Fired DEP Staffers Waived Union Right;

BCB Upholds Penalties
Fired DEP Staffers Waived Union Right


The Board of Collective Bargaining has dismissed a challenge to the firing of three Department of Environmental Protection staffers after finding that they failed to invoke their right to union representation.

The ruling, which was released Feb. 21, was actually made four weeks earlier, prior to last week's State Court of Appeals ruling that public employees don't have an automatic right to union representation at hearings that could subject them to adverse job actions.

Water Quality At Issue

It was that right, first affirmed by the BCB four years ago in response to a decision by its state counterpart on the same issue, that was the basis for the suit by the Civil Service Technical Guild.

The three Guild members involved, Assistant Chemists Mahmmet Siddik Kagzi and Vantzeti Vassilev and Water Ecologist Zhiping He, were all assigned to a division of DEP's Drinking Water Quality Control Division. They collected tests of water samples from more than 300 city locations to make sure the water supply has the proper chlorine and pH levels.

Last February, their unit chief, Lin Lu, found inconsistencies in the data submitted by another employee, prompting him to review other workers' data as well. When he discovered problems with the data compiled by Mssrs. Kagzi, Vassilev and He, they were summoned to separate meetings on March 1, 2006 to determine what was wrong.

According to the Tech Guild, which is Local 375 of District Council 37, each of the employees was questioned in a hostile manner by Mr. Lu and three other officials from the water quality unit. The union claimed that the atmosphere that was created inhibited the three members from asserting their rights and requesting union representation.

Attorneys for DEP countered that the conferences were called "for the purpose of counseling the employees on proper technique," and that it was only because of incriminating statements that they made that disciplinary charges were brought against them. They pointed out - with no contradiction from the Tech Guild - that at no point had the employees asked to have union representatives present.

How Case Differed

The BCB noted that in all its decisions covering what were known - because of the U.S. Supreme Court case mandating union representation for private-sector employees facing possible discipline - as Weingarten Rights, the employees had been rebuffed by agency supervisors when they requested counsel.

In this case, the BCB stated in a unanimous decision, "it is not clear whether Kagzi, Vassilev and He had any reasonable basis to believe, in advance, that discipline would result from the March 1, 2006 meeting to which each was summoned. It is more likely that such a reasonable basis for belief might have arisen during the course of their individual meetings."

Their failure to request union representation at any point during those meetings, the BCB found, meant that DEP had no obligation to offer them the right to consult with union representatives.