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Standing up to power in retaliation case led to greater union leadership roles

Every good military leader needs to know when to advance, when to hold and when to retreat. The choice can make all the difference between victory and defeat. And while most people aren’t facing down an enemy army on the battlefield, anyone can encounter such a pivotal choice in their own life at any time.

For one PEF member, that choice came in 2007 when management looked for an excuse to fire him after he gave critical testimony for PEF at a state legislative hearing in January 2006. That member was parole officer Wayne Spence, who is now president of PEF.

Spence chose to stand his ground and sued his employer for retaliation, which was then the NYS Division of Parole and has since been incorporated into the state Department of Corrections and Community Supervision. It was a long, painful struggle for him and his family, but he believes it has made all the difference in what has followed.

“It empowered me, in that I learned a lot about how the state acts when it wants to fire somebody. It made me better able to help other members and it made me a better advocate. I know from my experience that you can take on the state and win,” Spence said.

He also feels the publicity he received in the press, especially the Times Union newspaper in Albany, “propelled me into the spotlight as a leader and a fighter in the eyes of PEF members,” Spence said.

But none of those positive outcomes were a given when he was in the midst of the battle, and he and his family are still healing from some of the financial wounds they suffered.

Between the loss of his pay for more than four months and the legal costs he incurred, Spence had to stretch his finances as far as they could go while the legal maneuvering played out.

“My credit rating has finally recovered,” Spence said.

The experience also taught him just how devastating bullying and workplace stress can be. “When I went to work, I would get physically sick. Before I could get out of my car, I would be throwing up.”

It all began after he came forward to testify at several legislative hearings along with several other parole officers who were leaders and stewards in their PEF division.

The Division of Parole decided to make a chilling example of its power by going after Spence. What management finally dug up was an instance when his timesheet of hours worked for the state overlapped by one hour with a timesheet he had filed for a second, part-time job with Nassau County Child Protective Services. He worked for the county from 5-10 p.m., three days per week, for a maximum of 15 hours per week.

He was concluding his work for Nassau County at 7 p.m. one Friday night when he received a call regarding a sex-offender parolee he was supervising for the state. As a favor to the law-enforcement officer who called, he stopped by the police station to meet with him on his way home and he made several phone calls in his state role. He was there an hour and then went home, where Spence finished his work for the county.

“I just wanted to help the detective out. The following Monday, I worked an hour less, so I did not get paid for an hour extra,” Spence said.

Nevertheless, “The state charged me with double dipping. The county never prosecuted me, and in fact my supervisor at the county testified for me at the arbitration,” Spence said.

The state suspended Spence without pay, pending termination, but PEF fought to have him reinstated. The case went to arbitration, and “The arbitrator said, while my testimony was compelling, he had to give me a one-week suspension because technically I was working for two employers for one hour. The arbitrator awarded me my back pay for the four months, less that one week.”

However, there was more damage done in that four months of suspension than just the loss of a paycheck and the anxiety over possible termination. A parolee that Spence had supervised threatened to have him killed, and one night he came home to find his next-door neighbor had been brutally murdered. It was frightening for him and his family and he felt it all the more because he had been required to surrender his service weapon when he was suspended.

Later, the neighbor’s murder was solved and Spence learned it was unrelated to the threat against him, but he would never forget how vulnerable he had felt for himself and especially for his wife and children.

So, Spence did not just go back to work and pretend the suspension had never happened. He initiated a private lawsuit against the Division of Parole for retaliating against him for his protected union activity in testifying.

“I found out from the Times Union reporter that his Freedom of Information request to the state for information about my case had revealed the state subpoenaed my wife’s phone records and even her AOL account. That’s how hard they were searching to find something they could use against me,” Spence said. “Those subpoenas have to be approved by a judge, but according to a deposition submitted as evidence for the trial, the signatures were falsified,” Spence said.

The Times Union ran a series of stories in 2007 revealing the use of more than 30 such subpoenas for phone and Internet records by the Division of Parole to search for evidence against other parole officers including those who testified with Spence at legislative hearings.

In December 2011, just a few days before the case was to go to trial in U.S. District Court, the state offered to settle the case out of court. Those negotiations between his counsel and the state resulted in a $50,000 cash settlement to Spence and the state also paid his court costs and attorney’s fees that exceeded $300,000.

Spence had made his point, that the state cannot expect to bully its employees and retaliate for their union activism with impunity. If the member stands his ground, the state may have to back down and even pay a penalty for going too far.

“I want to show the double standard the state has and the lengths it will go to retaliate when it feels threatened,” Spence said.

The ordeal propelled Spence into a spotlight and put him on the path to leading the entire union following his election as a vice president in 2012 and election as president in 2015.

— Story By SHERRY HALBROOK 
Preview story in the upcoming February 2016 edition of The Communicator

The Value of the Union
— Story By DEBORAH A. MILES 
Preview story in the upcoming February 2016 edition of The Communicator