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Suing the town
In an official statement, the town explained that Bigelow and Clark's behavior was so egregious that it constituted Detrimental Personal Conduct, for which the town may fire them after just one occurrence. The behaviors defined in the ordinance as Detrimental Personal Conduct include fraud, misuse of town funds, destruction of property, endangering the lives and property of others, falsification of records, possessing a firearm on the job and brutality or threats or intimidating behavior.
"When it comes to issues around personnel, the final say is the town manager," says Chapel Hill Mayor Mark Kleinschmidt about the system of governance used by Chapel Hill, referring to Roger Stancil. "The system we have is one to protect a wide array of personal conflicts. Internal systems tend to do their jobs." Town Manager Stancil declined to comment on the case.
But according to worker-rights advocates, the campaign waged by Bigelow and Clark is just another chapter in what has been a long struggle for better wages, improved working conditions and collective bargaining rights for public employees in North Carolina. Chapel Hill public employees, like all public-service workers in North Carolina, have no collective bargaining rights, which means that unions cannot represent workers in negotiations with their employers over wage increases, working and safety conditions, and other aspects of their employment.
"This is what it looks like to not have collective bargaining rights," says Laurel Ashton, a member of UNC's Student Action with Workers. "Had Kerry and Clyde had collective bargaining rights, the town would have been forced to be more accountable to their own policies and procedures. Without them, the town can act without scrutiny."
"We believe that Rev. Bigelow and Mr. Clark were fired because they challenged the long history of racism and unsafe work conditions in the public works department," said Michelle Cotton Laws, then president of the Chapel Hill-Carrboro NAACP.
"And even worse," continued Laws, "the town wove a carefully constructed story about two loud and aggressive sanitation workers threatening the affluent women on their route, casting itself as protector. They played an egregious race card by using an inflammatory issue that they knew would gain traction in the media. They pulled out the old black boogeyman and played up the women's fear of the two men."
After they were fired, Clark and Bigelow immediately filed an appeal, which was denied. They then took the last step in the town's appeals process and applied to be heard by the town's Personnel Appeals Committee (PAC), which is made up of members of the community appointed by the town council, who hear cases and make recommendations to the town manager.
Days before the hearing took place, Bigelow and Clark received word from the Employment Security Commission of North Carolina that they were going to receive unemployment benefits. They had initially been disqualified because they had been fired for "misconduct." But they appealed that decision, and after conducting an investigation, the employment commission reversed itself, stating the claimants were "not rude, confrontational or insubordinate ... did not engage in threatening and intimidating behavior directed at residents ... and did not refuse to perform job duties." It was the first time anyone in an official capacity had supported their version of events.
As the hearings approached, Bigelow and Clark felt optimistic. "We went into the appeals hearings with confidence, both because our case was strong and because the employment commission confirmed that Kerry and Clyde had not engaged in misconduct that warranted being fired," said Al McSurely, the NAACP lawyer representing the pair.
During the February hearings, the committee members heard from supervisors in the public works chain of command, including James Jones, the driver of the truck they worked on and one of the persons they had filed grievances about. Jones recounted an incident in which Bigelow used a rude voice in complaining to his supervisors that he needed water, but said that he never saw Bigelow acting inappropriate to any residents. No resident came forward to publicly testify against the men, but the town did allow two women, presumably the Sandy Creek neighbors who had made the original complaints, to make statements over the telephone. They were never publicly identified and refused to take any questions from McSurely or members of the committee. "The town went to great lengths to have their voices piped in to convince the majority of the hearing panel that the two black collectors scared the women," said McSurely.
At an interesting moment in the hearings, the town's Senior Legal Advisor, Tiffanie Sneed, asked Norris if he was aware of the EEOC grievance filed by Bigelow. Twice Norris answered no. Considering that a significant portion of Bigelow's EEOC grievance was directly related to the conditions of the department Norris led, his apparent lack of knowledge of the complaint casts doubt on the town's position that it takes employee concerns seriously and seems to support Bigelow's contention that his race discrimination claim was trivialized.
Also worth noting is some of the appeal-committee members' reactions to town procedures. Although the committee ultimately upheld the terminations, some of the members consistently expressed that the actions the town described sounded more like "unsatisfactory job performance" than an "egregious act" that was grounds for immediate termination. In the end, by votes of 3-2 (Bigelow) and 5-1 (Clark) the appeals committee upheld the terminations.
The appeals process also revealed a troubling pattern. As in the children's game of telephone, the description of the Sandy Creek incident changed each time the story was told, culminating in Norris asserting at the hearing that in all of his time with the town, he had never seen such egregious behavior.
According to an internal town email written by the administrative assistant who took the initial call, the Sandy Creek woman said that her "biggest complaint was that she 'felt threatened.'"
During the appeals hearing, the woman (anonymously) described the incident as the men being "rude and dismissive." In Bigelow's termination letter, however, Norris described the interaction as confrontational, that Bigelow was "standing in close proximity to the property owner's face" and that Bigelow "made loud, rude and inappropriate statements."
In his report to the town, CAI's von der Lippe describes the woman as being so scared that "on collection days she stays inside and looks through the blinds to make sure the truck has left before she goes outside"—an assertion the woman refuted at the hearing.
At a town council meeting following the appeals hearings, Chapel Hill Town Council Member Jim Ward said, "I sat through five-plus hours of the first appeals board meeting. I sat through all but the first hour of the second one, and I am troubled by what I learned and what I heard ... I think the outcome was wrong. I think the system has worked poorly."
"This case has raised extremely troubling issues about Chapel Hill and its commitment to racial and civil justice," says Lori Hoyt, a member of the Women's International League for Peace and Freedom and the NAACP. "The public works department and town manager have acquiesced to systemic racism by not examining their own practices and refusing to confront the concerns of black and low-wage workers and by punishing them for daring to raise them. This undermines all that it might otherwise do towards promoting racial tolerance."
What does the future hold?
The corner of Martin Luther King Boulevard and Estes Drive is a busy intersection on an incline, with two lanes of traffic going in both directions. On this Tuesday morning, almost a year and a half since Clark and Bigelow began their campaign for safer and more just working conditions, Bigelow has driven by car to his old route to see the trucks he used to ride in action. He watches the familiar orange Chapel Hill sanitation truck begin its first pass down the boulevard in the bright haze of early morning. There are two men in neon-green florescent vests hanging on to the back bars, but still the truck travels surprisingly fast. The truck stops and starts as it makes its way through the residential streets, the two men jumping off and hauling the trash into the loader before leaping back on. Impatient drivers maneuver around the truck, which sometimes travels on streets so narrow and windy it seems to only squeeze by. Bigelow shakes his head as the truck reverses with the two men hanging off the side bars, a practice, he says, that violates town policy and was one of his grievances.
"What gets me," says Bigelow as he watches the truck pass, "is that after all this, some of the basic hazards of the job haven't been addressed."
But their efforts did raise some safety awareness and, in a few cases, some improvements in the sanitation department. Based on their grievances, internal reviews were conducted by Ron Aiken, the town's occupational safety and health officer, who confirmed some of the hazards Clark and Bigelow had raised and recommended that the issues be given serious attention. In an internal draft memo from Aiken to Norris, Aiken states that the practice of truck reversals on certain streets "should be seriously reviewed." He also supported their contention that smaller trucks should be used on narrow streets, stating that it "is something that should be considered seriously" and that he thought it was a "very good solution to this safety concern." He also reaffirmed town policy that says that reversals "with collectors on the rear step of the truck will result in discharge." While it is unclear whether the department has addressed any of these safety suggestions, it has pruned back vegetation and overhanging limbs and directed drivers to end the practice of making collectors cross busy streets.
In January 2012, Clark and Bigelow's unemployment checks will run out. Bigelow is starting his own business, but for Clark the future is still unclear. They have filed two lawsuits. The first is a civil lawsuit filed in state court against the Town of Chapel Hill and Town Manager Roger Stancil, which asks that the town reinstate Clark and Bigelow and provide them back pay from the date of termination. The second is a federal suit filed by Bigelow against Stancil and several other defendants for race discrimination and wrongful discharge. Nonetheless, they want their jobs back. They also say that they would do it all over again. In the months since they lost their appeal, Clark and Bigelow have tried to remain upbeat. They say they have both been enlivened by the experience of standing up for their rights. "I was willing to sit in silence before," says Clark, "but not anymore."
"We went from the back of a garbage truck, to learning our rights, to becoming the 'Sanitation Two'," says Bigelow, referring to the moniker their supporters have given them. "I've got a wife and three kids and just bought a house in 2000, but I am not worried a bit, because I know that what I am doing is right. I might not be hauling garbage right now, but I am still on the job, trying to get folks to understand what is really going on here. You are only as free as you are allowed to be, but I am free now, Clyde is free. We are free for standing up for the truth."