BOARD OF COLLECTIVE BARGAINING

DC 37, 1 OCB2d 6 (BCB 2008) (IP) (Docket No. BCB-2507-05), appeal pending.

Summary of Decision: The Union alleged that HRA levied unwarranted disciplinary charges against an employee for the unauthorized release of confidential client information, in retaliation for the filing of numerous grievances and improper practice petitions, for his participation in an out-of-title arbitration, and for his zealous advocacy of other employees. The City claimed that the disciplinary charges against this employee were levied due to the violation of HRA’s policy on client confidentiality and was not motivated by the employee’s protected activity. The Board found that the Union satisfied its prima facie burden that the disciplinary charges against the employee were improperly motivated, and the City’s proffered legitimate business reason was a pretext for disciplining the employee. Accordingly, the Board grants the Union’s petition. (Official decision follows.)

_________________________________________________________________ OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING

In the Matter of the Improper Practice Petition -between-DISTRICT COUNCIL 37, AFSCME, AFL-CIO Petitioner, -and-THE CITY OF NEW YORK and THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION,

Respondents. __________________________________________________________________ DECISION AND ORDER On September 28, 2005, District Council 37 (“Union” or “DC 37”) filed a verified improper practice petition on behalf of Zinovy Levitant against the City of New York and the New York

1 OCB2d 6 (BCB 2008) 2 Human Resources Administration (“City” or “HRA”) alleging that HRA violated New York City Collective Bargaining Law (City of New York Administrative Code, Title 12, Chapter 3) (“NYCCBL”) § 12-306(a)(1) and (3). The Union claims that HRA retaliated against Levitant by levying disciplinary charges alleging Levitant disclosed confidential information during an out-of-title arbitration. The Union claims HRA’s issuance of these charges was motivated by Levitant’s filing of numerous grievances and improper practice petitions, his participation in the out-of-title arbitration, and his zealous advocacy of other employees. The City maintains that Levitant’s disclosure of confidential information was not protected activity, and that the disciplinary charges levied against him were not motivated by any of his protected activity. Rather, HRA had a legitimate business reason to bring charges against Levitant because he violated the explicit language set forth in HRA’s policy on client confidentiality. We find that HRA’s issuance of disciplinary charges against Levitant for disclosing allegedly confidential information during his out-of-title arbitration was motivated by HRA’s anti-union animus, and its proffered business reason was a pretext for discipline. Accordingly, the petition is granted.

BACKGROUND The Trial Examiner found that the totality of the record established the relevant background facts to be as follows. Procedural Background On January 8, 2004, the Union filed an improper practice petition on behalf of Levitant, docketed by the Board of Collective Bargaining (“Board”) as BCB-2375-04, alleging that HRA violated NYCCBL § 12-306(a)(1)-(5). The Union claimed that HRA interfered with Levitant’s

1 OCB2d 6 (BCB 2008) 3 statutorily protected rights; chilled collective activity in the work place by targeting and intimidating Levitant, who was a delegate at the time; interfered with the administration of the Union by separating a delegate from his constituency by transferring Levitant out of his work location; retaliated and discriminated against Levitant; refused to bargain in good faith by frustrating the grievance procedures; and unilaterally imposed terms and conditions of employment by ignoring the parties’ collective bargaining agreement (“Agreement”) and its own rules and regulations. The City maintained that HRA did not interfere with, chill, or intimidate Levitant or any other HRA employee; was not motivated by anti-union animus in its dealing with Levitant or any other HRA employee; did not frustrate the grievance procedure; and did not unilaterally impose any terms and conditions of employment. The City further claims that any actions taken against Levitant were motivated by a legitimate business reason. On March 22, 2004, the Union filed a second verified improper practice petition on behalf of Levitant, docketed by the Board as BCB-2391-04, against HRA alleging that HRA violated NYCCBL § 12-306(a)(1), (3), and (4). The Union in this second petition claimed that HRA violated the NYCCBL by bringing additional disciplinary charges against Levitant in retaliation for his filing of grievances and by failing to promote him into a supervisory position. The Union further averred that HRA refused to bargain in good faith by failing to respond to the numerous grievances filed by Levitant. The City maintained that disciplining its employees is a managerial prerogative, and that the additional set of disciplinary charges was not motivated by anti-union animus, but rather by the legitimate reasons set forth in the charges and specifications. The City also maintained that the decision not to promote Levitant was not motivated by anti-union animus and that the promotional process complied with all applicable personnel rules and regulations. Finally, the City claimed that

1 OCB2d 6 (BCB 2008) 4 the failure to respond to Levitant’s grievances does not violate the NYCCBL, since the Agreement allows a party to advance a grievance to the subsequent step, once the other party fails to respond. Since the first and second petitions were filed close in time, involve largely the same individuals and reference many of the same events, the Board, acting on its own initiative, consolidated these two petitions. On September 28, 2005, the Union, on behalf of Levitant, filed a third improper practice petition, which is docketed as BCB-2507-05, and is addressed in the instant decision. Factual Background On February 8, 1993, Levitant was hired as a Caseworker by the Child Welfare Administration, which was subsequently renamed the Administration for Children’s Services. In 2000, Levitant began working for HRA in Adult Protective Services (“APS”) in the same title. As a Caseworker, Levitant was responsible for ensuring that mentally and physically impaired clients who were under the care of HRA received appropriate services by making field visits to clients’ homes, recording his findings, and ensuring that these clients were adhering to the mandates prescribed by the programs. In May 2001, employees in APS elected Levitant as first alternate delegate for Social Service Employees Union, Local 371 (“Local 371”). Shortly thereafter, Levitant began filing complaints on behalf of the employees at APS with his supervisors regarding, inter alia, alleged health and safety issues and alleged harassing treatment of the employees at APS by their supervisors. In May 2002, APS employees elected Levitant shop steward. Over the course of the next two years, Levitant filed numerous grievances, filed the above-referenced improper practice petitions, participated in his hearings at the New York City Office of Administrative Trials and Hearings (“OATH”), and

1 OCB2d 6 (BCB 2008) 5 requested the Union to file at least six requests for arbitration on his behalf. On August 7, 2002, Charges and Specifications were levied against Levitant (“August 2002 Charges”). In these charges, HRA accused Levitant of insubordination, failure to perform the required duties of his position, being absent from his assigned work location without authorization, engaging in threatening and intimidating behavior, and engaging in conduct prejudicial to good order and in conduct detrimental to HRA. Specifically relevant to this action, the August 2002 Charges state, in pertinent part: “On or about June 25, 2002, when Dr. Kennedy, Supervisor III, directed you to make a field visit to participant H[], 1 because she was facing an eviction, you failed to follow this directive.” 2 On November 3, 2003, Levitant was involuntarily transferred into the Lombardi Home Care Center Program located at 109 East 16 th Street, New York, which assists clients who normally would be admitted into nursing homes and would receive certain services such as personal care assistants, registered nurses, and physical, occupational, and speech therapists (“Lombardi Program”). According to Charles Waxman, the Director of Personnel for the Medical Insurance Community Services Administration, Executive Deputy Commissioner Iris Jimenez-Hernandez made the

1 In order to abide by the terms of HRA’s Confidentiality Policy, we abstain from using the last name of the HRA client whose last name was used, in its entirety by HRA, in the August 2002 Charges.

2 This Board, taking administrative notice that during the hearing concerning the earlier-filed improper practice petitions, the August 2002 Charges were submitted as an exhibit, cites to this exhibit quoting Charge I, Specification III of the August 2002 Charges. By incorporation, Charge II, Specification I, Charge V, Specification I, and Charge VI, Specification I refer to Charge I, Specification III as grounds for additional disciplinary charges.

1 OCB2d 6 (BCB 2008) 6 decision to transfer Levitant into the Lombardi Program. 3 The employees at the Lombardi Program work with outside vendors to ensure that their particular clients receive the services to which they are entitled because HRA does not actually provide any of these services themselves. Levitant testified that, while working at the Lombardi Program, he was assigned work and duties that were substantially different from the duties set forth in the Caseworker job description, such as communicating with outside vendors and coordinating home construction/renovation projects in clients’ homes for the installation of stair glides and handrails. According to Levitant, his in-house title was Case Manager and all of the other employees performing the same duties as Levitant held the civil service title of either Supervisor I or Supervisor II. 4 On December 5, 2003, Levitant filed a grievance with Local 371 regarding his performance of duties that were substantially different from those performed by a Caseworker. According to Levitant, he performed mostly supervisory functions, similar to those performed by the other employees at the Lombardi Program who were in the civil service titles of Supervisor I and Supervisor II. On February 23, 2004, the Union filed for arbitration concerning this out-of-title grievance, and hearing dates were eventually scheduled for March 24, 2005 and April 8, 2005. Prior to this arbitration, on May 26, 2004, Levitant appeared before OATH on a set of disciplinary charges levied against him by HRA. During this hearing, the Director of APS in

3 One of the contentions in the above-referenced improper practice petitions previously filed by Levitant is that HRA transferred Levitant for retaliatory reasons.

4 This Board takes administrative notice that during the hearing concerning the earlier-filed improper practice petitions, Debora Daniel-Preudhomme, the Director of the Lombardi Program, testified that Case Manager is synonymous with the titles of Supervisor I and Supervisor II. Furthermore, HRA records corroborate the fact that Levitant was the only Caseworker assigned to the Lombardi Program as a Case Manager.

1 OCB2d 6 (BCB 2008) 7 Brooklyn, Eileen Anderson, and Martha Barnes, Levitant’s supervisor in APS in Brooklyn, testified. Levitant, who was present during this OATH proceeding, testified in the instant matter that HRA’s witnesses at this OATH proceeding “openly discussed” clients’ names and clients’ financial and medical information. (Tr. 82-83). 5 In fact, according to the transcript in this OATH proceeding, Barnes and Director Anderson on six separate occasions used APS patients’ names, mentioned issues that arose in a particular client’s case, discussed the fact that one named client participates in a specific program, and the manner in which excess funds checks are distributed to clients at APS in Brooklyn. 6 (Union Exs. 7-12). In March 2005, approximately two days prior to the first arbitration hearing date in Levitant’s out-of-title case, he reviewed the case files on which he worked because he wanted to present documents to the arbitrator that demonstrated that he was performing the duties of a Supervisor I and/or II by acting as a Case Manager in the Lombardi Program. He found and removed at least six documents from these case files, and approached his immediate supervisor at the time, Nathan Weiner, to discuss his use of these documents at his out-of-title arbitration. Levitant testified that he said to Weiner “I need to show to the arbitrator something in order to prove my grievance. Would you mind if I bring these papers, and I showed him in particular what I needed as evidence to show that I was doing out of title jobs.” (Tr. 28). According to Levitant, he showed Weiner “not real documents . . . not medical records, . . . just attachments to the hard copy [of the case file] . . . with

5 “Tr.” refers to citations from the hearing transcript. 6 Levitant, while at APS in Brooklyn, handled clients who are part of a program under which HRA pays their bills and rent out of the public assistance funds allocated to these clients and any excess in the public assistance funds allocated to these clients is then given back to these clients in the form of a check that is distributed by the Caseworker handling that client’s case.

1 OCB2d 6 (BCB 2008) 8 client’s name and article [case/tracking] number.” (Tr. 25). Levitant testified that Weiner responded “no problem, this is not a big deal.” (Tr. 30). Levitant further testified that if Weiner had objected, Levitant would not have presented the documents at the out-of-title arbitration. Levitant then made photocopies of these documents because he did not want to remove the originals from the case files, and returned those case files to his desk. Moreover, Levitant testified that the only reason he was going to submit these documents was to support his out-of-title grievance and that he had no intention of distributing this information to the general public. (Tr. 31). On March 24, 2005, Levitant appeared before the arbitrator for the first day of hearing in his out-of-title grievance. During this hearing, Levitant presented the documents which Weiner allegedly reviewed. (City Ex. 1). The first document was a Notice of Authorization, dated March 22, 2004. This notice is a form letter containing the name of the Lombardi Program client, his/her address, his/her Medicaid number, the date when approved services would commence, and the name of the provider of those services; however, the approved services are not listed on this document. (Union Ex. 2). Levitant then presented another Notice of Authorization, dated May 20, 2004, which contained the same type of information as the previous notice of authorization. (Union Ex. 3). The next document presented at the arbitration was an Internal Tracking Form for the Lombardi Program, dated June 18, 2004. According to Levitant, this document is an intake form, is completed by the intake clerk, and accompanies every case that the Lombardi Program handles. This particular intake form contains, inter alia, the name of the Lombardi Program patient and the Case Identification Number, and the Case Manager and staff nurse to which the case is assigned. (Union Ex. 1). At the first day of arbitration, the Union also presented a list of clients’ names, a list of services that had been denied by providers, and a request that a reassessment occur to grant these

1 OCB2d 6 (BCB 2008) 9 clients such waived services. (Union Ex. 4). In addition, the Union presented a Notice of Intent to Discontinue Participation, dated November 16, 2004. This document contained the client’s name and address, the Case Identification Number, the provider’s name and address, and the reason for the discontinuation of services from the Lombardi Program. (Union Ex. 5). The final document presented to the arbitrator by the Union was a memorandum from Levitant to a provider, dated March 2, 2005, indicating that the assessment package from the provider was missing certain necessary information and/or documentation. This document contained the name of the client and the provider and the type of information that was missing. (Union Ex. 6). When the Union presented these documents to the arbitrator on the first day of the arbitration, the City objected to their admissibility on various grounds, but never on the basis that these documents contained confidential information. (City Exs. 1 and 2). Furthermore, not only was Counsel for the City present during the admission of these documents in the arbitration record, the Deputy Director of the Lombardi Program, Janet Lugo, was present and testified on that first arbitration day. According to Levitant, “[n]o one raised any issues regarding confidentiality at this [first day of] hearings.” (Tr. 62). According to the Director of the Lombardi Program, Margaret Quinn, immediately prior to the second arbitration hearing, which was held on April 8, 2005, Counsel for the City presented her with the documents Levitant previously introduced into evidence on the first hearing day. Director Quinn testified that she was unaware prior to that moment that Levitant intended to use and/or did use those documents in the arbitration. She stated that, when presented with these documents she said, “these are live client records, these cannot be in evidence . . . because this is people’s names, addresses, [and] personal health information.” (Tr. 240). Director Quinn further testified that

1 OCB2d 6 (BCB 2008) 10 Weiner was present when she made this remark. On April 8, 2005, the second hearing day in the arbitration, Weiner testified with regard to the duties Levitant performed at the Lombardi Program, the providers with which he dealt, and the services that he provided to the Lombardi Program’s clients and their specific providers. (City Ex. 2). On direct examination, Weiner testified regarding Levitant’s issuance of the notices of authorization for services to individual clients, the internal tracking form, and the list of clients’ names, and the services that one particular provider had waived with respect to those clients (Id., pp. 263-264, 268 and 295). In fact, during his direct examination, he testified about some of the documents presented by Levitant at the first arbitration date during his direct examination, even though Weiner was present when Director Quinn represented that the documents were confidential. Also on this second day of the arbitration hearing, Director Quinn testified about the providers with which Levitant worked and the particular duties Levitant had with respect to each provider. However, she did not testify about the documents and was never asked whether Levitant’s introduction of these documents was improper or violative of any rule, regulation, or statute. (City’s Post Hearing Brief, p. 3). During the second day of the arbitration hearing, Weiner, Director Quinn, and Counsel for the City never indicated to the arbitrator, Levitant or Counsel for the Union that these documents contained confidential information. According to Director Quinn, upon leaving the arbitration, she contacted Assistant Deputy Commissioner Bridget Simone regarding Levitant’s use of these documents in the arbitration, who informed Director Quinn to refer the matter to Director Waxman. According to Directors Quinn and Waxman, they decided that Levitant’s disclosure of this information violated HRA’s rules and regulations as well as state and federal statutes. Thus, they forwarded a request for the issuance of

1 OCB2d 6 (BCB 2008) 11 disciplinary charges against Levitant for violating Executive Order No. 651, dated December 17, 1998 (“Code of Conduct”) to HRA’s Employee Discipline Unit (“EDU”). 7 On June 30, 2005, HRA levied a set of disciplinary charges against Levitant (“June 2005 Charges”). Levitant testified that HRA “served” these charges upon him by placing them on his desk in view of any employee who passed his desk. (Tr. 66). HRA Code of Conduct § II-C states: “It is the responsibility of each employee at all times to respect and safeguard the confidential nature of information concerning public assistance applicants and participants, as well as the confidential nature of information pertaining to [HRA’s] employees, property and affairs as prescribed by law.” Additionally, though not mentioned or referenced in the disciplinary charges, the City alleges that Levitant’s use of those documents at the arbitration violated Executive Order No. 702, dated March 8, 2005 (“Confidentiality Policy”). This provision states, in pertinent part: Definition of Confidentiality A confidential document is one containing confidential information, which is defined as any information that is secret, private or not for public dissemination. For purposes to this policy, information is considered confidential when a federal state or local law or regulation, or directive memorandum judicial decree, stipulation, settlement or some type of pre-existing agreement deems it confidential. Most [HRA] records and all client records are deemed to be confidential.

General privacy provisions apply to the release of, and/or sharing of, certain demographic information, including, but not limited to, social security numbers,

7 Director Waxman’s office reviews requests for the issuance of disciplinary charges and the accompanying supporting documentation, such as witness statements. If the request is determined to be valid, Director Waxman will forward the request to EDU “for whatever appropriate action they take.” Upon receipt, EDU reviews the request and supporting documentation, and they decide to draft disciplinary charges or determine there is insufficient evidence to do so. Otherwise, EDU will prepare charges and send those draft charges to HRA’s Employment Law Division (“ELD”).

1 OCB2d 6 (BCB 2008) 12 financial and marital status. In addition, specific confidentiality laws and regulations apply to information that discloses, or might disclose: 1) an individual’s health, including mental health, status or treatment history; 2) an individual’s HIV status; 3) that the individual has been diagnosed or treated for substance and/or alcohol abuse; 4) domestic violence history . . .; 5) that a particular individual has applied for, has received or currently is a recipient of public assistance, food stamps, Medicaid or other public assistance benefits; 6) immigration status; 7) an individual’s involvement with child welfare services; 8) any case specific information related to enforcement of child support obligations or the establishment of paternity; and/or 9) any information concerning an applicant of adult protective services.

Disclosing confidential information is harmful to HRA’s clients. It also harms [HRA] by causing the public to lose trust in [HRA’s] ability to protect confidential information. Improper disclosure of confidential information is often a violation of the law, and can lead to financial liability for [HRA].

Additionally, any employee who improperly or illegally discloses confidential information may be subject to civil fines, a private lawsuit or criminal prosecution, and may also be subject to employee discipline or discharge. Employees and other staff are advised that the improper disclosure of confidential information will be deemed outside the employee’s duties and the City of New York may refuse to legally defend or indemnify any employee found guilty or liable for violation of confidentiality or privacy laws.

(City Ex. 7). 8 In addition, though not mentioned or referenced in the disciplinary charges, the City in the instant matter alleges that Levitant’s use of those documents at the arbitration violated N.Y. Social Services Law § 473-e. This section, entitled “Confidentiality of Protective Services for Adults’ Records,” states, in pertinent part:

8 This exhibit was submitted by the City in its case in chief, and, we note that this document is incomplete, and missing pages three and six in their entirety.

1 OCB2d 6 (BCB 2008) 13 2. Reports made pursuant to this article, as well as any other information obtained, including but not limited to, the names of referral sources, written reports or photographs taken concerning such reports in the possession of the department or a social services district, shall be confidential and, except to persons, officers and agencies enumerated in paragraphs (a) through (g) of this subdivision, shall only be released with the written permission of the person who is the subject of the report, or the subject’s authorized representative, except to the extent that there is a basis for non-disclosure of such information pursuant to subdivision three of this section. Such reports and information may be made available to:

(a) any person who is the subject of the report or such person’s authorized representative; (b) a provider of services to a current or former protective services for adults client, where a social services official, or his or her designee determined that such information is necessary to determine the need for or to provide or to arrange for the provision of such services;

(c) a court, upon a finding that the information in the record is necessary for the use by a party in a criminal or civil action or the determination of an issue before the court;

(d) a grand jury, upon a finding that the information in the record is necessary for the determination of charges before the grand jury;

(e) a district attorney, an assistant district attorney or investigator employed in the office of a district attorney, a member of the division of state police, or a police officer employed by a city, county, town or village police department or by a county sheriff when such official requests such information stating that such information is necessary to conduct a criminal investigation or criminal prosecution of a person, that there is reasonable cause to believe that the criminal investigation or criminal prosecution involves or otherwise affects a person who is the subject of a report, and that it is reasonable to believe that due to the nature of the crime under investigation or prosecution, such records may be related to the criminal investigation or prosecution;