BOARD OF COLLECTIVE BARGAINING

Local 1087, DC 37, 1 OCB2d 44 (BCB 2008) (IP) (Docket No. BCB-2492-05).

Summary of Decision: The Union claims that the City and DOC violated NYCCBL § 12-306(a)(1) and (3) by transferring a locksmith who was a Union shop steward out of a facility and filing disciplinary charges against him in order to discourage his participation, and other Union members’ participation, in Union activity. After an evidentiary hearing, the Board found that DOC did not discriminate or retaliate against the locksmith by taking such actions and that it also had legitimate business reasons for taking the actions. (Official decision follows.) __________________________________________________________________

OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING

In the Matter of the Improper Practice Proceeding -between-LOCAL 1087, DISTRICT COUNCIL 37, Petitioner, -and- CITY OF NEW YORK and the NEW YORK CITY DEPARTMENT OF CORRECTION,

Respondents. ___________________________________________________________________

DECISION AND ORDER On July 21, 2005, Local 1087, DC 37 (“Union”) filed a verified improper practice petition against the City of New York (“City”) and the New York City Department of Correction (“DOC”). The Union claims that the City and DOC violated § 12-306(a)(1) and (3) of the New York City Collective Bargaining Law (New York City Administrative Code, Title 12, Chapter 3) (“NYCCBL”) by transferring a locksmith who was a Union shop steward out of a facility and filing disciplinary charges against him in order to discourage his participation, and other Union members’ participation,

1 OCB2d 44 (BCB 2008) 2 in Union activity. The City contends that the Union failed to set forth facts that show that the locksmith participated in any activity that is protected by the NYCCBL, that the Union failed to set forth a prima facie case because it did not show that management was aware of any alleged Union activity, that protected activity was not the motivating factor in the decision to transfer the locksmith, and that it had a legitimate business reason for transferring him. Based on an evidentiary hearing, this Board finds that DOC did not discriminate or retaliate against the locksmith, Alfred Vignola, by taking such actions and that it also had legitimate business reasons for its actions.

BACKGROUND After seven days of hearing in this matter, the Trial Examiner found that the totality of the record established the relevant facts as follows. DOC provides for the care, custody, and control of persons accused or convicted of crimes and sentenced to one year or less of jail time as well as inmates awaiting transfer to State correctional facilities. Operation of the correctional facilities is safety-sensitive work because of the inmate population. In this regard, DOC maintains strict rules at all levels of operation, including for its civilian employees. DOC employs civilians as part of the maintenance staff in the title of Locksmith to install, maintain, and repair the locks and locking systems found in the various correctional facilities. Civilian employees whose jobs include the use of tools must comply with stringent inventory procedures in order to avoid loss of a tool, which could be used as a weapon. On March 26, 1999, DOC issued to its civilian employees Operations Order No. 07/99 (“Order”), which sets forth the regulations and procedures for securing tools. The policy was set forth to “ensure[] an accurate

1 OCB2d 44 (BCB 2008) 3 accountability of all tools and equipment within facilities at all times.” (Ans. Ex. 2). The Order sets forth specific procedures for maintaining the tool inventory, storage, and assignment of tools as well as the destruction of broken/defective tools. It provides that all tools must be engraved with the first two letters of the facility’s abbreviation, call letters that correspond with the letter and number of the individual responsible for the tool, and a tracking number for the tool. It also mandates that in the event a tool cannot be accounted for and is believed to be lost or stolen, the Tour Commander should be notified immediately and a search will be conducted. Also, the Order states that the failure to safeguard or report the loss of tools in a timely fashion will result in disciplinary action. Alfred Vignola is a DOC employee in the civil service title of Locksmith. Vignola has worked for DOC for approximately 20 years and worked in the George R. Vierno Center (“GRVC”), a high-security correctional facility for males located on Riker’s Island, until his transfer out on March 21, 2005. At the time of the filing of the petition, Vignola had been a Union Shop Steward for approximately 17 years and Recording Secretary of the Union for approximately 11 years. In August 1999, a five-inch vise grip that was assigned to Vignola and listed on his tool inventory was not accounted for. Vignola insisted that the tool was not lost, but that he “found a tool to be missing.” (Tr. 186). He also averred that while the tool was assigned to him, on his inventory list, and stored in his locksmith shop, that an electrician also had access to the shop. (Tr. 186-7). No disciplinary charges were filed against him for the missing tool. On December 31, 2001, a GRVC Tool Crib Officer who was responsible for maintaining inventories of the maintenance staff’s tools conducted a regular inventory of a toolbox that was stored in Vignola’s locksmith shop. The Tool Crib Officer discovered that a six-inch flat head screwdriver could not be accounted for. According to a January 2, 2002, report submitted by the

1 OCB2d 44 (BCB 2008) 4 Tool Crib Officer, Vignola could not recall where he had last seen the tool. (City Ex. 4). After two searches, the screwdriver was not found. (Id.). When asked about the lost tool, Vignola again maintained he did not lose it, but that it “turned [up] missing,” and that several other individuals had access to the toolbox. (Tr. 194-195). On January 9, 2002, a Captain at GRVC recommended to the then-Warden that disciplinary charges be filed against Vignola for the loss of the tool. (City Ex. 5). The report and an accompanying memorandum noted that Vignola was the last person to have used the tool, and since the tool was assigned to him, he was ultimately responsible for it. (Id.). The Captain noted that the last time the tool had been accounted for was on the last date the tools had been inventoried, on December 18, 2001. (Id.). In his own memorandum to the warden regarding the incident, Vignola wrote that “the last time the tool would have possibly been needed was on Wednesday, December 26, 2001, when we were [repairing down cells],” which was five days prior to the December 31 inventory. (Ans. Ex. 6). On January 17, 2002, the Warden submitted a Memorandum of Complaint (“MOC”) to the Chief of Department regarding the incident. In the MOC, the Warden delineated violations of two sections of the Rules and Regulations and recommended the loss of five vacation days as a penalty. Vignola testified that the Administrative Deputy Warden at the time told him that the charges would be forwarded to the Office of Administrative Trials and Hearings (“OATH”) for further consideration, but he did not hear anything after the charges were submitted. Vignola postulated that “[He guesses that OATH] didn’t think it was important.” (Tr. 115). On April 7, 2003, Vignola received a performance evaluation, which gave him an overall rating of “Very Good,” from his then-supervisor. The evaluation did not specify the time frame

1 OCB2d 44 (BCB 2008) 5 involved. Vignola testified that he liked his then-supervisor, as well as his prior supervisors, and that they deferred to his judgment on matters that involved locksmithing. (Tr. 132-135). The relationship between Vignola and his then-supervisor could be described as cordial, and his supervisor testified that they have been in contact since he left the facility. (Tr. 778). On either September 30 or October 1, 2003, an emergency release linkage which allows the cells to be released in the event of an emergency or power outage, broke in a certain area of GRVC. According to Vignola, the linkage had been problematic since the facility was built, and he suggested a modification to the system, which would involve drilling the system covers, the removal of screws, and the installation of 5,000 bolts, among other things, to repair it. (Tr. 40-41). Vignola estimated that the repairs would take two weeks with a staff of about six: an electrician, two locksmiths, “a couple of” maintenance workers, and a welder. (Tr. 43-44). During this time, the cells would have to remain empty. In the first week of October 2003, the facility’s warden was demoted, and Vignola’s supervisor, who supervised the tradesmen at GRVC, was brought up on charges and then transferred out of GRVC because of an August incident that involved a lack of water pressure to the cells over several days because of a plumbing issue. Two plumbers were also brought up on charges and transferred. (Tr. 691). At this point, Vignola had just begun to analyze and repair the broken linkage. Since there was no one available to assign the necessary staff to the project, and doing the work on his own with his assigned electrician would take weeks, he attended to other work that needed to be completed. (Id.). In the meantime, the area of the facility, called 11B, remained closed. The electrician assigned to work with Vignola was transferred and was not immediately replaced. In October 2003, Lawrence Davis was appointed to replace the prior warden at GRVC. On

1 OCB2d 44 (BCB 2008) 6 October 14, 2003, Lindley Niles became the Supervisor of Mechanics (“SOM”) at GRVC. He was to supervise the approximately 19 tradesmen. Although Warden Davis had never worked with Niles, he testified that through a biweekly meeting attended by maintenance supervisors, including Niles, he became familiar with Niles’ work ethic and experience in maintenance and selected him because he thought Niles’ talent was being “wasted” at a facility that was closed. (Tr. 570-571). When Warden Davis arrived at the facility, he testified that he paid special attention to the maintenance section of GRVC because inmate disturbances had resulted from the August plumbing incident and because he wanted to improve the efficient operation of the facility in that area. (Tr. 581-582). He testified that in the months following Niles’ assignment to GRVC, Niles decreased the amount of backlogged maintenance work orders and oversaw a significant decrease in overtime. (Tr. 582-583). When Niles first arrived at the facility, he held a meeting with the maintenance staff to introduce himself and tell them what his expectations were. (Tr. 460). He mentioned the August 2003 plumbing incident that caused some to be transferred and/or demoted and told them that the entire staff, including him, would be under scrutiny because of the incident. (Id.). He testified that he told them not to be surprised if “IG” was watching all of them regarding the performance of their duties and that he wanted to keep them out of the spotlight. (Id.). In late October or early November 2003, Niles saw the partially-started work on the emergency release linkage in 11B and asked Vignola about it. Niles testified that Vignola told him that: “[h]e was in the process of making modifications that would make it easier for him to service the gates.” (Tr. 403). Niles testified that Vignola told him that the work would take six weeks and six workers assigned exclusively to complete the repair. (Tr. 404). Niles deemed that time frame

1 OCB2d 44 (BCB 2008) 7 to be excessive because none of the tradespeople’s other duties would be able to be completed during that time, creating a significant work backlog. (Tr. 405, 407). He also felt uncomfortable that many of the structures involved with the release were being modified or removed to affect the repair. (Id.). Niles reasoned that if the project were authorized, in order to prevent a backlog of work in other areas, the job would require overtime work as well. (Tr. 407). After considering what was involved, he determined that he wanted a second opinion on how to fix it. (Tr. 408). Niles consulted his supervisors, Thomas Burke, the Divisional Maintenance Manager, and a Deputy Warden for advice on how to proceed. (Tr. 405). Niles testified that the Deputy Warden spoke to Vignola and, after having done so, told Niles that he concurred with Niles’ opinion that the modifications by Vignola should not be performed. (Tr. 486). Burke testified that he was told by Niles that the project would take five to six weeks. (Tr. 520). He also spoke to Vignola, who told him that the system was inadequate and needed modifications. (Tr. 521). Vignola testified that when Burke and others stressed to him on one occasion that the project needed to be finished quickly, his statement to them was: “Well, where have you been for five weeks? I’ve been asking and nobody has been coming forward with anything.” (Tr. 45). Burke testified that he wanted to do some investigating into the time frame because moving inmates out of the area would mean an extensive discussion throughout GRVC regarding sufficient bed space and other considerations. (Tr. 520-521). After inquiring, Burke was told that “there was not going to be a six-week time frame” by the custody management division, through Warden Davis. (Tr. 522). At this point, he decided to seek out a second opinion from a locksmith, James Garrity, and a machinist, Thompson Alexander, who worked together doing repairs on cells at different facilities and whom Burke supervised. (Id.). Burke testified that he called them in similar situations,

1 OCB2d 44 (BCB 2008) 8 whenever he needed to troubleshoot or do a quick repair. (Id.). Warden Davis testified that he also spoke to Vignola about the repair and the time frame. After Vignola explained his reasons for the modifications and the time frame, Warden Davis testified that he told Vignola that like any other business, sometimes it is good to get a second opinion on the repair. (Tr. 574). Warden Davis testified that, although Vignola had to accept what he said, he could tell that Vignola was not happy that he agreed with Niles and the Deputy Warden. (Tr. 574-575). According to Warden Davis, Vignola stated that he did not see how Niles could make the determination since Niles was not a locksmith. (Id.). Shortly thereafter, a number of people, including Burke, Vignola, Niles, Garrity, and Alexander, met in 11B to examine the situation. Garrity testified that when he and Alexander arrived at the scene, Vignola got off of the ladder on which he had been working, appeared surprised and irritated, then walked out and muttered, “You fix it.” (Tr. 352). After reviewing Vignola’s work, Garrity testified that he didn’t think that Vignola’s modifications, which included the use of a reciprocating saw to permanently remove part of the linkage, were appropriate because they extensively changed the manufacturer’s design. (Tr. 345-350). Garrity testified that the system was designed by engineers, that each part was there for a reason, and that he had had trouble in the past when he tried to modify things instead of adhering to the manufacturer’s specifications. (Tr. 250). Garrity also testified that Vignola told him that his reason for removing part of the linkage was because he could not fit his arms in the apparatus with the part in there as well and that he would get cut when he tried to insert his arm. (Tr. 348). Although Alexander did not recall Vignola’s demeanor, he agreed with Garrity’s assessment of the repair, which involved adjusting and aligning the parts of the linkage, performing preventative maintenance, and re-creating the parts that had been

1 OCB2d 44 (BCB 2008) 9 cut by Vignola. (Tr. 377). According to both Garrity and Alexander, they went in and performed the repairs over three days with overtime and then had the system tested. (Tr. 351, 383). Vignola estimates that the work was done over the weekend of November 19 or 20, 2003, and that the inmates were returned to 11B on December 19. (Tr. 46.). Niles testified that when Garrity and Alexander arrived at the job to start working, Vignola came to the area and was commenting that they were not performing the repairs correctly and that they should be doing the repairs the way he wanted to do them. (Tr. 416-417). Niles noted that “the atmosphere was becoming tense,” so he went to the Deputy Warden and told him that Vignola was being somewhat confrontational. (Tr. 417). According to Niles, the Deputy Warden then asked Vignola to stay away from the area. (Id.). Vignola testified that on December 21 there was a power failure in 11B, and the linkage broke again. (Tr. 46-48). Vignola also wrote a memorandum, signed as “A.J. Vignola 23890, Locksmith G.R.V.C.,” to Warden Davis describing the incident and suggesting a course of action for fixing the problem. (Pet. Ex. B). Vignola copied the director of the DC 37 Blue Collar Division and the Local 1087 Shop Steward. Niles testified that he does not recall the linkage breaking again and checked to see if there were any subsequent work orders for that area. There was no record of a further repair on 11B. (Tr. 487). He also testified that he did not receive a “down cell report” for that area, which would indicate that the cells were malfunctioning. (Tr. 488). Garrity and Alexander testified that they were either not aware of any further problems with the linkage or not called back to repair it. (Tr. 365, 388). In January 2004, Niles had a death in his family and was out of GRVC for several weeks. (Tr. 50-51). On January 26, 2004, Vignola wrote another memorandum to the Deputy Warden,

1 OCB2d 44 (BCB 2008) 10 signed as a Locksmith, regarding his ideas for the repairs to the linkages that he felt were necessary throughout other areas of the facility. (Union Ex. 6). On February 19, 2004, the Council Representative of the Blue Collar Division, Chandler Henderson, wrote to the DOC Director of Labor Relations to request a labor-management meeting on behalf of the locksmiths at GRVC. (City Ex. D). He placed three issues on the agenda: 1) the assignment of “unqualified personnel” to perform the duties of locksmiths, 2) the need for an additional locksmith, and 3) the supervisory skills of Niles. (Id.). On March 16, 2004, Vignola, Henderson, DOC Director of Labor Relations Nicholas Santangelo, Burke, and the Deputy Warden all attended the labor-management meeting. Henderson described the discussion at the meeting as revolving around the fact that Vignola felt that Niles was not taking into account the years of experience that Vignola had as a locksmith and that Vignola had safety issues with the way the linkages were being repaired. (Tr. 303-304). Part of what Vignola had originally wanted to discuss was the fact that Niles had not assigned him a new electrician with whom to work after the other one had been transferred, but Vignola testified that: “[a]s far as working alone, that was addressed while Mr. Niles was out on bereavement [leave].” (Tr. 256). Vignola testified that while Niles was out, he had the employee who filled in for Niles assign him an electrician for at least some repairs. (Tr. 257). Henderson testified that, at the time of the meeting, Vignola was working alone, which presented safety concerns to them. (Tr. 305). During the meeting, Vignola advocated for his plan to address repairs that he felt needed to be completed in the other areas of the facility. (Tr. 672-676). Santangelo testified that the meeting concluded with a refusal to assign more locksmiths to GRVC, but that the Deputy Warden would look at the need for repairs in other areas that Vignola had identified in his January 26 memorandum. (Id.). Further,

1 OCB2d 44 (BCB 2008) 11 he stated that he had spoken to Warden Davis, who was very much satisfied with the way Niles was getting work accomplished, reducing work order backlogs and overtime. (Id.). In June of 2004, Vignola found unmarked tools in an area in which he was working and turned them in to a Security Captain. (Pet. Ex. C; Tr. 97-98). Vignola testified that Niles was unhappy that he had “jumped the chain of command” by going to security to report it but not telling Niles about it. (Tr. 99). On Friday, August 13, 2004, Vignola discovered that Niles had not submitted required Worker’s Compensation forms for an injury that Vignola sustained in July 2004. When Vignola asked Niles about the omission, Niles replied that he would submit the paperwork. On August 19, 2004, when Vignola discovered that Niles still had not submitted the paperwork, he made arrangements to have them submitted though someone else. He also discovered that Niles hadn’t submitted Worker’s Compensation forms for another injury that Vignola had sustained in February 2004. Regarding the papers related to the February incident, Niles testified that there was no one around to show him what to do when he took over the office, that it took him a significant period of time to get the office organized, and that some of his reports were filed late. (Tr. 512, 515). Vignola believes that the fact that the few days he was out for these injuries were recorded as “undocumented illness” and not as due to injury prevented him from being named employee of the month in June 2004. In a memorandum to Warden Davis describing the circumstances, dated August 20, 2004, Vignola described how he was told that he was disqualified for contention because of excessive absences. He signed the memorandum as a Locksmith. (Ans. Ex. D). In the memorandum, he stated that other maintenance men had injuries and their paperwork was processed, and he wondered why his was not. (Id.). The Worker’s Compensation issue was later resolved without the loss of any

1 OCB2d 44 (BCB 2008) 12 time or money to Vignola. On September 16, 2004, Vignola left the locksmith shop at the end of his shift and returned after five minutes because a colleague needed to retrieve keys that he had left in the shop. Vignola discovered Niles along with two maintenance people in the shop. (Tr. 82). Niles explained that the reason he entered the shop with the two maintenance workers was that a maintenance worker asked him for a telephone for his shop and noted at the same time that Vignola had two in the locksmith shop. (Tr. 424-426). Niles testified that as far as he knew, Vignola did not have permission to possess any phones. (Id.). He testified that it was “pretty much a courtesy” that an employee could have one phone. He found an additional phone, a computer, a printer, and other related computer items that Niles felt Vignola did not have permission to possess in the locksmith shop. (Tr. 425, 441). When asked if it was fair to say that he did not have permission to have the phone in the locksmith shop, Vignola was evasive and then replied, “Possibly.” (Tr. 167). Vignola claims that he asked Niles “not so politely” to leave, locked up the shop, and then went directly to Warden Davis and complained to him about the incident. (Tr. 82). In a memorandum that memorialized a conversation between Vignola and Warden Davis, Vignola reiterated his version of the events. (Pet. Ex. E). This memorandum was signed “A.J. Vignola Sr. 23890, Locksmith G.R.V.C.” and copies were sent to the Union. (Id.). Vignola claimed that the locksmith shop was a restricted area and wrote that he had no idea why Niles was in his shop with two “unauthorized personnel.” (Id.). He then wrote that “in light of the tools missing from [three other maintenance workers’] tool boxes and the two unmarked tools I found in the annex cell linkage housings I can only wonder what nefarious deeds he might have been up to.” (Id.). He went on to state, “As I mentioned to you Mr. Niles and I have butted heads since his arrival at G.R.V.C. last

1 OCB2d 44 (BCB 2008) 13 October. We have argued over the proper repair of the emergency release mechanisms in the annex, which are still not working properly. Mr. Niles has repeatedly disregarded my training and my nineteen years experience of working on these systems in most of the facilities in the Department.” (Id.). At the request of Vignola and a Union representative, Warden Davis had the lock changed on the locksmith shop and had two new keys made. He gave one key to Vignola and kept the other. Warden Davis explained that he did this to protect both Niles and Vignola because Vignola expressed a concern that Niles would plant something in the shop, and Warden Davis wanted to take Niles out of the equation. (Tr. 577-578). In describing the incident to Warden Davis, Vignola described the root of his concerns as he and Niles not seeing eye to eye. When asked what Warden Davis thought Vignola meant by that, Warden Davis answered, “Basically, it just started off with the fact that Mr. Niles sought a second assessment on the locking devices in [11B].” (Tr. 578). That weekend, Vignola drafted a petition and had it signed by 15 of the maintenance staff, including himself, on the following Monday, September 20, 2004. The petition read: We, the undersigned maintenance staff of G.R.V.C. request the immediate reassignment of [Niles].