Coerced Illegal Ban: DEP Chastised For Disciplinary Abuse

Coerced Illegal Ban

DEP Chastised For Disciplinary Abuse

By REUVEN BLAU

An arbitrator has ordered the Department of Environmental Protection to reinstate with back pay a Construction Laborer whom it suspended for 32 weeks without a disciplinary hearing after he was arrested.

THOMAS KATTOU: Counsel has no credibility. David Teran was arrested while at work on Sept. 17, 2002 and charged with statutory rape. The charges were later dropped, but he was in jail until Oct. 10 of that year, when he was released on bail.

Shortly after his release, Mr. Teran sent two written notices to DEP Disciplinary Counsel Marsha Rotheim notifying her of his situation.

Ban Violated Contract

On Oct. 22, DEP suspended Mr. Teran without pay. Mr. Teran returned after 30 days, but was told by his supervisor that the suspension would continue indefinitely. Mr. Teran's union, Laborers Local 376 of District Council 37, argued that the extended suspension violated the collective-bargaining agreement and constituted excessive discipline. Under Local 376's contract, Article V, Section 4 specifically states: "The period of an employee's suspension without pay pending hearing and determination of charges shall not exceed thirty days."

During the suspension, on Dec. 18, 2002 Ms. Rotheim wrote to Mr. Teran saying that it was imperative that he call her "upon immediate receipt of this letter." According to Mr. Teran, Ms. Rotheim told him during a subsequent phone conversation that he had to sign a waiver allowing the department to keep him on suspension or he would be fired.

Mr. Teran, who has worked for DEP since 1996, asked if he could wait to discuss the waiver with his union representative, who was away for the holidays. But Ms. Rotheim insisted that he sign and return the waiver immediately, Mr. Teran said.

Denied Conversation

Ms. Rotheim acknowledged sending the letter, but denied discussing the document with him over the phone. DEP had contended that the waiver allowed the agency to suspend Mr. Teran beyond 30 days without a hearing.

But Mr. Teran's attorney, Stuart Lichten, successfully argued that the waiver wasn't valid because he was coerced into signing the document. Mr. Lichten also noted that the document was dated Dec. 22 and Mr. Teran had already been suspended for 60 days at that time.

The arbitrator, Marilyn H. Zuckerman, did not believe Ms. Rotheim's version of events. "The arbitrator believes that she did speak with Teran when he called and that she told him that he would lose his job immediately if he did not sign the waiver," her decision stated. "The waiver was not binding on Teran or the union and had no legal effect."

In addition, she ruled that DEP violated the Collective Bargaining Law by not allowing Mr. Teran to consult with his union representative. "The city's actions amount to a bypass of the union and a violation of Teran's Weingarten rights to union representation during a pre-disciplinary interview," Ms. Zuckerman's decision stated.

Local 376 Treasurer Thomas Kattou hailed the arbitration decision. "They pretty much caught her lying," he said, referring to Ms. Rotheim. "This has been a problem for as long as we have been in office," charged Local 376 President Gene DeMartino, who was elected in 2002. Referring to DEP Commissioner Emily Lloyd, he asked, "Is she going to take action against the head of her discipline counsel?"

A DEP spokesman did not return calls seeking comment.

According to Mr. DeMartino, DEP supervisors routinely fine workers for minor dress code violations. "It's a perfect example of the agency's bully tactics," he asserted. "The head of a disciplinary unit is calling a construction laborer over the weekend threatening him; I've never heard of such a thing."