Labor board hears complaint of discrimination and union-busting in DA's office

Algernon D'Ammassa | Las Cruces Sun-News

This story has been updated with a clarification by former prosecutor Tim Nuccio regarding decorations on his office door, cited during the hearing.

LAS CRUCES - In February, the Third Judicial District Attorney's office became the first in the state to organize a union. This week, union representatives said only three or four union members remain on staff.

Presenting more than 16 hours of testimony over two days at district court, the labor union representing attorneys at Third Judicial District Attorney Mark D'Antonio's office alleged to the Public Employee Labor Relations Board that union members have faced targeted harassment, disciplinary action and termination ever since attorneys communicated their desire to organize. Others have resigned.

The prosecutors' collective bargaining unit is represented by Communications Workers of America, which also represents employees of the Doña Ana County Sheriff’s Office.

CWA staff representative Robin Gould testified on Tuesday that employees contacted her in the fall of 2017, describing alleged wage discrimination against Hispanic employees and intimidating and disrespectful conduct toward women, preferential treatment for select staff members and untenable caseloads carried by prosecutors.

D’Antonio, a Democrat serving his second term as District Attorney, opposed the organization of a union, although he said during sworn testimony on Wednesday afternoon, "I would never consider firing anybody just because they're in the union."

Yet former Deputy District Attorney Davis Ruark testified that D'Antonio was "personally upset" last November when several staff attorneys delivered a letter seeking voluntary recognition of a collective bargaining unit.

'I'd fire them all'

Ruark testified that D'Antonio initially considered terminating all of the letter's signatories "to make a statement," but instead asked supervisors to identify which employees were in favor of a union and which were not.

Davis Ruark: He opposed the union, but ended up a union member anyway — because his boss insisted

D'Antonio said the suggestion of firing pro-union employees came from Taos District Attorney Donald Gallegos. When he called his colleague to ask for advice, D'Antonio testified that Gallegos said, "I'd fire them all."

Gallegos recalled that conversation differently.

Responding to a query from the Sun-News on Thursday, Gallegos said, "I do not recall my exact statement but I’m sure I let him know that since the attorneys are at-will, he has an option to terminate them without cause. I’m sure I also informed him to discuss any possible employment decisions with Risk Management."

Gallegos added later in the day, "I remember the conversation having to do with attorneys being insubordinate to D’Antonio’s chief deputy, not anything to do with union organization."

Instead of terminating prosecutors, Ruark said D'Antonio instructed him "to do what you need to do in order to secure a negative vote," referring to the employees' referendum on starting a union. "I ignored that request," Ruark said.

Ruark was subsequently terminated, days before employees voted by a margin of 9-2 in favor of a union.

Is 'No Mansplaining' hostile?

Giving testimony on Tuesday were former prosecutors Rebecca Duffin, Cassandra Brulotte, and Kelly Herson. All three were prominent union members who were placed on administrative leave in June after they were asked to remove posters from their doors that displayed feminist messages, magazine covers featuring women leaders and signs stating "No Mansplaining."

Shortly thereafter, Duffin and Brulotte were terminated, while Herson resigned, testifying that she did so because "the writing was on the wall."

Ruark took the stand on Wednesday, as did Chief Deputy District Attorney Gerald Byers and D'Antonio himself.

Byers and D'Antonio maintained in their testimony that the three attorneys were terminated for refusing to take their signs down, not because of anti-union sentiment or sexual discrimination.

Byers said the "No Mansplaining" signs in public view "might be considered hostile" by male employees and visitors, and said that in the office's public areas, "doors aren't really billboards" for messages with political implications.

Union attorney William Reinken asked Byers about photographs of decorations on male attorneys' doors, some of which depicted cartoon portrayals of violence, jokes about drug use, and even an ethnic slur.

Byers said he either did not notice or had not received complaints about the male attorneys' doors, and that he took action against the women after a complaint by Deputy District Attorney Daniel Sewell.

The complaint followed an argument between Sewell and Brulotte over office attire for men and women, according to testimony on Wednesday.

Confrontations with Byers

The disciplinary actions followed a history of formal complaints against Byers over his management style and alleged treatment of women, and promises from D'Antonio that Byers would not directly supervise them.

In a recorded meeting D'Antonio held in January urging his employees not to form a union, he acknowledged that complaints about Byers were a factor in the staff's desire to organize.

Listen: In recorded staff meeting, D'Antonio argues against union

Nonetheless, D'Antonio said that Byers acted properly in his capacity as his chief deputy in placing the attorneys on leave, and terminating Duffin and Brulotte.

D'Antonio said he had not observed the decorations on Herson's door, but had complimented her on pro-feminist messages displayed inside her office. Herson testified D'Antonio had noticed the door as well and expressed what she took as approval.

Byers and D'Antonio both said the attorneys should have cleared their doors immediately upon request, and addressed their concerns with D'Antonio later.

Byers testified that two male attorneys, Alex Rossario and Tim Nuccio, both cleared their doors of their decorations voluntarily.

Nuccio, a member of the bargaining unit, was terminated in October, according to testimony on Wednesday.

On October 22, Nuccio contacted the Sun-News to clarify that his door had not been decorated with pro-woman messages similar to those posted on the doors of his colleagues. He said his door sported a few decorations of personal significance, including a crayon drawing made by a child rape victim, another drawing made by the child of a former co-worker, and "essentially memes" posted by colleagues.

"The feminist messages which were the subject matter of the controversy were never on my door or anywhere near me or my office. I had nothing to do with any of that," he stated in an email.

During the hearing, the union's attorney played recordings of meetings Byers held with Duffin and later with Herson, in which he placed them on administrative leave after asking them to remove unspecified materials from their doors.

In both recordings, when the attorneys ask for clarification about the policy being enforced and request to speak with D'Antonio, Byers notes their "refusal" and immediately places them on administrative leave.

During their administrative leave, the attorneys testified to harassment by armed investigators they said appeared at their homes and occasionally followed them.

DA: Byers acted appropriately

D'Antonio said the actions were appropriate, and that he agreed with Byers that the women's conduct was insubordinate and grounds for dismissal.

"I've been a police officer, I've been an FBI agent, and I was in the United States Air Force," D'Antonio testified. "Anybody who's been in those type of organizations — what the military and police know is that insubordination is a cancer that eats away at the organization ... I believed and still believe today that the insubordination would have ultimately dismantled our office."

The union rested its case Wednesday afternoon after presenting evidence of retaliatory actions, including "dumping" untenable numbers of cases onto attorneys who belonged to the unit and terminations seeking to eliminate members of the unit.

The hearing was scheduled to reconvene on Nov. 2, when the DA's office will present its case.

Algernon D'Ammassa can be reached at 575-541-5451, adammassa@lcsun-news.com or @AlgernonActor on Twitter.

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