The state’s Public Employee Relations Board is forcing the town of Carroll to rehire an employee the town fired in December.

Joseph E. O’Donnell, a PERB administrative law judge, recently issued a six-point decision in the dispute between the town and Tyler Smith, a motor equipment operator in the town Highway Department, who was fired in December. O’Donnell is requiring the town to do the following:

¯ bargain in good faith with IBEW representatives regarding changes to terms and conditions of employment for union members.

¯ immediately provide to the IBEW information the union first requested in April 2022.

¯ immediately reinstate Tyler Smith to his former position as a full-time motor equipment operator and make Smith whole for wages and benefits, including medical benefits, lost when the town — in the judge’s opinion — improperly fired Smith. Smith will be due interest at the maximum legal rate.

¯ immediately stop interfering with or discriminating against any and all union employees, including Smith, for exercising protected rights to join a union.

¯ immediately remove and rescind handwritten notations in Smith’s personnel file.

¯ post a notice of the judge’s decision in town buildings and electronic places normally used by the town to post communications to union employees.

“In sum, based upon the record evidence and contrary to town’s argument to the contrary, I find that Smith was clearly the victim of discrimination for having engaged in protected activity, specifically his support of IBEW representation,” O’Donnell wrote in his decision.

‘VICTIM OF DISCRIMINATION’

The controversy began when a majority of Carroll Highway and Water department employees signed cards in November 2021 saying they wanted to be represented by IBEW Local 106, with the town passing a resolution in January 2022 recognizing the IBEW as the bargaining representative for the employees. Town officials didn’t respond to union requests beginning in April 2022 and again in May 2022 to begin contract negotiations and for information needed to begin negotiations. Some of the information was turned over in June 2022, though O’Donnell noted the town still hasn’t given the union information about job descriptions, hiring requirements, disciplinary files, grievances filed before the union was recognized and health and welfare plan documents.

In August 2022, some Highway Department employees indicated they no longer wanted IBEW representation, with town officials assuming they were then free to negotiate with employees directly as had been the case before January 2022.

When Smith changed his mind and rejoined the IBEW, it shifted bargaining power back to the IBEW. Smith alleged his decision to join the IBEW, which made him the only Highway Department worker to be represented by the union, caused the town to treat him differently from the other employees. Specifically, Smith alleged he wasn’t given overtime hours at the same rate as other employees, was given undesireable work to do and was finally terminated on Dec. 16, 2022. On that day, Smith called the IBEW union steward to represent him when Russ Payne, town supervisor, and Michael Walker, highway superintendent, fired Smith. When asked why Smith was being fired, Walker and Payne said the reasons were in the personnel file they gave Smith and the union steward — though the steward said they waited in the highway department building for an hour before the file was produced.

“Again, crediting fully the testimony of Smith over that of all defense witnesses called on behalf of the town, I answer this question in the affirmative,” O’Donnell wrote. “In sum, the record evidence overwhelmingly demonstrates that once the town learned of Smith’s decision to support the IBEW, he became the victim of ongoing disparate treatment which ultimately culminated in his termination effective on Dec. 14, 2022. In so finding, I reject in full the town’s claims that Smith’s termination was justified based on his work performance, which allegedly began to deteriorate sometime during the course of calendar year 2022. As discussed more fully below, I find those claims to be pretextual.”

BAD-FAITH BARGAINING

In addition to rehiring Smith, O’Donnell is requiring Carroll officials to negotiate a new contract with the IBEW for Water and Highway department employees. O’Donnell wrote in his decision the IBEW had a one-year period of unchallenged representation of the employees once it was certified at the start of 2022 regardless of the changing composition of its membership as employees joined, left and rejoined.

While the IBEW for an additional year of unchallenged representation, O’Donnell opted for an additional nine months of unchallenged union representation.

“Indeed, the town readily admits to engaging in bad faith bargaining and direct dealing with unit employees during the one-year period of unchallenged representation,” O’Donnell wrote. “Given the town’s flagrant disregard for fundamental Taylor Law rights and obligations, as evidenced so clearly on this record, I find that any period of extension, less than nine months, would be inappropriate.”