STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 92-14 Issued: May 7, 1992 ____________________________________ ) COUNCIL 93, AFSCME, AFL-CIO AND ) PENOBSCOT COUNTY SHERIFF'S ) DEPARTMENT EMPLOYEES, ) ) Complainants, ) ) DECISION AND CONSENT ORDER v. ) ) PENOBSCOT COUNTY COMMISSIONERS, ) ) Respondents. ) ____________________________________) On December 11, 1991, Council 93, AFSCME, AFL-CIO and the Penobscot County Sheriff's Department Employees (AFSCME) filed a prohibited practice complaint with the Maine Labor Relations Board (Board)1 alleging that the Penobscot County Commissioners (County) have violated 26 M.R.S.A. 964(1)(A), (B) and (C) (1988), by processing the grievance of Edward Arthurs, a privately represented unit employee, without adequate notice as required by 26 M.R.S.A. 967(2) (1988) and in contravention of the grievance/arbitration procedures set forth in the parties' collective bargaining agreement. The complaint alleges that the union was notified of the grievance hearing moments before it was conducted. The complaint also alleges unlawful discrimination, stating that two employees who were union members represented by the union at grievance merely obtained reductions in previously administered discipline while Arthurs obtained a reversal of disciplinary measures previously imposed for the same incident and secured the purging of his records. In its answer, filed January 6, 1992, the County alleges as affirm- ative defenses that the Board lacks jurisdiction over the subject matter, that AFSCME lacks standing, that the Equal Protection and Due Process ___________________________________ 1AFSCME filed an amended complaint on December 16, 1991. -1- guarantees of the Constitutions of the United States and the State of Maine preserve Arthur's right to legal representation of his own choice, that 30-A M.R.S.A. 501 preserves the right, power and duty of the County Commissioners to entertain disciplinary hearings attended by the grievant's legal counsel of choice and that the parties' Collective Bargaining Agent fails to abrogate a non-union employee's constitutional right to legal representation of choice. On January 24, 1992, Chair Peter T. Dawson convened a prehearing con- ference in this matter. At the prehearing the parties reached agreement upon the terms of a settlement and a request for consent order. On February 4 and March 9, 1992, respectively, the parties submitted a stipu- lation and revised stipulation. JURISDICTION The Board has jurisdiction to hear evidence and determine the issues in this case and to render a decision and order pursuant to 26 M.R.S.A. 968(5)(A) (1988). The Respondent County is a public employer within the meaning of 26 M.R.S.A. 962(7) (Supp. 1991). AFSCME is a bargaining agent within the meaning of 26 M.R.S.A. 962(2) (1988). FINDINGS OF FACT The parties have entered into a stipulation of the facts underlying the charges in the instant case. The Board hereby accepts the parties' factual stipulation as the factual basis supporting the Consent Order requested of the Board by the parties. The parties' stipulation of fact is as follows: COME NOW the undersigned parties to this matter by and through their counsel, and stipulate to the following facts based on the amended prohibited practice complaint dated December 13, 199[2], as filed by the Complainant. The numbered paragraphs below relate to the paragraphs as numbered in the amended Prohibited Practice Complaint. 1.-21. The parties stipulate as fact the allegations in paragraphs 1-21. [The full text of paragraphs one through twenty-one are as follows:] -2- 1. Council 93, American Federation of State, County and Municipal Employees (AFSCME) is the bargaining agent as defined in 26 M.R.S.A., section 962([2]) for a unit of employees in the Sheriff's Department of Penobscot County, Maine. 2. The Penobscot County Commissioners are employers as defined in 26 M.R.S.A., section 962(7). 3. The current Collective Bargaining Agreement between AFSCME and the County of Penobscot does not expire until December 31, 1992. 4. Article Eleven (11), Grievance Procedure, current contract, is the only means for employees to resolve their grievances. 5. At approximately 9:15 a.m. on Tuesday, October 29, 1991, John C. Basso, Staff Representative for AFSCME, Council 93 received a phone call from Thomas Johnston, Attorney to the Penobscot County Commissioners. 6. Attorney Johnston informed Mr. Basso that he was on his way to a hearing at the Penobscot County Commissioners' Office. He stated the hearing involved a grievance concerning a corrections officer named Edward Arthurs. 7. Mr. Basso informed Mr. Johnston that he was never notified either in writing or orally of this hearing and that the Union was the only entity that could file a grievance on Mr. Arthurs' behalf. 8. Mr. Johnston indicated to Mr. Basso that it was his understanding that Mr. Arthurs was being represented by a private attorney. He stated that he knew this was a violation of the law and he was going to inform the Commissioner[s] of this fact. 9. Mr. Basso informed Mr. Johnston that if this hearing took place the Union would have no recourse but to file a prohibited practice complaint against the Penobscot County Commissioners. 10. Mr. Johnston stated that he understood this and he would do everything he could to prevent this hearing from occurring. 11. On October 30, 1991, the Bangor Daily News printed an article which stated that the Penobscot County Commissioners met in executive session to hear the grievance of Edward Arthurs. -3- 12. This newspaper article indicated that present at this hearing were N. Laurence Willey, Attorney for Ed Arthurs, the commissioners legal council [sic], Thomas Johnston, and Chief Deputy Carl Andrews of the Penobscot County Sheriff's Department. 13. On October 30, 1991, John Basso, after reading the newspaper article, telephoned Kathy W. Walker, County Clerk. Mr. Basso told Mrs. Walker of his telephone conversation with Mr. Johnston. Mr. Basso inquired as to whether Mr. Johnston informed the Commissioners that the hearing was in violation of the contract and the law and if so, why the hearing took place. 14. Mrs. Walker told Mr. Basso that Mr. Johnston did indeed tell the Commissioners that AFSCME was the bargaining agent for these employees and that they could not allow Mr. Arthurs to be represented by private council [sic]. Mrs. Walker stated that the Commissioners rejected Mr. Johnston's advise [sic] and agreed unanimously to allow a private attorney to represent Mr. Arthurs with his grievance. 15. On October 30, 1991, Mr. Basso met with Mr. Johnston. At this meeting Mr. Johnston informed Mr. Basso that what Mrs. Walker had told him was correct. He stated that the Commissioners decided to reject his advice and allow the hearing to take place. He also indicated that if the Union filed a complaint, the Commissioners would probably have to seek other legal council [sic] because of his position in the matter. 16. On November 8, 1991, the Commissioners issued a decision in favor of Mr. Arthurs. This decision was in the form of a letter mailed to Mr. Joseph L. Ferris, Ferris, Dearborn and Willey, Attorneys at Law and carbon copied to Mr. John Basso. 17. On November 14, 1991, the Bangor Daily News printed an article indicating that Mr. Arthurs had prevailed in his grievance and had his six weeks suspension rescinded and his record purged of any record of this discipline. 18. This same newspaper article also stated that two other employees disciplined for the same incident had their discipline lessened but not rescinded. 19. This same newspaper article also stated that of the three employees, Mr. Arthurs was the only one who didn't belong to the union and who did not have union represen- tation. This article stated he filed his complaint through an attorney. -4- 20. Based upon this newspaper article the Union through personal contact and phone contact, received numerous complaints from the members of this local. 21. These complaints questioned as to [sic] how Mr. Arthurs, a correctional officer, could be represented by anyone other than AFSCME, Council 93. The local felt that by their action, the commissioners were undermining the Union's representation. DECISION The Board has reviewed the parties' request for Consent Order. The Board finds the parties' stipulations of both fact and of prohibited prac- tice violations, and the parties' mutual request for withdrawal of AFSCME's charge of violation of 26 M.R.S.A. 964(1)(B) and (C), to promote the pur- poses of the Municipal Public Employees Labor Relations Law. The parties have stipulated that in the facts of this case the Penobscot County Commissioners violated 26 M.R.S.A. 964(1)(E) (1988) by allowing Mr. Arthurs to be represented by someone other than the legal bargaining agent in violation of the parties' existing collective bargaining agreement. The parties have also stipulated that the Penobscot County Commissioners' actions in this regard also violated 26 M.R.S.A. 964(1)(A) (1988), by interfering with and restraining employees in their exercise of rights under the existing collective bargaining agreement. Accordingly, as requested by the parties, the Board endorses as its own the following Consent Order based upon the County's admission of violations of the prohibited practice provisions contained in 26 M.R.S.A. 964(1)(A) and (E) (1988). ORDER On the basis of the foregoing stipulations of facts and violations 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) (1988 & Supp. 1991), it is hereby ORDERED: 1. That the Penobscot County Commissioners cease and desist from interfering with or restraining employees in the exercise of -5- contractually established rights in violation of 26 M.R.S.A. 964(1)(A) (1988). 2. That the Penobscot County Commissioners cease and desist from refusing to bargain in violation of 26 M.R.S.A. 964(1)(E) (1988), by disregarding the lawful provisions of the parties' collectively-bargained agreement. 3. That the Penobscot County Commissioners shall post for sixty (60) days in conspicuous places where notices to Penobscot County Sheriff's Department employees are customarily posted, and at times when such employees customarily perform work at those places, copies of the attached notice to employees which states that the Penobscot County Commissioners will cease and desist from the actions set forth in paragraphs one and two and will take the affirmative action set forth in paragraphs three and four. Copies of the notice shall be signed by a duly authorized representative of the Penobscot County Commissioners prior to posting and shall be posted by the Penobscot County Commissioners immediately upon receipt.2 The Employer shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by other materials. 4. That the Penobscot County Commissioners shall notify the Board by affidavit or other proof of the date of posting and of final compliance with this order. Seen and agreed to, by: /s/_____________________________________ /d/____4/24/92____ John C. Basso Date AFSCME Staff Representative /s/_____________________________________ /d/____4-17-92____ Jeffrey M. Silverstein, Esq. Date for Penobscot County Commissioners ___________________________________ 2In 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." -6- Dated at Augusta, Maine, this 7th day of May, 1992. 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. 1991) to seek review Chair of this decision and order by the Superior Court by filing a complaint, in accordance with Rule 80C /s/___________________________ of the Maine Rules of Civil Howard Reiche, Jr. Procedure, within 15 days Employer Representative of the date of the issuance of this decision. /s/___________________________ George W. Lambertson Employee Representative -7- NOTICE TO EMPLOYEES __________________________________ POSTED PURSUANT TO AN ORDER OF THE MAINE LABOR RELATIONS BOARD AS A RESULT OF THE FILING OF PROHIBITED PRACTICE CHARGES AGAINST THE PENOBSCOT COUNTY COMMISSIONERS, THE COMMISSIONERS HAVE ADMITTED THAT THEY HAVE VIOLATED THE LAW AND HAVE BEEN ORDERED, IN RESPONSE TO A REQUEST FOR CONSENT ORDER, 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 interfering with or restraining employees in the exercise of contractually established rights in violation of 26 M.R.S.A. 964(1)(A) (1988). WE WILL cease and desist from refusing to bargain in violation of 26 M.R.S.A. 964(1)(E) (1988), by disregarding the lawful provi- sions of the collective bargaining agreement. WE WILL post this notice of the Board's Order for 60 days. WE WILL notify the Board of the date of posting and final compliance with its Order. ______________________ ______________________________________________ Date Penobscot County Commissioners' Representative This notice must remain posted for 60 consecutive days from the date of posting. Any questions concerning this notice or compliance with its pro- visions may be directed to: STATE OF MAINE MAINE LABOR RELATIONS BOARD STATE HOUSE STATION 90, AUGUSTA, MAINE 04333 (207) 289-2015 ___________________________________________________________________________ THIS IS AN OFFICIAL GOVERNMENT NOTICE AND MUST NOT BE DEFACED. ___________________________________________________________________________