting the
Teamster's Union steward or the Teamster's business
agent from speaking with bargaining unit employees
about issues of representation or collective
bargaining.
WE WILL post this notice of the Board's Order for 30
days.
WE WILL notify the Board of the date of posting and
final compliance with its Order.
___________ _______________________________________
Date James Madore, Sheriff, Aroostook County
This Notice must remain posted for 30 consecutive days as
required by the Decision and Order of the Maine Labor Relations
Board and must not be altered, defaced, or covered by any other
material. Any questions concerning this notice or compliance
with its provisions may be directed to:
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
STATE HOUSE STATION 90
AUGUSTA, MAINE 04333 (207) 287-2015
________________________________________________________________
THIS IS AN OFFICIAL GOVERNMENT NOTICE
AND MUST NOT BE DEFACED.
_______________________________________________________________