Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun

Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun

Materials For the Arts (MFTA) is a program within the New York City Department of Cultural Affairs that collects donated materials and makes them available to not-for-profit arts groups.

Jesse Charland managed a warehouse where items donated to MFTA, including theatre props, are inventoried and stored.

Charland was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he had pointed a replica of a handgun at a supervisor while making threatening comments about “going postal” and needing only “one bullet.”

OATH Administrative Law Judge Kevin Casey credited the supervisor's testimony that the gun looked real and that she felt threatened.

As for Charland's claim that he was only joking, even Charland's witness acknowledged that if one was unfamiliar with Charland's sarcastic sense of humor, “you would take” it as a threat.

ALJ Casey also found that Charland disobeyed orders and was discourteous. The penalty recommended by the ALJ: termination.

Other disciplinary actions taken against public employees involved in “practical jokes” or “horseplay” include:

1. The Corning City School District charging a teacher with using physical force against a student -- pinching the student with a pair of pliers. Disciplinary Hearing Officer James R. Markowitz did not accept the teacher's efforts to excuse the episode as merely classroom "horseplay" and suspended the teacher for two weeks without pay. [NYS Department of Education Disciplinary File 3310].

2. Disciplinary action taken against a supervisor who engaged in a number of off-duty practical jokes resulted the supervisor’s demotion and being placed on a disciplinary probation for six-months [Sguanci v Commissioner of Public Works, Broome County, 158 AD2d 788].

3. A teacher being suspended without pay for one-year after playing practical joke on a supervisor using a fake spider. [Decisions of the Commissioner of Education, 10842].

The decision, Dept. of Cultural Affairs v Charland, OATH #1766/10, is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1766.pdf
NYPPL

Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law

Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law
Toshunbe and Buffalo Board of Education, 32 PERB 3026

Doris Toshunbe was served with disciplinary charges alleging 21 counts of incompetence, 12 counts of insubordination and 11 counts of misconduct. The arbitrator, “apparently ... based on the disciplinary charges before him ... found that Toshunbe was ‘stubborn, abstinent [sic] and lack [sic] respect for authority.’” He ordered that Toshunbe be suspended for two weeks without pay, which the district could deem “a progressive disciplinary action.”

Toshunbe challenged the arbitrator’s decision by filed an improper practice charge with PERB, alleging “improper motivation” by the district. After discussing a number of the procedural issues concerning timeliness, PERB rejected her petition on the basis of “lack of jurisdiction.”

PERB said that “review of an arbitrator’s award is not available in an improper practice proceeding against an employer ... review of that award is available under Civil Practice Law and Rules [CPLR] Article 75.”

Explaining that “to avoid our becoming a substitute for or an alternative to the statutory review procedures, a CPLR proceeding should be the preferred mechanism for the review, modification or vacatur of disciplinary arbitration awards, absent extraordinary circumstances,” PERB sustained the Director of Public Employment Practices and Representation’s determination.
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Selection of arbitrators

Selection of arbitrators
Suffolk Co. PBA v Suffolk, Sup. Ct., Suffolk Co., [Not selected for publication in the Official Reports]

May a legislative body limit the parameters used to select arbitrators in connection with collective bargaining, impasse resolution and contract administration?

Yes, if the reasons are legitimate and the action is consistent with the relevant collective bargaining agreement, the Supreme Court of Suffolk County ruled. Suffolk County PBA sought court review of Suffolk County’s Resolution No. 377-1998, in which the county legislature set out a policy “for the selection of arbitrators in all areas of collective bargaining.”

The reason given for the resolution: The county legislature said that the county has been adversely affected from a fiscal standpoint by the selection of arbitrators for the handling of binding arbitration matters, for collective bargaining agreements voluntarily submitted to arbitration, and for the resolution of labor disputes because of a predilection towards choosing either the same arbitrator or an arbitrator who has used arbitration decisions from an adjacent County rendered by him or her as a ping-pong to ratchet up labor benefits in Suffolk County.

The resolution stated that the county would not consent to use arbitrators who had been involved in any proceeding in which Nassau County was a party during the prior three years.

The Taylor Law contract between the Suffolk County PBA and the county provided that the American Arbitration Association (AAA) would appoint an arbitrator to conduct hearings pursuant to AAA’s voluntary rules in disciplinary proceedings and grievance proceedings.

These rules provided that in the event a party does not return the list of arbitrators sent to it by AAA, all persons are deemed acceptable to act as arbitrators. The rules further provide that if an appointment cannot be made from the submitted lists, the administrator of the AAA may appoint “other members of the panel without submission of any additional list.”

According to the decision, if the county is unable to select any arbitrator as a result of Resolution 377-1998, the AAA may appoint arbitrators without the consent of the county under the terms of the Taylor Law agreement.

PBA sued, claiming that the resolution constituted a unilateral modification of the grievance procedures for both contract violations and employee discipline in violation of the Taylor Law. Supreme Court Justice Cannavo noted, “once the parties have reached an agreement and entered into a collective bargaining agreement, the public employer cannot unilaterally change a term or condition of the contract, citing Roma v. Ruffo, 92 NY2d 489.

However, the court said that the resolution did not change any of the express provisions of the contract by limiting the selection of an arbitrator. According to the ruling, “the PBA and the County bargained and reached an agreement whereby the County was given the unfettered ability to reject arbitrators for any or no reason.”

This, said Justice Cannavo, meant that the county’s ability to reject an arbitrator was not affected by the adoption of Resolution 377-1998 insofar as it limits the selection of arbitrators. Therefore, the resolution did not constitute a unilateral change in the terms of the contract.

The court dismissed the PBA’s petition. It found that the underlying purpose of the resolution “is to control the County’s selection of arbitrators to prevent the ‘ratcheting’ up of salaries in those situations where the County has any discretion concerning the choice of arbitrators, and this bears on a legitimate concern of government.”
NYPPL