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40656980 - statue of justicePEF saves the jobs of two members facing termination

By SHERRY HALBROOK

Even the best employees can suddenly find themselves facing charges of committing workplace infractions that could lead to their job loss. And that is when they learn how their union and the contract it has negotiated for them, are their best allies in fighting those charges and retaining their jobs.

In February, PEF successfully defended one member’s job in a case that went to state Supreme Court, and the union also prevailed for a member in a different case when an arbitrator dismissed the state’s case against him.

“There are few things PEF can do for its members that are more important than saving their jobs,” said PEF President Wayne Spence. “When a member’s job is threatened we do our best to ensure their contractual and legal rights are respected, that they get the full benefit of due process, and that we argue and negotiate for them as effectively as we can. I thank our PEF field and legal staff for the great work they do on behalf of PEF members every day.”

Member 1

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In the case of the first member mentioned above, he had worked for the state for more than 30 years when he received a notice of discipline in 2017, alleging that he had been arrested and charged with breaking the law while off duty from his state job. The member was suspended without pay.

With PEF’s help, he filed a timely contract grievance challenging the notice of discipline and demanding an arbitration hearing as provided in Article 33 of the PS&T contract.

Following a hearing, the arbitrator found the penalty of termination sought by the state, was not appropriate. Instead, the arbitrator imposed a two-month suspension without pay or accrual of employment benefits. And the member was ordered to attend and complete training related to the nature of his offense. The arbitrator ordered the state to reinstate the PEF member to his job within a week of receiving the arbitrator’s opinion.

Although the PS&T Contract provides that the arbitrator’s decision is final and binding on the parties, the PEF member’s employer refused to restore him to his position and continued his suspension without pay.

PEF, on behalf of the member, petitioned state Supreme Court in Albany County to confirm the arbitrator’s award. The member’s employer opposed that petition and asked the court to vacate the arbitrator’s award, claiming it violated public policy and was irrational.

Arguments from PEF and the state agency were heard November 30, 2018, and Acting Supreme Court Justice Denise A. Hartman ruled February 5, 2019, the arbitrator’s award was not irrational. Judge Hartman granted the member’s petition and denied the state’s cross motion. The state has until mid-March to appeal the court’s decision.

Meanwhile, this member has been suspended without pay for two years, and if the state appeals the court’s decision, it could take more years to finally resolve this case.

Member 2

In the second case, a PEF member was suspended in July 2018 without pay by his employer after he was charged with insubordination, for talking with another employee at the same agency about a previous NOD in which the member had been exonerated. The NOD issued in July 2018 stated that the member had been forbidden to talk about the resolution of the first NOD in the workplace. Later, the allegation that he was forbidden to speak of the matter was refuted by testimony and evidence at an arbitration hearing.

PEF helped the member file a timely grievance in 2018 contesting this second NOD, and an arbitrator, Mary L. Crangle, heard the state’s arguments and testimony in the case February 8, 2019.

After hearing the state’s case and its witnesses’ testimony under cross examination by PEF, the union moved to dismiss and Crangle ruled orally at the hearing that the state did not meet its burden of proof. The arbitrator later memorialized her decision in a written order dated February 14, 2019, dismissing the charges against the member “in their entirety,” and granting the member’s motion that he be promptly restored to the payroll and made whole to the date in July 2018 when he was suspended.

This member has been allowed to return to work, and PEF is working to help him get the retroactive pay owed to him.

edPEF General Counsel Edward Aluck said he could only recall one or two instances in which an arbitrator had dismissed the state’s case in its entirety for lack of evidence without even hearing the union’s arguments against it.

PEF associate attorneys John Kershko, Nathaniel Nichols and field representative Caitlin Janiszewski worked on behalf of the member in this case.

“This was a big victory, for not only the PEF legal department, but also field services,” Nichols said. “A large part of the win can be attributed to the field rep’s quick thinking in responding to members’ issues at this worksite.

“More generally, I would say this is a prime example of an employer bringing unwarranted charges against an employee while also trying to mislead the union at various stages of the proceedings,” Nichols said. “Although this was a matter that probably could have been handled outside the disciplinary process, the employer chose to bring discipline that was dismissed by the arbitrator.”

Nichols credited evidence that Janiszewski had obtained, as well as “some legal work to set up the contingencies that needed to happen for the arbitrator to rule in our favor after the state rested (its case).”

The member in this case said, “It was extremely reassuring to know my union was there for me when my employer of 17 years accused me of something I did not do. I’m very grateful for the work my field representative did just to keep me sane through all of this. PEF kept me in the loop through this entire process, so I always knew what was going on. They told me, ‘Don’t worry. We’re on top of this.’ They did a fantastic job.”

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Table of Contents – March 2019

 

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