National Labor Relations Board (NLRB)▼
Case No. 34-CA-7529: Salome vs. Yale University
[Below is the complete text of the charge submitted to the NLRB on 28 March 1996. Editing was limited only to include one late addition to the exhibits and generally to accommodate standard CSS/html web presentation, such as links and lists.] harassment
- I. Summary of Claims
- II. My Job Audit Request
- III. Pretext for Termination
- IV. Other Prior Retaliatory Actions
- List of Exhibits
- Appendix: Witnesses
I. Summary of Claims
A. Termination of Employment
Prior to my termination, I was employed by Yale University for 23 years as a staff employee for West European Studies and later for Latin American Studies. Both are University departments at the Yale Center for International and Area Studies ("YCIAS"). On November 15, 1995, I was suspended from work without pay for two and one-half days, and subsequently, on November 30, 1995, I was terminated. My termination was effected:
- without knowledge or authorization by my department chairman and faculty supervisor;
- without my Union representative's knowledge or presence;
- without following the University's disciplinary process; and
- without a hearing on pending appeals.
I believe that an investigation of my claims will show that my termination was the culmination of harassment by members of Yale management extending over the past ten years because I have asserted and exercised my rights under the terms of the agreements between the University and the Union regarding my employment, and that it violates Sec. 157 of the National Labor Relations Act.
I joined Local 34, Federation of University Employees, AFL-CIO, in 1984. From the time that Local 34 was certified by the NLRB, there have been only four employees in the YCIAS area studies departments who were vocal union members. Three of us took part in the strike against Yale in 1984. The fourth member was hired later, and took part in shorter-term job actions in 1991 and 1992. All of us were subjected to discrimination by Yale because we were willing to, and did, object to inhumane, dishonest, and discriminatory treatment by the YCIAS management. Our working conditions were made more and more difficult. One by one, my colleagues left and I was the sole remaining member of the original four Union members at YCIAS as the winter of 1996 strike by Local 34 drew near. Long before my last suspension and termination, I was singled out for discriminatory treatment, coercion, and harassment because I was outspoken in asserting my rights as an employee under the Union contract, Yale's personnel policies, and general University civil rights policies. Long before my last suspension and termination, I was singled out for discriminatory treatment, coercion, and harassment because I was outspoken in defending the policies of my department and my supervisors' authority. I was denied fair treatment because I had filed legitimate grievances. My defense of my own and other employees' rights under the University's labor agreement with my Union and under its own personnel manual made me a frequent target of verbal abuse and profanity by the YCIAS business manager.
A year before my final suspension and firing, I had asked for a job audit to review and upgrade the classification of my job, because I was overworked and underpaid. The final review of my job audit request was never completed. A separate meeting scheduled to examine my workload and my paid time was scheduled but never held. I was fired 45 minutes before that meeting, and while the job audit review was still pending. I was never paid for the hours I actually worked during the 23-month period from January 1994 through November 30, 1995, and I was deprived of credits I should have had for pension and retirement benefits. I believe that I was discriminated against for asking for an audit of my position and for grieving the audit decision, and that I was suspended and terminated in retaliation for being outspoken and to prevent me from having a hearing on pending appeals.
In terminating me, I believe that YCIAS violated three sections of Article V of the Labor Agreement between Yale University and Local 34, Federation of University Employees (“Labor Agreement”), on fair treatment of staff members: (a) section 1(a), which prohibits discipline or discharge except for just cause; (b) section 2(a), which prohibits discrimination on account of union membership, union activity which does not violate the agreement, or other individual beliefs or activities; and (c) section 4, which prohibits application of the provisions of the Agreement in an arbitrary, capricious, or discriminatory manner.
Note: YCIAS has violated the University's policies on progressive discipline, set forth in the Yale Personnel Manual (YPM). For example, Section 701(i) states that if performance or conduct is unsatisfactory, the supervisor should meet with the employee to specify the nature of the deficiencies and outline the improvement required; neither of my supervisors met with me about the matter cited in my termination. Section 701(ii) states that if unsatisfactory performance continues after opportunity for improvement has been provided, the matter should be discussed again with the employee and the discussion should be accompanied or followed by a written warning. This was not done — the notice of unsatisfactory performance was the letter of termination itself, and there was no warning or discussion. Further, my termination notice was delivered to me without warning and without waiting for a Union representative to be present. I believe this is also a serious violation of labor-management protocol.
Finally, Yale has violated the National Labor Relations Act by interfering with my exercise of my rights to fair treatment as a union member and University staff employee.
C. The Pretext for My Termination▲
On November 15, 1995, I was suspended from work without pay for two and one-half days. See Ex. 1. The business manager of YCIAS claimed that the reason was insubordination regarding a financial report. She suspended me without the knowledge or authorization of my department chairman, who was my faculty supervisor.
On November 30, 1995, I was terminated. See Ex. 2. The YCIAS business manager’s termination letter says I was fired for “continued insubordination,” going back to June of 1995. The purported continuing insubordination was, according to the YCIAS business manager, failure to complete work on two financial reports. In fact, the accounting procedure in question was impossible for me to follow because the YCIAS business manager withheld the data necessary to make the budget reports she demanded. Moreover, an explicit policy issued by the YCIAS director one year before my termination made the YCIAS business manager and not me responsible for accounting reports. As noted above, I was terminated without my faculty supervisors’ knowledge or authorization, and without my Union representative’s knowledge or presence. The University’s disciplinary process was not followed. (The specifics of the purported failure to complete financial reports is set out in Section III.)
D. Procedural Status of My Termination▲
Because my Union representative was apparently very busy with labor contract negotiations and strike preparations in December 1995, the two pending grievances over my suspension on November 15, 1995, and my firing on November 30, 1995, were not timely scheduled. Article XXXVI, section 1, Step 2(ii) of the Labor Agreement indicates that a Department of Human Resources representative should have met with me, my supervisor, and my Union representative within twenty-one days after receiving the grievance. For five weeks after my termination, I was left in limbo and without any communication as to how to proceed. Once the 21-day deadline had passed, I believed that any further action was futile. No hearing was ever confirmed to go forward on my pending grievances. Then the contract between Local 34 and the University expired on January 26, 1996, and Local 34 went out on strike on February 7, 1996. I am thus bringing this claim against the University to the National Labor Relations Board.
II. My Job Audit Request▲
In the last 13 months before I was fired, I was harassed, humiliated, and intimidated because I sought to have my position as senior administrative assistant reclassified from “clerical/technical” (C&T) to “managerial/professional” (M&P), in order to properly reflect the work I actually performed. See Ex. 3A, B. Two other “C&T” senior administrative assistants were reclassified to “M&P” after I applied for a job audit. I appealed the denial of my request.
As part of a May 17, 1993, agreement between the University and the Union, described below, when I agreed to take on new responsibilities for Latin American Studies, the chairman for Latin American Studies was to have met with me before I assumed my new duties in order to limit my responsibilities to the working hours available. He did not do so. From the beginning, my position in Latin American Studies required many more hours to accomplish the tasks set for me than the hours I was scheduled for. See Ex. 4B. For the 23 years of my Yale employment and for years before, I have had personal and family commitments that preclude full-time work away from home. However, I was always willing to take work home when extra work was required. Working at home is permitted by Article VIII, section 1, of the Labor Agreement, which recognizes flexibility and preserves existing working arrangements. (I also worked independently as a graphic designer at home. See below.) My job had come to require 40 hours per week to accomplish the tasks set for me, but I was only paid for 20 hours per week. I discussed the excess work with my faculty supervisor many times and suggested several solutions, including additional permanent staff, or paid overtime, or a reduction in our programs and the amount of work expected. No change was made in my working conditions. I had also been performing management, supervisory, and professional work that was beyond the duties and responsibilities of a “C&T” employee. My supervisor expected me to continue at that higher level. To my knowledge, I have never received a negative job performance evaluation. To my knowledge, my supervisors were always satisfied with my work. Indeed, I had been successful in obtaining federal grants, which were important to my department, and had been credited by Yale management for introducing “efficiencies and greater productivity” in my department, and by my supervisors for the importance of my “professional and managerial” skills to new initiatives in a complex program.
By late summer of 1994, after 22 years of loyalty to Yale and to my faculty supervisors, my position had become intolerable. On October 6, 1994, I filed a request for a job audit to clarify my position. The University let the deadlines pass. Then YCIAS management proceeded to interfere in the audit process and would not allow the University to upgrade my title to M&P. My reclassification was denied. To cover up the interference, the University altered my written responses to the audit questionnaire. YCIAS’s interference violated Article XI, section 3(e), of the Labor Agreement, and Sections 202, 205, and 206 of the Yale Personnel Manual (YPM), which stipulate that job classifications and audit decisions should be based on comparison of work actually performed by an employee to specific factors in generic job descriptions and in relation to other University positions.
The YCIAS director gave various reasons for denying my request for reclassification; none of the reasons stated were valid grounds allowed by the Labor Agreement, or the YPM. Two other “C&T” senior administrative assistants were then reclassified to “M&P.” They were colleagues who had management responsibilities similar to mine, but whose work did not require the level of professional skills that mine did. Neither of them were members of Local 34 or had participated in or supported union activities. Article V, section 4, of the Labor Agreement forbids applying its provisions in an arbitrary, capricious, or discriminatory manner. None of the reasons given by YCIAS management for denying my reclassification while permitting the reclassification of my colleagues were true, and none were valid bases allowed by the Labor Agreement or the YPM. For example, one of my two colleagues who was reclassified held a part-time position like mine; the other held two part-time positions. Months after their reclassification, the Provost’s office stated that there was “no precedent” for upgrading a part-time “C&T” employee like me to “M&P.” That was not true.
On June 21, 1995, the Union filed a grievance appeal on my behalf over the adverse decision of my audit. Both the University and the Union allowed more deadlines to pass and committed errors in scheduling that appeal, including failure to notify either me or my supervisor of a hearing. The failure to observe deadlines in the various stages of the audit and appeal processes and the failure to include either my supervisor or myself in the one scheduled grievance hearing violated procedures described in Article XI, section 3(f) and (k), of the Labor Agreement.
I also requested a review of my job audit by the Appeals Panel for managerial and professional positions, as allowed by Section 206 of the YPM. The University did not respond to this request or schedule a meeting. My supervisors and I, separately, also requested an informal meeting to discuss the adverse decision. The University denied our requests; the reason given was the fact that I had elected to file a grievance. The refusal to meet with me and my faculty supervisor is a violation of Section 206 of the YPM, which encourages informal resolutions of appeals; the refusal to meet because I had filed a grievance also violates Article V, section 2(a), of the Labor Agreement, which protects a staff member from discrimination on account of union membership or legitimate union activity, and Section 801.1 of the YPM, which prohibits retaliation against an employee for initiating a grievance.
At the time of my termination, the grievance over my job audit and a grievance over the suspension were still pending. On at least seven occasions during the fall term, I had requested meetings with my supervisors and YCIAS to clear up contradictions about financial accounting responsibilities for my department; yet, at the time of my termination, no meeting had been granted. I had informed my supervisors, the University, and the Union in writing at least six times, and in discussion on many other occasions, that the working hours necessary to perform the work required of me by my department exceeded my paid time; I had also informed them that I had worked overtime without pay. A meeting had finally been scheduled for November 30, 1995, for me, my supervisors, and a YCIAS representative to begin to reconcile the workload to the hours for which I was paid; I was terminated 45 minutes before the meeting was to have begun. Neither my supervisors nor my Union representative was notified, and neither was present.
III. Pretext for Termination▲
I believe that the financial reports cited in my suspension and termination notices were pretexts for firing me. Beginning in September 1994, YCIAS management abruptly denied me access to the monthly accounting statements that were necessary to reconcile my department’s financial accounts. Two months later, on November 7, 1994, the YCIAS director issued a notice that purported to remove accounting responsibilities from me and from my colleagues who had similar positions in their departments, and ordered accounting centralized for these departments in the YCIAS business office. YCIAS did not follow proper procedures for making such a change. Article IX, section 1(b) of the Labor Agreement stipulates that before a significant operational change is made, a meeting must be held for staff members and supervisors to ensure that the views of staff members are given substantial consideration. No meetings were ever held for staff and supervisors to discuss this significant change in our responsibilities. Moreover, the YCIAS edict was never enforced on my colleagues, but was applied only to me. My colleagues continued to be responsible for their department’s financial accounts, as before, and YCIAS management continued to allow them access to the information they needed, as before. Only my responsibilities were altered. This was discrimination for the sake of retaliation, and it was used to set up the pretext for terminating me. In October 1995, YCIAS management began to demand budget reports from me; accurate budget reports required access to monthly accounting statements, and YCIAS management continued to deny me access to those statements. I repeatedly asked to meet with my supervisors and YCIAS management so that we could sort out what was expected from what was possible, but I was fired without ever having been granted a meeting.
Lines of Authority▲
I remained loyal to my department for 23 years, and I was never insubordinate to my faculty supervisors. My supervisors were the department chairmen, who are senior faculty members of the University. YCIAS staff did not have supervisory authority over me and had no right to discipline me. Faculty chairmen and long-time staff members in various departments within YCIAS had established and followed customary lines of authority. These were practical, common sense relationships, comparable to those in other academic departments throughout the University. The University always recognized the department chairmen as my supervisors in special or general examinations of staff positions over the years, up to and including my last job audit. There was no hierarchy of managers above my faculty supervisors; department chairmen did not answer to YCIAS staff. Faculty and former colleagues will testify to this. YCIAS did not spell out any relationships to the contrary — not in a handbook, policy statement, or employment manual of any kind. When asked, or directly confronted, YCIAS management never challenged or denied departmental authority. My own position was also made explicit by a unique written agreement of May 17, 1993, at the time my job responsibility was shifted from West European Studies to Latin American Studies, as described below. The agreement, signed by the Union and the University, stated that I was to work directly with the department chairmen. See Ex. 4A, B.
So long as I was classified “C&T,” the YCIAS hierarchy acted as if their business manager could suspend me, discipline me, and control my work as if she were my “supervisor.” They did not recognize the existence of the written agreement between the University and the Union, negotiated with the YCIAS director, my department chairmen, and my Local 34 representatives on May 17, 1993. That agreement settled my grievance over a layoff that had violated previous written agreements among my faculty supervisors and YCIAS. The May 1993 agreement established that I would work directly for the faculty chairmen and not for YCIAS management. After the settlement, my Local 34 representative advised me to look for another job, and to expect continuing harassment on minor issues to provoke me to complain and file grievances. Thereafter, the YCIAS hierarchy embarked on a campaign to punish me because I did not regard them as my supervisors. In fact, the associate director and the business manager of YCIAS actively violated the written agreement. The business manager suspended me, not over anything I had done wrong, but over the YCIAS managers’ own violations of Yale policies. See Ex. 5A, B. Increasingly, I was subjected to the erratic behavior and verbal abuse of the business manager, and to deliberately discriminatory and unfavorable treatment by YCIAS management in working conditions. Documents, notes, and witnesses will verify such instances.
IV. Other Prior Retaliatory Actions▲
My termination on November 30, 1995, was the final event in a long series of unfair and retaliatory actions that included: (1) a pattern of initiating groundless punitive actions against me, and (2) interfering in my right to earn independent income.
(1) Punitive actions▲
A series of punitive and discriminatory actions was aimed at me by YCIAS management for the previous four years. Documents and witnesses’ testimony will verify that they were arbitrary and groundless. The major actions include: (a) the attempt in 1991, under the pretext of a University “audit,” to curtail legitimate casual work that I did outside of my regular job; (b) the attempt in 1992 to lay me off, under the pretext of “restructuring”; (c) the attempt in 1993 either to lay me off or to give me the impossible choice of performing two jobs in the work-time available for one; (d) the imposition of a “gag order” on me in violation of Yale’s policy of “Freedom of Expression”; (e) suspension without pay in 1993 for corresponding with the President of the University and expressing an opinion.
(a) May 17, 1993 Grievance Settlement▲
In 1985, the YCIAS director had issued an “overtime” policy for YCIAS employees more restrictive than the existing University and Union policies; the YCIAS policy affected me specifically, as then the only half-time senior administrative assistant in that workplace with a job frequently requiring overtime. In 1991, my work and compensation were audited by YCIAS. My faculty supervisor, Professor Willem Buiter, vigorously protested the singling out of my overtime work for special scrutiny and defended his own authority over my job. See Ex. 6. In the summer of 1992, the YCIAS director attempted to force me to accept a layoff, in breach of the Union contract, and in violation of earlier written agreements of September 1, 1987, as to the security of my employment. See Ex. 7A, B. On March 25, 1993, the YCIAS director laid me off; a contrived offer of “alternate employment” attempted to force me to report directly to the YCIAS business manager. I grieved that layoff. The May 17, 1993, written agreement settled my grievance over the layoff and eliminated the YCIAS business manager from any supervisory role.
(b) June 21, 1993,“Gag Order”▲
One month later, in June 1993, the YCIAS director violated the University’s policy that allows employees “free expression” specifically to prevent me from communicating with anyone outside of the YCIAS building where I worked. See Ex. 8. On several occasions I have spoken or written about workplace issues. All members of the Yale community have the right to express their opinions under Yale’s policy of “Freedom of Expression.” Over the last several years, YCIAS has repeatedly violated this policy and retaliated against me for being outspoken. In 1990, an article of mine had been published and widely discussed within the University. My article suggested ways to improve the structure of the Center and the efficiency of its operation, based on my 18 years’ experience working there. I was thereafter harassed and ostracized for making my thoughts public. In May, 1993, I wrote a memo regarding potential loss of federal funds for graduate fellowships. On June 21, 1993, I was given a written order by YCIAS management not to communicate with any Yale officials without express permission. See Ex. 8. My faculty supervisors and others who saw that order strongly protested this attempt to silence and intimidate me. On October 22, 1993, Professor John Merriman protested the “gag order” in person and in writing to the YCIAS director, and in writing to the President of the University and the University Provost. See Ex. 9. Immediately thereafter, I was suspended without pay by the YCIAS business manager for alleged violations of the “gag order” (sending the department’s annual report to its usual mailing list), and on November 4, 1993, given a further written reprimand, which caused me severe emotional distress. See Ex. 5A, B. No other employee in my workplace was given a “gag order,” and no other employee was disciplined for exercising rights to free expression guaranteed by the University and rights to fair treatment of staff members protected by the Labor Agreement, Article V, section 2(a) and section 4.
(2) “Independent Contractor” work▲
Another example of Yale’s “unfair labor practices” involved harassment of my lawful part-time efforts to earn money as an independent contractor. My graphics work at home was treated with suspicion and defamatory rumors that I was paid for that work somehow improperly. My graphics and typography business is a sole proprietorship, registered by me under the trade name “MetaGlyfix” in 1993. I have done free-lance graphics work for Yale projects for many years. I have taken great care, as an independent contractor, to meet the Social Security Administration’s tests for an independent contractor listed in Section 800 of the Social Security Handbook. My business had been examined for the University’s Purchasing Department by YCIAS in 1993, and satisfied the conditions for an independent contractor described in Procedure 406 of the Yale Office Procedure’s Manual. I keep accurate accounting records for all work I have done within and outside Yale. I never signed an authorization for payment to myself. However, YCIAS and Yale management began a campaign to cripple my business and bar me from my clients. They misrepresented Yale policies to my supervisors and questioned them about my business without my being present. They hinted at financial impropriety, but when challenged, would not make direct accusations. The Provost’s office summoned me to mysterious meetings, then canceled them abruptly. They falsely claimed that University “auditors” were questioning my business practices, but when I offered to answer all questions with auditors, they could not find an auditor who was interested. The YCIAS director then issued an edict, aimed only at me, forbidding my clients in YCIAS from doing business with me. Finally, slanderous rumors emanated from YCIAS that I had been fired for “financial impropriety.” I had never been allowed to explain or defend myself. Yale management never confronted me so I could answer their insinuations, which are untrue. I have always been scrupulous about my financial responsibilities — at Yale, in my independent business, and in my personal affairs.
I seek the following remedies: (1) Rescind the suspension and the wrongful termination; (2) Reclassify my position to the appropriate M&P category, effective July 1, 1994; (3) Reimburse me a total of $15,962 including back pay, unpaid overtime since January 1, 1994, and severance pay, adjusted for the M&P salary level since July 1, 1994; (4) Restore all credits to which I am entitled for calculation of pension and retirement benefits, including salary and unused sick pay; (5) Convert my termination to administrative leave, with benefits, including health insurance, effective November 30, 1995, and voluntary retirement with normal benefits, including health insurance, at an appropriate time thereafter.
I ask the Board to investigate my charges and to protect my rights under the National Labor Relations Act.
List of Exhibits▲
- Ex. 1
- Suspension letter: from YCIAS business manager to me, November 15, 1995
- Ex. 2
- Termination letter: from YCIAS business manager to me, November 30, 1995
- Ex. 3
- A Description of my job
- B Advertisement, December 18, 1995, for the position to replace me
- Ex. 4
- A Layoff notice: letter from William Foltz to me, March 25, 1993
- B Agreement between the Union and the University, May 17, 1993, settling my grievance over a layoff
- Ex. 5
- A Suspension letter: from YCIAS business manager to me, October 28, 1993 [incorrectly dated October 23, 1993]
- B Written Warning: YCIAS business manager to me, November 4, 1993, following suspension
- Ex. 6
- Letter: Willem Buiter to Gaddis Smith, June 24, 1991, refusing to submit to Smith's curtailment of my overtime work and citing a "harassment campaign" against me in central university administration
- Ex. 6A
- Letter: Willem Buiter to Dorothy Robinson, May 30, 1996, upon learning of my dismissal [added to NLRB charge after initial submission]
- Ex. 7
- A Letter: William Foltz to William N. Parker, September 1, 1987, affirming security my employment
- B Letter: William Foltz to me, September 1, 1987, affirming security my employment and continued funding for my position
- Ex. 8
- "Gag order": letter from William Foltz to me, June 21, 1993
- Ex. 9
- Letter: John Merriman to Gaddis Smith, with copies to President Richard C. Levin and Provost Judith Rodin, October 22, 1993, objecting to the gag order
Persons willing to testify and corroborate statements
- Bachelor, Steven J.
- Ph.D. candidate in history; administrative specialist for Latin American Studies since September 1994
- Duncan, Amy C.
- Yale undergraduate ('96); part-time program assistant for Latin American Studies since September 1994
- Evans, Alexander
- Graduate student in Forestry and Environmental Studies; part-time administrative specialist for Latin American Studies since August 1995
- Mansfield, M. Kay
- Editor for Southeast Asia Studies and Administrative Associate for the Agrarian Studies Program
- Mathews, D. Patricia
- Ph.D. candidate in Anthropology; part-time administrative specialist for Latin American Studies since June 1995
- Merriman, John M.
- Professor of History, associate chairman of West European Studies, 1977-78, chairman, 1978-83
- Mooseker, Kris
- Administrative Associate for Southeast Asia Studies
- Parker, William N.
- Bartlett Professor of Economic History, emeritus; chairman of West European Studies, 1975-78, 1985-89; director of Mellon-West European Studies Project, 1987-93
- Scott, James C.
- Professor of Political Science; chairman of Southeast Asia Studies; director of the Program in Agrarian Studies
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