BOARD OF COLLECTIVE BARGAINING

Fulgieri, 11 OCB2d 34 (BCB 2018) (IP) (Docket No. BCB-4212-17)

Summary of Decision: Petitioner claimed that DCAS violated NYCCBL § 12-306(a)(1) and (3) when it transferred him to another unit, resulting in a significant loss of overtime earnings, in retaliation for his complaints regarding his workplace. The City argued that Petitioner was transferred at his request and that it had legitimate business reasons to assign him to the new location because it needed to fill a vacancy and because the transfer resolved a conflict between Petitioner and his supervisor. The Board found that Petitioner established a prima facie claim of retaliation and that the City’s purported business reasons for transferring him were pretextual. Accordingly, the petition was granted. (Official decision follows.) _________________________________________________________________

OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING

In the Matter of the Improper Practice Proceeding -between- CHRISTOPHER FULGIERI, Petitioner, -and- THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES,

Respondents. __________________________________________________________________

DECISION AND ORDER On May 10, 2017, Christopher Fulgieri (“Petitioner”) filed a verified improper practice petition against the City of New York (“City”) and the New York City Department of Citywide Administrative Services (“DCAS”). Petitioner asserts that DCAS transferred him to another unit, resulting in a significant loss of overtime earnings, in retaliation for his complaints regarding his workplace, including alleged unfair overtime distribution, in violation of § 12-306(a)(1) and (3) of the New York City Collective Bargaining Law (New York City Administrative Code, Title 12,

11 OCB2d 34 (BCB 2018) 2 Chapter 3) (“NYCCBL”). The City argues that Petitioner was transferred at his request and that it had legitimate business reasons to assign him to the new location because it needed to fill a vacancy there and because the transfer resolved a conflict between Petitioner and his supervisor. The Board finds that Petitioner established a prima facie claim of retaliation. It also finds that the City’s purported business reasons for transferring Petitioner are pretextual. Accordingly, the petition is granted.

BACKGROUND The Trial Examiner held two days of hearing and found that the totality of the record, including the pleadings, exhibits, and briefs, established the relevant facts set forth below. Petitioner has been employed by DCAS as a Laborer since December 2006. He is a member of District Council 37, Local 924 (“Union”). DCAS is responsible for ensuring that City agencies have the resources and support they need to provide services to the public. DCAS’ Asset Management Division manages, operates, and maintains over 55 City-owned buildings throughout the City. Within the Asset Management Division is the Ceremonies Unit, which is responsible for assembling and breaking down stages for various City Hall events throughout the City, and the Paint Shop, which is responsible for painting and plastering in DCAS-maintained buildings. Additionally, DCAS has a Citywide Procurements Division, which purchases goods and services on behalf of City agencies and is responsible for the quality control, warehousing, and distribution of these goods. Within the Procurements Division is a Storehouse facility that employs Laborers. The petition concerns Petitioner’s involuntary transfer in 2017 from the Paint Shop, located at 390 Kent Avenue in Brooklyn, to the Storehouse, located on Metropolitan Avenue in Queens.

11 OCB2d 34 (BCB 2018) 3 Petitioner had been assigned to the Paint Shop since 2013. On December 9, 2016, Petitioner wrote an email to Belinda French, DCAS’ Diversity & EEO Officer, concerning an issue with the way his supervisor was filling out his timecards. French responded by stating that Petitioner’s issue would be more appropriately handled by the Labor Relations Unit, and that she would forward the email to Michael Slutsky, the Director of Labor Relations. Slutsky then told Petitioner to have his Union representative call him so that he could set up a meeting. Although Petitioner’s email to French did not mention overtime, Slutsky testified that Petitioner’s Union representative, Chandler Henderson, called him and asked to set up a meeting to discuss Petitioner’s allegation that he was not getting a fair share of overtime. Slutsky stated that in preparation for the meeting he ran overtime reports for Petitioner and other Laborers. He also spoke to Department Director Mary Padavano and obtained a document that listed the occasions on which Petitioner declined to work overtime during 2016. The document was handwritten by Petitioner’s supervisor, Giovanni Caggia, and it included calculations of how many hours Petitioner worked in overtime during 2016. 1 On February 7, 2017, a meeting was attended by Petitioner, Henderson, Slutsky, and two other members of DCAS management—Sheila Grizzle, Deputy Director of Labor Relations, and Nicole Alexander, a DCAS Investigator. It is undisputed that Petitioner raised three separate concerns at the meeting—overtime distribution, how his supervisor was recording his work location, and allegations of nepotism. With regard to the overtime issue, Henderson stated that in accordance with a mayoral executive order, overtime opportunities were required to be distributed equitably. Therefore, he asked Slutsky to provide him with a list of employees eligible for

1 According to the document, Petitioner worked approximately 900 hours of overtime in 2016 and earned $44,199 in overtime pay.

11 OCB2d 34 (BCB 2018) 4 overtime in the next couple of weeks. According to Petitioner, Slutsky stated that DCAS did not have to follow the executive order and could distribute overtime as it pleased. 2 Slutsky also presented Petitioner with the list of overtime refusals and pointed out that Petitioner had received more than $40,000 in overtime in 2016. Petitioner responded that if Slutsky compared his earnings to other Laborers he would see a disparity that showed that he had earned less. Petitioner also expressed his concerns about how his supervisor was recording his work locations on his “blue sheets.” The blue sheet is a document used to identify where trades titles are working on a given day in the event that there are questions about an employee’s whereabouts. According to Petitioner, his supervisor was “falsifying” his blue sheets by listing him as being on shop detail every day, rather than out in the field working with other titles such as Plasterers, Bricklayers, and Masons. (Tr. 36) Petitioner explained that the reason he was concerned about this was because he believed that if he were to seek a promotion to one of these titles, any experience he had working out in the field with these titles would help him achieve the promotion. 3 The final issue discussed at the meeting was Petitioner’s concern regarding “possible nepotism.” (Tr. 37) In particular, he believed that there was a Laborer who was related to a Foreman, as well as one who might be related to either Padavano or Caggia. At the hearing in this matter, Petitioner elaborated that one of the Laborers he was referring to received favorable treatment because Caggia reported that he was working with the Masons on the blue sheets, while Caggia always recorded on the blue sheets that Petitioner was in the shop. 2 Although Slutsky testified at the hearing in this matter, he was not questioned about his response to Henderson’s statements regarding the mayoral order, and we make no finding regarding the accuracy of this comment.

3 At the hearing in this matter, Petitioner listed specific examples of Laborers who he believed were promoted in part because of experience they had obtained as a Laborer assisting other titles. Slutsky and Anderson, on the other hand, testified that blue sheets do not play any role in promotions and are instead used for disciplinary investigations.

11 OCB2d 34 (BCB 2018) 5 It is also undisputed that at some point during the meeting, Petitioner requested to be transferred into the Ceremonies Unit. However, the witnesses’ testimony differs regarding what was said concerning this request. According to Petitioner, there was a vacancy in that unit and so he asked to be moved there “to be protected,” while his allegations were investigated. (Tr. 43) Slutsky responded that Petitioner should speak with the supervisor of that unit because Petitioner had been transferred in 2013 to the Paint Shop as a result of issues he had with the Ceremonies Unit supervisor. 4 Petitioner contends that Slutsky then suggested the possibility of a transfer to the Storehouse. According to Petitioner, he told Slutsky that he did not want to go to the Storehouse because he would not be able to make nearly as much overtime there and it would be a hardship on his family. Petitioner told Slutsky that if the Storehouse was the only option then he would stay at the Paint Shop. Petitioner testified that the meeting then ended and he and Henderson stayed in the room to talk for a few minutes. Henderson told him that if DCAS did attempt to transfer him to the Storehouse, the Union would fight it because the transfer would be retaliation for his complaints. Slutsky, Grizzle, and Anderson all denied that they discussed the possibility of transferring Petitioner to the Storehouse at the February 7, 2017 meeting, or that Petitioner stated that he did not want to be transferred there. These witnesses concede that Petitioner asked to be transferred to the Ceremonies Unit, and testified that he told them that he had already spoken with the supervisor of that unit, who was fine with Petitioner returning to work there. However, both Slutsky and Grizzle testified that Slutsky told Petitioner that a transfer to the Ceremonies Unit

4 There is little testimony regarding Petitioner’s transfer from the Ceremonies Unit to the Paint Shop. Slutsky testified that in 2013 Petitioner contacted him about “personality issues” he was having with his supervisor. Slutsky stated that, in the “interest of good labor relations” he had Petitioner moved to the Paint Shop. (Tr. 85)

11 OCB2d 34 (BCB 2018) 6 would not be possible due to his previous issues with the unit supervisor. Instead, Slutsky told Petitioner “you’re going to stay where you are.” (Tr. 91) Slutsky testified that Petitioner’s request to be transferred was made only in connection with the Ceremonies Unit. It is uncontested that the meeting ended with Slutsky stating that Petitioner’s allegations would be investigated and that Slutsky would get back to him. However, it is unclear what, if any, investigation DCAS actually conducted. Slutsky testified that it is not his role to investigate and, therefore, he referred the allegations to the Director of Discipline, but he was not aware whether the Director of Discipline did anything regarding the allegations. Alexander testified that as far as she knew, no investigation was conducted. Additionally, Padavano testified that an investigation into the issue of the blue sheets was not conducted until after Petitioner was transferred out of the unit. 5 (Tr. at 156) Later in the same day as his meeting with Petitioner, Slutsky had a meeting with another Laborer, Petrus Victor, who worked in the Storehouse. Victor was having issues with his supervisor and requested a transfer to a different unit. Slutsky stated that after this meeting, “it occurred to me . . . [that] I might as well switch the two Laborers, since those locations are the only locations where we use that title.” (Tr. 92) Slutsky testified that generally when there is a conflict between a supervisor and a subordinate, he contacts the supervisor to see what the issue is from his or her point of view. Depending on the situation, he then tries to resolve the conflict by bringing the parties together to meet, considering a transfer, assigning them different work, or providing them with additional training. With respect to transfers, Slutsky stated that the criteria he looks at in making the decision is whether the location can accommodate that person and the

5 Padavano also stated that at some point she was questioned by the Deputy Director of Labor Relations regarding the hiring of her neighbor.

11 OCB2d 34 (BCB 2018) 7 duties and responsibilities they are capable of performing. He also needs to obtain authorization from the directors of the locations. However, he stated that he does not take overtime availability into account when making such a transfer. In particular, he denied that he deliberately assigned Petitioner to the Storehouse because there was less available overtime. Slutsky contacted Padavano as well as the supervisor at the Storehouse and obtained their approval to make Petitioner’s transfer. Slutsky admits that Petitioner’s transfer to the Storehouse was involuntary. On March 2, 2017, Slutsky met with Petitioner to inform him of the transfer. Petitioner was accompanied to the meeting by local Union president Kyle Simmons. 6 Slutsky testified that Petitioner protested the transfer and stated that it would negatively affect how much overtime he would earn. Slutsky responded that overtime is not guaranteed under the collective bargaining agreement (“Agreement”). Simmons also protested Petitioner’s transfer and stated that under the Agreement, DCAS had to give Petitioner 30 days’ notice before it could transfer him. Slutsky responded that he can transfer Petitioner without notice because there was no such contractual clause. Simmons stated that he was going to file a grievance. Padavano testified that she was not responsible for Petitioner’s transfer. In particular, she stated that Slutsky called her after the February 7 meeting and told her that Petitioner had requested a transfer and wanted to know whether she would approve of switching his location with Victor’s. Padavano didn’t consent immediately because she had to speak with her supervisor first. After her supervisor told her it was OK with him, Padavano agreed to the transfer. The day after Petitioner was notified of the transfer, Padavano held a meeting with the Laborers at the Kent Avenue location to inform them that Petitioner had been transferred to the Storehouse and to explain why. Elsayed Kasab, a Laborer from the Machine Shop, which is also

6 Grizzle also attended the meeting, although Anderson did not.

11 OCB2d 34 (BCB 2018) 8 located at Kent Avenue, was present and testified about the meeting. In pertinent part, Kasab’s testimony was corroborated by a recording of the conversation. 7 A transcript of the conversation follows: Padavano: So I asked for a meeting with all of you guys today, because of, everybody heard about what happened with Chris [Fulgieri]. And I want to explain something to everybody, and I’m not sitting here . . . . myself or giving you excuses. Chris went upstairs complaining about overtime, and I don’t know the whole dynamics with him and Mike Slutsky. Next thing I know Mike Slutsky calls me do I want to transfer him with someone else, so I said yes. So that was my fault. Mike Slutsky also wanted to know if there’s anybody else that’s not happy, because there are Laborers in the Storehouse that are not happy. So anybody that’s not happy, you can speak to me. You can speak to me offline, speak to me alone, or you can speak now. I’m giving everyone the opportunity.

Kasab: Opportunity about what? Padavano: About here, about the overtime, about me, about your supervisors, about the work. Again, you can talk to me offline but I wanted to say it to everyone face-to-face . . . . Everybody here, I’m sure you heard all the buzzing in the hallways and, like I said I just wanted to be the one to tell everyone.

Kasab: I’m good. Padavano: Ok, again, you don’t have to say it, I’m here all day, anybody can come in today or Monday, Tuesday, whenever.

[inaudible] Kasab: What happened here, stays here. You know what I’m saying? This is for all of us, you know what I’m saying?

Padavano: Well I’m gonna tell you all this, and Mike knows this. Last year I sat in this room with Chris and told him, leave the dirt here. Don’t go running upstairs and say I’m not getting any overtime. Listen— you’re not happy with something you come to me …. You’ve all been in my office. So you can walk in the door. I didn’t do this, he did. He went upstairs and he went on and on and

7 Although Padavano was unaware of it at the time, one of the Laborers recorded the conversation. The recording of the meeting was entered into the record as Petitioner Ex. A.

11 OCB2d 34 (BCB 2018) 9 on, and this wasn’t his first visit I guess upstairs, and it was about overtime. And they run the figures and they see what kind of overtime everyone makes, which you all heard about also, and you know, he just brought light to himself . . . .

Kasab: To be honest with you Mary I asked Danny, I say what’s going on because I don’t know about . . . all I know is that he’s got two kids and both of them are sick. Danny told me that was his request . . . . 8 Padavano: He went there requesting a transfer, is what he did, and he got it.

Kasab: Between us, there’s no way, chance he can come back…? Padavano: Nope. He went upstairs and asked for a transfer, he went up there and said he wasn’t happy here, it wasn’t enough overtime and he wanted to be transferred . . . . We have a new Laborer right now, Petrus Victor from the Storehouse, he will be assigned to the machine shop.

(Petitioner Ex. 1) Kasab testified that the reason he asked Padavano whether Petitioner could come back was because he felt the need to “defend” Petitioner since he was a good worker and had been there a long time. (Tr. 31) Kasab explained that he knew that being transferred to the Storehouse would cause Petitioner to lose overtime money that he needed for his family. (Tr. 31) Kasab stated that after Padavano gave her speech, “that shut everybody up.” (Tr. 30) Padavano testified about the conversation with the Kent Avenue Laborers and explained that when she talked about Petitioner going “upstairs” she was referring to the 17 th floor of One Centre Street, where DCAS’s Labor Relations Department is located. Additionally, her comment that Laborers should “leave the dirt here” meant that she wanted employees to follow the proper chain of command if they had a workplace issue rather than going straight to Labor Relations. She also explained that when she told the Laborers that Slutsky wanted to know if anybody else wasn’t

8 Kasab testified that Danny is his supervisor in the Machine Shop.

11 OCB2d 34 (BCB 2018) 10 happy, she asked this because she “didn’t realize that Chris was that unhappy, so Mike said, if anybody else is unhappy, we can see if we can transfer them too . . . .” (Tr. 147) According to Padavano, she did not say this in a threatening manner, but just wanted to let the Laborers know that if they had any issues that they could speak to her at any time. Petitioner stated that since he has been transferred to the Storehouse he has made “almost nothing” in overtime. (Tr. 53) More specifically, he stated that he worked approximately 50 to 60 hours of overtime in 2017 after his transfer on March 3, but that was work done with the Ceremonies Unit. A comparison of Petitioner’s W-2 forms from 2016 and 2017 demonstrates that he earned less in 2017. 9 POSITIONS OF THE PARTIES Petitioner’s Position Petitioner argues that DCAS violated NYCCBL § 12-306(a)(1) and (3) by transferring him to the Storehouse in retaliation for workplace complaints he made with the assistance of his Union. It is undisputed that DCAS had knowledge of Petitioner’s union activity. Additionally, Petitioner contends that this is a rare case where there is an outright admission of improper motive. Furthermore, Petitioner argues that Padavano was a “critical decisionmaker regarding the transfer” since Slutsky did not have the authority to make the transfer without her approval. (Pet. Br. at 5) In Padavano’s March 3, 2018 speech she explicitly stated that Petitioner was transferred because he made complaints regarding the workplace. Petitioner contends that Padavano’s message was clear to the Laborers that anyone who takes his complaint to the Union, or to Labor Relations, “can

9 However, Petitioner’s 2017 earnings include two months of working in the Paint Shop where he was still able to work overtime.

11 OCB2d 34 (BCB 2018) 11 expect swift retribution.” (Pet. Br. at 6) Thus, Petitioner contends that he has made out a prima facie showing of retaliation. Petitioner also argues that DCAS did not provide a legitimate business reason for transferring him. There was no evidence of poor performance or any misconduct by Petitioner. Although Slutsky and Padavano stated that Petitioner was being transferred because he was “not happy” in the Paint Shop, Petitioner never said that he was unhappy— only that he wanted his job records to be accurate and to receive his fair share of overtime. (Pet. Br. at 6) Furthermore, Petitioner avers that “if the point of the transfer was to cure [his] ‘unhappiness,’ then sending [him] out of the Division in which he had always worked, to a job that entailed a serious pay cut, would only exacerbate the problem.” (Pet. Br. at 7) Instead, Petitioner contends that he was transferred as punishment for making workplace complaints and to scare other Laborers away from doing the same. This is made clear by Padavano’s explanation that it was Petitioner’s own fault that he was transferred because he brought attention to himself by complaining to Labor Relations rather than leaving the “dirt” in-house. Consequently, Petitioner argues that the Board should grant the petition. As a remedy, Petitioner requests that the Board order DCAS to reinstate him to the Paint Shop and to make him whole, including but not limited to compensating him for approximately $43,000 in lost overtime. City’s Position The City argues that the Union has failed to establish a prima facie claim of retaliation and contends that the decision to transfer Petitioner was made for legitimate business reasons. First, it argues that the only evidence of retaliatory motivation that Petitioner has offered is based on temporal proximity. The City contends that there is no other evidence in the record to suggest that anyone at DCAS held anti-union animus. In particular, the sequence of events shows that, although

11 OCB2d 34 (BCB 2018) 12 Slutsky was aware of Petitioner’s overtime complaints prior to the February 7 meeting, he never contemplated a transfer until Petitioner requested one. The City contends that there was no conversation about a possible transfer to the Storehouse, nor did Petitioner protest such a transfer at the February 7, 2017 meeting. Slutsky, Grizzle and Alexander each testified consistently to this fact, whereas Petitioner did not present any evidence to corroborate his version of the facts. The City argues that “the selection of the Storehouse location for his transfer arose only after a vacancy was created by [Victor’s] transfer.” (City Br. at 21) As such, the only protest against a transfer to the Storehouse was clearly made at the March 2 meeting, after Petitioner was informed of the transfer. Therefore, the City contends that Petitioner’s claim of improper motivation is wholly conclusory and, thus, he has not established a prima facie case of retaliation. Furthermore, the City contends that the transfer would have occurred even in the absence of Petitioner’s complaints about overtime based on his request for a transfer and DCAS’s need to fill a vacancy in the Storehouse created by Victor’s transfer out of that unit. Additionally, it argues that DCAS had legitimate business reasons to transfer Petitioner based on his conflict with his supervisor in the Paint Shop. According to the City, Petitioner’s complaints about how his supervisor was recording his work location were “illusory” and were founded on his “mistaken notion” that the records would affect his ability to achieve a promotion. (City Br. at 19) Slutsky testified that DCAS routinely implements transfers when situations of conflict arise in order to maintain efficiency and order in the workplace. In fact, this is exactly what DCAS had done a few years earlier when it transferred Petitioner out of the Ceremonies Unit due to a conflict he had with the supervisor there. This conflict is also the reason that DCAS could not accommodate Petitioner’s request to be transferred back into that unit. Slutsky reasonably determined that such an arrangement would be too risky given the history between Petitioner and the supervisor of the

11 OCB2d 34 (BCB 2018) 13 Ceremonies Unit. Additionally, Slutsky needed to transfer Victor out of his unit to rectify another workplace conflict. Thus, the City contends that DCAS had legitimate business reasons to transfer Petitioner to the Storehouse. It therefore requests that the petition be denied.

DISCUSSION To determine whether an action violates NYCCBL § 12-306(a)(1) and (3), this Board applies the test enunciated in City of Salamanca, 18 PERB ¶ 3012 (1985), and adopted by the Board in Bowman, 39 OCB 51 (BCB 1987), and its progeny. This test states that, to establish a prima facie claim of retaliation, a petitioner must demonstrate that: 1. the employer’s agent responsible for the alleged discriminatory action had knowledge of the employee’s union activity; and