Maine’s labor board has found that the Office of State Fire Marshal violated its fire investigators’ union contract and has ordered it to stop interfering with employees’ labor rights.
The Dec. 18 decision by the Maine Labor Relations Board confirms some concerns that fire marshal’s office employees have voiced in the past and builds on prior reports showing staff worried for years about how administrators managed their workplace.
The board, which enforces Maine laws pertaining to public sector union agreements, found that the fire marshal’s office made unilateral changes to workplace practices in 2022 in “flagrant violation” of fire investigators’ union contract, and that a lieutenant’s “belligerent” actions at a staff meeting, where he compared the workplace to a boxing ring and told employees to fight, unlawfully violated employee rights.
The decision comes after the Maine Legislature’s oversight arm, the Office of Program Evaluation and Government Accountability, conducted a separate review of the fire marshal’s office in the summer in response to what staff described as a “workplace culture rife with misogyny, lack of care for fire victims and unresponsiveness to employee complaints and community needs.”
The fire marshal’s office is responsible for arson investigations and inspects buildings to make sure they meet code requirements.
The labor board decision offers more specifics about union interference. The board outlined how an unnamed lieutenant in the fire marshal’s office made changes outside the union bargaining process, and without telling the Maine State Law Enforcement Association ahead of time, to how employees swap shifts and get paid for their travel. The association is the union representing fire investigators.
Previously staff could swap shifts with other employees regardless of where they were working or for how long. But the lieutenant instituted a new practice in May 2022 where only staff who worked within the same geographic area could swap shifts — and then only for a full week at a time.
The lieutenant also announced in July 2022 that the agency would change how it paid for employees to travel to multiple-day training sessions. Instead of paying for each day’s legs of travel to training and then home, the agency would only pay for travel to training on the first day and then travel home on the last day.
“Viewed together, these flagrant contract violations have the effect of seriously undermining the heart of the parties’ collective bargaining relationship. Under these circumstances, the Board finds that the Employer’s unilateral changes have the effect of unlawfully interfering with bargaining unit employees’ protected rights,” the board wrote.
The board also found that the lieutenant’s actions at a July 2022 staff meeting, which came while multiple union grievances were pending involving the lieutenant, could have been seen by employees as an attempt to harass and intimidate them.
“The tenor of the Lieutenant’s conduct at the staff meeting at issue in this case was hostile, being a captive-audience speech, involving the words and actions of fighting,” the labor board wrote.
The lieutenant opened the staff meeting by saying that no one would speak but him, even though the purported purpose of the meeting was to address the “work environment situation,” according to the board. He told the group they needed to either work it out or plan to fight because neither he nor the sergeant were going anywhere. In comparing the workplace to a boxing ring, he said that if the boxers didn’t leave their corners they couldn’t come to the center of the ring to figure it out.
“While using this metaphor the Lieutenant physically acted out a boxing match. At the close of the meeting, the Lieutenant gave the investigators and the Sergeant an assignment to come up with two ways to improve the workplace environment,” the board wrote.
The labor board did not find in the union’s favor on all aspects of its complaint, which the union filed with the board in late 2022 before the current fire marshal, Richard McCarthy, replaced Joseph Thomas as the agency’s leader.
For instance, the union asserted that fire marshal’s office management repudiated the union contract by not responding in a timely manner, if at all, to union grievances about changes to shift swaps, employee travel reimbursement and other issues.
But while the labor board agreed that the office’s delays broke deadlines established in their contract, it said the office technically did not commit a prohibited practice because the union still had power to advance delayed grievances to the next step in the process.
The labor board also found that the discipline of a senior fire investigator could not have been retaliation in response to union activity, as the union had claimed. A sergeant disciplined the investigator after he took a COVID-19 test on May 24, 2022, after being told to take it May 25, 2022, to comply with testing guidelines at the time.
It was the second time the investigator had been disciplined for the test because the sergeant originally believed the investigator had provided an inaccurate date of testing and, in response, issued a “counseling memorandum,” according to the board’s decision. When the sergeant found out the investigator had been honest about the date, the sergeant revoked the original discipline and disciplined him anew because he took the test on the wrong day.
To be considered retaliation, however, the sergeant would have to be motivated to discipline the investigator because of his protected union activity, and the labor board found there was “no compelling evidence that there was any anti-union animus motivating this second memorandum.”
The board directed the fire marshal’s office to revert back to its prior shift swap and travel reimbursement practices and to “cease and desist” from “interfering with, restraining or coercing employees in the exercise of protected collective bargaining rights.”
Shannon Moss, a spokesperson for the Maine Department of Public Safety, which oversees the fire marshal’s office, said the agency appreciates the board’s work and its ruling, but disagrees with the findings.
Nevertheless, “we will comply with their order and revert our policies on shift swaps and travel reimbursement to the prior practice and attempt to make the appropriate changes through impact bargaining. We’re also working to memorialize the changes in a memo for bureau wide dispersal,” she wrote in an email.
