BOARD OF COLLECTIVE BARGAINING

UFA, 1 OCB2d 10 (BCB 2008) (IP) (Docket No. BCB-2549-06).

Summary of Decision: The UFA claims that soon after the Union President spoke to the City Council and the press regarding fire apparatus safety issues, a Deputy Commissioner, motivated by anti-union animus, determined that the Union’s Health and Safety Officer could no longer attend two types of meetings that he had previously attended. The Union claims that in so doing, the City violated § 12-306(a)(1), (2), (3), and (4) of the NYCCBL. The Board found that the Department was improperly motivated when it took such action, in violation of NYCCBL § 12-306(a)(1) and (3). However, the facts, as pled, were not sufficient to establish that taking such action constituted a refusal to bargain in good faith, in violation of § 12-306(a)(4), or that the City dominated the UFA, in violation of § 12-306(a)(2). Accordingly, the Board ordered that the Department cease and desist from refusing to permit the Union’s Health and Safety Officer from attending the specified meetings because of his union activity and that the Department post the attached Notice. (Official decision follows.) __________________________________________________________________

OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING

In the Matter of the Improper Practice Proceeding -between-UNIFORMED FIREFIGHTERS ASSOCIATION, Petitioner, -and- CITY OF NEW YORK and the NEW YORK CITY FIRE DEPARTMENT,

Respondents. ___________________________________________________________________

DECISION AND ORDER On April 21, 2006, the Uniformed Firefighters Association (“UFA” or “Union”) filed a verified improper practice petition against the City of New York (“City”) and the Fire Department

1 OCB2d 10 (BCB 2008) 2 of the City of New York (“Department”). The Union claims that soon after the Union President spoke to a New York City Council Committee and the press regarding fire apparatus safety issues, a Deputy Commissioner, motivated by anti-union animus, determined that the UFA’s Health and Safety Officer could no longer attend two types of meetings that he had previously attended. The Union claims that in so doing, the City violated § 12-306(a)(1), (2), (3), and (4) of the New York City Collective Bargaining Law (New York City Administrative Code, Title 12, Chapter 3) (“NYCCBL”). The City contends that it did not violate the NYCCBL because neither the UFA Health and Safety Officer nor the Union was engaged in protected activity, the City had a legitimate business reason for requesting that he no longer attend those meetings, the request did not interfere with the Union’s rights, and it did not dominate the Union or interfere with its administration. After a hearing, this Board finds that the Department was improperly motivated when it took such action, in violation of § 12-306(a)(1) and (3). However, the facts, as pled, are not sufficient to establish that taking such action constitutes a refusal to bargain in good faith, in violation of § 12-306(a)(4), or that the City dominated the UFA, in violation of § 12-306(a)(2). Accordingly, the Board orders that the Department cease and desist from refusing to permit the Union’s Health and Safety Officer from attending the specified meetings because of his union activity and that the Department post the attached Notice.

BACKGROUND After three days of hearing in this matter, the Trial Examiner found that the totality of the

1 OCB2d 10 (BCB 2008) 3 record established the relevant facts as follows. 1 As a result of the terrorist attack on New York City on September 11, 2001, new fire engines and ladder trucks had to be purchased to replace those that were damaged and/or destroyed. After the City arranged for companies to bid on a contract to manufacture the replacement apparatus, it awarded the contract to the fire apparatus company, Seagrave. Under Seagrave’s warranty, it guarantees that it will complete repairs on malfunctioning trucks that are still under warranty within a 30-day period. As of July 2005, 19 pieces of under-warranty (“new”) apparatus were out of service due to mechanical problems. The City asserts, upon information and belief, that the average time for Seagrave to complete repairs under warranty ranged between 40 to 60 days. The Union denies the City’s stated average time because it asserts that, as of July 2005, some fire companies’ rigs were out of service for as long as 180 days. However, it is undisputed that as of July 2005, Seagrave had difficulties complying with the contractual requirement that it repair new apparatus within 30 days. While repairs are being made to a fire company’s assigned vehicles, spare rigs are placed in service. The Union claims that the spares consist of 15 to 20-year old vehicles, that the spares do not function properly, and as of April 4, 2006, at least three fire companies were operating apparatus in violation of National Fire Protection Agency Standards for age and safety. It is undisputed that a spare truck assigned to Ladder 19 in the Bronx had problems with its aerial ladder and was sent in for repair. The Union asserts that firefighters were unable to get the spare rig’s ladder to raise at a fire on six different occasions, leaving other firefighters on top of a building without a ladder to

1 It should be noted that one witness, a Deputy Commissioner, did not complete his testimony. While neither party asked the Board to strike his testimony, the Union urged the Board to draw a negative inference based on his failure to complete testimony, and the City asked that the Board draw no such inference. We discuss this issue on page 16-17.

1 OCB2d 10 (BCB 2008) 4 exit. (Pet. ¶ 8; Union Ex. A(1); Tr. 61-62). The City avers that the spare apparatus had experienced problems but that it was sent for repairs. (Ans. ¶ 8). It is also undisputed that in December 2005, a firefighter fell from a spare truck that was making a left turn. The Union claims that the spare apparatus was an 18 year-old open cab tower ladder in service as a replacement vehicle for one of the newer apparatus, that the door popped open during a left-hand turn, and that it went one way and the firefighter went the other. (Pet. ¶ 7; Tr. 52-54). The City does not deny that the incident occurred, but it disagrees with the Union on the reasons for the incident. Beginning in July 2005, the Department initiated meetings with Seagrave representatives to address its warranty compliance issues (“Seagrave Meetings”). From July 2005 through March 2006, seven such meetings were held. (City Ex. 1(a) - 1(g)). The Deputy Commissioner in charge of the Department’s Technology and Support Services (“Deputy Commissioner”) chaired the meetings, and representatives of the Department of Citywide Administrative Services (“DCAS”), the City’s Law Department, the UFA, and the Uniformed Fire Officers Association (“UFOA”)–including their safety representatives–attended those meetings. The minutes show that the attendees addressed issues such as outstanding repairs and mechanical problems with specific apparatus, ways to improve repair times in general, more aggressive new tower ladder delivery schedules, Seagrave staffing issues, and whether apparatus on order may share similar problems as those of the current apparatus. (City Ex. 1(e)). The UFA’s Health and Safety Officer, William Romaka, attended the Seagrave Meetings on behalf of the UFA. It is undisputed that he attended these meetings despite the fact that, in some instances, the distribution list for the minutes and the attendance list did not reflect the fact that he was invited to attend or that he was present. (Tr. 207-212; City Ex. 1(a)-1(g)).

1 OCB2d 10 (BCB 2008) 5 Romaka also attended Technology Oversight Committee meetings (“TOC Meetings”) with others, including representatives from the UFOA safety committee. These meetings were chaired by the same Deputy Commissioner. Some of the items listed on the minutes for the TOC Meetings include: “Vehicle Chargers,” “Smart Mic,” “Post Radios,” “Electronic Wireless Command Board,” Communications Consultant,” “Employee Payroll Information System,” “Battalion Voice Recorders,” and “In-Line Connector for HazMat suits.” (City Ex. 1(h)-1(n)). Most of these items were recurring topics at a series of meetings that occurred between July 20, 2005 and March 15, 2006. (Id.) Romaka testified that at these meetings, he would advocate with respect to the safety of firefighters and that he regularly interacted with the Deputy Commissioner on behalf of firefighters. (Tr. 294). Romaka also attended Personal Safety System Meetings (“PSS Meetings”) and firefighter Glove Meetings (“Glove Meetings”), which the same Deputy Commissioner chaired as well. (Tr. 270, 342-344). Romaka testified that there were only a few meetings regarding a new glove that would provide the same amount of protection as the current gloves, while increasing the gloves’ dexterity. (Tr. 342). He also testified that the PSS Meetings were held more frequently, at least once a month. (Tr. 343). As UFA Health and Safety Officer, Romaka also attended other Department meetings that were not chaired by the Deputy Commissioner. The eighth Seagrave Meeting was held on March 31, 2006. According to minutes of the meeting, as taken by a Department employee, a Seagrave employee represented that the company was working on eight apparatus and that the amount of time trucks were in repair averaged approximately 20 days. (City Ex. 1(g)). Also according to the minutes, the Deputy Commissioner stated that this was good progress and that he wanted to keep the amount of time a unit stays out of

1 OCB2d 10 (BCB 2008) 6 service below 30 days, and Romaka and the UFOA representative agreed. (Id.). On April 4, 2006, the UFA and UFOA Presidents testified before New York City Council’s Committee on Fire and Criminal Justice Services. The UFA President submitted written testimony to this committee and, during his testimony, answered questions regarding complaints he received from firefighters about new apparatus breaking down and the poor condition of the replacements. (Union Ex. A(1); Tr. 51-61). At the hearing in the instant matter, he testified that he informed the Committee about the Union’s concerns with Seagrave’s repair record and turnaround time on the new apparatus, problems with spare trucks that were utilized while the new trucks were in for repair, spare tower apparatus malfunctions, the resultant shortage of tower apparatus, their replacement with rear mount or aerial ladders, and problems with the rear-mount ladder at the company in the Bronx, among other things. (Id.). He also told the Committee, in part: Seagraves is in dire straits and does not have the proper personnel to repair the trucks and return them to us [in] a timely fashion. There are currently 8 new fire rigs sitting in the Seagrave parking lot awaiting repairs . . . What we are seeing is a flawed system of procurement, repair, and oversight.

(Union Ex. A(1)). The UFA President’s appearance before this committee was followed by a press conference that received media attention. During the hearing in the instant matter, the UFA President testified that in preparation for his City Council appearance, he spoke with Romaka, the Union’s Executive Board, as well as individuals from the Department’s repair shop and the president of the mechanics union. (Tr. 67). Romaka testified that the information he supplied to the UFA President was a compilation of information from firefighters in the field, Seagrave Meetings, and apparatus meetings. (Tr. 307). On April 5, 2006, the Deputy Commissioner’s assistant, at the Deputy Commissioner’s

1 OCB2d 10 (BCB 2008) 7 direction, spoke with Romaka on the phone and informed him that the Deputy Commissioner felt his attendance at the Seagrave Meetings was no longer necessary. On April 6, 2006, an employee from within the Bureau of Technology and Support Services was directed by the Deputy Commissioner to notify Romaka that he was no longer permitted to attend TOC Meetings, and did so by leaving a voicemail message. (Tr. 131). On April 7, 2006, Romaka sent an email to the Deputy Commissioner, asking why he was no longer invited to participate in the Seagrave or TOC Meetings. (Union Ex. A(2)). This email read: This is to acknowledge my conversation Wednesday with your assistant, [name redacted]. She indicated to me that you wish that I no longer participate in the Seagrave Meetings. Furthermore on Thursday, your assistant [name redacted] left me a voice mail informing me that you request I do not attend any more of the Technical Oversight Committee meetings; which help to shape the direction of the department and should address the needs of more than 9,000 firefighters.

While I can understand that you may hold an opposing view on a wide range of Health and Safety issues, I have always respected your right to your opinion, even though it may conflict with what I believe is in the best interests of Firefighters. As Sergeant-at-Arms of the UFA, I take the Health and Safety issues of my members seriously. If this is correct, I am a bit disheartened that you don’t consider an opinion seeking to protect Firefighters to be valid and worthwhile when it differs from yours.

Thank you for your time and consideration in this matter! (Id.). The Deputy Commissioner responded on the same day. His e-mail read: I’m sorry you feel like that. My intention at these meetings be it TOC, PSS, Seagrave, or Apparatus Design was to make them as useful as possible for not only the Department but all its employees.

1 OCB2d 10 (BCB 2008) 8 I don’t know of any other commissioner who has involved union members, and valued their opinions, as much as I have. You (your union) has taken an idea to bring your point of view out and distort facts to your own use. As you know I have stated to you that I am not a political person and always wanted to do what was best for this Department. Your use of information gained by attending these meetings corrupt the intention and any value you might have brought to the table. It is unfortunate that you (your union) have decided to bring your own agenda and distort the truth for your own political purpose. I do not want to be a part of the press conferences that your union plays which ultimately has taken a good process and attempts to bastardize it to meet your own agendas.

(Union Ex. A(3) (Parentheses in original). Health and safety officers from UFOA were not told that their appearance at these meetings were now unnecessary, and they continued to attend Seagrave and TOC Meetings after April 4, 2006. The Deputy Commissioner later testified that although he was not present for the UFA President’s testimony before New York City Council or his remarks to the media he saw portions of the content of the UFA President’s statements. (Tr. 172-173). He said that after he saw portions of the Union President’s testimony and the ensuing press coverage, he was “disturbed” but not “angry.” (Tr. 267). The Deputy Commissioner said that during the UFA President’s testimony, the UFA President referenced particular statements and statistics that had been mentioned in prior Seagrave Meetings. (Tr. 172). He testified that when the UFA President said that having Seagrave be the sole provider of new apparatus was like “putting our eggs in one basket,” the UFA President was using an exact quote from the September 1, 2005 Seagrave Meeting. (Tr. 221-222). The Deputy Commissioner further testified that when the UFA President stated that eight new trucks were sitting in Seagrave’s parking lot, and that Seagrave was in dire straits and did not have the proper personnel to repair their trucks, that the information came from Seagrave Meetings. (Tr. 223-224). When

1 OCB2d 10 (BCB 2008) 9 asked about the accuracy of those statements, he answered that the former statement was “probably true” at the time, and that the latter statement “is true.” (Tr. 224-225). The Deputy Commissioner stated that he never prohibited any of the attendees of these meetings from discussing the content of the meetings with outside sources. (Tr. 218). He testified that he felt the meetings primarily focused on technology and vendor compliance. (Tr. 166). When asked if the subjects discussed at the Seagrave and TOC Meetings could have an impact on firefighter safety, the Deputy Commissioner restated that the focus of the meetings was primarily business-related. (Tr. 166-169). When pressed by the Union attorney, he testified that the subjects discussed at the meetings “could” have an impact on safety and it was “possible” that the subjects would have an impact on safety. (Id.). He testified that he believed that Romaka’s presence at future meetings would hurt his ability as a manager to deal with the vendor in the future and that vendors may be less than candid with him if these matters were disclosed to outside parties. (Tr. 225-226). At some point after April 4, but in the month of April, the aerial ladder at Ladder 19 in the Bronx again malfunctioned while on a call and was sent for repair. On May 2, 2006, a firefighter fell from a Seagrave truck and was seriously injured. The Union claims that the circumstances of this incident were similar to those of the December 2005 accident. The Deputy Commissioner testified that Romaka continued to attend PSS and Glove Meetings, some of which the Deputy Commissioner chaired (Tr. 270). Although Romaka testified at one point that he “currently” (as of the October 29, 2007 hearing date) attended both PSS and Glove Meetings, on redirect, he testified that he could not be certain whether there were any Glove Meetings held in 2006, and that the PSS Meetings had finished by the time the Seagrave issues arose. (Tr. 293, 349).

1 OCB2d 10 (BCB 2008) 10 At the beginning of 2007, the Deputy Commissioner testified that, after much consideration, he wanted to invite Romaka back to TOC Meetings again, as long as vendors were not present. (Tr. 272-273). He reiterated that all of the meetings he chaired were regarding innovations, that they were not health and safety meetings, (Tr. 274-275), and that, therefore, he thinks he has the right to decide who he wants to have in a meeting or not. (Tr. 274). The Union claims that indeed, Romaka was invited back at the beginning of 2007, but that meetings were canceled after he indicated that he would attend, and that the February 9, 2007 meeting was scheduled for a day on which a hearing was to be held in this matter. (Union Ex. A(14); A(20)). In February 2007, the Deputy Commissioner also invited Romaka and other union representatives to attend a February 2007 Seagrave Meeting to receive an update regarding the Department’s new tower order. (Tr. 191-192). According to the Deputy Commissioner, the meeting was held to discuss new equipment, not warranty compliance. (Tr. 191). The Union filed the instant petition on April 21, 2006. As a remedy, the Union asks that the Department be directed to cease and desist from refusing to permit Romaka from attending safety meetings and that conspicuous notices be posted throughout the Department that the City has violated the NYCCBL. Issues Regarding the Deputy Commissioner’s Appearances to Testify The Deputy Commissioner had been called by the Union as a witness and testified on February 9, 2007. On the day that he testified, the Union’s attorney completed part of his direct examination. The City did not cross-examine the witness on that day. Between February and August at least one hearing day was canceled because he was unavailable. The Deputy Commissioner was present on August 2, 2007 when the parties agreed to adjourn the hearing for that

1 OCB2d 10 (BCB 2008) 11 day pending settlement discussions. The Deputy Commissioner also did not testify on scheduled hearing dates in September. At that time the City represented that the Deputy Commissioner was in ill health, and, with its closing brief the City submitted documentation to show that for the September 6, 2007 hearing date, he was being treated in a doctor’s office. (City Brief Ex. 1). Taking the witness’s asserted health concerns into account, but wishing no further delay in the proceedings, the Trial Examiner wrote a letter to the parties on September 19, 2007. (Union Ex. A(19)). The Trial Examiner, noting these concerns, selected three dates in October in the hope that the Deputy Commissioner would be able to testify on one of those days. 2 The Trial Examiner wrote that should he be unable to complete his testimony, the hearing would go forward on the last date with the testimony of the final scheduled witness, and that she would ask the parties for written submissions on how to proceed. (Id.). The letter indicated that one of the options that would be considered was an earlier request by the Union that the record should be closed and a negative inference drawn because of the failure of the Deputy Commissioner to complete his testimony. (Id.). Additionally, on several different occasions, the Trial Examiner offered to have the Deputy Commissioner testify by phone or have the hearing moved to a location that would be more convenient for him. In October, as each of the selected dates approached, the City represented that the Deputy Commissioner was unable to appear because of his health. The City produced a November 7, 2007 doctor’s note in its closing brief that stated that the Deputy Commissioner had been under his care for complaints of chest discomfort and shortness of breath and had coronary artery stenting performed on October 10, 2007. (City Brief Ex. 1). The doctor’s note stated that after the stenting, 2 The parties were consulted about the potential hearing dates, and agreed to those dates.

1 OCB2d 10 (BCB 2008) 12 he continued to complain of exertion symptoms. (Id.). The final hearing date was held on October 29, 2007, during which the final witness testified and the hearing was closed. The parties elected to submit their positions on how the partial testimony of the Deputy Commissioner should be treated in their closing briefs. (Tr. 361.) Those positions will be reflected below.

POSITIONS OF THE PARTIES Union’s Position The Union argues that it has shown, through the totality of the record, that the Department retaliated against Romaka by excluding him from the Seagrave and TOC Meetings, in violation of NYCCBL § 12-306(a)(1) and (3). 3 The record establishes that Romaka and the Union President were engaged in protected activity, that the Deputy Commissioner had knowledge of that activity, that he took action which adversely impacted on the Union, and that there is a nexus between the

3 NYCCBL § 12-306(a) provides in pertinent part: It shall be an improper practice for a public employer or its agents: (1) to interfere with, restrain or coerce public employees in the exercise of their rights granted in section 12-305 of this chapter; * * * (3) to discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any public employee organization; * * * NYCCBL § 12-305 provides in pertinent part: Rights of public employees and certified employee organizations. Public employees shall have the right to self-organization, to form, join or assist public employee organizations, to bargain collectively through certified employee organizations of their own choosing and shall have the right to refrain from any or all of such activities. . . . A certified or designated employee organization shall be recognized as the exclusive bargaining representative of the public employees in the appropriate bargaining unit.

1 OCB2d 10 (BCB 2008) 13 protected activity and the adverse action. Protected union activity was the motivating factor behind the Department’s discriminatory act because the UFA spoke out at a public hearing on issues regarding member safety which impacted on the Deputy Commissioner’s credibility as the employee in charge of technical oversight. It contends that the Deputy Commissioner’s April 7, 2006 email speaks for itself, as does the continued presence of UFOA representatives at meetings chaired by the Deputy Commissioner. The record evinces definitive facts that show that its allegations are not conclusory assertions based on surmise, conjecture, or suspicion. The Union questions the City’s argument that it had a legitimate business reason for excluding Romaka from attending meetings because representatives of the UFOA continued to attend those same meetings. It contends that the Deputy Commissioner and others acted with intent to exclude the UFA from these meetings for no legitimate reason other than retaliating against the UFA for embarrassing him. Any claim of business justification is a pretext for interference with the UFA’s statutory organizational rights. In evaluating the credibility of the witnesses, the Union argues that the Union President and Romaka had absolutely no motive to lie since their interest in the matter is slight and their testimony was completely consistent. On the other hand, the Deputy Commissioner had many reasons to be untruthful, he absolutely had an interest in the outcome of this matter, he was evasive, and his testimony was inconsistent about crucial issues that were highly relevant to the improper practice petition. Regarding the City’s refusal to bargain over a mandatory subject of bargaining, in violation of NYCCBL § 12-306(a)(1) and (4), the UFA is well aware that, when requesting information from an employer, it must bear the burden of showing that the information it requests is necessary for

1 OCB2d 10 (BCB 2008) 14 purposes of collective negotiations or contract arbitration. 4 The obligation is not dependent upon the opportunity to obtain the information by some other means of disclosure or in some other forum. Here, a Union officer attended meetings at which he collected information regarding certain equipment which has an impact on the safe operation of that equipment and firefighter safety. Romaka’s request to be returned to the meetings, which were in-house and with outsiders invited to attend, was so that he could learn about and speak out about Seagrave’s repair of vehicles and/or comment on the problems related to spare apparatus. Therefore, his request clearly falls within the area of firefighter safety, which is a mandatorily bargainable term and condition of employment. As for the Deputy Commissioner’s testimony, the Union applies the New York State Court’s criteria for analyzing whether a missing witness charge is warranted to the instant matter, as well as a similar standard espoused in the Fifth Edition of How Arbitration Works by Elkouri & Elkouri. Here, the Deputy Commissioner was a witness believed to be knowledgeable about a material issue pending in the case, was expected to testify favorably to the opposing party, and the City failed to have him to appear to finish his testimony. A negative inference of his refusal/inability to appear is warranted because of his reticence to testify, his evasiveness, arrogance, and unavailability, his avoidance of dates scheduled for him to testify, and his refusal to cooperate after his initial testimony. The Union’s attorney had many more questions for him to answer as well, and was unable to complete his examination of the witness. 5 Therefore, the Board should find an adverse 4 NYCCBL § 12-306(a) provides in pertinent part: (4) to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees;