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. _______________________________________________________________