Elicker, Smart Testify In Pay-Bump Trial

Can the Board of Alders grant raises to unionized employees through the city budget process without those pay bumps also being ratified by collective bargaining agreements? Or do union contracts have the final word on how much covered municipal workers are paid?

Those questions sit at the center of a bench trial that began Friday morning in a fifth-floor courtroom at the state courthouse at 235 Church St.

The trial marks the latest legal entanglement between the legislative and executive branches of city government, raising questions about who has the power to provide money to which city workers, and why.

The first half of Friday’s trial saw Mayor Justin Elicker and City Clerk Michael Smart, among others, called to the stand to testify about that division of power between the two branches of city government when it comes to union contracts, budget making, and pay for municipal union-represented employees.

The trial wrapped up Friday afternoon at 2:40, following testimony from the defense’s final witness, city labor relations director Wendella Ault Battey. State Superior Court Judge Matthew Wax-Krell promised to issue his decision on the defense’s jurisdictional motion to dismiss — and then, if necessary, on the substance of the breach-of-contract dispute — after both sides file written briefs by Aug. 30.

The case itself dates back to June 2022, when now-retired Board of Alders support staffers Michael Abeshouse and Mickey Mercier hired attorney John Williams to sue the Elicker administration over pay bumps that were approved, but never handed out, during the previous Harp administration.

Williams elicited from testimony by Abeshouse and Mercier before over the course of Friday morning about the so-called ​“Brackeen Amendment.” The Board of Alders approved the amendment — named after the amendment’s author, then-Upper Westville Alder Darrly Brackeen — in June 2017. Then-Mayor Toni Harp subsequently signed off on the amendment along with the alder-approved budget, which took effect July 1, 2017.

That amendment called for a $60,000 transfer in that year’s city budget to cover a mix of stipends and step increases for five senior staffers in the Office of Legislative Services, which is overseen by the Board of Alders and supports local legislators and constituents around the work of the city legislature.

As Abeshouse — who worked for the alders from 1988 to 2020 — said on Friday morning during his time on the witness stand, there was one ​“prerequisite” that had to be met before that budget-approved $60,000 was distributed between the five local legislative support staffers.

That ​“prerequisite” was that the union contract for Local 3144, which represents those five workers, be finalized and ​“presented” following negotiations with the executive branch of city government, via the labor relations office.

A new Local 3144 contract was struck in the spring of 2018. Alders approved the collective bargaining agreement that June. But the promised and budgeted $60,000 ​“was never disbursed.”

“The process was moving slowly, which government does,” Abeshouse said. But that extra $60,000 remained in the budget — until it didn’t, when that money was taken out of the budget by the city and the alders for the fiscal year that began in July 2019.

“We were, frankly, stunned,” Abeshouse confessed.

Under cross-examination by city-hired attorney Stephen Murphy, Abeshouse acknowledged that the $60,000 in pay bumps included as part of the Brackeen Amendment were never actually spelled out in Local 3144’s new contract in 2018, which covered the years 2015 to 2020.

This increase ​“was never put into the collective bargaining agreement, correct?” Murphy asked.

That’s right, Abeshouse said. It didn’t make it into the union contract. ​“It was apart from the process.” That $60,000 covered by the Brackeen Amendment ​“was supposed to follow” the approval of the contract.

But doesn’t the collective bargaining agreement cover all compensation for relevant unionized employees? Wouldn’t that money have to be put in the union contract in order for it to take effect?

“That was not my understanding of the intent of the legislation,” Abeshouse replied.

Did Brackeen have the authority to ​“rewrite the collective bargaining agreement” by proposing such an amendment? Murphy asked. Could he award raises or pay increases ​“if there’s a feeling it’s a good idea.”

“No, Mr. Brackeen doesn’t have that authority,” Abeshouse said.

He also argued that that wasn’t a fair characterization of what happened here. The Board of Alders unanimously approved the amendment, the mayor signed it, and the $60,000 was allocated in the relevant part of the budget. The problem was that budgeted money was never dispersed to the five legislative staffers who deserved it.

Much of Friday morning’s witness questions and testimonies came back again and again to whether or not Local 3144 ever filed a complaint with the state arbitration board to try to force the city to honor these alder-approved pay increases.

Murphy pointed out that Abeshouse and the other local legislative staffers worked with their union to file a grievance about the city’s non-disbursement of these budget-promised pay increases. That grievance was rejected by Human Resource Manager Scott Nabel in November 2020. Per the Local 3144 collective bargaining agreement, Murphy said, the union had 20 days after that denial to file an appeal with the state arbitration board.

Did that ever happen?

Abehouse said her heard from then union President Harold Brooks that, indeed, the union had filed an appeal with the state arbitration board. Abeshouse and Mercier said they repeatedly asked union leadership for copies of that appeal, but never received one, getting responses instead that everything was going slowly because of Covid.

This question of whether or not Brooks and Local 3144 wound up actually filing the appeal with the state arbitration board was why Elicker was called to testify at around 11:45 a.m. Friday.

The mayor had initially been subpoenaed by the plaintiffs. After the judge accepted into evidence a printout of an email exchange between Elicker and Brooks in January 2022, attorney Williams said he didn’t actually need to question the mayor. Attorney Murphy, representing the city, instead called Elicker to the stand to answer questions about those emails.

The emails between Brooks and Elicker spanned Jan. 4, 5, and 6, 2022. (Elicker first took office as mayor in January 2020.)

Elicker read from a printed-out email in which Brooks stated that Abeshouse and his local legislative staffer colleagues’ appeal around this $60,000 was already in arbitration. Elicker wrote back that Brooks was right, that the matter was in arbitration, and that all sides needed to let the appeal ​“take its course.”

“I was aware the item was in process,” Elicker told the court on Friday. He does not personally follow every labor grievance and arbitration matter, Elicker said. He instead relies on the city’s labor relations office to handle those cases. He said he assumed that Brooks ​“would not be lying” and the matter was indeed then being reviewed by the state arbitration board.

Elicker said on Friday that, in retrospect, he was wrong when he wrote that the matter was in arbitration back in January 2022. Local 3144 apparently never filed the appeal within the contract-mandated 20-day time frame. And so the grievance denial stood. ​“My understanding is that there were grievances filed, but it never went to arbitration,” Elicker said.

Michael Smart was the latest witness to take the stand before the trial’s noon recess. He was called by the plaintiffs, since he had signed the alder-approved Brackeen Amendment and related budget back in 2017, too, as is required by his office.

Is it your understanding that this $60,000 was to be applied separately from the union’s collective bargaining agreement? Williams asked.

“I believe so,” Smart replied.

Murphy objected. Smart is not an expert on labor relations, union contract, and grievance and arbitration processes, he said. He’s just the clerk offering his observations on a document he signed. Judge Wax-Krell upheld the objection.

Before the group broke for a noon recess — with one last witness for the defense expected at 2 p.m. — Murphy made a last pitch to the judge to dismiss the case on the grounds that the plaintiffs did not exhaust all possible administrative remedies before taking this matter to court. That is, that they never filed an appeal of the grievance denial with the state arbitration board.

“It’s clear now there was no arbitration,” Murphy said. And, according to the union contract, if this was never taken to arbitration, then the grievance’s denial stands. Williams urged the court to reject the motion to dismiss, stating that a previous judge in this case also turned down a similar motion, thereby allowing the matter to proceed to trial on Friday.

Wax-Krell reserved his judgment on the motion to dismiss, said he’d review that previous judge’s ruling over the lunch break, and then would hear from the last witness at 2 p.m.

Labor Relations Chief Takes Stand

That final witness for the day, and for the whole trial, was city labor relations director Ault Battey.

Murphy spent nearly 40 minutes walking Ault Battey through the three most recent Local 3144 contracts with the city: one from 2010 to 2015 (which remained in effect until 2018, because of how long it took to negotiate and ratify a new contract), one from 2015 to 2020 (which was ratified in 2018), and the current one, from 2020 to 2026.

Murphy and Ault Battey pointed out that nowhere in those three collective bargaining agreements did the union and city agree to pay Abeshouse, Mercier, and the three other senior legislative staffers the amounts stipulated in Brackeen’s 2017 budget amendment. They also emphasized that the contract is the presiding authority over which unionized workers get paid what.

And they stressed that, according to Ault Battey’s review of relevant city files, the union never filed a grievance with the state arbitration board in this matter.

Could the five employees covered by the Brackeen amendment have received these pay bumps through a memorandum of understanding (MOU) negotiated between the city and the union, which would have been effectively added to the collective bargaining agreement? Murphy asked.

“Yes, hypothetically,” Ault Battey replied.

But that did not happened, correct? continued Murphy.

No, Ault Battey said. But ​“it should have happened.”

Williams objected, calling on the court to strike Ault Battey’s last statement. She is in a position to state the facts of whether or not such a MOU was reached, Williams said, but it is not her role to say whether it should have happened.

Murphy rephrased his questions.

Could the union have negotiated a MOU for these five employees? he asked.

“Yes,” Ault Battey replied.

Did they?

“No.”