The Pennsylvania State Corrections Officers Association (PSCOA) is the exclusive bargaining representative for correctional officers employed by the Pennsylvania Department of Corrections (DOC). Maximilian Kauert is a corrections officer at a state prison (Somerset) and served in several official union positions. In July 2019, he was appointed the local union president, and won an election for a two-year term in November that year. Beginning around the time of Kauert’s appointment, relations between Somerset’s management and the PSCOA deteriorated, particularly with Superintendent Eric Tice.
Kauert had a clean performance and disciplinary record prior to his appointment as PSCOA president. Shortly after his appointment, he received his first poor performance review. He was also disciplined eight times between July 2019 and February 2021; in each case, his discipline was settled and removed from his file. The first discipline against Kauert was issued five days after he was appointed PSCOA president. Several members of PSCOA’s executive board resigned during the same period due to fears of reprisal. These fraught relations were reflected in an increase in grievance volume. PSCOA filed 52 grievances at Somerset in 2018, 241 in 2019, and approximately 735 in 2020.
PSCOA often makes requests for information to ensure compliance with the collective bargaining agreement and evaluate the strength of grievances. When management withholds or delays providing information, PSCOA is unable to determine whether to file or pursue a grievance, nor is it able to settle grievances within the timelines imposed under the contractual grievance procedure. The parties also negotiated a “suspension pending investigation” procedure, by which the employer would suspend employees when charged with a terminable offense, and “only where supported by requisite cause, and the practice will not be utilized in an arbitrary or capricious manner or for punitive purposes.” Suspensions pending investigation were limited to 60 days by an internal DOC policy.
Beginning in 2019, Somerset began to delay the requests for information procedure to the PSCOA’s detriment, which was successfully challenged before the state labor board. Somerset placed Kauert on a suspension pending investigation, and ultimately terminated him in February 2021 for several instances of sexual harassment. Somerset ignored or disregarded substantial evidence that Kauert was innocent. One of the alleged instances of sexual harassment occurred while Kauert was several counties away on PSCOA business, and Kauert was blamed by management even when complainants insisted that Kauert was not involved. Kauert’s termination was settled approximately eight months later and was converted to a three-day suspension. Kauert was otherwise made whole. In the months that he was gone, the PSCOA’s grievance volume declined dramatically.
Shortly after Kauert’s reinstatement on July 8, 2021, he was verbally reprimanded by the Major of the Guard regarding his representation of a member and was subsequently placed on another suspension pending investigation from September through December 2021. In January 2022, shortly before his three-day suspension would be expunged from his record, he was suspended for 20 days. That 20-day suspension was resolved prior to arbitration, with Kauert being made whole entirely. When he returned to work, he was suspended for another three days, which was later reduced to a written reprimand. Kauert returned to work for one day and was suspended for another 20 days – for which he was later made entirely whole.
Kauert and his vice president spent much, if not most, of their tenures with the PSCOA in suspension pending investigation status, during which they were unable to process grievances or conduct union business. PSCOA filed an unfair labor practice complaint, alleging that the discipline of PSCOA officers during this period was motivated by anti-union animus. The labor board agreed, citing overwhelming evidence against the DOC. Among other things, the hearing examiner focused on (1) Superintendent Tice’s communications with several DOC offices, apparently to coordinate interference and discipline against PSCOA officers like Kauert; (2) the suspicious timing of adverse employment actions taken against Kauert shortly after his appointment to PSCOA president; (3) Somerset’s delay and/or refusal to turn over relevant documents in requests for information; and (4) systematic abuse of the suspension pending investigation process.
With regard to (4), the hearing examiner noted that the suspension pending investigation process was intended to be used only in cases where Somerset possessed sufficient information to reasonably conclude that it would terminate an employee. Suspensions under this procedure were intended to be brief. However, Somerset placed Kauert and other PSCOA officers on suspension with very weak evidence of misconduct – often just unsubstantiated hearsay statements. Kauert and others were placed on suspension for much longer than the 60 days contemplated by Somerset’s own internal policies: sometimes nearly a year. The timing of these suspensions was also suspicious. The PSCOA vice president’s seven-month suspension was overturned in September 2021 by an arbitrator. However, Somerset did not settle his case and reinstate him until December, requiring him to transfer to another facility as part of the deal. The record also showed that Somerset possessed enough evidence to clear Kauert of his sexual harassment allegations months before he settled Kauert’s termination for a three-day suspension. This was even more egregious in the context of Somerset’s lack of cooperation with the requests for information, which would have provided PSCOA with exculpatory evidence. Due to the overwhelming evidence against the DOC, the hearing examiner concluded that the DOC’s discipline of Somerset’s union officials was motivated by anti-union animus, and ordered the DOC to cease and desist in its anti-union activities, and make Kauert whole for his termination.
Pennsylvania State Corrections Officers Association v. Commonwealth of Pennsylvania, 55 PPER ¶ 56 (Pa. Lab. Rel. Bd., 2024).