The REAL story behind the "Sanitation 2"

My friend Al McSurely e-mailed me yesterday to say that Clark And Bigelow had in fact released the facts of their case to the public, but that he hadn't thought to send it to me (as a blogger) as well. (Let that be a lesson to you, activists!)

He sent me the document this morning saying he didn't have time to edit it, but I should feel free to post it.  The entire attachment is below.

After a first read of it, it seems to me that there are some legitimate grievances against the Town management, to which I'd like to hear the Town's response.  (There is also a lot of interesting, if not exactly relevant, historical and contextual information.) If I understood the Mayor's comments correctly on Monday night, the Town isn't at liberty to publicly discuss this while the appeal is on-going (in fact I wonder if it's considered a private personell matter anyway). So I still think we will have to wait until the whole story comes out. 

Al and the local NAACP strongly urge people to attend the two hearings for Clark and Bigelow at the Public Library. I'll post the times when I get them. 

Attachment A
 Sequence of Events Culminating In Town's Wrongful Termination
     of Rev. Kerry Bigelow and Mr. Clyde Clark on 10/29/2010.
Charging Parties Kerry Bigelow and  Clyde Clark allege as follows:

Kerry Bigelow

1. On 31 July 2007 the Town of Chapel Hill ("Town") hired  Rev. Kerry Bigelow as a Solid Waste Collector.  Solid waste collectors, as opposed to 'operators' or truck drivers, is what the Town calls the men who walk the streets of Chapel Hill every week, wrestling the trash and garbage in the green bins into large trucks--one of the dirtiest and most physically demanding jobs in the Town.  Until Rev. Bigelow filed a race discrimination complaint against the Town  in February 2010, the Town had evaluated him as an "outstanding" employee.  

2. Rev. Bigelow is married and has three children and lives in Burlington, N.C.

3. Before the Town hired him, Rev. Bigelow worked for the City of Burlington as an Equipment Operator for 18 years, driving heavy boom trucks and operating rear end loaders. He hauled trash in Burlington during the day, when he and his wife were beginning their family, and attended Shaw Divinity University off and on for five years to become a minister. In 2007, after discussing the potential for better pay at Chapel Hill, he was hired at a top pay rate for a solid waste collector with the understanding he would be treated fairly when an Operator's job would come open.

Clyde Clark

4. Mr. Clyde  Clark, a member of a large family of Chapel Hill natives including the late John and Rebecca Clark who were active in civil rights and labor struggles against the University from the 1930's until their deaths, like many native Chapel Hill African American men, had few employment choices if he remained in the area.  The Town has no for people without a high school degree except menial laborers for the Town, the University, or the Hospital.  Clark, was hired as a "collector" by the Town 1998, and has walked and dumped trash for the last 12 years.  

5. Clark was raised in public housing and attended Chapel Hill H.S. shortly after it was desegregated in the early 1980's.  He hauled trash and buffed floors at the Taco Bell on Franklin Street, mopped floors at the Marriott Cafeteria on campus, and dug ditches for a construction company in Raleigh.  In 1998, the Town hired him as a Collector.  Three of Clark's friends who worked for the Town -- Roy Atwater, Nate Davis, and John Davis – served as his references.  The trash collector's job is the only job with benefits he has ever had.

6. Like Rebecca and John Clark and most long-time African American residents of Chapel Hill,  Clark loves and hates the Town.  Although it is his hometown, where his family and friends have many good memories, it's history of segregation has left many open wounds. For several years, Clark has been interested in organizing a union to help provide workers with some protection as they worked to dismantle the vestiges of segregation in the Town through collective action.  

Bigelow and Clark

7. Rev. Bigelow and Mr. Clark became friends in 2008, when they were assigned to work behind the same truck.  They both believed that they should be treaded fairly, their work should be safe, and that being part of a larger union movement would benefit them and their co-workers.  Clark  was a witness to key events involved in Rev. Bigelow's efforts to get a promotion.  They both learned how to file grievances and helped other workers file grievances.  They were each other's representatives in grievances they filed.  

The Task System

8. The Town had instituted a Task system in the solid waste department, which meant that drivers and their crews could race through their trash routes and clock off after five or six hours of work, and get paid for 10 hours.  (The solid waste collectors worked four 10-hour days.)  This incentive to race through the routes resulted, over the years in many short cuts, that created dangerous situations.  Drivers would drive the large trash trucks in reverse for long distances, would go up the middle lanes of five lane boulevards, stopping to have collectors bring trash across two lanes of traffic to be dumped, and other unsafe practices, to cut a few minutes time off the routes.  The drivers were the first line supervisors of the two collectors on the back of their trucks, and the collectors generally were afraid to challenge the drivers' safety judgment.  The drivers job was much easier—rarely dismounting, and the next up-line supervisor was dependent upon the drivers to maintain safe, fair working conditions for the collectors.

 
HISTORY Of RACISM AT TOWN

9. There is a long history of race discrimination of African Americans at the University of North Carolina (there were no Black students at UNC until the NAACP sued and three young men were enrolled in 1955; no Black faculty or administrators until much later).  When the Town of Chapel Hill began taking over some of the services that the University had provided, it adopted the University's rigid segregation system.  Through the 1980's, with few exceptions, the only jobs available for Black men at the Town were dirty, menial jobs, such as garbage and trash collectors, now called "sanitation" or "solid waste collectors."  At all times since its inception, the Public Works Department, was predominantly African American, whereas its management team was virtually all white.

(See the late Dr. Kenyon Chapman's PhD. Dissertation, Black Freedom and the University of North Carolina, on line at  http://dc.lib.unc.edu/etd/index.php?CISOROOTR=/etd

10. In the 1990's, when 35 African American Public Works employees filed a series of race discrimination grievances and an EEOC charge of discrimination, the Town placed a highly respected  African American into a top management position at Public Works and began regular meetings with leaders of the new Black Public Works Association (BPWA).  Although these meetings helped prevent many problems, and quickly resolved many more, there was a good ol' boy group of managers who did not like having to sit across the table and be talked to as equals by their Black co-workers.  Not only did the vestiges of the Jim Crow salary scales remain, but the vestiges of white supremacy remained in the attitudes and thoughts of many of the supervisors and managers.

11. The Town has fended off efforts by its Black and other workers to collectively bargain to better their pay and working conditions by citing a 1959 law, passed as the modern Civil Rights Movement was just hitting North Carolina.  Those who are awared of the racial history of the state call it Jim Crow 95-98. It prohibits public employees from collectively bargaining with their employers.  
12. Because of the history of Chapel Hill's treatment of its Black workers, this law has a racially-discriminatory impact on them.  Towns such as Chapel Hill, where the economy is based on public agencies, can maintain its historically racialized labor policies without facing organized opposition through collective bargaining.

13. In 1996, after the University settled a historic challenge to its racialized employment system by 400 Black UNC Houskeepers, the Housekeepers Association and then the new Public Service Union UE-150 helped spark a drive to repeal Jim Crow 95-98.

14. G.S. 95-98 violates International Human Rights Treaties. In the 48 states that have public employee collective bargaining, most workplace problems are quickly resolved between  shop stewards and supervisors, according to a contractual grievance procedure.  But, in the last two states that inhibit such face-to-face negotiations, North Carolina and Virginia,  powerful forces who want to maintain racialized job systems that were put in place during Jim Crow, remain adamantly opposed to repealing this vestige of that ugly era.

15. A few years ago Mayor Kevin Foy and other Town leaders tried to persuade the state to exempt the Town from Jim Crow 95-98, so the Town could experiment with collective bargaining.  They believed that many of the day-to-day problems that arise when an agency deals with the public could be dealt with across the table, based on the principle that examining mutual problems increases mutual respect between the workers and management.

16. In November 2007 the Town Manager promulgated a policy stated: "Respect for each other is a basic value and the foundation for creating a better place to work."  Many workers believed this "shared value" would be the basis for new initiatives to meet regularly, and establishing mutual respect betwee workers and management.

17. In September 2008, Rev. Bigelow's Supervisor gave him an "Outstanding" rating for that year, and wrote: "Kerry is a very fine employee.  Professional, treats all people with respect, proficient with all equipment."  Bigelow continued to receive excellent performance until February 2010.

Town Hires Private Investigator

18. In May 2009 the Town signed a secret contract which seemed to indicate it was no longer interested in this move toward a mutually respectful workplace.  The contract was between the "Town" and "Capital Associated Industries", hereinafter "CAI."  It provided for a payment of up to $60,00 for "any individual project" with a generalized mandate to CAI to take on "a variety of unspecified human resource consulting services to the Town as needed."  It was to remain in effect through June 30, 2011.

19. CAI advertises on its website, inferring constructive knowledge by the Town leadership, that  "preventing Unions" from being formed in municipalities is one of its main purposes.  It offers classes in "Staying Union Free," "Basic Steps in Union Prevention," and "Management's Role in Union Avoidance."   CAI is led by Bruce Clark, who is also on the Board of the National Association of Manufacturers (NAM), which leads the fight against unions and other worker associations nationally.  

20. In December 2009, the Town posted vacant job position # 23115, a Solid Waste Equipment Operator III.  Rev. Bigelow applied. His application reminded the Town he had diven a rear end loader truck with a crew of men, a boom truck and an automated garbage truck during the 18 years he had collected trash in Burlington, that he had attended Shaw Divinity University off and on for five years, and completed 304 hours of MTA Tractor Trailer Diver Program in 1985.

21. The Town found him qualified for the position and he was interviewed.  Jeff Allen (W) closed his interview notes by writing that Rev. Bigelow "has a lot of driving experience," and "Has never operated front loader."  Larry Strowd (B) closed his interview sheet by noting: "Kerry is a great person for the job. Have drove heavy truck and been on the job a long time. Kerry has a good attitude about the job."

22. A white applicant with less education, less job experience and less heavy driving experience than Rev. Bigelow was selected.

23. On 11 February 2010 Rev. Bigelow was told the Town had selected the less qualified white man for the promotion.  

24. On 12 February 2010, Rev. Bigelow filed a grievance with his supervisors, reminding them of his vastly superior truck driving and public service experience, and alleged the town had made a "racist decision."

25. When no written response was received, Rev. Bigelow filed a Step 2 grievance with his Department head on 12 March 2010.  It said his supervior was "not very concerned for the reason I did not get a reply back from the  supervisor that I had previously filed my grievance about.  It has been more than 3 weeks since I filed the grievance and have heard nothing.  For these reasons I am appealing to the Department head." "I expect to hear from the Department heard, and not be held back or side-tracked or given any excuses and to be given an answer very soon without any farther delay.  I expect the job."

26. Almost immediately after Rev. Bigelow filed this internal grievance, the Town used its existing contract with CAI to begin a special investigation of Bigelow and Clark.  A special contract was signed in late March with CAI to investigate problems in the public work—namely the two men who were encouraging their co-workers to join the union, and filing grievances.  

27. While this Retaliation campaign was being put in place, the Town decided not to respond to Rev. Bigelow's grievance for  three months.  It was late June, 2010, after the CAI had been contracted to investigate the two men, who had  been exercising their constitutional and statutory rights to challenge the unsafe and discriminatory practices within the Public Works Department, before the Town responded to Rev. Bigelow's grievance about race discrimination.

28. The Town's policies require responses to grievances must be made within a couple of weeks.

The Town's Retaliation Campaign

29. The Town's retaliation campaign employed four classic tactics of anti-union consultants, who are brought into workplaces that are experiencing an awakening by their workers of their legal rights, which is usually perceived by management as "labor problems."

30. The Town met with the CAI and collectively bargained an agreement to hire the anti-union group to (a) rationalize its denial of Rev. Bigelow's meritorious grievance of racism; (b) to  stir up racism by placing the blame on Rev. Bigelow for a white co-worker's loss of the promotion the white worker thought he had won fair and square; (c) intimidate and frighten other Black co-workers who were watching  whether Rev. Bigelow and Mr. Clark's grievancess would do any good, with the aim of convincing the other workers that "you can't beat the system;" and (d) scare the wits out of any worker who might be considering joining the Union by setting up Rev. Bigelow and Mr. Clark for dismissal in the middle of the worst recession the country has experienced since the 1930's..

31. The Town's Human Resources Director, Ms. Valerie L. Meicher, signed a contract with CAI on 24 March 2010, with the CAI agent, Molly G. Hegeman to carry out this retaliatory campaign.  Later the CAI put its top anti-union private detective on the case, a man named Kevin von der Lippe.  He was directed to prepare a report for the Town Attorney, on the theory that perhaps it could be kept secret by saying it was covered by attorney-client privilege.  Mr. Lippe's report was dated 13 October 2010, a day after Rev. Bigelow and Mr. Clark were told to attend a "pre-disciplinary conference," the last meal provided workers before they are marched to the firing squad.

32. On information and belief, it had already been decided to fire the two men on 12 October 2010, even before Lippe had completed his report.

33. Mr. von der Lippe's contract only authorized him to look into "recent allegations in the Public Works Department"  that had been made before 24 March 2010, the date the contract was executed.  

34. However,  Mr. von der Lippe's 14-page report begins by citing incidents that began in late July, stating: "Since July 2010, a series of complaints had been filed by several different citizens of Chapel Hill."   Based on Town documents and Mr. Lippe's unsworn statements in two town hearings, the "series of complaints" by "several" citizens boil down to two separate incidents by two citizens.

35. The Lippe report focuses on the complaints of a resident about an incident that took place when V. P. Joe Biden visited Chapel Hill on July 22, 2010, four months after the "recent allegations in the Public Works Department" that occurred before April 2010.  

36. The Lippe report focuses on statements allegedly said by either Mr. Clark or Mr. Bigelow when a town resident (R1) asked them to help clean up their street because Mr. Biden was going to visit a neighbor on that street the next day 22 July 2010.  R1 apparently called the Public Works Secretary on July 22 and, according Mr. von der Lippe's version of what the secretary told him of what R1 told her, R1 felt threatened because, after asking the crew for help in "removing a little more yard waste" because Mr. Biden's visit to a neighbor, the "crew on the back of the truck . . .lamented that he was not coming here to 'see the common man.'"  Mr. Von der Lippe lamented in his report that he was not provided with any notes about the Town's follow-up on the incident.

37. Mr. von der Lippe reported that he and Mr. Norris interviewed R1 at the R1 residence on 27 September 2010.  R1 told the two interviewers that, two months earlier on or about 21 July 2010, after R1 told the sanitation workers that Biden was visiting R1's block the next day and asked if they could clean up some debris on the street, the workers asked where Mr. Biden would be visiting because they would like to attend because "the Vice President should visit with the 'common man.'"  

38. From the time Mr. von der Lippe was hired to compile a dossier on Rev. Bigelow and Mr. Clark, through the time his 14-page report was finished on October 13th, no agent of the Town, including von der Lippe, gave Rev. Bigelow and Mr. Clark any notice of any resident complaints or co-worker complaints against them.
39. Mr. Clark filed several grievances during the same period, including:  

*On 12 March 2010, he reported a series of Safety violations, citing the OSHA law, including that his truck dirver backed up 31 times with people on back of the truck on his Tuesday route, 14 times on dead end streets, forces collectors to drag bins across Martin Luther King Blvd, a four-lane road, near Estes Drive.  On 12 February 2010, Mr. Clark told Mr. Harv Howard, his Superintendent, to discuss these safety issues.  Mr. Howard showed no interest in the OSHA complaints, and turned the conversation to Mr. Clark's "past history and how he had helped."  Then Mr. Howard told Mr. Clark: Don't let Kerry Bigelow put you into something you can't get out of."
   
*On 19 March 2010, Mr. Clark grieved that Mr. Howard was creating a hostile work environment because Howard had called a Safety Meeting at 7 a.m. On Thursday morning 18 March 2010.  Supervisor Larry Strowd told the guys they had to come to the meeting because "Bigelow and me were messing  up everything for the guys, and also said that the guys would probably end up working 10 hours a day and they were angry."    Mr. Clark repeated his OSHA report in this Grievance.

*On 15 April 2010, Rev. Bigelow and Mr. Clark filed a grievance against Harv Howard, for not following the grievance procedure.

40. The Town gave no meaningful responses to these grievances.  

41. On 3 June 2010 Mr. Bigelow, by counsel, notified the Town he was filing the EEOC Charge which underlies this Retaliation Charge.

42. On 9 June 2010 the EEOC told the Town of his discrimination Charge # 433-2010-02079.

43. The next day, 10 June 2010, 10 weeks after Mr. von der Lippe had begun his surrepticious investigation and dossier compilation of Rev. Bigelow and Mr. Clark, Ms. Meicher wrote a curious memo to Rev. Bigelow about his internal race discrimination grievance. She thanked  him for participating in the "recent selection interviews" which had taken place four months before, and said "In response to a complaint"– referring to his 12 February 2010 grievance -- "I have reviewed the process used to conduct the interviews . . .[and] have determined that there were inconsistencies in the administration of the interview process."  

44. On 30 July 2010  the Town filed its response to Rev. Bigelow's EEOC complaint, a week after Mr. Biden visited Chapel Hill and a resident had reported she had heard two sanitation workers lamenting Mr. Biden should stay in touch with the "common" man.

45. The Town told the EEOC that race was not a factor when it selected a less qualified white applicant over Rev. Bigelow in early February.  The Town did not address the heart of a promotion discrimination case—what non-discriminatory business reason it had for selecting a lesser qualified white man over two better qualified black men?

46. The Town did not address why the black interviewer, Bigelow's supervisor, found him to be "a great person for the job" with a "good attitude about the job" while the white interviewer focused on Bigelow's "never operat[ing] Front Loader."  The Town did not address why the white man who made the decision, Harv Howard, was preparing to resign as Superintendent of the Solid Waste Division and why it was paying Mr. von der Lippe $200 per hour to investigate Mr. Bigelow, but not investigate the racism Mr. Bigelow and Mr. Clark had been grieving in Mr. Howard's division.

47. The Town did not provide reasons why it passed over Mr. Bigelow, with 246 months experience driving trucks and picking up trash for two equal sized municipalities-- Burlington and Chapel Hill—for a white man, with 91 months of total experience and only 38 months picking up trash with a municipal solid waste department.  

48. The Town did not provide reasons why it passed over Mr. Bigelow, with 18 years of driving trucks for a municipal sanitation department (Burlington), in favor of a white man with no municipal experience driving trucks.

49. The Town did not explain why, although it admitted it selected a less-qualified white man over a Black applicant, race played no part in the promotion.

50. The Town did not explain why it took it six months to develop the convoluted pretext it filed with the EEOC, with its main argument to the EEOC being that it could not have discriminated against Rev. Bigelow or other Blacks who had applied because it employed a lot of Black men in its Public Works Department!

51. The Town did not ever address the first question the Court will ask: If Rev. Bigelow was not selected because, despite his 18 years of municipal truck driving experience and training, he was not qualified because he had only "back-loader" and no "front-loader" experience, why did the Town place him in the qualified pool of applicants for interviews and why did his own supervisor, who knew him well, state he would be "great for the job?"

September-October 2010

52. In September, the Town placed the Rev. Bigelow and Mr. Clark on administrative leave, and instructed the two men to stay off Town property.  No written or specific charges against them were ever provided them.  The Town changed the terms and conditions of their employment, in retaliation for their filing and participating in an EEOC case.

53. Sometime in the late summer of 2010, Mr. Howard left employment with the Town.  He was responsible for selecting the lesser qualifed white applicant.

54. Sometime in the fall of 2010, Ms. Meicher left employment with the Town.  She was responsible for overseeing the promotion and grievances for the Town.  

55. Rev. Bigelow and Mr. Clark were never given any warnings, written or oral, or any specific complaints from any residents or co-workers until after they were fired.

56. The Town refused to allow the two men to have a representative in any meeting while the Town was investigating them, and fired them late Friday afternoon, October 29, 2010.