STATE OF MICHIGAN EMPLOYMENT RELATIONS COMMISSION LABOR RELATIONS DIVISION In the Matter of: CITY OF DETROIT (FIRE DEPARTMENT) Public Employer-Respondent MERC Case Nos. 19-G-1452-CE & 19-H-1646-CE -and- DETROIT FIRE FIGHTERS ASSOCIATION, LOCAL 344, Labor Organization-Charging Party _________________________________________________________/ APPEARANCES: Letitia C. Jones, Senior Assistant Corporation Counsel, for Respondent Legghio & Israel, P.C., by Christopher P. Legghio and Meghan B. Boelstler, for Charging Party DECISION AND ORDER On three occasions during the summer of 2019, Respondent City of Detroit (Fire Department) (Fire Department or Employer) denied the request of Detroit Fire Fighters Association Local 344 (DFFA or Union) President Michael Nevin to “ride a firefighting rig” with his squad even though it had allowed other Union officials to do so for more than 30 years. Shortly before his request was denied, Nevin was also required to submit to a disciplinary “Garrity” interview as part of an administrative investigation. The Union alleged that the foregoing actions occurred in retaliation against, and to suppress, Nevin’s grievance filing and other protected activities. It filed respective charges alleging that the Fire Department had violated Section 10(1)(a) and (c) of the Public Employment Relations Act (PERA), MCL 423.210(1)(a) and (c). In a Decision and Recommended Order1 issued on January 5, 2021, Administrative Law Judge David Peltz found that the Employer violated Section 10(1)(c) by refusing to allow Nevin to ride a firefighting rig with his squad in retaliation for his advocacy on behalf of DFFA members, and that the actions taken by the Employer would objectively tend to restrain, interfere or coerce a reasonable employee in the exercise of his or her rights, in violation of Section 10(a)(1). However, the ALJ determined that the Employer did not act unlawfully by requiring Nevin to submit to the Garrity interview, and recommended dismissal of that charge. In its exceptions, the Employer asserts, in part, that there was insufficient evidence to support the ALJ’s finding of anti-union animus, and that his credibility determinations were not justified. We disagree. Findings concerning motive and anti-union animus rest significantly on 1 MOAHR Hearing Docket Nos. 19-015459 & 19-016519 witness credibility. The ALJ having observed the witness testimony and demeanor first hand, and not the Commission, is in the best position to make determinations concerning the credibility of witnesses. We will not overrule those determinations absent clear evidence to the contrary. The Employer has not advanced evidence sufficient to overturn the ALJ’s credibility judgments. Accordingly, we reject those exceptions and conclude that the ALJ properly found that the Employer’s refusal to allow Nevin to ride a firefighting rig constituted unlawful retaliation for Nevin’s union and other protected activities engaged in as DFFA President. The Employer also takes exception to the ALJ’s having drawn an adverse inference against it for not procuring the testimony of a witness. We find no merit in that exception and conclude that the adverse inference drawn by the ALJ was appropriate under the circumstances. Lastly, the Employer asserts that a portion of the ALJ’s recommended remedy, which would allow DFFA representatives to ride the firefighting rigs “upon request”, is overly broad, and, on that basis, it takes exception to the ALJ’s recommended affirmative order. We find merit to the Employer’s exception. Accordingly, we have modified that portion of the ALJ's proposed affirmative order. Procedural History: This case involves two unfair labor practice charges. On July 17, 2019, the Union filed an unfair labor practice charge in Case No. 19-G-1452-CE alleging that the Employer violated Sections 10(1)(a) and (c) of PERA by requiring Nevin to submit to a Garrity interview as part of an administrative investigation into the unauthorized disclosure of information, in retaliation for his Union activities. On August 8, 2019, the Union filed the charge in Case No. 19-H-1646-CE, alleging that the Employer discriminated against Nevin in violation of Section 10(1)(a) and (c) of PERA by denying his request to “ride-along” on shifts with his assigned squad company. The charges were consolidated and heard on September 26, October 30, and November 26, 2019. On January 5, 2021, ALJ Peltz issued his Decision and Recommended Order, in which he recommended that the charge in Case No. 19-G-1452-CE be dismissed. With respect to the charge in Case No. 19-H-1646-CE, the ALJ concluded that the Employer violated Section 10(1)(a) and (c) of PERA by prohibiting Union President Nevin from riding a rig with his squad. On February 24, 2021, the Employer filed exceptions to the ALJ’s Decision and Recommended Order, and, on March 8, 2021, the Union submitted a brief in support of the ALJ’s Decision and Recommended Order. No exceptions were filed over the ALJ’s recommended dismissal of the charge in Case No. 19-G-1452-CE. 2 Facts: Unless otherwise noted, we adopt the ALJ's findings of fact and repeat them only to the extent necessary. I. Background DFFA Local 344 represents a bargaining unit of approximately 769 fire fighters, emergency medical technicians, and paramedics of the City of Detroit Fire Department, including, but not limited to, Fire Chief, Deputy Fire Chief, Fire Marshall, Senior Battalion Chief and Fire Captain. The Fire Department and DFFA were parties to a collective bargaining agreement covering the period November 6, 2014, through June 30, 2019. Michael Nevin has been employed by the Fire Department for 33 years and is currently Captain of a tactical rescue squad. He was elected President of the Union in December 2015. For the first two years of Nevin’s tenure as President, the Union filed no grievances against the Fire Department. During the period 2017 to 2019 however, the Union filed approximately thirty grievances per year, as well as unfair labor practice charges and claims with the Michigan Occupational Safety and Health Administration (MIOSHA). The grievances involved contract interpretation issues, and challenges to both policy decisions made by the Fire Department and to disciplinary action imposed on unit members. In addition, the DFFA was openly critical of what it perceived to be slow 911 response times and, in November of 2018, posted Fire Department dispatch reports on social media. The evidence revealed that Chief of Department Fire Operations, Robert Distelrath, and Nevin had a fairly adversarial relationship. At the hearing, Distelrath testified that he considered Nevin to be one of the catalysts behind the DFFA grievances, which he characterized as lacking in merit and frivolous. Distelrath further testified that, although he and Nevin had known each other for a long time, that the Union president had “broken the trust” between them by going to the media and denigrating both the Fire Chief and the Fire Department. Distelrath admitted that he and Nevin had clashed over Union matters and described his relationship with the Union president as “contentious.” Distelrath also admitted that, as Fire Chief, he found certain grievances and unfair labor practice charges, including one of the charges filed by the DFFA in the instant case, “annoying”, and took criticism of the Fire Department personally. II. Denial of Nevin’s Requests to “Ride the Rigs” Under the terms of the collective bargaining agreement, members of the DFFA executive board are granted full-time Union release. Article 5, Section D of the agreement provides that the DFFA president, vice-president, secretary and treasurer “shall be permitted time off on a full-time basis with compensation to which their rank otherwise entitles them, including without limitation: salary, pension credits and contributions, seniority, etc.” Notwithstanding their full-time release from normal firefighting duties, elected union officers are still expected to maintain the training, 3 qualifications and proficiencies required of all City of Detroit fire fighters. Based in part on that requirement, Union executive board members periodically work in the field as active fire fighters, a practice referred to as “riding the rigs.” On July 26, 2019, DFFA President Nevin submitted a written request to Chief Distelrath to “ride the rigs” with his assigned company on several dates in August. Distelrath summarily denied the request without explanation and returned Nevin’s July 26 letter initialed and stamped: “DENIED -- Jul 30, 2019 -- Chief of Department.” Nevin testified that the Fire Department had always been receptive to union officers’ requests to “go out to the field” with proper advance notice and, that until Chief Distelrath denied his request, there had “never been a problem.” Distelrath admitted at the hearing that he had previously given Union Vice President Harp permission to ride a rig; that he told Harp that he could do so at any time; and that he believed the practice was a “good thing” for both Harp and the Department. Additionally, there is no dispute that Union Treasurer Verdine Day rode a rig just one day before Distelrath denied Nevin’s July 26 request. After denying Nevin’s written request to work in the field, Distelrath ordered senior Department leadership not to allow Nevin to ride a rig at any time. Nevin subsequently engaged in conversations with other City of Detroit officials, including Labor Relations Representative Hakim Berry and Deputy Commissioner Fornell. According to Nevin, Berry asked what Nevin wanted in exchange for curtailing his Union activities. Nevin further testified that Berry asked how they could “clean up the grievances” and “make this stuff go away.” Nevin told Berry that one of the things he needed was for the Fire Department to end the retaliation, including the refusal to allow him to ride a rig.