There They Go Again: Cite DEP for Anti-Union Bias; 'A Rogue Agency'

The Board of Collective Bargaining has once again found the Department of Environmental Protection guilty of anti-union retaliation, and as in previous cases, a familiar Superintendent is the primary culprit.

THOMAS KATTOU: 'DEP laughing at penalties.'

In the summer of 2007, four Construction Laborers, who are represented by Local 376 of District Council 37, on various days called in sick and were served with disciplinary charges for failing to provide medical documentation. After they filed a joint grievance, DEP management docked their pay eight hours for the day of work they missed.

Punished for Exercising Rights

The union argued that the four workers were originally marked sick by supervisors and were penalized only after they participated in protected labor activity. It claimed this happened under the watch of Superintendent Louis DiMeglia, who earlier this year was found guilty of going out of his way to file charges against a Local 376 shop steward who testified on behalf of a colleague at a disciplinary hearing.

The union showed the BCB that the DEP had gone beyond its own protocol by docking the four members' pay when it would have normally filed disciplinary charges and marked the workers AWOL if management believed there was an abuse of sick-leave privileges.

The city argued that the DEP acted within the State Civil Service Law, but the board didn't buy it.

"We find DEP's initially following its normal course of not docking employees' wages, after the initiation of the disciplinary process, and then subsequently docking these employees' wages shortly after the appeal of the Step I [grievance] determinations probative that the motivation for the docking of wages was the union's appeal and not the initial offense of failing to provide the requisite documentation," the board said in its Nov. 10 decision.

It continued, "Moreover, this finding is bolstered by the un-rebutted testimony of [Local 376] President [Gene] DeMartino stating that, prior to challenging the Step I determinations of these four Construction Laborers, his members were simply accepting penalties issued at Step 1; however, after the employees refused to accept their respective penalties, their pay was docked."

The DEP stands out among city agencies in terms of retaliating against employees for union activity. Earlier this year, the board rejected the DEP's motion to defer to arbitration a case in which Local 1322 of DC 37 alleged that the agency wrongly disciplined two supervisors it represented, David DeSilva and Jack Schmidt, for participating in union activities, and intimidated workers from being involved with the union.

Spotlights DiMeglia

And a recurring character in the DEP disciplinary dramas is Superintendent DiMeglia.

In April 2006, the board ordered the agency to reinstate with back pay a probationary Construction Laborer after Mr. DiMeglia fired him in retaliation for seeking help from his union in a dispute over vacation time. He later gave Construction Laborer Randolph Francis a five-day suspension for participating in union activity.

Stuart Lichten, an attorney for Local 376, said there was nothing the union could do to get Mr. DiMeglia removed from his position.

'DEP Doesn't Change'

"It's obviously a victory, but these rulings don't seem to moderate anybody's behavior," he said last week. "It just seems to be the culture at DEP that they retaliate against people that try to enforce their rights."

He added, "This is the fifth one in which we've received a positive ruling in. It happens pretty frequently, a couple of times a year."

Thomas Kattou, Local 376's treasurer and grievance rep, said that the union might ask the City Council's Civil Service and Labor Committee to examine DEP practices, because the union has not seen the same kind of retaliation in other agencies, such as the Department of Transportation, where it represents workers.

"There's no problem like this over there," he said of the DOT. "But DEP is this rogue agency."

Mr. Kattou welcomed the decision, but lamented that even after the BCB finds the same kind of retaliation several times it does not actually cause substantive change inside DEP.

"It just shows that the system, basically for what it's worth, is working, but when it comes to dishing out any kind of penalty on them it's falling short," he said. "They're walking away laughing."