Thu 3 Feb 2011
It’s interesting to see the Librsary Meeting Room set up for tonight’s hearing on Clyde Clark’s personnel appeals hearing. There are 87 seats prepared for the public, four police cars in the front parking lot (one unmarked), six uniformed officers downstairs,me and fellow local activist Terri Buckner.
Folks are trickling in – as of 6:40pm there are still plenty of seats.
I’m here this evening to see, after all these months of back and forth, the evidence the Town will present to justify the firing of Kerry Bigelow.
To date, the Town has said, justly, that they cannot reveal the details or specifics of the allegations in order to provide due process for the workers. On the other side, the workers have claimed retaliation for filing grievances, racism and a pattern of general disregard. They and their supporters claim the Town has persecuted them through a series of dirty tricks and deceptions.
I follow local events fairly closely and, as of this evening, I’m still unclear as to the factual basis for either sides claims. I do know, though, some of the folks making the claims and they’ve always been trustworthy.
A couple weeks ago, the “Sanitation 2″‘s supporters made their final appearance before Council ( Purest Form of Democracy: Raging Grannies to the Fore ) to plead their case (background here (Clark-Bigelow Out).
I made the following comments then:
I’ve been asked numerous times where I think the truth of the matter lies by folks who know I try to keep up with what is going on in Town and will call it as I see it. Simple answer? I don’t know. Lots of questions. Many raised over and over by the two’s supporters. I’m certainly sympathetic to Mr. Clyde and Bigelow’s situation – it is a very tough economy and getting a new job with a cloud hanging over their heads will be difficult to say the least.
I definitely think the Town made a boneheaded mistake in hiring CAI, a firm known for its anti-union bias.
From what has been reported, the case against the two workers seems tenuous and more deserving of management intervention than dismissal. Their reported grievances, unfortunately, are nothing new to me. Over the last decade, I’ve spoken to several dozen employees throughout our Town who have claimed similar malfeasance, discrimination, abuse and impropriety.
At that point, I expect the Town to lay its case out fully – with great specificity. I expect the Town to establish why normal management procedures failed, as they seemed to have (and, afterwards, explain how that failure is being remedied) and explain clearly why the workers were fired. I would hope that the Town also explains what yardstick they judged the two’s actions against. Is it true, as has been claimed by some of the workers’ supporters, that other employees with far more serious infractions (even criminality) haven’t been dismissed?
As I said then, some of the claims are, unfortunately, old news ( Council Oblivious: How Long Must This Go On? June, 2008).
7pm. Anita Badrock, Personnel Appeals chair, stands to address what is now a full house.
Anita highlights that the Personnel Appeals Board has a 35 year history. She points out that a lot of material has been submitted by both sides and that the Board itself requested additional information. They have reviewed the submitted information, will take further testimony this evening from both parties, question the parties for clarification and then resign to evaluate the evidence in private.
Anita points out that the Board can only make a recommendation and that the end result still lies within the Town Manager’s purview.
She follows by asking the public to respectfully observe but not interact. Along those lines, she said that some of the Board members objected to the signs be displayed – she asks that the signs be removed.
Town Attorney Ralph Karpinos is here to advise the Personnel Appeal Board (CW:interesting considering the role he played leading up to this event).
Delores Bailey, Board member, asks for the letter sent to the Town by Mr. Bigelow alleging grievances, the letter he submitted in protest, previous personnel ratings for Mr. Bigelow and personnel records of the termination process. Copies are given to the Board and Bigelow’s counsel.
Anita says Town goes first but Al McSurely, counsel for Mr. Bigelow, starts. Both sides have been allocated 1 hour 15 minutes for each of their presentations/questions/cross-examinations.
Al – “This is a case of retaliation…expect a ‘kitchen sink'” approach to the Town’s case this evening. It was only after the filing of Bigelow’s grievance that the Town began to accumulate evidence to support firing the two. Al points out that the Town Attorney, who is advising the Appeals Board, worked with CAI’s private investigator. Al also highlights that CAI submitted their formal report to the Town Attorney one day after the firings – which seems to indicate a foregone case. It appears, as he holds up a few new documents, that the Town continues not to provide all the information requested.
Lance Norris, head of Public Works.
Town lawyer Snead asks “Why are we here tonight? Is this a case of retaliation?” Lance – No. In July we received a number of complaints from the public about the two workers. The workers were reportedly acting hostile towards citizens. By September Public Works management had accumulated a raft of emails documenting the workers antagonistic behavior. One complaint involved a neighborhood which was hosting VP Biden visit. The workers “frightened” one of the residents in making a comment about that visit.
Lance – by September it was clear that this pattern of complaints had risen to the point of being classified “a serious incident” – contacted HR who concurred. The Town started the process of putting the workers on administrative leave. Lance is asked “Were you aware that the workers had filed (EEOC?) grievances?” Lance – No.
Only after the process was started did the two investigations converge – one, the serious incidents associated with the workers, and, two, the investigation into Mr. Bigelow’s allegation from Feb. 16th that he was passed over for a position he was qualified for due to racism.
Lance asked – did you interview the residents who complained. He spoke with 3 citizens. He attempted to contact others but couldn’t do so. He, and the CAI investigator, tried to talk to a woman who complained but her husband said she felt she had already done he duty in making the complaints, that she felt intimidated and that she was done with the process (CW: interestingly, there is little detail on the substance of the complaints, the specifics of the email, the reasons the woman felt intimidated, etc.).
Town asks for a recess as they contact a witness via phone to testify.
Town has contacted “Ms. Johnson” (anonymous). She is going to read a statement via phone.
She starts “I called the Town last Spring….” Quick paraphrase…. their trash wasn’t being picked up, debris piles were being strewn after the trash pickup and she had to clean the street afterwards…never had any problems before…she asked the workers to please clean up after themselves…she felt they were being rude and dismissive…the last time she dealt with them she was intimidated…she called the Town not to get the two fired….she just wanted the kind of crew she used to have…to have the Town replace Clark/Bigelow…she hasn’t had any troubles with the new crew…since the suspension she has had little interaction with the new crew but what little she has had has been pleasant….”it is astonishing that this issue has ballooned into a race issue”…this is a simple issue of not getting the work done, that the workers providing this service were being rude, hostile….”this case is not about race…” this is a case of poor performance…she just didn’t want to be intimidated anymore in asking for a reasonable service….
She comments she is appearing via phone this evening because of all the hoopla surrounding the incident.
When Al McSurely tries to question her she says “I’ve said my piece”…the Chair asks if she wants to terminate her testimony…she says yes…and that’s it….Al McSurely notes his objection (this isn’t a court but Anita did say witnesses could be cross-examined…).
Next witness, James Jones, 27 veteran of Town department. Had a problem with Mr. Bigelow. There was an incident when Bigelow held up the truck…there was a meeting to stop collecting tin/aluminum cans which was causing the delays…at a meeting held by management to correct this behavior Bigelow stood up and complained about not being able to pickup cans…Jones said Bigelow said he refused not to pickup cans (CW: not sure what kind of cans they are referring to… There was another series of incidents where Mr. Bigelow and others started taking pictures of brush piles and debris along the road and on private property…
Town asks Mr. Jones if he had his picture taken? “No”. Was Jones aware of Mr. Stroud’s complaint about Mr. Bigelow taking pictures? “No”.
What is the process if there are safety complaints?…”We have a [safety officer]” who deals with that…What about an incident involving water? Jones – one day Mr. Bigelow complained there was no water on the truck…there was water but it wasn’t cold…Jones said Bigelow called Larry Stroud (his supervisor) on the radio and complained about the water missing…insisted Stroud come out with new water…
Town: Was that Mr. Stroud’s responsibility? Jones – “No”…Jones elaborates…no formal procedure…left up to individual crews…. Town: Who heard the radio call? Jones: Everyone with a radio…. (CW: It appears the allegation is Bigelow made a rude, insubordinate call on the radio heard by all the crews working).
Town: Asks about pictures being taken…was anyone upset? Jones: One incident when Bigelow was walking around erratically taking pictures of a brush pile on someones property…woman came out and appeared distressed…didn’t seem to want the two recording the debris pile…
Town asks: Mr. Jones, is there any difference in Public Works since the two left? Bigelow’s lawyer Al McSurely: Objection. Anita Badrock: This is not a court, please answer. Jones: Much more relaxed since the two are gone…
Cross-examination by Al McSurely.
Al – “Mr. Jones you pick up my garbage…you do a good job…” Jones: Thanks…
Al – Since the two have been dismissed has anyone taken pictures of you stopping in the middle of MLK, Jr. to pickup trash? Jones: No ones taking pictures…not aware of pictures being taken… Al holds up photos Bigelow took of the truck stopped in the turning lane of MLK, Jr.
Al – “Is that you driving your truck?” Jones – “Not sure…” Someone gasps, says “huh…” Al shows a series of pictures…the truck clearly stopped where the two workers had to cross the 5 lanes of traffic…questions the safety….(CW:the truck driver acts as the supervisor for the two workers on the back – de facto management – he determines where to stop and is responsible for the safety of the crew).
Al – Do you think it is safe for the workers to scramble across the busy street? Jones: Not sure what your question is… During all of this Al’s assistant cycles through a series of pictures showing how dangerous the situation was… These pictures were taken by the two dismissed workers
Al is impugning the previous testimony by building a case that Jones actions amounted to a “serious incident”….Jones: Not aware of safety complaints…. Al: Did anyone ever come up and tell you that stopping in the middle of the road to save 5-10 minutes is dangerous? Al: No one in the chain of command mentioned that these pictures were evidence in the safety grievance proceedings Bigelow/Clark started in March? Jones – “No”.
Al asks if he knew if Harv Howard had intervened (CW: Harv’s case with the ESC was also overturned like Bigelow/Clark’s).
Al asks if he was aware of why Harv Howard, previous head of PW solid waste, was fired? Anita shuts down discussion on that issue as it wasn’t presented in public.
Al asks about the testimony that Bigelow was belligerent during the meeting about collecting cans.
Al – You said “he was ‘going off'”…Did you feel threatened? Jones – I misspoke – Bigelow was “upset”. Al – “Did you feel in personal danger?” Jones – “No.”
Al goes on to describe part of Bigelow’s route down through Greenwood Drive…sketches out the nature of that neighborhood – “that’s where lots of rich people live”…”lots of expensive homes”…”do you know how expensive those homes are”? Jones – not really. Al – did you ever see Bigelow act belligerent or threatening to neighbors in Greenwood? – more specifically – did Bigelow ever get in any ones face on Greenwood? Jones – I never saw anything….
Al – “Were you aware that Mr. Bigelow is a Reverand?” Jones – I heard that – couldn’t confirm one way or another…
Town re-crosses Jones. Did he think Bigelow getting on the radio demanding water was inappropriate? Jones: Yes, very.
Al – re-re-crosses – Did the radio issue (about water) come up prior to the interview by CAI’s investigator? Jones seems to fumble claiming he doesn’t recall dates but essentially agrees that several issues did not come up prior to the case being investigated by CAI, the Town’s consultants, concurrent with the firing.
That part of the testimony is done with. The Board calls a recess to try to straighten out a sound problem.
Talked with Anita for a moment – commented that this hearing will probably go down in the annals of local history… She’s been doing a good job moving the proceedings along – giving both sides opportunities to expand on their cases.
So far I’m struck by how little specific detail is being offered as part of the oral testimony. It appears, at least based on the piles of materials before the Board and each sides counsel, that this detail is documented to some extent (they should release it as part of the process). Recall, though, that Al McSurely started tonight by holding up additional written records that he and Mr. Bigelow had requested from the Town but had never been provided.
Town has 43 minutes left to present, Bigelow 53 minutes.
CAI’s Kevin von der Lippe (VDL) – private investigator is the next Town witness. Has 14 years experience. Has done 100’s of investigations for NC municipalities, counties, etc. He was contacted in September by Town Attorney Ralph Karpinos to investigate “serious incident” . Cost $5860.
Town – What process did you use? VDL: Start with credibility of complaints. Interviewed witnesses to verify allegations. “If one person says something, and another…” that builds credibility. Town: Do you look for hidden motives? VDL: Sure.
Sandy Trail investigation – Citizen was very frightened – during interview she said “Was so afraid of trash collectors that she looked through her blinds to make sure truck had left the neighborhood” – went with Lance Norris to interview her directly – first had to calm her as she was extremely frightened, she felt a lot of anger, associated it with the Town in general…
VDL: the whole conversation was very troubling
VDL: Second citizen confronted trash collectors – the response from him – collectors were dismissive and aggressive – he felt that the employees were disgruntled and rude as a consequence…
Town: Explain testimony from town employees. Danny Kirkland sworn statement – co-worker and recipient of harassment from Bigelow – VDL confirms sworn testimony….
Before next affidavit is presented Al interjects….
Al – says “I know this isn’t a court” but it would be better to get direct testimony, “I know both of these employees”, why aren’t they here so we can hear their own words”…instead of having CAI’s VDL paraphrase the testimony… Town: We tried to get Public Works employees to come down to testify but they were too terrified to attend…..
Two additional employee affidavits are offered.
One claims that Bigelow and employee almost came to blows behind truck…. Another testified about meeting between Stroud/Bigelow where there was an argument about who would drive the truck during Mr. Jones temporary absence (CW: presumably Bigelow, who was a qualified driver for Burlington, who applied for a driver’s position with the Town, wanted to do it as a precursor to getting a permanent position).
VDL continues about Stroud testimony. Stroud said he was stressed out by the whole mess… It has affected his health…
Town: Did you consult with anyone at CAI about your findings? VDL: No.
Town: Did you consult with anyone at Town about your findings? VDL: No.
Al – Probing VDL’s bias against Unions. VDL: While he works for CAI he hasn’t done anything on the anti-union side – in fact he has worked on behalf of Union’s – done investigations for them… VDL points out that CAI has a big staff of folks that deal with anti-union work but that he is an independent contractor – runs/manages his own business – and that he was hired to investigate specific allegations of misconduct rising to “serious incident” status…
Al probes VDL on the Biden visit incident…
Al – don’t you find it unusual that a citizen waited until September to complain about an incident in July? VDL fumbles a bit. Al – Were you aware that Richard Terrell (Lance Norris’ second in command at Public Works) had gone down to check on the crew’s work and had found the job well-done. VDL: I don’t recall that specifically. Al – Do you know who Terrell is? VDL: Ummm….you would have to ask Mr. Norris (indicates Norris who sits beside him). Al – You don’t know Terrell? VDL: Ummmm… Al – You know that Terrell is in the chain of the command? That he did the right thing in checking on the work? That he found the work had been done perfectly? VDL: No.
Al continues investigating VDL’s understanding of the incident. It appears that the “confrontation” that day amounted to a woman overhearing a comment between Bigelow/Clark suggesting Biden visit “regular folks”.
VDL doesn’t appear to have explored the management treatment of other complaints on Greenwood in any detail – in fact didn’t discuss with Richard Terrell who filed report on “inappropriate remarks” – VDL also acknowledged that while Mr. Jones had confided to VDL other “confrontations” on Greenwood, that Jones, this evening, said that there had not been any he had seen (CW: I wonder how detailed VDL’s report is on those confrontations and if they rely exclusively on Mr. Jones prior testimony – testimony which Mr. Jones did not offer this evening).
Al asks about interview VDL conducted with Bigelow. VDL – Bigelow was “loud”, “aggressive”, “combative” – the interview was a fairly one-sided affair – Bigelow said he wasn’t aware about the specific incidents VDL was trying to interview him about….
Overall von der Lippe came across as a guy who had a specific job – to explore a series of specific incidents – and stuck to it. While he fumbled a number of times, he came across as a reasonable witness with no particular axe to grind (even if he was being paid by the Town). Notably, he wouldn’t comment on the management issues Al highlighted – seemed most distressed by being asked to describe or explicate the apparent management deficiencies outlined.
Town call’s Norris back – explores the 7/22 (Vice-President Biden) visit incident.
Norris – this was a serious violation, in all his time with the Town he hadn’t seen such conduct, the “egregious” nature of the alleged conduct, the extent of the conduct, the inability of the worker to correct their actions meant that he had to let him go…
Norris on safety grievances – “being a trash collector is hazardous by its nature” – took complaint seriously – offered to meet immediately but Bigelow asked for a delay – Norris had safety inspector run the route to see if corrective actions could be taken….
Town: Bigelow alleges grievances were ignored. Norris – we responded and dealt with grievances – “concerned about safety” – made some small alterations of route to address some of the concerns – untrue that Town didn’t respond….
Town: Bigelow had very good record but then his review ratings dropped – how do you explain that?
Norris – Mr. Bigelow applied for the position but was rejected due to some other reason an impropriety in the evaluation process which constituted a “serious incident” – HR fixed that issue (apparently fired the supervisor) and re-evaluated Mr. Bigelow. He still didn’t get the job – it was at that point the Norris and other management noticed a sharp decline in Bigelow’s performance and attitude – culminating in radio incident (water on truck) and then a string of other complaints…
Al asks Norris about the 5 grievances filed and whether they were eventually corrected – Al notes that Mr. Jones testified no one ever spoke to him about stopping in the middle of MLK, Jr. – Al asks Norris if the trucks still stop in the middle of MLK, Jr. – Norris: doesn’t know, knows some alteration were made, unsure if trucks are still stopping (CW: I live off of MLK, Jr. – yes – they still stop in the middle lane – quite scary to watch the guys scramble across with loaded trash cans).
Al asks a series of questions to determine if Norris knew if Jones was upset about grievances faulting his operation of the truck, etc. – Norris – unaware….
Town: Why immediate dismissal? Norris – conduct amounted to “detrimental personnel conduct” – detrimental personnel conduct can justify immediate firing sans any management attempts to discipline or counsel the worker – in other words – some conduct is so “egregious” (as Norris noted earlier) that a worker has to be fired
Al – probes the complaint made by “Ms. Johnson” and the second woman.
As to the second woman – Why was she upset? She testified she wouldn’t come outside so what personnel interaction did she have? Al – “did they throw rocks at her window?” Norris – she was out in the yard and spoke with workers – Bigelow/Clark said something to the effect of “Who would pay $500 to eat with Biden?” She heard them say “Biden wasn’t interested in the common man”. That was the genesis of the escalating fear – Norris mentions a series of further incidents but declines to go into specifics.
Al points out that these two of the three citizen complaints were made by women. That “Ms. Johnson”, who offered oral testimony this evening via phone used the same exact phrases “common man”, for instance, as the “other woman” – Al – “hmmm, that’s interesting” – to Norris – “what do you think?” (CW: So, is it the case that two of the three citizens complaining about these workers are the same person? )
9:30pm – the Board reconvenes – as one local reporter notes – “in the home stretch”….which is off by 2 ½ hours!
Anita starts by explaining the dual role of Town Attorney Karpinos in the process. She clarifies for the gathered crowd (a little smaller – roughly 75 down from about 90) – that Ralph K’s role is to only provide information on relevant ordinances and procedures – he plays no role in deciding the outcome and the Board will seek no other advice in performing their duties…
Al starts asking Mr. Bigelow about his history with the Town. Al points out that Mr. Bigelow wanted to be a driver but that he was offered by Greg Jarvies (former Police Chief, HR director) a collections job at a very good rate for that position ($30K).
Bigelow steps through the chain of command – Jones – Stroud – Harv Howard. Al has Bigelow review his application to drive a truck – notes that Stroud recommended Bigelow for the position saying Kerry was qualified and a worker “with a good attitude”. Moving on, Kerry reads from his work diary the timeline of incidents – failing to get the job – filing an EEOC grievance President’s Day 2010, filing another grievance one month later…
Bigelow describes the day his driver and crew leader Jones noticed him taking pictures of unsafe driving habits and procedures – said Jones noticed the flash of the camera – pulled away to avoid Bigelow’s attempt to document the safety violation (Al’s assistant holds up a series of photos showing the truck driving off). Bigelow noticed that Jones attitude towards him changed after this incident.
Al asks about typical schedule – 4 ten hour days – Bigelow points out that if you rush through the route you can leave for the day…. Al – doesn’t that mean you are encouraged to cut safety corners? Bigelow – “Yes.” Al – so you don’t work 10 hours – how much time do you put in? Bigelow: 5 hours – jokes that’s a long time compared to some other trucks which do it in 4 hours.
Al points out that when Bigelow filed his Union papers that Karpinos and Stancil (Town Manager) would be aware of that… Al – do you think they shared that information with management? Bigelow – “I suppose”
May 11th meeting with Mayor Mark Kleinschmidt (a lawyer)
Al, what did the Mayor suggest about the complaint of Feb. 12th (employment discrimination complaint for being passed over on the driving job) – Mark supposedly told him to move on it, to not let the EEOC’s clock run out….
They explore the water/radio incident – Bigelow – the cap was off, no water, I called in for more water – asked Larry Stroud to bring some – Al – “were you belligerent” – Bigelow – no, “I’m not crazy” – just asked for water….
They explore the EEOC complaint – has it been discharged? Bigelow – No. Al – 4 1/2 months before action at that point? Yes. Al – Did you file a EEOC retaliation complaint after being fired? Bigelow – Yes.
Back to Biden incident on 7/22. Did he recall cursing in front of citizen? Bigelow: No, I don’t curse. Al – Did he recall making comment about $500 plate meals or the “common man”? No – he might have made some kind of comment to Clark but “common man” doesn’t sound like him….
Al – Did Bigelow have any confrontation with folks on Greenwood – a particular woman? No confrontation though he did take a few pictures of a particular residents yard where the yard waste was handled extremely poorly…but there was no confrontation.
Al – Did you wave your hands or branches around? Bigelow – I don’t carry myself that way…
Al holds up a document that outlines the woman citizen complaint. He says the Town didn’t redact the woman’s name – he’s uncomfortable doing that – this was presumably Ms. Johnson who didn’t want her name revealed.
Town attorney quickly says – yes, redact, but also points out that the Town doesn’t necessarily agree that the name in the document was the same of Ms. Johnson.
Town cross-examines Bigelow. Short summary of Bigelow’s response: Lies, lies, lies.
Town: If other employees say you were belligerent, disruptive, etc. then they are lying? Bigelow: Yes.
Town: If other employees testify you cursed, they are lying? Bigelow: Yes.
Town: The citizens who complained, they are lying? Bigelow: Yes.
Town: The woman who hid behind her blinds? Bigelow: I don’t understand. I haven’t spoken to them, I don’t know what they said…
The Town lawyer starts her summation by observing that one party not considered this evening was “our citizens”. What would you have Mr. Norris do? He doesn’t have time, it is not his job, to manage Mr. Bigelow. He got complaints from citizens. He had reports of incidents. He didn’t react directly but prudently engaged HR and an outside consultant to get at the facts. The facts demonstrate that there was retaliation – not against the employees – but the citizens.
Al sums up – note how Mr. Clark and Mr. Bigelow are lumped together – note how von Der Lippe’s report is on both – that there is frequent confusion as too who is who – why are these two men lumped together – because they both are trying to improve work conditions – they filed grievances – they both tried to Unionize – “that’s the real serious incident as far as the Town is concerned, trying to organize”…
The evidence doesn’t support the actions – the result was manufactured to get these guys out – read the 7/22 report – it’s clear that this was two guys speaking behind the truck, that is what the memo says…
Justice in Chapel Hill shouldn’t rely on people calling in on a phone to testify – that’s not justice – this is a reflection of a bigger problem – no wonder other public work employees are afraid to testify…
Public Works is stuck – its frozen – this is more than an issue involving two men, safety incidents – this is about a long standing issue of how we treat folks in Town – finally calls for “an end to this farce”
Relates how he called someone who works in the service industry to see how they would handle such incidents – he said – “they wouldn’t let it go”, they would go talk to the customer within a week, they would get the facts and fix the problem….
Note: 10:20pm. Another recess as the Board organizes the next phase.
NOTE: I have tried to put all direct quotes in quotes and accurately paraphrase/summarize the rest. I will brush this post up later for readability.
10:25pm Anita returns to explain the next steps. Board plans to call interim HR director – a witness on neither sides list. The Board starts by calling Mr. Jones back to testify.
Al – Norris is a fine man – don’t let him fall on his sword – don’t be confused on who decided to fire these men – it wasn’t Norris (brings up Harv Howard, etc. – something happened there…).
Board member Delores Bailey – Who controls the crew? Jones: The driver (Mr. Jones). DB: How long did you work with Mr. Bigelow? Jones: 2 – 2 1/2 years. DB: Was it only at the end that things went bad? Jones: Yes. DB: What bothered you about Mr. Bigelow taking pictures? Jones: It was strange, it didn’t make sense. DB: Back to the microphone incident – how loud was Bigelow? Jones: The truck is loud, you have to be loud to be heard.
DB: Whose job was it to get more water? Jones: The crew leader. DB: You. Jones: Yes.There was water but not ice, you could drink it. Jones noted that Bigelow was more than loud but “angry” during the incident.
DB: About the Biden incident – did you hear the comment? Jones: No, they were back of the truck. DB: Were they physical? Jones: No. DB: Are you aware, at any time, of any physical intimidation by Bigelow? Jones: No, not to my knowledge. DB: Not “in your face” (as has been testified). Jones: No, never.
DB: You have seen Rev. Bigelow angry, have you had a chance to talk him down? Jones: Not really – after the microphone incident did offer to buy ice for water to calm the situation down…
Board calls CAI von Der Lippe.
Anita Badrock – why did you ask witnesses to sign confidentiality agreement? VDL: Not me, that was the Town’s requirement.
AB: Was there a specific set of questions you asked each witness? VDL: No, not all witnesses – just Town employees.
AB: OK. Please explain on part of your report – a little confusion – it appears that it says that Mr. Bigelow hollered over the radio asking for water, you report that it was “disrespectful” – AB: Later on you say when you talked to Mr. Stroud – you asked about incidents – and he didn’t mention the radio incident. VDL: Yes, that’s a typo. AB: So you have a typo in a final report submitted to the Town that completely changes the sense of the answer? VDL: Yes, it was a simple typo. AB: Is there any more typos, typos that change the meaning of the report? VDL: No, maybe a spelling typo.
VDL: “Let me explain though” that Mr. Stroud was very stressed out, that he was quite distressed, that it wasn’t just Stroud who spoke of the water cooler incident, other employees mentioned it.
AB: Who did you file the report with? VDL: Him, the Town Attorney.
AB: Did you ask the employees during the interview specific questions about these workers? VDL: Yes, I asked specific questions about various incidents? I asked did you have any knowledge of Mr. Bigelow’s behavior, etc. (CW: I believe AB is trying to establish if the questions were leading, did the questions shape the answers).
Another board member ask if there are notes or recordings of the interviews… VDL – informal notes, not recordings (I believe he said that, it was a bit muddled).
AB: Have you done any other work for Chapel Hill? VDL: No (CW: VDL seems pretty uncomfortable, wouldn’t blame him for wanting to put Chapel Hill in his rear-view mirror).
DB: Do you know why CAI was hired? VDL: No.
Anita has had to remind the smaller crowd, about 35-40 people now, to keep it down. Been a long evening – lots of murmurs.
Board member: Do you know why CAI was hired? VDL: My impression was that the Town wanted a neutral objective analysis. BM: Asks about Mar. 23rd contract… VDL: I don’t know that contract – my understanding is that the contract involved some work on wages/compensation study.
AB: Let me ask about your bill – why did you do a background check? VDL: That is standard procedure – wanted to check to make sure that the two individuals – they were described as belligerent – every indication was that the two were aggressive, intimidating – all the coworkers, citizens, etc. said they were aggressive – I did a background check to make sure they were not dangerous – to protect myself – all indications were I needed to be careful….
BM: All the information was public knowledge? VDL: Yes, available at Courthouse.
Anita calls interim HR director.
BM asks – do you know why CAI was hired? HR: We wanted someone outside of the process – didn’t have time to do what can be laborious procedure – had worked with them before. BM: Do you know why it took so long – 3 months – to call in CAI? BM: Is this typical to hire someone to come in? HR: We have done this before.
Another BM: If contract was let Mar. 23rd but VDL didn’t start investigating until Sept… What did CAI do until then? HR: They did a wage study and another personnel investigation which was unrelated to the Bigelow/Clark incident.
BM/DB: What was the 2nd “serious incident” you (HR) met Mr. Bigelow on 7 days after the 1st incident? (CW: Seems to be some confusion on Board, staff and Bigelow’s counsel as there are 2 second incident meetings).
That second “serious incident” was about Mr. Bigelow’s EEOC complaint about being passed over for the drivers job. HR finally decided that the allegations within the EEOC grievance weren’t supported by facts and rejected the claim of bias.
AB: What is the EEOC process? My understanding that filing a EEOC complaint affords an employee some protection from retaliation – is that true? HR: Had two possible paths – Town decided to file a position statement with EEOC instead of pursuing mediation. EEOC investigation still active.
AB: Asks a series of questions probing pre-disciplinary process. The men were notified 24 hours prior, did the two know what the “serious incident” was? HR: Wasn’t working as HR director at time but generally it is just a notice – in this case it was a simple statement – that a hearing was being held to discuss a “serious incident”.
AB: Asks why counsel for the employees (Al McSurely) wasn’t provided details on the allegations prior to pre-disciplinary hearing. HR: I don’t know – that’s a question better asked Mr. Norris.
Shifting into a new mode, Board will start asking both parties questions. About 40 people left to listen in.
Board Member(BM) to Norris: Have you ever fired anyone before? Norris: No. BM: What kind of safety issues have we dealt with – twisted ankles, etc.? Norris: Usually twisted ankles – 8 accidents this year – 15 years ago collector hit – before his time.
DB: I understand that the woman is frightened – when is it that the woman had an encounter that frightened her so terribly?
Norris: The second incident in September – after the 7/22 Biden incident – this information also came from husband ( NORRIS CLARIFIES THAT THE WOMAN ON THE PHONE AND THE FRIGHTENED WOMAN ARE DIFFERENT).
Norris: It was clear that she had had a series of incidents between these two workers from 7/22 to September. Richard Terrell, in his 34 years, never encountered this level of complaint against workers.
DB: Why weren’t these complaints being addressed? BM: Is it fair to say that this involved problems in the waste management organization? AB: We can’t talk about that… BM: In general, could we say there was a failure to move on complaints? Norris: …fair to say…
DB: Do you know Mr. Bigelow to have been a good employee up to these incidents? Norris: Yes, he was a good employee. DB: Because we try to hire good employees to start with? Norris: Yes. As former Chief Jarvies said – Mr. Bigelow was a good hire? Norris: Yes.
Norris works back through the time-line and, once again, pinpoints the decline in Bigelow’s performance/beginning of serious incidents to Bigelow’s being passed over for the driver job.
Norris and CAI interviewed 2 citizens involved filing the 5 citizen complaints. One of the remaining 5 declined to participate. There was a total of 7 complaints made amongst the 5. Norris confirms that von Der Lippe’s report and testimony was complete and accurate.
AB: Prior to the final evaluation and disciplinary hearing Mr. Bigelow’s counsel asked for CAI’s documentation – do you know if he got it? Norris: HR was gathering it but I can’t confirm he got it…
AB: It is reported by CAI that Mr. Bigelow made a call to one of the witnesses – confronted them – which made them anxious – indicated it was akin to witness intimidation – were the two told not to contact a witness? Norris: Workers weren’t told in writing not to contact witness but they were told verbally…
AB (one of the best questions of the night): Did Mr. Bigelow know that his job was in jeopardy? Did anyone tell him that if he continued his behavior he would lose his job? Norris: Didn’t tell them – was something their direct supervisor Larry Stroud was responsible for – Norris wasn’t aware of whether Stroud asked them or not…
Next up – Board questions Bigelow ( 11:30pm ).
Anita Badrock (AB) – In reviewing CAI report it strikes me that 10 fellow employees made similar statements about you being intimidating, harassing, combative – these statements are very similar – why is that? 10 employees – so similar – why?
Bigelow: Some were angry because of his role in getting previous superintendent fired (AB quickly interjects – we can’t talk about that). Said he rubbed some folks wrong way – that CAI/Town picked people who didn’t like him to interview – says “if you read off their names I could tell you a reason” for each…
AB: Explain what happened at Biden event – did you ask for address of where event was going to be held? Bigelow: No. We did ask what was happening – she said that Biden was coming – we might’ve said something as we drove away…
In response to AB question on “a behind closed door meeting” between Clark and him to orchestrate this situation (?) Bigelow responded they met to discuss unionization, that they certainly didn’t want to do anything which would jeopardize their organizing efforts…
AB: Were you surprised when you were called in and given administrative leave? Bigelow: Absolutely was surprised, thought he was being called in to discuss EEOC complaint, no idea his job was in danger…
BM asks about the photographs, understands why some of the pictures were taken to document safety issues but what about unrelated photos he had taken?
BM: Did you consider taking pictures of other employees might be considered intimidating? Norris: “wasn’t going around taking pictures to take pictures” – did it expecting that he might need to justify complaints – he was taught to carry a camera around with him so he could document unsafe conditions, accidents and other issues.
BM: Did you realize that by leaving the pre-disciplinary hearing that management would have no facts from you to move forward on? By leaving you didn’t give management a chance to understand what was going on…
Bigelow: “No!” I did what my counsel suggested, leave the meeting. Thought Town would get back with them and not move forward on firing him. Al McSurely adds in that they didn’t expect any movement and, rather, expected the Town to provide more information.
DB: Asking about Greenwood incident. “What did you do to frighten this woman?” Bigelow: It didn’t happen – didn’t yell – didn’t confront – wasn’t sure, in any case, who lady was – wanted to talk to woman who was scared to understand why she was so upset…
BM asking about Town evidence item #9 – notification of pre-disciplinary conference – letter from Mr. Norris. BM read out the letter and highlighted two parts: participation in conference was voluntary; that after the conference he (Norris) would take appropriate action including and up to dismissal.
BM asks Bigelow to clarify his previous statement where he said he didn’t think he could be fired because of these proceedings. Bigelow fumbles – “maybe I misunderstood” your question. BM: You did receive this letter? Bigelow: I have received a lot of letters. BM: Did you understand that this letter asked for you to participate and could lead to dismissal? Bigelow – shakes head – no….
BM brings up several other documents which fairly clearly warn of the consequences of disengaging from the process – especially the pre-disciplinary conference.
Bigelow: I did what my counsel advised….
Al McSurely, Counsel, weighs in – Notes Anita Badrock already highlighted the very short timeline between the letter and the conference – notes that the letter is vague about reason for conference – says “even if I was Johnny Cochrane” he couldn’t respond in 1/2 hour…
Al asked for a report of the incidents and allegations that they could use to prepare a response – noted the CAI report hadn’t even been filed with the Town at the time – Al points out that this report was filed one day later but was obviously the basis for the pre-conference action and the ensuing dismissal.
Both Town attorney Snead and Norris say they recollect the meeting differently – that there was no agreement to provide additional information to prepare and respond…
BM: Did you get the information? Al: Yes, a couple days before they were fired. Town lawyer Snead: At no time did they ask for the information prior to the dismissal.
Midnight and both sides are being given an opportunity to summarize their cases and add additional detail.
Al – Pretty much laid out the case – recall we expected further information – didn’t get a chance to respond in detail, etc. – short and sweet…
Snead – Wants Board to know that the Town tried to intervene several times…
Deloris Bailey asks Mr Bigelow when he thinks things changed? Bigelow – it was when I filed the grievance (EEOC) – “they were out to get me..well, they got me”
DB: Do you think your attitude changed? Bigelow – I’m a preacher…carries himself as a man of the lord…
AB: Next steps – over 6 years we have upheld Town recommendations, we have also disagreed. Will deliver a non-binding recommendation to the Town Manager who will have 14 days to respond.
I will be reviewing, clarifying and editing this post over the next day or so.
The Board acquitted themselves quite well. Kudos to Chair Anita Badrock for affording both sides adequate time to present their case. She managed the meeting effectively, tempered the crowds responses. Now it’s time for their thoughtful consideration.
2 responses to “Personnel Appeals Hearing Kerry Bigelow: Evidence and Process”
Leave a Reply
You must be logged in to post a comment.