October 1996 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

DUE PROCESS, ITS NOT JUST A TERM, ITS A RIGHT!

Now that Summer is just a memory, let's turn our attention to the business at hand and see how Arbitrators have dealt with issues of due process under your Collective Bargaining Agreement.

"Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property without due process of law." (The Constitution of the United States of America, fifth amendment).

New York has long recognized that civil service employees who have completed their probationary periods have a property right in their job. This is dramatically different from the view held in the private sector. Because of this "property right", the employee is entitled to "due process" before being deprived of that right see, Rao v. Gunn, 121 A.D.2d 618, 503 N.Y.S.2d 646.

That right is secured in §10 of the CSEA/Nassau County Collective Bargaining Agreement. All employees entitled to §10 protections have the right to grieve disciplinary action. Since we know that Management can serve disciplinary charges on an employee for misconduct or incompetence, how have our arbitrators ruled on the employee's fundamental due process rights?

Our arbitrators have uniformly held that the burden of proving misconduct or incompetence lies with the County. However, there are times when we have successfully argued that the arbitrator does not even have to look to the underlying facts of the case in order to rule in the employee's favor. Those cases occur when the County violates the employee's due process rights.

What are the employee's due process rights? In one of the leading books on the subject, Elkouri & Elkouri at page 673, those rights are stated as follows: "… the failure of management to make a reasonable inquiry or investigation before assessing punishment was a factor (sometimes the sole factor) in the arbitrators refusal to sustain the discharge or discipline as assessed by management."

The issue of conducting a reasonable inquiry or investigation recently occurred in two Correctional Center cases and one Community College case. In all three cases the Arbitrators ruled in favor of the employee based, not on the underlying facts, but on the County's failure to afford the employee due process by way of a reasonable inquiry or investigation before assessing discipline.

In the first case, a Correction Officer was served with charges two months after the initial incident. The "investigation" conducted by the Correctional Center consisted of a brief interview by a Lieutenant in which the Officer was merely asked if he had a problem with another officer. The Officer was not advised of the nature of the complaint lodged against him and therefore, could not address the allegations. Furthermore, the lapse of time between the date of the alleged incident and the date of the charges made it difficult to preserve testimony or evidence that would exonerate the Officer. In ruling for the employee, the Arbitrator held that: "This type of interview does not meet the standards imposed under due process."

In the second case, a Correction Officer was suspended for 20 days based on a hearsay statement that he was off post. At the Arbitration the Captains in charge of investigating the incident admitted they conducted no investigation, they did not interview anyone, they did not speak to the grievant, they merely assumed the allegations were true and imposed a 20 day suspension. In ruling in favor of the employee, the Arbitrator once again reiterated the importance of a proper investigation by Management before disciplining an employee.

Finally, in the third case, an employee at the Community College was terminated on charges of not performing his duties, sleeping on the job, etc. In this case, the employee was never warned of these allegations, was never approached on the dates and times of the alleged occurrences and only learned of the allegations when he was served with the Notice of Personnel Action firing him.

The Arbitrator ruled: "They [Management] failed to investigate the incidents promptly (if at all) and diligently and then expected some type of miracle to be performed at this arbitration in their behalf.

In ruling that the employee's procedural due process rights were violated, the arbitrator set forth the Common Law guidelines that must be applied. These guidelines are so important I am reprinting them here:

Did the Employer give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of his/her conduct?

Did the Employer, before administering discipline to an employee, make every effort to investigate the incident?

Was the Employer's investigation conducted fairly and objectively?

During the investigation, did the Employer obtain substantial evidence of proof that the employee was guilty as charged?

Has the Employer applied its rules, orders and penalties even handedly and without discrimination to all employees?

Was the degree of discipline in a particular case reasonably related to (a) the seriousness of the employee's proven offense and (b) the record of the employee in the service with the Company?

A "NO" answer to any one or more of the above questions normally signifies that "Just and Proper" cause for discipline did not exist.

Under CSEA's Legal Assistance Program, the employees in these cases were represented, free of charge, by this writer. Each employees' grievance was sustained, the discipline reversed and the employees made whole for all their losses. In each of these cases the important factor was the fact that the County did not properly investigate the charges before imposing discipline.

What was the lesson?

You are guaranteed the right to a full and fair investigation before being disciplined. If you apply the guidelines listed above to your situation and you answer no to any of the guidelines, your chances of success at arbitration are greatly enhanced. So do your homework, make sure your CSEA representative is told of any violations in the guidelines and you will have strengthened your rights to your job.

Diligence and knowledge of your rights will go a long way towards preventing the employer from violating your rights.