Porta-Potty Retaliation

Written on 07/09/2022
Will Aitchison

The Shelton Police Union and the City of Shelton, Connecticut are parties to a collective bargaining agreement. On March 10, 2020, Governor Ned Lamont proclaimed a COVID-19 state of emergency. Six days later, the Governor issued Executive Order No. 7D, which stated, in relevant part, “effective at 8 p.m. any indoor gym, fitness center, or similar facility shall cease all operations.”

On April 10, 2020, Lieutenant Brian Yerzak placed signs on the doors of the Shelton Police Department’s gym facility and male and female locker rooms. The sign stated they were closed until further notice and that entry may result in disciplinary action. A fol­low-up memorandum stated that “the workout rooms and locker rooms are closed until further notice. Any patrol officer who needs to enter the building needs to radio or call the on-duty su­pervisor for permission.”

The Union demanded to bargain over the closure of the facilities. The City essentially ignored the Union’s demand.

The men’s locker room had an attached restroom with multiple stalls. On May 14, 2020, Yerzak placed an additional sign on the men’s locker room door indicating that individuals could use the restroom one at a time. Since the women’s locker room restroom had only one stall, Yerzak did not place a similar sign on that door. Nor did Yerzak remove the sign barring entry to the locker room. The Union quickly insisted “that female officers are entitled to the same options and privileges as the male officers.”

Days later, the Department again closed the men’s locker room re­stroom and installed two porta-potties equipped with lighting and hand san­itizers in the rear parking lot of police headquarters. The following day the Union’s lawyer sent the following letter to the City: “I was recently notified that an Order was issued last night, following the Union’s request that the City remedy a gender disparity issue regarding access to restroom facilities. Apparently, this Order now denies all Officers use of restroom facilities at the Department. In lieu of access to appropriate restroom facilities in the building, two portable toilets were placed in the parking lot. The Union is demanding to immediately bargain this unsafe change in circumstances.”

On May 24, the Union’s business agent came to the station to inspect the porta-potties. The City immedi­ately began an investigation, including reviewing “surveillance video footage showing an individual dressed in a tee-shirt, shorts, and flipflops exit an idling vehicle and examine the por­ta-potties.” Yerzak issued the business agent a criminal infraction citation for simple trespass.

Connecticut’s Department of Labor found the City’s conduct amounted to both bad faith bargaining and illegal retaliation. On the bargaining issue, the Department noted that “under our emergency doctrine, an employer may make a temporary unilateral change involving a mandatory subject of bar­gaining where such change is reason­ably necessary to meet the emergency. Although our emergency doctrine permitted the City to unilaterally close the Department’s gym facilities, locker rooms, restrooms, and day room at the beginning of the COVID-19 pandemic, the City violated the Act by failing to bargain with the Union within a rea­sonable time thereafter.”

Turning to the retaliation question, the Department held that “to establish a prima facie case of retaliation, the Union must show that it was engaged in protected concerted activities, that the Employer had knowledge of those activities, and that the Employer harbored anti-union animus. We have little difficulty finding that the Union’s opposition to the porta-potties, including Lewis’s inspection on May 24th was protected concerted activity within the meaning of the Act. Second, since McPadden and Yerzak made a point of reviewing Section 5.04 of the contract during their investigation, we can reasonably infer that they were aware of Lewis’s Union status and the official nature of his visit. Finally, we find that the City’s actions towards Lewis were inherently retaliatory and intended to punish the Union for con­tinuing to challenge the Department’s determination that porta-potties were adequate alternative restroom facilities for patrol officers.

“The record does not support a finding that the City would have issued a citation to Lewis absent an improper motive. Civilians have historically trespassed in the rear parking lot of the Department’s headquarters without being charged and the record is devoid of evidence to justify treating Lewis more severely. Lewis gave notice of his arrival, quickly and unobtrusively inspected the porta-potties, and left the premises within several minutes. Lewis had no contact with Department personnel, except for an insignificant encounter with a police sergeant. We find that the City retaliated against the Union in violation of the Act.”

City of Shelton, 2022 WL 1442880 (CT. Dept. Lab. 2022).

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