2405 AFSCME AFL CIO v. City of Norwalk et al. (2013)

MEMORANDUM OF DECISION

The plaintiffs, Local 2405, Council 4, AFSCME, AFL–CIO (Local 2405), appeals ¹ from a November 15, 2012 final decision of the defendant state board of labor relations (the board) dismissing Local 2405's complaint against the city of Norwalk (the city).   Local 2405's complaint charged that the city violated the Municipal Employee Relations Act (MERA) by harassing and retaliating against union members for engaging in protected activities in violation of General Statutes § 7–470(a)(1).

After a hearing before the board, the board made the following relevant findings of fact:

1. The City is a municipal employer within the meaning of the Act.

2. The Union is an employee organization within the meaning of the Act and at all times material has represented a bargaining unit of employees in the City's Department of Public Works (DPW) who do not have the authority to assign and direct work ․

3. The Union and the City were parties to a collective bargaining agreement (Agreement) with effective dates of July 1, 2006 through June 30, 2009.   The Agreement [prohibits racial discrimination].

4. At all times relevant hereto the City has had a policy in effect whereby an employee requesting leave to conduct Union activity during work hours must submit a completed Request For Absence form to the DPW Director at least 48 hours in advance of the requested leave date.

5. Prior to January 8, 2010 there have been occasions where Union representatives met with City representatives without completing a Request For Absence form.

6. The City's DPW has three Road Supervisors and each is assigned to a different geographic area and responsible for all aspects of road maintenance including pothole and drainage repair, cutback asphalt application, and snowplowing.   Each Road Supervisor supervises the same crew of DPW employees except for snowplowing details when crew membership may change.

7. Christopher Torre (Torre) was hired as a DPW driver in 1992 and served as Union president for three years, Union vice president for three years, and Union executive board member for two years.   In 2005 Torre was promoted to Road Supervisor.

8. On March 4, 2005 Union President Milton Giddiens (Giddiens) was asked to serve as Union representative for Marvin Santos (Santos) and Carlos Gonzales (Gonzales) who were meeting with Torre and Assistant Superintendent Dwayne Sullens.   A heated argument was in process on Giddiens's arrival and during which Torre threatened to “write up” Santos and told Gonzales that “you're only half a man, you're beneath me.”   Giddiens subsequently wrote a letter containing an account of what he witnessed in the meeting and sent the letter to the DPW Director, the Director of Personnel, and the City's Common Council.

9. On Monday, December 21, 2009 Torre called a snowplow crew meeting to address complaints that snow had not been properly removed from intersections during a storm over the weekend.   Torre asked three crew members why they were late for the meeting and Hector DeJesus (DeJesus) responded that he had been conducting Union business.   Torre then stated that Union business during work hours must be pre-approved by the Director and the City and/or Torre “owns you from 7 to 3.” After disputing DeJesus's claim that Operations Manager Lisa Burns (Burns) allowed certain Union business during work hours without preapproval, Torre discussed the manner in which intersections should be plowed and the meeting adjourned.

10. On December 30, 2009 Lawrence Taylor, a crew member who attended the December 21, 2009 meeting, signed and filed a written grievance on a form completed by DeJesus and also signed by crew member Randal Givens which stated, in relevant part:

STATEMENT OF GRIEVANCE:  Chris Torre['s] ․ constant racist statements, telling the men ․ I own you from 7 a.m. till 3:30 p.m․  Scare tactics are in violation [sic] of Article 3 and Discrimination Laws ․ Adjustment required:  Stop belittling the men.   No person could own another.   The implementation of fear tactics and sweatshop atmosphere are against the law and discrimination policy the City and the State have ․

11. Two to three days after Taylor filed the grievance he received a telephone call while off duty from Torre.   Torre complained about the grievance stating that he was not a racist and that Taylor should “not go down that road” with DeJesus and Giddiens.   Taylor asked whether Torre was threatening him and Torre responded that he was not.   Taylor then told Torre that his crew did not like him or his scare tactics and the conversation ended.

12. On January 5, 2010 Torre told DeJesus his truck was dirty and to wash it.   DeJesus responded that the truck had just been washed, had soap residue on it, and referred Torre to another supervisor for confirmation.   After observing Torre taking photographs of his truck later that day, DeJesus took photographs of his truck as well as trucks assigned to other members of Torre's crew.   At no point was DeJesus disciplined for his conduct that day.

13. On or about the same time as the truck washing incident involving DeJesus, Torre told his crew that in the past the City had terminated DeJesus for taking money from a customer but that DeJesus was reinstated on the basis of a technicality.

14. On January 7, 2010 Union executive board member James Fortin (Fortin) was at a City cafeteria while his truck was being repaired and heard Torre singing “Back Stabbers” a popular rhythm and blues song, in a loud voice near the entrance to the cafeteria.

15. By letter dated January 8, 2010 DPW Director Harold Alvord (Alvord) wrote Union President Giddiens stating, in relevant part:

Please be reminded that the normal work hours within the Operations Division of the Department of Public Works are 7:00 AM to 3:30 PM Monday through Friday ․

16. On January 12, 2010 Alvord sent Giddiens a memorandum that ․ [concluded that the grievance was denied].  (Return of Record, ROR, November 15, 2012 final decision, pp. 2–5.)

The board, with a dissent, concluded that there had not been a violation of § 7–470(a)(1).   Under the applicable case, Wright Line, 251 NLRB 1083, enf'd 622 F.2d 899 (1st Cir.1981), cert. denied 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), one element of a claim of discrimination by an employer for union activity is that the employer harbored “anti-union animus.”

The board found that Local 2405 had not “established animus necessary to a prima facie case of discriminatory treatment” under § 7–470(a)(1).   The board found factually that “Torre's telephone call to Taylor ․ did not interfere with protected activity”;  that “the truck washing incident [did not] compromise employee rights,” that “Torre's gossip” did not interfere with protected rights, or that Torre's statement about “backstabbers” was offensive.   The board quoted from Sears Roebuck Co., 305 NLRB 193 (1991):  “Words of disparagement alone concerning a union, its officials or supporters are insufficient for finding a violation.”   Further Alvord's memo of January 8 was merely a confirmation of existing policy to union leadership and did not constitute retaliation or harassment.  (Id., pp. 6–7.)

While Local 2405's brief was based on a contention that the factual findings of the board lacked substantial evidence,² the attorney for Local 2405 conceded at oral argument that the court could find substantial evidence on this record.   He then raised two additional issues.   The first was that the board had erred in not considering the totality of the circumstances in rejecting the claim of anti-union animus.   The attorney relies upon an administrative law judge's decision in A.D. Conner, Inc., 2011 NLRB 327 (June 24, 2011), to argue that “totality of the circumstances” requires the board to aggregate incidents.

Local 2405 misreads Conner in its argument on “totality of the circumstances.”   The board must look at each incident, as seen in the early case of N.L.R.B. v. J.W. Mays, Inc., 356 F.2d 693 (2d Cir.1966).   The board must determine if “the employer's statements tend to be coercive under the totality of the circumstances, not whether the employees were in fact coerced.”  Tellepsen Pipeline Services Co. v. N.L.R.B., 320 F.3d 554, 560 (5th Cir.2003).   In other words, the board was required to consider the context of each event.   These cases do not require, as Local 2405 argues, that the board decide whether the events taken as a whole show that the employer violated MERA.

Even if “totality of the circumstances” means what Local 2405 contends, in fact, the board did conclude at page 6 of its final decision that “[g]iven the record before us[,] we do not find that the substance of the City's actions supports a reasonable inference of animus necessary to establish the Union's prima facie case.”   The board thus considered the whole record in reaching its decision.

Secondly, Local 2405 argues that the board erred by stating on page 7 of the final decision that Torre (the employer's representative) was not upset nor did Taylor (the employee's representative) feel threatened by Torre's call.   According to Local 2405, this statement violated the general rule that the board must decide animus in the context of how an objective employer or employee would react, and should not base its conclusions on subjective reactions, citing Finley Hospital, 359 NLRB No. 9 (September 28, 2012).

While this is the general rule, there is no showing that the board took the statements of Torre or Taylor to be subjective reactions instead of objective ones.   Cf. NMC Finishing v. N.L.R.B., 101 F.3d 528, 533 (8th Cir.1996).   In NMC, when deciding whether obscenities on a picket line justified termination, the court held that the NLRB correctly looked to an objective person who heard the remarks, as opposed to the actual person.

The board in dismissing Local 2405's complaint did not act unreasonably, arbitrarily, illegally or in abuse of discretion.   Therefore, the appeal is dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. Local 2405 is aggrieved by the dismissal of its complaint for purposes of an appeal pursuant to § 4–183(a)..  FN1. Local 2405 is aggrieved by the dismissal of its complaint for purposes of an appeal pursuant to § 4–183(a).

FN2. “According to our well established standards, [r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact.”  (Citation omitted.)  Dept. of Public Safety v. State Board of Labor Relations, 296 Conn. 594, 598, 996 A.2d 729 (2010)..  FN2. “According to our well established standards, [r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact.”  (Citation omitted.)  Dept. of Public Safety v. State Board of Labor Relations, 296 Conn. 594, 598, 996 A.2d 729 (2010).

Cohn, Henry S., J.