Bd. of Education v. Murphy OATH Index No. 1432/97 (Oct. 7, 1997), modified on penalty, NYC Civ. Serv. Comm n Item No. CD 00-72-M (June 2, 2000), appended. Summary: Union shop steward held to the position that he was not required to obtain permission to engage in union activities during work hours based on Executive Order 75. He refused direct order to report to a work site instead of engaging in the distribution of union materials. Respondent thereafter refused to attend two conferences to discuss his shop steward role because he was not informed of the attendees and subject of the meetings. ALJ found respondent insubordinate for refusing to obey orders of supervisor under obey now grieve later principle. Moreover, the Executive Order 75 contemplates that time to engage in union activities may be reasonably regulated by employer and that permission to do so is required. Reprimand recommended since respondent acted out of a misunderstanding of his shop steward role and was not otherwise disruptive. Report and Recommendation, October 7, 1997 CHARLES D. McFAUL, Administrative Law Judge This disciplinary proceeding was referred to me pursuant to section 75 of the Civil Service Law. Petitioner, the Board of Education, charged respondent, James P. Murphy, a carpenter, with disobeying a supervisor s order to report directly to a work assignment on October 18, 1996 1, and refusing to attend supervisory conferences on October 30 and November 6, 1996. Respondent did not deny the facts underlying these charges, but argued that he was acting within his rights as the union shop steward. Trial was originally scheduled for May 12, 1997, but was adjourned because petitioner failed to serve notice of the hearing on respondent who was not present (Tr. 4-5). 2 The trial was conducted on June 13, 1997, at which respondent elected to represent himself. 3 Each side called three witnesses and respondent testified on his own behalf. The evidence established the charged misconduct and I recommend a penalty of a reprimand. 1 The charges alleged this incident occurred on October 21, 1996. At trial, petitioner moved to amend the charges to conform to the proof that the incident occurred on October 18, 1996. 2 On May 15, 1997, petitioner served a motion to make substituted service of the notice of hearing on respondent. Inasmuch as service by mail is authorized by OATH s rules of practice, the motion was dismissed as unnecessary. See 48 RCNY 1-28 (May 31, 1997) (Lenz & Riecker CD-ROM 1997). The motion papers, including respondent s opposition thereto, have been marked into the record as ALJ Ex. 3. 3 Respondent decided to appear pro se since his union did not provide free legal counsel and the union representative who was present was expected to be called as a witness by respondent (May 12, 1997 Tr. 4-10).
ANALYSIS This case arose due to Mr. Murphy s misunderstanding of the relationship between his role as a shop steward and his responsibilities to his employer. Specifically, Mr. Murphy objected to the requirement that he obtain permission from his supervisor to take care of union business during work hours. It was undisputed that on October 18, 1996, Barry Apple, supervisor of carpentry and Mr. Murphy s immediate supervisor, directed respondent to report to PS 125 to repair doors damaged during a weekend robbery. Mr. Murphy had just returned from an approved three-day leave without pay, during which he attended a union convention. Mr. Murphy told Mr. Apple that he had union information he wanted to give to the assistant shop steward at PS 154, which was only six blocks away from PS 125. Respondent told Mr. Apple that he would stop at PS 154 on his way to PS 125. Mr. Apple disagreed and instructed Mr. Murphy to report directly to PS 125. Mr. Apple told respondent to take care of the union business during lunch or after work (Tr. 18). According to respondent, Mr. Apple said, I m giving you an order. You go there [PS 125] directly. (Tr. 102). Respondent told Mr. Apple that he was going to stop at PS 154 anyway and that if he had to write him up, to go ahead and do so (Tr. 19, 21). Mr. Murphy went to PS 154 first and spent about five minutes there before heading to PS 125. As a result of this incident, a supervisor s conference was scheduled for October 30, 1996. Mr. Apple informed respondent about the conference orally and in writing on October 23 (Pet. Ex. 1; Tr. 21). Mr. Apple told respondent the conference was regarding his role as shop steward and the incident on October 18 (Apple: Tr. 21-22; Murphy: Tr. 104). The next day respondent faxed Mr. Apple a letter asking what the meeting was about, who would be attending it and other questions, for which respondent wanted written answers. Mr. Apple testified that his supervisor informed him that he did not have to respond to the questions (Tr. 22). Mr. Murphy did not attend this conference. A second supervisor s conference was scheduled for November 6, 1996. On October 30, 1996, Mr. Apple gave respondent a written notice from Reinhold Stalzer, supervisor of mechanics, directing respondent to attend the conference or risk formal disciplinary action (Pet. Ex. 2; Tr. 24). On the morning of November 6, Mr. Apple spoke with respondent on the telephone before the meeting and urged him to attend it (Tr. 24). Mr. Murphy refused to do so and did not attend the conference. These incidents arose from Mr. Murphy s interpretation of his responsibilities as a shop steward with the New York District Council of the United Brotherhood of Carpenters and Joiners of America. Respondent has been a shop steward since 1991 (Tr. 66). Respondent s former supervisor, Edward Marencik, permitted him to attend to union business during work hours without docking his pay or requiring that he take time off (Murphy: Tr. 94; Marencik: Tr. 84-85). Mr. Murphy found Mr. Apple s approach difficult to accept and suspected an anti-union animus. Mr. Murphy argued that requiring him to seek and obtain permission to take time off for union activities was inconsistent with his rights as a shop steward under Executive Order 75 (Resp. Ex. A). The provision relied upon by Mr. Murphy states under union activities, as follows:
Employee representatives, duly designated by certified employee organizations, shall be permitted to take time off without pay for or to charge to their annual leave allowance or compensatory time credits, time spent in the following activities performed in behalf of an affected union and its members.... Executive Order No. 75 3, 1 (Mar. 22 1973). Mr. Murphy asserted that his shop steward role was compromised if he must obtain prior approval to engage in union activities at work (Tr. 76). Presumably, respondent s alternative position is that if he asks permission, it must be granted. Mr. Murphy s rationale was the Executive Order s provision authorizing time to be deducted from annual leave or compensatory time. While the introductory paragraphs of the Executive Order make clear that it is often necessary for union activities to be conducted during work hours, there is nothing in the Executive Order that supports the proposition that engaging in union activities during work hours is in the sole discretion of the shop steward. Such an interpretation would be disruptive to the workplace, as the employer would be unable to manage and effectively utilize its workforce. Indeed, Executive Order 75 recognizes this and requires agency heads to, among other things, establish reasonable limits on the number of employee representatives who may be permitted and the amount of time required to participate on an ad hoc basis in the activities enumerated under Section [sic] 2 and 3 of this Order. Id. at 4 2. In addition, the Executive Order provides that, [a]ll time spent on the conduct of labor relations granted pursuant to this Order including ad hoc, full and part-time assignments, and leaves without pay, must be approved in advance by authorized officials. Id. at 4 3(3) (emphasis added). The collective bargaining relationship is based on a framework of reasonableness, cooperation and consensus. Mr. Murphy s position does not fit well within this framework. While the employer is obliged to allow for and may not impede legitimate union activities, the union is not an equal player in the operation of the agency. Executive Order 75 acknowledges as much by requiring prior agency approval for union activities at work. Mr. Murphy holds to the rather unreasonable position that his decision when to engage in union business at work cannot be second-guessed by management. The issue is whether the employer can have any say in whether and when a union representative can engage in union activities during work hours. Clearly, the answer is that the employer can determine whether time away from work is acceptable or not. Michael Power, the civil service director with respondent s union, explained to respondent in a letter dated October 22, 1996, that you cannot at any time leave your assigned work location without the permission of your Supervisor; even if it is, as you say, for Union business. Mr. Power went on to state that [t]he distribution of pamphlets or other Union materials should be accomplished at lunch-time or before and after regular working hours (Pet. Ex. 4). While this letter was issued after the October 18 incident, it nonetheless makes clear that the union acknowledged that union business may only take place during work hours with the employer s permission. Should Mr. Murphy encounter persistent refusals to allow him to pursue union activities at work, he should confer with his union regarding the filing of an unfair labor practices petition. See Administrative Code 12-306(a) (Lenz & Riecker CD-ROM 1997).
In this instance, Mr. Murphy refused to report to a work location at PS 125 where emergency repairs were underway. Although Mr. Apple could have gone along with respondent s proposal to stop by PS 154 on the way to PS 125, he need not have done so. There was nothing urgent about the materials respondent wanted to distribute that would in any way justify his refusal to obey his supervisor s order to report to work. Mr. Apple determined that the work assignment was more urgent and took priority over respondent s union business. Mr. Apple was clear in directing Mr. Murphy to report to PS 125. Mr. Murphy refused that direction and in doing so, was insubordinate. Similarly, Mr. Murphy s refusals to attend the two supervisory conferences were insubordinate. Mr. Murphy claimed justification for not attending because his supervisors declined to tell him the subject of the meetings and who would be present. I find no justification in the fact that respondent s questions were not addressed by his supervisors before the meetings. Mr. Murphy cited no rule or regulation requiring that the subject of or attendees at a supervisory conference be revealed beforehand. The two notices of the meetings conveyed all the information required by the Civil Service Law. See Civil Service Law 75(2) ( 2. Procedure. An employee who at the time of questioning appears to be a potential subject of disciplinary action shall have a right to representation by his or her certified or recognized employee organization under article fourteen of this chapter and shall be notified in advance, in writing, of such right. ) (McKinney CD-ROM 1997). Mr. Murphy admittedly knew what the subject of the meeting was about and the written notices informed him of his right to representation at those meetings (Pet. Exs. 1 & 2). Although he might not have known who would be present, that in itself was insufficient justification for not attending. Mr. Murphy said that he was concerned that he might be overwhelmed at the meeting if Board of Education lawyers were present. While this is understandable, respondent had the right to bring a representative with him, but elected not to do so. Instead, he twice refused directions of his supervisors and boycotted the supervisory conferences. Mr. Murphy was obligated to attend these meetings and refused to do so at his peril. The prevailing principle governing disputed orders in the workplace is that the employee is obligated to obey the order and file a grievance at a later time where there are established grievance mechanisms in place. This principle, known as obey now, grieve later, has been consistently applied to ensure an orderly workplace. Ferreri v. New York State Thruway Authority, 62 N.Y.2d 855, 477 N.Y.S.2d 616 (1984); Strokes v. City of Albany, 101 A.D.2d 944, 475 N.Y.S.2d 635 (3d Dept 1984); Allen v. New York City Housing Authority, NYC Civ. Serv. Comm n Item No. CD 84-48 (June 6, 1984); Nocita v. Department of Sanitation, NYC Civ. Serv. Comm n Item No. CD 81-31 (Apr. 16, 1981); Triborough Bridge and Tunnel Authority v. Simmons, OATH Index No. 609/97, report and recommendation at 9 (Sept. 18, 1997); Department of Probation v. James, OATH Index No. 535/90 (Feb. 6, 1990); Department of Correction v. Barber, OATH Index No. 223/84, report and recommendation at 30 (Oct. 11, 1984). Here, however, there is no formal grievance mechanism and the principle is not as applicable. In any event, having found the orders to be proper and well within management s rights, respondent s disobedience of those orders was at his peril. In concluding that Mr. Murphy acted insubordinately, I also find that he was genuinely concerned about how best to fulfill his role as shop steward. This and the absence of a formal grievance mechanism were the dominant influences for respondent s actions. According to the evidence, Mr. Murphy s union does not have a comprehensive collective agreement with the Board of Education,
as it lacks a formal grievance mechanism. See Resp. Ex. B; cf. Administrative Code 12-312(f) ( It is hereby declared to be the policy of the city that written collective bargaining agreements... contain provisions for grievance procedures and impartial binding arbitration.... ). The supervisory conferences were described by Mr. Grassini as a substitute for a formal grievance system. Unfortunately, Mr. Murphy rejected this opportunity to discuss and perhaps resolve some or all of the issues regarding his shop steward role. To a large extent, Mr. Murphy felt obliged to pursue the issue of his shop steward role in order to obtain a formal ruling from this disciplinary proceeding. Mr. Murphy hoped that this formal disciplinary proceeding would confirm his understanding of the prerogatives of a union shop steward. I trust that this process has provided an answer Mr. Murphy will accept: he is obligated to abide by time and leave requirements if he seeks to engage in union activities at work. It is not unreasonable to require Mr. Murphy to obtain permission to engage in union activities during working hours. If his employer does not release him from work to attend to union business, then he is obligated to comply with his employer s directions. Mr. Murphy s conduct, while insubordinate, was not disorderly, disruptive or abusive. His actions were based on a misguided interpretation of his union responsibilities under a new supervisor, Mr. Apple, who adopted a less accommodating policy regarding respondent s union functions than had Mr. Marencik. These considerations should temper the disciplinary penalty to be imposed. FINDINGS AND CONCLUSIONS 1. On October 18, 1996, respondent refused an order to report directly to a work assignment at PS 125. Respondent went first to PS 154 to distribute union literature and then reported to PS 125. Respondent was not permitted to do so without the permission of his supervisor. 2. On October 30 and November 6, 1996, respondent refused directions to attend supervisory conferences. Respondent was not entitled to be informed of the subject matter or attendees at the conferences beforehand. Therefore, petitioner established the charged misconduct by a preponderance of the evidence. RECOMMENDATION Mr. Murphy has been a carpenter with the Board of Education for more than ten years and has been a shop steward for six years. He has no prior disciplinary record and has been commended in nine letters commenting favorably on his work ethic and carpentry skills during his tenure at the Board of Education. Such complimentary letters are not often found in the personnel files of public employees. In weighing the factors bearing upon a penalty in this case, it is to be noted that Mr. Murphy did not act with personal disrespect or antagonism toward his supervisors. He was neither loud nor abusive in making his point. Rather, he advocated a standard that he believed defined the parameters of his role as a shop steward. Despite the contrary understanding of his supervisors, Mr. Murphy stood by
his position because he sincerely believed he was correct in his views. As Mr. Murphy revealed himself to be sincere, dedicated and mature, I have confidence that this proceeding will be sufficiently instructive to him so that in fulfilling his union functions he will hereafter abide by this decision s conclusions. Accordingly, I recommend a reprimand as the penalty in this case. I believe it is unnecessary to impose a harsher penalty on respondent since the misconduct was rooted in a misunderstanding of labor relations practices. Moreover, respondent s pre-hearing suspension for thirty days serves as a sufficiently severe administrative sanction such that no further penalty is appropriate. P R E S E N T : CHARLES D. McFAUL, Administrative Law Judge T O : WILLIAM C. THOMPSON, JR., President, Board of Education A P P E A R A N C E S : SUSAN L. MANDEL, Attorney for Petitioner JAMES P. MURPHY, Respondent Pro Se Civil Service Commission's Decision, June 2, 2000 VINCENT A. MARCHISELLI, Commissioner/Chairman STATEMENT On Thursday, February 10, 2000, the City Civil Service Commissioner heard oral argument in the appeal of JAMES MURPHY, Carpenter, New York City Board of Education, from a determination by the New York City Board of Education, finding him guilty of charges of misconduct and imposing a penalty of SUSPENSION following an administrative hearing conducted pursuant to Civil Service Law Section 75. COMMISSIONER'S FINDINGS: JAMES MURPHY appeal from a determination of the New York City Board of Education (BOE) finding him guilty of misconduct and imposing a penalty of 30-day suspension and a letter of reprimand following disciplinary proceedings conducted pursuant to Civil Service Law Section 75. Appellant, a Carpenter, was found guilty of refusing an order to work and, instead, going to a different location to distribute Union-related literature without permission from his supervisor. He was also found guilty of refusing to attend supervisor conferences on two occasions. On appeal, appellant in essence concedes to the infractions but contends that the penalty is excessive and unwarranted. He claims that the first of the two charges, refusing to report to work, merely
involved a ten-minute deviation from his normal work routine in order to drop-off Union-related literature to a fellow Union member. In relation to the second charge of failing to attend two meetings, he claims that his decision to not attend resulted from his belief that as a Union representative he was entitled to be informed beforehand what the meetings related to. Given that he was not informed of the reason for the meetings he felt that it would not be appropriate for him to attend. He agrees that he was wrong in his assumptions and that he has now been informed of the correct procedures. He argues that given his clean disciplinary record and the non-egregious nature of his infractions, the 30-day suspension is excessive. The BOE takes the position that appellant's infractions are serious given that they amount to insubordination. It also argues that given appellant's long tenure with the BOE, he should be held to an appropriate standard of conduct. The Commission has carefully reviewed the record adduced below and considered the arguments on appeal. Pursuant to this review we agree with the findings of guilt but find the penalty to be excessive. Appellant represented himself at the hearing before this Commission. He was candid and forthright in his admission of guilt. His explanation concerning his misunderstanding of his Union position, to which he had recently been appointed during the events in question, were reasonable and credible. Considering the nature of the offense, appellant's 10-year work history, and the notion of progressive discipline, the Commission finds the penalty to be excessive. Therefore, the Commission hereby modifies the determination of BOE to a reprimand. Appellant is to be reimbursed for the 30 days of suspension withing sixty days of the date of this decision. VINCENT A. MARCHISELLI, Commissioner/Chairman, Civil Service Commission BERNARD H. JACKSON, Commissioner, Civil Service Commission STANLEY K. SCHLEIN, Commissioner, Civil Service Commission COMMISSIONER DAVID S. LANDE DISSENTS After a thorough review of the record and argument on appeal, I would AFFIRM the determination below. DAVID S. LANDE, Commissioner, Civil Service Commission