What is in the union complaint against the Town Administrator?

And what does it mean?

By Will Collette

Sometime very soon, expect the Rhode Island Labor Board to issue its decision on an Unfair Labor Practice complaint filed last February by Teamsters Local 251 against the Town over the actions of Town Administrator William DiLibero on February 23.

The issue is on the agenda for the Executive Session of the Town Council on Monday. 

The charge was filed by the Teamsters on February 24, 2011 on behalf of Liz Jarvis, who was at the time assistant to Tax Assessor Ken Swain and shop steward for town hall employees.

As I have in the past, I predict the Labor Board will rule against the town, citing violations of the law by DiLibero. I also predict, as I have in the past, that the Labor Board will require the town to post a notice it won’t do it again and that there will be no fine. Unless, of course, a settlement is negotiated before then. However, the town and the Teamsters tried that earlier this year and could not reach an agreement.

Let’s look at the actual documents and see what happened.

This dispute goes back to last February 23 when Tax Assessor Swain complained to DiLibero that Liz Jarvis was absent without notice or approval. Swain told DiLibero that Jarvis said she was off doing union business. Under most union contracts, including Charlestown’s, employers give paid leave to union officers to conduct union business, though the absences need to be arranged with the employer in advance.

DiLibero took the complaint to the Teamsters staff rep Dan Manocchio. In the course of the conversation, DiLibero asked Manocchio to replace Liz Jarvis as union shop steward. Manocchio correctly refused DiLibero demand.

From the Town's response

This is DiLibero’s first mistake – the boss does not get to say who the workers will have as their representative. The town admits DiLibero made the request (above).

DiLibero then went to talk to Swain about Manocchio’s refusal to remove Jarvis as shop steward. Both the town’s and the union’s versions agree that Swain and DiLibero talked about cutting Jarvis’ hours. Both accounts agree that within that conversation, Swain and DiLibero discussed how cutting Jarvis’ hours at this point might look like retaliation. 

Both versions acknowledge that Liz Jarvis overheard this conversation – though the versions differ on the propriety and the practical effect of her hearing the discussion.

But having this kind of conversation in the first place was DiLibero’s second mistake.

The union quotes labor law which forbids an employer to "[d]ominate or interfere with the formation, existence, or administration of any employee organization" and that the town violated the law "when DiLibero requested that Manocchio remove Jarvis as the Steward and Swain threatened to cut Jarvis' hours." 

The second count in the Teamsters complaint states that labor law forbids an employer to "discourage membership in any labor organization, by discrimination in regard to hire or tenure or in any term or condition of employment" and the threat to cut Jarvis’ hours after Manocchio refused to remove Jarvis as shop steward violated this provision of the law.

In its third count, the Teamsters state the law forbids employers from engaging in any acts "which interfere with, restrain or coerce employees in the exercise of the rights guaranteed by § 28-7-12."

The Town argues that Jarvis should not have been eavesdropping. The Town also argues that an overheard conversation does not constitute “intimidation” or "coercion" as defined – and prohibited – under labor law unless the parties who were overheard actually intended to be overheard.

Nonetheless, the Town’s response to the charges also admits key details – that, yes, DiLibero asked for Jarvis to be removed as union steward and, yes, the conversation about cutting Jarvis’ hours took place.

The Town also admits that Ken Swain’s door was open and Swain’s desk is 20 feet from Jarvis’ desk. But the Town says DiLibero and Swain "intended that their conversation be and believed it to be private."

From the Town's response

In my opinion, it was a bad idea in the first place to discuss cutting Jarvis’ hours right after the confrontation between DiLibero and the Teamsters rep. And a really bad idea to do it with the door open.

Both men are experienced managers who should know that any discussion of personnel issues should be done in a way that not just covers their asses but also protects the worker’s privacy. Leaving the door open makes any claim of privacy sound pretty silly.

If DiLibero and Swain had actually gone ahead and cut Jarvis’ hours under these circumstances, the town would have faced a much more serious charge of direct retaliation against an employee for her union activities. That’s where the town might be in jeopardy of taking a big hit from the Labor Board, and rightly so.

With the benefit of hindsight, there was clearly a better way this flap could have been handled. DiLibero could have asked the Teamsters rep for a meeting with Swain and Jarvis to discuss the personnel rules and the union contract regarding authorized absences for union business. There would have been some arguing, but it probably would have ended with a mutual understanding.

From DiLibero’s phone call to Manocchio through the open door meeting, DiLibero made at least two major and several minor errors. Jarvis, in her statement, admits to at least one unauthorized absence and also admits to overhearing the conversation.

Did Jarvis eavesdrop? Given the circumstances, how could she not? There was an animated conversation between her boss and her boss’s boss happening 20 feet away with the door open. With her name being frequently mentioned? Who among us would NOT listen to what was being said?

But the Town's main defense hinges on this question - the Town claims that Jarvis was not threatened or intimidated because she wasn't supposed to hear the conversation where DiLibero and Swain considered cutting her hours. I doubt the Labor Board will give this defense much weight given the Town's tacit admission on the other key facts - the demand for her removal as steward and the actual discussion of cutting her hours. Add in the other circumstances - that the door was wide open and Jarvis was right there at her desk.

From the Town's final response

In the ten years I worked in the labor movement, I saw a lot of Unfair Labor Practices and worked on writing up a lot of unfair labor practice charges. On one campaign, the boss routinely attempted to eliminate union leaders by changing their work stations to ones where there they might not finish their shifts alive.

On another, the boss locked his workers in a room so they couldn’t talk to a union rep during their lunch break. On another, the boss had the workers line up along a fence and told them to raise their hand if they supported the union, saying "and then I'm going to fire your f%#@&$%@ ass." I’ve seen lots of retaliatory firings, especially during the early stages.

I have also seen the Labor Board rule against a union complaint, even in what seemed cut-and-dried circumstances. In the case of the line-up I mentioned above, the Labor Board did not uphold our complaint because we succeeded in making the boss stop (it almost came to blows). Because the boss did not complete the act, the Board ruled no one suffered an injury. Clearly, we did not agree.

I know that Liz Jarvis recently resigned her position. I have not seen any documents that connect her resignation to this incident, although in her statement last July, she said that after she overheard the conversation between DiLibero and Swain, "I could feel my heart racing and my blood pressure go up and being diabetic that is not good for me."

As a diabetic, I understand exactly what she’s talking about when you’re in a terrible stressful job situation. Been there, and not that long ago.

But my sources tell me that Jarvis had been applying for jobs in other towns for years, and left after one of them finally came through. I have no doubt the events of February 23 provided her with the motivation to leave when she could.

I believe the Labor Board will rule that even though Jarvis admits to the unauthorized absence that triggered this whole controversy, DiLibero committed at least two violations of the state Labor Law – going to the Union rep to ask her to be removed as steward and then talking about cutting her hours.

The usual remedy the Board applies in such cases is to make the employer put up a notice in a public place acknowledging the violations and pledging not to repeat them.

In cases like this, if a worker loses wages or his or her job, the Board usually commands the employer to make that worker whole.

This is also an illustration of what unions are for. Unions not only negotiate wages and benefits, but also defend worker rights. Without a union, town hall workers would be “at will” employees, meaning they could be fired, or have their wages and working conditions changed with no notice, no reason and no recourse.

Not every worker in every situation is 100% innocent and pure or blameless, but the boss holds powerful cards. In a workplace that is not unionized, the boss’s power is absolute, and belonging to a union is the only equalizer.