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Rialto Firefighters Local 3688 Wins Claim Union Representative Was Retaliated Against For Engaging In Union Activities
Rialto, California. The Rialto Firefighters’ Association, Local 3688 has prevailed in a grievance against its department’s administration in which the union alleged that one of its executive board members was retaliated against for engaging in union activities. Local 3688 Secretary Treasurer, Fire Captain Nash Briones, filed the grievance that the department administration had ceased using him as an Acting Battalion Chief as of September, 2006 as a result of his involvement in several heavily contested disciplinary cases.
First, it must be noted that it will rarely, if ever, occur that management representatives admit to intentionally retaliating against a union member for their activities. As such, these cases are primarily proven through circumstantial evidence. The evidence in this case was overwhelming that Briones was a main participant as a representative of union members in disciplinary actions and lawsuits which had resulted in the destruction of the relationship between the Union and management (as was clearly evident in the tenor of this case). The record in the case contained both direct and circumstantial evidence that he was retaliated against for engaging in these activities.
Retaliation claims are analyzed in the Federal Courts in the same manner, whether they be for a Title VII discrimination, whistle-blowing or retaliation for engaging in lawful union activities. The Courts have held:
Under this analysis a plaintiff bears the initial burden of proof…to establish a prima facie case of retaliation [citations omitted] to advance a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in an activity protected…; (2) his employer took adverse employment action against him; (3) there was a causal connection between his participation and the protected activity and his employer’s adverse action [citations omitted]. After establishing a prima facie case of retaliation the burden shifts to the employer to advance a “legitimate non-retaliatory reason” for its adverse employer action [citations omitted]. If the defendant meets this burden, the plaintiff must then “be able to convince the fact finder both that the proper explanation is false, and that retaliation was the real reason for the adverse employment action [citations omitted]. Webb vs. Merk & Company, Inc. (2006) 450 Cal.App 2nd 582, 599.
Here the Rialto Firefighters’ MOU states that engaging in the grievance/disciplinary process is a protected activity. So there was no issue as to whether or not it is a protected activity. The Grievant therefore must then first make his prima facie case of retaliation by demonstrating that there was adverse employment action taken against him. Clearly, the failure to utilize him as an acting Battalion Chief deprived him first of the opportunity to receive valuable experience to enhance his promotability. Additionally, by not utilizing him on the B or C Shift opportunities, he was deprived of the ability to earn overtime in those slots. These are not all of the consequences but the most significant ones which are clearly adverse.
Next, he must demonstrate a causal connection between his participation in the protected activity and his employer’s adverse action. Evidence of statements not associated with a legitimate basis for taking an adverse employment action can constitute direct evidence of the causal connection between engaging in the protected activity and the retaliation. In the case of Doe vs. Kohn, Nast & Graf, PC, (1994) 862 F.Supp 1310, the Court stated:
At a bare minimum the plaintiff must show conduct or statements made by the decision maker that directly reflects the discriminatory attitude [citations omitted]…
The Court went onto state that a single conversation between a decision maker and the plaintiff such as wherein the decision maker stated that they had heard that the plaintiff may see a lawyer to sue the employer and that the plaintiff should just leave and not make trouble, was sufficient evidence of the discriminatory attitude. Doe vs. Kohn, Nast & Graf, PC, (1994) 862 F.Supp 1310, 1317.
Circumstantial evidence comes in several forms. An important one is timing. The relation between the timing of the adverse employment action and the protected activity stands as significant circumstantial evidence of the existence of the retaliation. Courts have held:
“Beginning with evidence of timing, depending on the circumstances, engagement in a protected activity closely followed by an event a reasonable employee would consider materially adverse can suffice to establish an inference that the two events were connected. Choonover vs. Schneider National Carriers, Inc. (2007) 492 F.Supp. 2nd 1103, 1155.”
Once the prima facie case is established, the Department must there after prove that there was a legitimate business reason for the action. When the Department does so, it then falls back upon the grievant to dispel the offered legitimate reasons.
The evidence at the hearing established the prima facie case by both direct and circumstantial evidence. The evidence also negated the Department’s alleged legitimate reasons for the cessation of using Briones as an acting Battalion Chief. The evidence presented the following facts.
Briones was hired by the Rialto Fire Department on August 23, 1978. He has been a Captain for the Fire Department since May 6, 1990. He is currently assigned to A Shift. He has worked as an acting Battalion Chief since the Battalion Chief program was created in 1998 up through September 2006. He actually helped the Department make the switch from Division Chiefs to Battalion Chiefs. Battalion Chiefs were specifically assigned to a shift and a station. During the day they are assigned to Station 1 and at night they are assigned to Station 3. They have always been assigned to a shift and a station.
There was only one other individual certified to act as a Battalion Chief (as certified duty officer), At the time Briones acted as a Battalion Chief. That person worked on C shift. They have been the only two certified to act as a Battalion Chief since approximately 2004. The Battalion Chief log book reflects that from July 6, 1998 through June 7, 2006 Briones worked 238 times as an acting Battalion Chief. The last time he worked as a Battalion Chief was September 17, 2006.
The timing of the cessation of Briones’ work as an acting Battalion Chief is significant. At the time of his testimony in this case, Briones was the Secretary/Treasurer of the Union Board. Prior to that, he was the Union Vice President. From 2004 through September of 2006, Briones was heavily involved in Union representation of its membership in grievance and disciplinary actions. The level of representation increased significantly from 2005 through 2006 as several cases caused significant controversy within the Department.
Several examples were given of his participation in the grievance/disciplinary process under Article 51 of the Union’s MOU. For example, evidence was presented that he testified in a disciplinary appeal of another fire Captain on behalf of that Captain. He testified contrary to the opinion of Chief Stephen Wells. The evidence presented at Briones’ grievance hearing demonstrated that Wells was disappointed in his testimony on behalf of the other Captain and, before the arbitrator’s award was even rendered in that discipline against the other Captain, he called Briones into his office and chastised him for testifying opposite him. The Chief told him he must obey his opinion regardless of the outcome of the arbitration
Other examples were given of Briones’ participation in the grievance/disciplinary process on behalf of members of the Union. Another disciplinary arbitration occurred in 2006. The Union won that arbitration. . The Chief reported his own personnel to ICEMA, the agency that regulates their paramedic certification. This was done, even though the Union won the arbitration. This caused further damage to the relationship with the Union.
In an effort to settle the dispute over the outstanding back pay in that arbitration, the Union negotiated a compromise with Wells during which Wells stated he would no longer impose a prohibition against working overtime for longer than one pay period against Union members. The Union repeatedly requested that this term be put in writing.
Members of the command staff told the Union not to request that in writing but that Wells had said it and he would implement it. Thereafter, Wells continued to impose restrictions on overtime for greater than one pay period. This caused tremendous distrust between the Union and Wells. This occurred before September 2006. It lead to Briones telling Wells, “for the last 6 months in my eyes you have been a liar.”
After this second arbitration came the disciplinary actions of 3 firefighters arising out of the same factual circumstances. Briones was heavily involved in these disciplinary actions. He attended all the interviews. He attended the pre-disciplinary meetings with the Chief. He was part of the Executive Board that approved and filed a lawsuit against Wells and the command staff for failure to turnover statements made by witnesses in those disciplinary actions. The lawsuit created significant tension between the Union and the command staff. The cases resulted in multiple arbitrations. Briones participated in those arbitrations as a representative throughout 2005 and 2006.
After the lawsuit and disciplinary arbitrations in those three cases occurred, Briones became involved in a dispute between the administration and another firefighter regarding the Chief ordering the firefighter to drive to his home and bring out articles of his personal property to refute a contention that he had installed insulation while injured on duty. The evidence demonstrated that it was a heated issue where all five of the Executive Board of directors were present within 30 feet of Wells’ office. Lawsuits were threatened and strenuous objections were made to the compelling of the firefighter to bring out items of his personal property in violation of the Fourth Amendment.
Two Battalion Chiefs accompanied Briones, the firefighter and their counsel to the firefighter’s home on September 18, 2006. Briones took photographs of the Chiefs sitting outside of the firefighter’s home while the firefighter retrieved the items and brought them outside.
Briones’ heavy participation in the Union activities, especially increasing through September of 2006, was corroborated by Union President, Captain Randy Ammons. One Battalion Chief also confirmed that command staff was aware of Briones’ participation in Union activities and testified at Briones’ hearing that he was aware of the fact that Briones testified opposite Wells. He was aware of the lawsuits brought by the three firefighters and the underlying disciplinary actions. He was aware that Briones participated in the interviews in those cases because he was present in those interviews. He confirmed that Wells was not happy that the lawsuit that was filed.
Wells himself acknowledged the problems which existed between the Department and the Union and Briones’ roll in those activities. He confirmed that he chastised Briones in the case where Briones testified opposite him before the arbitrator had issued a decision. He admitted that Briones was heavily involved in the three firefighters’ disciplinary actions. He acknowledged that Briones was heavily involved in the lawsuits. He confirmed he was not happy that the lawsuit was filed. He testified that he does not believe that the lawsuit was good for the Department.
Wells even admitted he made a reference to limiting the prohibition against working overtime to a one shift ban. He, however, denied Briones ever called him a liar. He further knew that the Union was upset with him for calling ICEMA and reporting his own people for their involvement in a case underlying their discipline. He admitted that he called ICEMA even though the arbitrator had rendered a decision throwing out the discipline completely.
Significantly, Wells admitted that he was aware of the disturbance over the ordering of the firefighter to produce items of personal property from his home. He was aware that the meeting took place 30 feet from his office. He knew that the entire executive board had shown up as a result of the objections raised by counsel. He knew that there were threats of lawsuits. He knew that two Battalion Chiefs went to the firefighter’s house. He knew that the Union objected on the grounds of invasion of privacy.
He also testified that, after the two Battalion Chiefs went to the firefighter’s house, they reported back to him and told him what had happened. He, however, denied he was aware of the pictures until they were raised in the grievance hearing. He knew that the threat was made that the first person to sign an order compelling the firefighter to bring the items out of his house would be the first person named in the lawsuit. Wells even admitted that he was mad at Briones for wearing the Union hat rather than the management hat on one occasion.
The evidence proved that the Captain on the shift affected who was qualified to work as an acting Battalion Chief would be moved into the vacant slot. During the time in question, no one on B Shift was certified to act as the Battalion Chief. The position was offered to either Captain Briones or the other qualified Captain equally. Since Briones worked C shift, he would fill the C Shift vacancy. The other Captain worked A shift and he would fill the A shift vacancies.
Everyone, the Union and command staff alike, admit that Briones ceased working as an acting Battalion Chief after September 2006 despite the fact that he was a certified duty officer up through January 2008. The evidence clearly demonstrated that since September 2006 the other qualified Captain has worked on A Shift even though he is regularly scheduled on C Shift in the acting Battalion Chief position instead of Briones. Likewise, the evidence demonstrated that Briones has not been offered any of the B or C Shift vacancies yet the other Captain worked them.
Briones’ evaluations rated him as highly satisfactory (2004/2005) and competent (2005/2006). The administration attempted to paint their precluding Briones from working the acting Battalion Chief position after September 2006 as an act resulting from poor performance (failure to adequately keep command staff notified of incidents). The evaluations are devoid of any reference to this as a Battalion Chief. In fact, both the Battalion Chief and Wells admitted that the evaluations do not rate him as an acting Battalion Chief, but rather only as a Captain. They both thereafter admit there is absolutely no documentation whatsoever to support their alleged “legitimate” reasons for precluding Briones from acting as a Battalion Chief.
The Arbitrator found that Briones was improperly precluded from working as an acting Battalion Chief in violation of past practice and further that Briones was retaliated against for being heavily involved in the Union activities. The Arbitrator ordered that Briones be made whole for all the shifts he missed. This was a significant victory for Local 3688 as they have been battling with their Administration for three years. Chief Stephen P. Wells retired effective June 5, 2008.
