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AFSCME Council 93 v. Penobscot County Sheriffs Office

Superior Court of Maine, Kennebec

August 16, 2016

AFSCME, COUNCIL 93, Plaintiff
v.
PENOBSCOT COUNTY SHERIFF'S OFFICE, Defendant

          DECISION

          Donald H. Marden Active Retired Justice.

         Before the court is AFSCME, Council 93's motion to vacate an arbitration award.

         The Sheriff of Penobscot County found that Corporal William Gardner "belittled, demeaned and intimidated" correctional officers under his supervision. The Sheriff demoted Gardner, temporarily prohibited Gardner from bidding on assignments, and permanently revoked Gardner's law enforcement commission.

         Gardner filed three grievances with the County Commissioners, which held hearings on the grievances on May 23, 2014, and June 17, 2014. The Commissioners denied the three grievances, so Gardner demanded arbitration.

         On January 23, 2015, the Board of Arbitration and Conciliation (BAC) denied Gardner's grievance and concluded:

         The County had just cause to demote the Grievant.

The County did not violate the Agreement by temporarily restricting the Grievant from bidding on open shift assignments in his new position.
The County did not violate the Agreement when it placed the Grievant on paid administrative leave in excess of 30 days without a report of the outcome.
The County did not violate the Agreement when the Sheriff revoked the Grievant's deputy commission,

         The factual background is based on the facts found in BAC decision under the findings of fact.

         Gardner was a corporal at the County Corrections Line Unit, who supervised about 15 corrections officers on his day shift at the jail. A union representative told Sheriff Glen Ross that there were concerns that Gardner created a hostile work environment. Although the Sheriff was willing to investigate the claims, the County Commissioners elected to have Rebekah Smith, a private attorney, investigate the allegations.

         Smith investigated the allegations by interviewing Gardner, the complainants, and seventeen other collateral witnesses. In Smith's report, Smith found the complainants' testimony credible based on their demeanor and the corroborating statements of collateral witnesses. Smith concluded "the weight of the evidence supported the fact that the environment on Mr. Gardner's shift was perceived by many of his subordinates as hostile." The evidence indicated "that Mr, Gardner's supervisory approach, both in person and over the radio, relied upon belittling, humiliating and negative treatment, often directed at female subordinates, but also towards individuals he perceived as weak." Specifically, the three complainants-Corrections Officers Burgess, Pena, and Stupak-stated that Gardner belittled and demeaned them with sarcasm and negative comments.

         When the County Commissioners reviewed Smith's report, they determined the matter should be referred to the Sheriff for action.

         After the County Commissioners sent Smith's report to the Sheriff, a hearing was held on March 14, 2014, which was conducted by Captain Richard Clukey. As a result of the hearing, the Sheriff found that Gardner had "engaged in repeated conduct at work, including talking over the radio, in which [Gardner] belittled, demeaned and intimidated persons under [his] supervision." The Sheriff also found that Gardner's conduct had a negative effect on the working environment on Gardner's shift, and on a number of individuals under Gardner's supervision. The Sheriff demoted Gardner and prevented Gardner from being reassigned to shift he supervised for six months.

         In the Sheriffs decision, the Sheriff did not consider Gardner's counseling and/or disciplinary action prior to 2009, but did consider the pre-2009 conduct to put Gardner's recent conduct into context. Based on the Article 11 of the CBA, the Sheriff wrote in his letter to Gardner dated April 14, 2014;

Based on this contract language, I agree that no documentation of counseling and/or disciplinary action prior to 2009 will be considered for discipline or progressive discipline purposes, even if it is retained in the compliance file. Any counseling and/or discipline prior to 2009 will not be considered. However, I find that the CBA does not prohibit consideration of prior conduct to help place current conduct in perspective, as long as counseling/disciplinary action, if any flowed from that prior conduct, is not considered. The prior conduct is relevant to the current matter because the complaint under investigation is a claim of hostile work environment, which, by its very nature, involves a single continuous pattern which includes a series of occurrences over time. The courts view a hostile work environment claim in this manner. Accordingly, I find that pre-2009 conduct is relevant and may be considered for the limited purpose of placing more recent events in context.

         The BAC evaluated four issues, but two are relevant to the case before this Court:

1. Whether the Grievant was demoted without just cause in violation of the Corrections Supervisory Unit contract.
2. Whether the County violated the Corrections Supervisory Unit contract by temporarily restricting the Grievant from bidding on open shift assignments in his new position as part of the demotion.

         The BAC noted that the Sheriff considered various options to discipline Gardner based on Gardner's previous evaluations:

He believed this required more than minor discipline. The Sheriff had spoken with Mr. Gardner several times in the past about the need to reduce sarcasm in communications with many employees and change his workplace demeanor. On reviewing Mr. Gardner's evaluations, the Sheriff saw that, for example, the 2007-08 evaluation said that Mr. Gardner needed to avoid "rude and degrading communications, " and the 2008-09 evaluation said Mr. Gardner "can be sarcastic and unprofessional, making snide remarks to staff." The record showed that Mr. Gardner's conduct would improve temporarily after counseled or receiving unfavorable evaluations in this area, but he would then resort back to his prior behavior. Because of the widespread and ongoing nature of Mr. Gardner's conduct in his supervisory capacity, the Sheriff chose demotion with a final warning as the appropriate discipline because this would remove Mr. Gardner from a position of authority, but with proper remedial training, the Sheriff believed Mr. Gardner could use his skills to be an effective CO. The Sheriff further directed Mr. Gardner to participate in a program of remedial training within six months, during which period he would not be reassigned to the same shift on which he worked as a supervisor.

         The BAC noted that the central issue in the case is whether the County had just cause to demote Gardner. The BAC noted "just cause" is undefined:

Although there is no set definition for "just cause, " this standard requires an employer to do what a reasonable person would do who is mindful of the habits and customs in its field, and standards of justice and fair dealing. This includes whether the County conducted a fair investigation, treated the Grievant fairly in the process, and administered a fair result. The burden is on the County to show that it had just cause for the discipline.

         The BAC noted "[t]he County took its responsibility to conduct a fair investigation very seriously." AFSCME asked the County Commissioners to investigate the allegations against Gardner and the County Commissioners hired a neutral third-party investigator, Rebekah Smith, Esq.

         Although the BAC determined that Gardner did not have a right to confront witnesses, Gardner knew of the accusations and the evidence provided by the accusers. Gardner also had the opportunity to give Ms. Smith names of individuals who would ...


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