H. Marden Active Retired Justice.
the court is AFSCME, Council 93's motion to vacate an
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
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.
January 23, 2015, the Board of Arbitration and Conciliation
(BAC) denied Gardner's grievance and concluded:
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,
factual background is based on the facts found in BAC
decision under the findings of fact.
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.
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
the County Commissioners reviewed Smith's report, they
determined the matter should be referred to the Sheriff for
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.
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.
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.
noted that the Sheriff considered various options to
discipline Gardner based on Gardner's previous
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
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.
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.
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