HA’s Attempt to Fire A Union Activist Is Denied in Arbitration
Mitchell Feder: Feels Vindicated By Decision
Arthur Schwartz: HA Applied Double Standard
by DAVID SIMS, The Chief August 29, 2011
Civil Service Technical Guild member and former union Housing Authority Chapter President Mitchell Feder won a long-running Board of Collective Bargaining case against the HA Aug. 25 over his use of his work computer and Internet for union business.
He successfully argued that authority officials had unfairly cracked down on him and wrongly sought his firing although the BCB ruling upheld the HA’s disciplinary action against Mr. Feder for two improper e-mails.
Mr. Feder said in a phone interview that he was happy with the decision, which took three years to be rendered, but would continue to appeal the HA discipline.
‘It’s Protected Activity’
“I knew the use of e-mail in general, the Internet and computer storage, for union-related activity, was protected activity,” he said. “And I’m very happy we were exonerated for that, because the agency has been coming down on us for years.”
The BCB decision was rendered in two cases, one brought by Mr. Feder individually, and one brought by District Council 37. In the first case, Mr. Feder said that he had been discriminated against by the HA for using the Internet for union matters. HA Internet policy prohibits use of computers for “commercial purposes, personal business or any other purpose unrelated to HA business,”although some “limited personal use” is allowed.
Mr. Feder argued that use of the e-mail system for sending out union notices was essential to communicating with membership and much more productive than using a bulletin board. From 2004 to 2007, he sent out at least110 union-related e-mails.
HA Deputy Director David Marcinek testified that a union counts as “an entity that’s doing business of some kind,” therefore not qualifying for the limited-personal-use exception. He admitted, however, to communicating with Mr. Feder on union issues for years prior to the authority launching its investigation.
Most Replies While Not on Clock
After receiving anonymous complaints about Mr. Feder“broadcasting” e-mails during the HA chapter election, Mr. Marcinek started a probe in January 2008. The HA produced 1,442 union-related e-mails, but Mr. Feder argued that they were almost all replies to union members asking specific questions, and that many were sent on off-hours or his lunch break.
The authority leveled disciplinary charges against Mr. Feder in June 2008 and sought his termination. Eventually, he was given a two-day suspension after an internal trial.
Mr. Feder, represented by attorney Arthur Schwartz [President, Advocates for Justice], argued that HA’s Internet policy was unnecessarily broad and restrained his statutory rights under collective-bargaining laws. He also said his union activity was being discriminated against while other personal uses of HA computers were ignored.
The HA asserted that it had already held a trial on the matter and thus Mr. Feder’s appeal was invalid. Regarding the union discrimination claim, the HA argued that Mr. Feder had only been disciplined for the volume of his e-mails, not their content.
Doesn’t Buy HA’s Claim
The BCB board dismissed the first assertion and found the latter claim “pretextual,” saying, “employees used HA’s computers to regularly e-mail concerning union-related business and other non-HA related matters and HA’s investigation and discipline towards petitioner was disparate,” calling Mr. Marcinek’s testimony“confusing and inconsistent.”
The BCB did, however, uphold the HA’s decision to discipline Mr. Feder for the sending of two e-mails discussing his candidacy for office, and therefore did not rescind his two-day suspension. …
The BCB ordered the HA to rescind all other disciplinary charges, however, and called for an end to all investigations. In the other case between DC 37 and the HA, the BCB ordered the authority to rescind the Internet policy it used to punish Mr. Feder, which it said was “intended to discourage union activity.”