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Becoming union men
One day in March, a month after he had filed his initial grievance, Bigelow encountered union organizers with the N.C. Public Service Workers Union, UE Local 150, outside the public works department. The organizers were inviting workers to a meeting to learn about their rights. Bigelow and Clark attended that meeting and decided to join the union. Soon Clark and Bigelow were holding weekly meetings at the department; other workers started attending, including some from the transit department. Bigelow and Clark became the guys to go to if anyone needed help filing a grievance.
They began posting information about the union and announcing meetings on the employee bulletin board in the break room. When the new budget came before the Town Council, they spoke out about the significant increases to their health care co-pays and the lack of funds available for new equipment to address safety concerns.
According to Clark, when they started writing grievances and talking about the union, the work environment changed almost immediately. As alleged in several of his grievances, one of his supervisors began making threatening and hostile comments. One grievance says the supervisor clearly blames them: "... me and Bigelow were messing up everything for the guys" and that everyone "would probably end up working 10 hours a day, and that they were angry."
"The department has a history of being anti-union," says a town employee who did not want to be identified. "Clyde and Kerry were very vocal about what they were trying to do. The town says that the official policy is that employees have a right to join a union. But people know how management works and the dirt they do. People have very little trust in management but are scared to say something, because they might lose their jobs."
Bigelow also felt the atmosphere change after they began attending union meetings. "We knew the supervisors did not like what we were doing. They made that clear," says Bigelow. "There is a very hostile culture against union organizing —guys in general did not want to rock the boat and risk their jobs. You're a troublemaker when you try to challenge the department. But when we started going up against the town, we needed some stronger power behind us. When we joined the union, they helped us fine-tune our grievances and got us information we needed. I did not start as a union man, but I became one."
Enter the investigators
On March 24, shortly after Clark and Bigelow began speaking up, the town signed a contract with Capitol Associated Industries (CAI) "to uncover and fully understand circumstances related to recent allegations in the Public Works Department." Although not specifically named, the timing of the contract suggests that "the allegations" were Bigelow and Clark's grievances. For this, the town paid CAI investigator Kevin von der Lippe $200 an hour.
According to documents provided by the Town of Chapel Hill, Town Manager Roger Stancil hired CAI because it "was better to have a neutral third-party to conduct the investigation." However, CAI is far from neutral when it comes to employee/ employer relations. CAI is a nonprofit organization that offers "human resources" consultation to North Carolina businesses. It is also an organization opposed to unions and collective bargaining. According to information from its website, CAI advertises services that prevent municipal workers from unionizing and offers classes to employers such as "Staying Union Free," which trains employers in creating "a work environment that makes it difficult, if not impossible, for a union organizer to mount an effective campaign." One of the top issues for its political lobbying arm, the Employers' Coalition of North Carolina, is to ensure that public employees are not given collective-bargaining rights.
Between April 2009 and October 2010, town documents show Chapel Hill paid $27,248 for CAI services, $5,860 of which went toward the investigation of Clark and Bigelow.
By June 2010—four months since his race-discrimination claim—Bigelow had still not received a response from the town regarding his initial grievance. So he decided to take his case a step further and filed a race-discrimination complaint with the Equal Employment Occupation Commission (EEOC), the federal agency in charge of discrimination claims.
The following day, the town sent a memo to Bigelow signed by Valerie Meicher, human resource development director. The memo thanked Bigelow "for participating in the recent selection interviews" (although they had taken place five months earlier). The memo went on to state that after personally reviewing the process, she determined there "were inconsistencies in the administration of the interview process." As a result, the department was invalidating that hiring process and initiating a new one, inviting Bigelow to interview again. There was no mention of Bigelow's race-discrimination grievance or the EEOC complaint made a day earlier.
Several months later, the town conducted new interviews, including one with Bigelow. The position went to an African-American candidate who had also applied in the first round.
At the end of July, Meicher responded to the EEOC regarding Bigelow's complaint, asserting that race was not a factor when the department selected a less qualified candidate. Her response also suggested that the public works department could not have discriminated against Bigelow or other African-Americans in the department because it employed many African-Americans. She conceded that there had been discrepancies in the way the interviews were handled but that there was no discrimination.
What is most puzzling is that the letter seems to contradict itself. At one point Meicher concludes that Bigelow "did not meet the minimum qualifications for the position." In another section, however, she states that recruitment for the position was limited to "qualified internal applicants" and that "after an initial screening process, five applications were accepted." Bigelow was one of those applicants and went through both the initial screening and the oral interview portion of the selection process. The question is: If Bigelow was not even qualified for the position, why was he accepted as a "qualified internal applicant" and moved through the entire interview process?
The Sandy Creek incident
The route of Truck 209 took Clark and Bigelow through some of Chapel Hill's oldest and most beautiful neighborhoods. On the morning of July 22, 2010, they were on Sandy Creek Trail, in the Greenwood neighborhood, where it was a yard-waste pickup day. A woman resident asked if they could pick up more yard waste than usual because Vice President Joe Biden was coming to a fundraiser down the street the next day. According to the woman, who is white, Bigelow responded by commenting that Biden was not coming "to see the common man." Later that morning the woman called the sanitation department saying that she was "not trying to have a political debate with her trash collectors" and that she "felt threatened" by Bigelow's comment when she asked him to pick up the extra yard waste.
In response, Public Works Operation Manager Richard Terrell visited Sandy Creek Trail and found that the brush had been correctly picked up. In a memo to his supervisors, including Public Works Director Norris, regarding the "inappropriate language/ remarks in the presence of a citizen," Terrell said the town could provide "counseling, oral or written warning, if deemed appropriate." The town did neither of these things, nor were Clark and Bigelow informed that a complaint had been lodged against them.
Two months later, in September, the town received an email from what appears to be the same resident, this time complaining that the waste was not being picked up properly and that, in fact, the crew was intentionally "leaving as much debris on the street as possible."
This time, the town dispatched the CAI investigator to follow up, initiating an investigation that on paper was intended to look into Bigelow and Clark's grievances but that now appeared to be directed at investigating them. On Sept. 20, less than two weeks later, the town informed Clark and Bigelow that they were being suspended while the officials investigated several complaints about their behavior, and they were told to stay off town property. There were no written or specific charges against them.
On Oct. 13, CAI investigator von der Lippe submitted a report on his investigation to Town Attorney Ralph Karpinos. The report, and later the terminations, predominantly hinged on the complaints of the Sandy Creek resident and a neighbor who was with her, both of whom said they felt threatened by Clark and Bigelow. Von der Lippe also met with co-workers of Clark and Bigelow, and their comments were also included in the report. In the document it is clear that several of their co-workers do not like Clark and Bigelow. They are described by these co-workers as being loud and complaining, and of keeping things "stirred all the time," but none of them said they had ever witnessed Clark and Bigelow acting disrespectfully toward residents.
According to the Chapel Hill Code of Ordinance 14-105, the town is required to do several things when performance issues arise: It is first required to provide one or more counseling sessions to discuss the specific performance issue. If employee performance does not improve, a written warning must be given, and if there is still no improvement, another written warning should be given stating that unless the behavior is corrected immediately, the employee can be fired.
In the case of Clark and Bigelow, this procedure was not followed. Instead, two months after the alleged incident, they were fired for "insubordination" and "hostility" toward residents and co-workers. According to their termination notices, their "threatening and intimidating behavior caused some residents to fear for their personal safety." It was the first time, they said, that the town alerted them to the specific charges against them. Clark and Bigelow were never given an opportunity to respond to any of these claims, nor was the woman who made the initial allegation ever publicly identified.
"When we were called into the office, we thought that they were finally going to address our grievances. We did not expect to be fired," Clark says.