Union files grievance officials over firing of IT director

By Suzanne Carlson
Journal Inquirer
Published: Monday, December 26, 2011 11:27 AM EST

VERNON — The union representing former town Data Processing Director Arthur Beirn said officials are trying to use a provision of state law to subvert the town charter as it applies to termination of workers.

Beirn, who has worked for the town since 2007, served as president of the American Federation of State, County, and Municipal Employees Council 4, Local 818, which is pursuing a labor grievance and two municipal prohibited practice complaints against the town after he was fired abruptly Dec. 19.

Council 4 staff representative Timothy Oppenheimer said Wednesday the town is citing a state statute intended to resolve conflicts between contracts and town charters as justification for firing Beirn without cause or notice.

“Fundamentally what it says is if there’s a conflict between the town charter and the collective bargaining agreement that the collective bargaining agreement prevails,” Oppenheimer said.

Beirn’s contract includes a grievance arbitration provision, Oppenheimer said, “so their claim is apparently that in this situation … that’s our exclusive remedy, that’s the only thing we can do because it prevails over the town charter provision for removals.”

But Oppenheimer said there is no conflict between the two documents and town leaders are trying to use the law to avoid their obligations under the Loudermill decision, a 1985 U.S. Supreme Court ruling that guarantees public employees the right to a public hearing and due process.

“We think they’re wrong, we think that that’s no conflict, you can pursue both avenues,” Oppenheimer said.

For example, there is a provision in the collective bargaining agreement that deals with discrimination, and there is also a state law against employment discrimination, “and I don’t think there’s any dispute that you can pursue both remedies if you have a discrimination claim,” Oppenheimer said. “Our position is that basically you can pursue grievance arbitration, and you can pursue the provisions of the town charter, and therefore, there’s no conflict.”

While town department heads serve at the discretion of Republican Mayor George F. Apel, the town charter requires that he inform each Town Council member and give a reason for termination by certified mail 30 days before the proposed removal date.

Within 10 days of receipt of that notice, the employee may submit a written request for a public hearing to each council member, and the charter states that the employee cannot be fired before the hearing is held.

The town has not followed that procedure, and Town Administrator John D. Ward, who has been handling Beirn’s termination as is allowed under the charter, has said that it’s “a personnel matter; it’s confidential beyond the statement that he’s no longer employed by the town.”

Apel has declined to comment.

Beirn said he has received nothing in writing from the town regarding his termination, and was given no reason why he was fired.

In a letter to Oppenheimer, Ward denied “all of the allegations” and said Beirn was “terminated for just cause from the Town of Vernon in accordance with all applicable laws.”

AFSCME spokesman Larry Dorman said that in recent years, the union hasn’t seen town officials “put this kind of legal spin on an unjust termination.”

There have been recent situations, Dorman said, in which a town tried to use the same statute to subvert the termination provisions of the collective bargaining agreement because the town charter’s procedures were preferable — the exact opposite of what Vernon leaders have done.

This August in Marlborough, for example, the town lost its four-year bid to not reappoint its assessor without just cause when an appellate court upheld a trial court’s ruling that the town had violated a collective bargaining agreement in doing so.

The town attempted to argue that “elected executive leaders have the responsibility and the right to appoint public officers,” as the charter granted appointing authority to the Board of Selectmen.

But in 2008, an arbitration panel concluded that under the terms of the collective bargaining agreement, “just cause must be enumerated specifically when there is the involuntary loss of employment,” regardless of how it came about.

While unions typically follow contract provisions for termination procedures, “if there’s something in a town charter that’s more beneficial to the bargaining unit member, we can pursue both remedies,” Oppenheimer said. “It’s our view that the state statute I referred to is really to benefit the bargaining unit members, it’s not really something the town can use as a weapon against them.”

One of the complaints filed by the union, “involves a claim that the termination was based on anti-union bias or animus, and the other is about the bargaining terms in the unilateral termination. … They have refused to comply with the town charter provisions provided,” Oppenheimer said.

He also said the union’s assertion that Beirn was fired without cause prompted the grievance action.