District Council 37, Local 376, 77 OCB 12 (BCB 2006) [Decision No. B-12-2006(IP)] (Docket No. BCB-2469-05). Summary of Decision: The Union filed an improper practice petition alleging that DEP violated NYCCBL § 12-306(a)(1) and (3) when, in retaliation for contacting the Union concerning a complaint over available leave time, supervisors terminated Petitioner’s probationary employment. This Board grants the petition and directs reinstatement to Petitioner’s probationary position with back pay and benefits and re-evaluation in good faith. (Official decision follows.) OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING In the Matter of the Improper Practice Proceeding -between-DISTRICT COUNCIL 37, LOCAL 376, AFSCME, AFL-CIO, Petitioner, -and-CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents. DECISION AND ORDER On April 6, 2005, District Council 37, Local 376, AFL-CIO (“Union”), filed a verified improper practice petition on behalf of member Frank Puglisi against the City of New York and the Department of Environmental Preservation (“City” or “DEP”). The Union alleges that DEP violated § 12-306(a)(1) and (3) of the New York City Collective Bargaining Law (City of New York Administrative Code, Title 12, Chapter 3) (“NYCCBL”) when, in retaliation for seeking the Union’s counsel about a time-and-leave question, DEP supervisors gave Puglisi negative performance evaluations and subsequently terminated his probationary employment. The City argues that DEP’s
Decision No. B-12-2006 2 actions were warranted due to time and leave deficiencies and were not violative of the NYCCBL. After a hearing,this Board finds that DEP violated NYCCBL § 12-306(a)(1) and (3), and we grant the petition. BACKGROUND On March 9, 2003, Puglisi was hired by DEP as a non-competitive Apprentice Construction Laborer, subject to a two-year probationary training period consisting of four, six-month phases: water maintenance, water repair, sewer maintenance, and sewer repair. From March 2003 until March 2004, Puglisi was assigned to work from 7am to 3:30pm at DEP’s repair yard at 30 Pike Street in Manhattan. During that time, his job was to repair water hydrants, water lines, water leaks, “anything that had to do with water in Manhattan.” [Tr. 97. 1 ] On or about March 2004 until September 2004, he worked from 7:30am to 4pm in sewer maintenance at a DEP facility on 38 th Street in Manhattan, known as “M-1.” As a probationer, Puglisi was evaluated every three months on the performance of specific tasks as well as time-and-leave usage. Each evaluation also included an “overall” rating. For the first year and a half of Puglisi’s employment, four of his evaluations gave him overall ratings of “good”; a fifth, “very good.” He received an “unsatisfactory” rating only with regard to the task of operating certain motorized vehicles on three of those overall positive evaluations. 2 DEP time and leave records indicate that, from his date of hire through September 2004, he sustained workers 1 “Tr.” refers to citations in the hearing transcript. 2 September to December 2003 evaluation, the December 2003 to March 2004 evaluation, and the March to June 2004. The unsatisfactory task rating apparently was due to Puglisi’s lack of a commercial driver’s license.
Decision No. B-12-2006 3 compensation injuries on July 9 and August 4, 2003. In addition, DEP records indicate that Puglisi received verbal warnings for lateness on July 8, September 29, and October 16, 2003, with a “final verbal warning” for lateness on October 17, 2003. His performance evaluations for this time period, however, contained no mention of these warnings and no other remarks critical of his time and leave record. In August 2004, Puglisi checked with supervision at M-1 who told him that he had enough time credited to his leave bank to cover four days of annual leave. He booked a vacation for September 7, 8, 9, and 10, 2004. After he had booked the trip, he received notification that the next step in his training rotation would begin on September 7, 2004, and would be served at the 24-hour, water maintenance facility at 22 North 15 th Street in Brooklyn. Brooklyn Maintenance, as it is known, is responsible for water maintenance in Brooklyn, Queens, and Staten Island. The day borough superintendent there is Louis DiMeglia. The district supervisor is Rebon Brathwaite, who reports to DiMeglia. Paul Villella, who oversaw the day shift, also reported to DiMeglia. Around the time of Puglisi’s reassignment, M-1 supervision informed Brooklyn Maintenance that Puglisi would be on vacation on September 7 and would not start in Brooklyn until September 13. [Tr. 173.] On Friday, September 3, 2004, Puglisi called in sick at M-1. The next two days were his regular days off. The following Monday was Labor Day, a paid holiday. That week, Puglisi’s personnel file was transferred from M-1 to Brooklyn Maintenance. DiMeglia confirmed that M-1 had approved Puglisi’s annual leave but noticed that Puglisi had only 12 hours of annual leave to his credit, 20 hours short of what he needed to cover his scheduled absence. On Monday, September
Decision No. B-12-2006 4 13, 2004, Puglisi reported to work at the Brooklyn facility on the day shift. In early October, Puglisi received a paycheck that was “short” by some 20 hours. He went to the office to ask about it. DiMeglia showed him the time-keeping book but Puglisi testified that he did not understand the records showing his time and leave balances. Puglisi went to Randolf Francis, a construction laborer and shop steward for the unit and described the problem to him. Francis phoned an unspecified person at M-1 who verified that Puglisi had been told he had sufficient leave time to cover the vacation. Francis then picked up an office phone, called Union President Gene DeMartino, and told DeMartino that he was going to put Puglisi on the line while Francis inquired about the problem with DiMeglia, who was standing an estimated six to 15 feet away. Puglisi testified that, after speaking to DeMartino, he gave the receiver to DiMeglia to speak with the Union president, and that, when DiMeglia handed the phone back to Puglisi, DiMeglia told him, “Now, you’re going over my head to the Union,” and, “You’re taking money out of my pocket,” and angrily waved Puglisi away. [Tr. 137, 139.] Francis described DiMeglia as being “in a rage” over it. DiMeglia did not recall using those words. He testified that, when he handed the phone back to Francis, he returned to his office, only to be followed some five minutes later by Puglisi and Francis, who requested to see Puglisi’s time record. DiMeglia further testified that, when he showed Francis Puglisi’s time record, Francis said, “‘Oh, I didn’t know that,’ and [Francis] proceeded to walk out the door,” with Puglisi behind him. [Tr. 178.] According to DiMeglia, Puglisi turned before he exited DiMeglia’s office and said, “‘Who the f--- to you think you are? You act like the money is coming out of your pocket and that you don’t care about my bills or my mortgage or whatever I got to pay.’” [Tr. 178.] DiMeglia testified that he did raise his voice and said to Puglisi, “‘If you were
Decision No. B-12-2006 5 worried about your bills then you should have came [sic] to work. Had you come to work you would have got paid for the time you were supposed to get paid and that I can’t pay you time that you do not have,’ at which point the conversation ended and that was that.” [Tr. 179.] About this same time, Puglisi placed on DiMeglia’s desk a doctor’s note from Vincent Notabartolo, MD, of Staten Island. (Although the doctor’s note is not dated, the leave request slip to which it was attached was dated September 16, 2004.) The note stated that Puglisi was sick on September 3, 7, and 8. The City asserts that Puglisi was not ill at all but was actually vacationing in Mexico those days. Puglisi does not deny that he was in Mexico, but asserts that he was, in fact, ill those days. DiMeglia testified that he told Puglisi around the time he submitted the doctor’s note that he could not accept the doctor’s note for two reasons: (1) it covered a period that DiMeglia knew Puglisi was on vacation, and (2) it was a month late. [Tr. 175, 180.] The next month, November 2004, Puglisi was assigned to work nights. [Tr. 269.] On the night shift, Puglisi was supervised by Peter Fackovec and Franz Alexis, both of whom also reported to DiMeglia. The night superintendent presiding over supervisors Fackovec and Alexis was Pete Fahey, DiMeglia’s counterpart on the night shift. Brathwaite testified that Puglisi was assigned to cover the shift of a civil service worker who had been injured on the midnight shift. Puglisi testified that co-workers told him that he was on nights to cover for an injured employee but no supervisor had told him that directly. [Tr. 143-44.] On December 8, 2004, Villella, a day supervisor, signed an evaluation of Puglisi’s performance at Brooklyn Maintenance for the period from September 1, 2004, to December 4, 2004, as “conditional” on all tasks and “conditional” overall. The evaluation stated in part: Mr. Puglisi has been late on several occasions and has gone days without pay, due to lack of time balances, both sick and annual . . . Mr. Puglisi has received this [overall conditional]
Decision No. B-12-2006 6 rating due to his poor work habits. Mr. Puglisi uses a lot of time and on occasion does not provide documentation to verify his absences . . . Mr Puglisi needs to improve his time and leave usage and if he does not improve it, it will lead to his termination. The evaluation was also signed by District Supervisor Rebon Brathwaite. On cross examination, DiMeglia testified that it was actually he, not Villella, who drafted the comments on this particular evaluation. DiMeglia said Villella had asked him to write it “because he was unsure on exactly what he wanted to put down.” [Tr. 206.] DiMeglia testified that Villella and Brathwaite agreed with what DiMeglia wrote, and they signed off on it. [Tr. 207.] Villella did not testify at the hearing but Brathwaite did. Brathwaite testified that he agreed with the substance of DiMeglia’s criticism of Puglisi as stated in the performance evaluation, but, under cross-examination, Brathwaite acknowledged that he did not have a basis for his agreement: Q. Looking at the unsatisfactory evaluation, task number one, did you believe that Mr. Puglisi's performance in investigating water supply complaints was unsatisfactory? A. It wasn't under my direct, you know, he was on a shift. Q. So you don't know about his performance? A. No. Q. Would you say the same answer for tasks number two, three, four, and five, that you don't know his performance? A. Yes, I would say so. Q. So when [Counsel for the City] asked you if you disagreed with any of them, you don't necessarily agree with them either because you don't know his performance? A. From a direct supervision, no. [Tr. 263-64.] As to the procedure used by DiMeglia to prepare Puglisi’s performance evaluations, DiMeglia testified that he had been informed by “people in Lefrak,” i.e., DEP’s head office, “when you are going to give a conditional or unsatisfactory [rating], that all the tasks have to read that way.” [Tr. 207.] DiMeglia said that he did not decide to do this on his own but rather that he had discussed
Decision No. B-12-2006 7 the matter with his superiors “and they told me that when you give someone an unsatisfactory [rating] that you must – all the tasks must read the same.” [Tr. 207.] DiMeglia said that is true even if an employee’s performance on a given task is, in fact, satisfactory. [Tr. 208.] DiMeglia further testified that, because Puglisi had two unauthorized absences – on September 9 and 10, 2004 – he was rated “conditional” in every category of his performance evaluation covering that time period. [Tr. 209.] On this point also, Brathwaite’s testimony was inconsistent with that of DiMeglia: Q. Have you ever seen an evaluation where someone got an unsatisfactory in one of the five categories and did not get an unsatisfactory in all the others there? A. Yes. Q. So you have seen some where they got an unsatisfactory in one thing and something else in another? A. Yes. Q. Have you seen evaluations where the person got a conditional in one thing and something other than a conditional in one of the other things? A. Yes. [Tr. 258.] DEP records indicate that, on November 5, 2004, Puglisi was one hour late to work. This was the only date, during the period of his first performance evaluation at Brooklyn Maintenance, which the record indicates he was late. On December 26, 2004, January 2, and January 18, 2005, Puglisi called in sick, claiming worker’s compensation injuries. He testified that, after he obtained sick leave documentation, he did not see DiMeglia or Brathwaite to hand it to them directly, because he worked nights; so, he put a DEP leave-request slip in the box on DiMeglia and Brathwaite’s office door, along with doctor’s notes for each of the days he was out. DiMeglia testified that these were later deemed unauthorized absence without leave (“AWOL”).
Decision No. B-12-2006 8 Q. Your testimony is you never got doctor's notes for any of those three dates? A. Not when they were supposed to be due, no. I mean to my knowledge I have never gotten them. If he gave them to somebody else and it was after the fact, I probably never got them, no. Q. Who would he have given them to? Who was he supposed to have given them to? A. Well, in the morning when he comes in he could either give them to Barbara [Williams, time-keeper], he can give it to Adrianne [Manning, time-keeper’s supervisor], he can give it to Rebon [Brathwaite], or he can give it to myself. Q. You share an office with Mr. Brathwaite? A. Yes. Q. And you have an in-and-out box attached to your door? A. Uh-huh. Q. Is it a common practice for people to put things like doctor's notes in that box? A. They could, they could. Q. Do you know whether or not Mr. Puglisi did that? A. No, I do not. [Tr. 222.] Puglisi testified that no one had told him that documentation for those absences was never received. [Tr. 268– 272.] DiMeglia did not ask him for it. [Tr. 283.] DiMeglia testified that Villella and the time keeper’s supervisor went to Puglisi to ask for the documentation, but DiMeglia admitted that, at the time of the absences in question, Villella was not Puglisi’s supervisor. Instead, Villella “was on the day shift.” [Tr. 286.] The City did not offer the testimony of Villella, the time keeper, or the latter’s supervisor. Brathwaite also testified that he did not know whether or not Puglisi brought in documentation of the absences in question, because he had not asked Puglisi directly: Q. On the later disciplinary data sheet, you say that as of this writing, 1/31/05, Mr. Puglisi has failed to submit medical documentation even though he has been asked to do so. Did you ask him to do so? A. Mr. DiMeglia did. Q. Did you? A. No. Q. Did you see Mr. DiMeglia ask Mr. Puglisi to hand in the documentation? A. He has told him to, but for this specific one, no. [Tr. 260–61.] Brathwaite testified that failure to submit documentation could result in termination
Decision No. B-12-2006 9 and that an employee was entitled to two written warnings about it but Brathwaite also testified that Puglisi did not receive those warnings. [Tr. 261.] On or about February 1, 2005, Puglisi received an “unsatisfactory” performance evaluation for the period starting December 5, 2004. 3 The only written explanation for the “unsatisfactory” rating was “poor work habits.” DiMeglia testified that he rated Puglisi “unsatisfactory” in every category solely because he was allegedly absent three times without medical documentation – once in December 2004 and twice in January 2005. [Tr. 220-21.] DiMeglia testified that he prepared this evaluation himself, as he had done with the previous, “conditional” evaluation, and that Puglisi’s supervisor on the night shift, Pete Fackovec, who had direct knowledge of Puglisi’s work performance, played no role in preparing it. [Tr. 220.] DiMeglia testified that even though Fackovec was familiar with Puglisi’s work performance since he was Puglisi’s direct supervisor and even though Fackovec thought that Puglisi was a “good worker,” he would not have been aware of Puglisi’s sick leave documentation issues. [Tr. 196.] Brathwaite testified that, although he signed the “unsatisfactory” evaluation, he had no direct knowledge of Puglisi’s work performance. [Tr. 256, 263-64.] DiMeglia testified that, although he reviews all evaluations, he does not usually, actually prepare them. In fact, Puglisi’s were the first he had prepared in his eleven years as borough superintendent at Brooklyn Maintenance. [Tr. 220.] DiMeglia said he interpreted the policy in preparing evaluations as meaning that if one category was unsatisfactory, then all categories had to be marked unsatisfactory. Puglisi was rated unsatisfactory, again, due to time and leave problems. 3 The period of evaluation putatively covered the period from December 5, 2004, to March 9, 2005, but Puglisi was terminated before the end of that period.. The evaluation was given to him on February 1, 2005. He refused to sign on that date
Decision No. B-12-2006 10 [Tr. 220.] Contrary to DiMeglia’s interpretation of the performance evaluation policy which he described, Brathwaite testified that, in his experience, he had seen performance evaluations in which one category was rated conditional or unsatisfactory but other categories were not. [Tr. 257-58.] On February 2, 2005, DEP’s Director of the Bureau of Water and Sewer Operations, Michael Krysko, sent a memorandum to Michael Schneider, Chief of Management Services, requesting Puglisi’s termination due to “poor attendance record and failure to provide medical documentation when taking sick leave.” Six days later, Schneider sent a memorandum to the DEP Assistant Commissioner for Human Resources requesting Puglisi’s termination, citing a “habitual pattern of lateness” which allegedly had a “negative impact on the functions of the location.” The memorandum also stated that “[s]upervisory personnel have discussed this situation on numerous occasions with Mr. Puglisi. All to no avail. [sic] He continues to be late for work.” The memorandum also cited three AWOL occasions. Neither of these memoranda were shown to Puglisi prior to his termination. Unaware of the existence of these memoranda, and upon receiving this second below-par evaluation, Puglisi called DeMartino who scheduled a meeting, on or about February 14, 2005, with Puglisi and DiMeglia. DeMartino asked DiMeglia why Brathwaite, not Peter Fackovec who was Puglisi’s direct supervisor on the night shift, had prepared Puglisi’s performance evaluation. DiMeglia told DeMartino: I continued to explain to Mr. DeMartino that even though Mr. Fackovec thought that [Puglisi] was a good worker that his evaluation is not based totally only on his performance but his time is also factored in. Since Pete did not know about his time usage, okay, that it was determined that I had spoken about it and because he did not adhere to the conditional evaluation that we were going to apply for termination. [Tr. 196.] DeMartino testified that DiMeglia told him that, regardless of who Puglisi’s supervisor
Decision No. B-12-2006 11 was, he, DiMeglia, would direct him to write what DiMeglia wanted. As DeMartino described it, DiMeglia said he “would put the next supervisor in front of him and tell him exactly what to write.” DeMartino further testified that DeMeglia was intent upon terminating Puglisi, DiMeglia telling DeMartino, “I don’t care who does his review; I’m going to change it anyway,” and “I’m bringing him up on charges.” [Tr. 91, 152-53.] When DeMartino asked DiMeglia why, DiMeglia responded, “‘I really don't appreciate the fact that they called you down here.’” [Tr. 67.] DeMartino asked DiMeglia “if there was a way to stop the [disciplinary] charges being sent up, so we would not have to see Mr. Puglisi terminated.” [Tr. 93.] DiMeglia testified that he told DeMartino that the “unsatisfactory” evaluation was based, less on Puglisi’s performance, and “mostly on [Puglisi’s] time. . .” [Tr. 197-98.] DiMeglia testified that Puglisi’s termination had nothing to do with the fact that either he, DiMeglia, or Puglisi spoke with Union President DeMartino or Shop Steward Francis. When the meeting ended, DeMartino told Puglisi that he would be making phone calls to see what he could do. [Tr. 155.] Puglisi then asked DiMeglia to see his personnel file. Adrianne Manning, who supervised DiMeglia’s office staff including the time keeper, monitored Puglisi as he reviewed his file. When he saw the Schneider memorandum seeking his termination for a “pattern of latenesses,” he turned to her, and, Petitioner testified, she said to him, “I don’t lie for nobody. You were never late.” [Tr. 157.] Later that night, Puglisi got a phone call from Superintendent Pete Fahey, DiMeglia’s counterpart on the night shift, calling Puglisi to the office where he was informed of his termination. [Tr. 155.] At about 6:30 the next morning, Puglisi called DeMartino telling him that DEP had terminated him the prior night. DeMartino testified that he decided not to call the DEP chiefs because, at that point, “Nothing could be done.” [Tr. 95.]
Decision No. B-12-2006 12 The Union seeks Puglisi’s reinstatement with back pay and full benefits. POSITIONS OF THE PARTIES Union’s Position The Union argues that, in violation of NYCCBL § 12-306(a)(1) and (3), 4 DEP terminated Puglisi because he sought Union assistance with his time and leave problems. DiMeglia’s anti-union animus was demonstrated by his telling Puglisi that, by calling in the Union, Puglisi was going over his head and by telling DeMartino that DiMeglia “did not appreciate” Puglisi’s involving him. DiMeglia admitted that he wrote the negative performance evaluations, not supervisors who had direct knowledge of Puglisi’s performance. The Union contends that M-1 supervisors approved Puglisi’s vacation time in September 2004. As for the dates in December 2004 and January 2005 when Puglisi called in sick, the Union contends that Puglisi submitted documentation in the manner which DEP provided for its receipt. Further, the City’s witnesses concede that Puglisi was not told that the documentation had not been received. The Union insists that no supervisor at Brooklyn Maintenance discussed lateness with him at any time. The Union asserts that the 2003 performance 4 NYCCBL § 12-306(a) provides, in pertinent part: It shall be an improper practice for a public employer or its agents: (1) to interfere with, restrain or coerce public employees in the exercise of their rights granted in section 12-305 of this chapter; * * * (3) to discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any public employee organization. . . . NYCCBL § 12-305 provides, in relevant part: Public employees shall have the right to self-organization, to form, join or assist public employee organizations, to bargain collectively through certified employee organizations of their own choosing . . . .
Decision No. B-12-2006 13 evaluations covering an earlier time period when he did receive lateness warnings were all favorable and that those evaluations contained no critical comments citing any lateness. The Union asserts that DEP’s actions were entirely pretextual in violation of the NYCCBL. City’s Position The City argues that the Union has failed to allege facts sufficient to find DEP in violation of the NYCCBL. Puglisi had many unauthorized absences and latenesses: DEP records indicate that he received verbal warnings for lateness on July 8, September 29, and October 16, 2003. On October 17, 2003, he received a “final verbal warning” for lateness. His performance declined, warranting termination. There is no evidence that DEP attempted to, or did, discriminate against Puglisi for the purpose of discouraging his membership in the Union or participation in Union activities. DiMeglia showed Puglisi his time and leave records, reflecting the time deficiencies. DiMeglia met willingly with DeMartino, Francis, and Puglisi himself when they asked for meetings. Thus, the Union has failed to establish a prima facie case against the agency. Even if the Union had been able to establish such a case, DEP had a legitimate business reason for terminating Puglisi’s employment because of his time and leave irregularities. DISCUSSION The issue in this case is whether DEP retaliated against Puglisi for calling in Union representatives to assist him with time and leave problems on the job. This Board finds that, not only has the Union articulated a prima facie claim of retaliation for protected activity under the NYCCBL, but that it has sustained its burden of proving that DEP’s actions were taken for reasons that violated NYCCBL § 12-306(a)(1) and (3), and, further, that the legitimate business reason which
Decision No. B-12-2006 14 DEP asserts was pretextual. In determining if an action violates NYCCBL § 12-306(a)(1) and (3), this Board applies the test enunciated in City of Salamanca, 18 PERB ¶ 3012 (1985), and adopted by the Board in Bowman, Decision No. B-51-87. A petitioner must demonstrate that: 1. the employer’s agent responsible for the alleged discriminatory action had knowledge of the employee’s union activity; and 2. the employee’s union activity was a motivating factor in the employer’s decision. If a petitioner alleges sufficient facts concerning these two elements to make out a prima facie case, the employer may attempt to refute petitioner’s showing on one or both elements or demonstrate that legitimate business motives would have caused the employer to take the action complained of even in the absence of protected conduct. See Local 376, District Council 37, AFSCME, Decision No. B-15-2004 at 13. Pursuant to NYCCBL § 12-306(a)(1), it is an improper practice for a public employer to “interfere with, restrain or coerce public employees in the exercise of their rights granted in section 12-305 of this chapter. . . .” In addition, NYCCBL § 12-306(a)(3) provides that it is an improper practice for a public employer to “discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any public employee organization . . . .” Fabbricante, Decision No. B-30-2003 at 30. The standard does not apply only to employees who have passed their probationary period of employment. Wrongfully motivated conduct by a public employer is equally unlawful towards a probationer as it is towards a permanent employee. Assistant Deputy Wardens/Deputy Wardens Ass’n, Decision No. B-9-2003. Attendant to that, the filing of grievances is considered protected activity under the NYCCBL. Fabbricante, Decision No. B-30-2003 at 27; Doctors Council, Decision No. B-12-97 at 10. DEP does not deny that Puglisi
Decision No. B-12-2006 15 sought the Union’s assistance in attempting to resolve his time and leave problem. Borough Superintendent DiMeglia and District Superintendent Brathwaite, themselves, met with Union President DeMartino about it; nor did either City witness deny that Shop Steward Francis told them that he was representing a member in a dispute with the employer. Thus, the Union has established the first element of the legal standard. Our analysis focuses on the second element of that test, the issue of improperly motivated conduct. Petitioner must demonstrate a causal connection between the protected activity – in this case, the involvement of Union representatives in Puglisi’s efforts to resolve time and leave issues – and the motivation behind the management action which is the subject of the complaint. Local 376, D.C. 37, Decision No B-15-2004 at 14. Proof of the second element must necessarily be circumstantial absent an outright admission. City Employees Union, Local 237, Decision No. B-13-2001 at 9. In the instant case the credible testimony establishes the existence of a causal connection in an unusually direct manner, in part through party admissions. DiMeglia’s statements as testified to by Puglisi, Francis, and DeMartino establish by a preponderance of the evidence that DiMeglia was angered by Puglisi’s “going over [DiMeglia’s] head to the Union,” and that he did not “appreciate the fact that they called [DeMartino] down here.” [Tr. 13, 107, 69.] DiMeglia did not explicitly deny making either of these two statements, but did testify that he had “no problem” speaking with DeMartino. This self-serving testimony about DiMeglia’s subjective mental state, however, is unpersuasive in light of the corroborated testimony establishing that DiMeglia expressed on two separate occasions his displeasure at having to address Puglisi’s concern with the Union. DiMeglia’s anger at the involvement of the Union was further evinced by the anger he displayed in front of
Decision No. B-12-2006 16 Francis at the time in which he made the statement about Puglisi “going over [his] head.” Thus, we find that the Union has established DiMeglia, DEP’s agent responsible for the allegedly improper actions, bore anti-union animus that informed his subsequent conduct toward Puglisi, that is, the negative performance evaluations which predetermined the terminal outcome of Puglisi’s probationary employment. We find that the City’s contention that it had a legitimate business reason to terminate Puglisi is not persuasive. When a public employer offers, as a legitimate business defense, a reason that is unsupported by or inconsistent with the record, the defense will not be credited by this Board. Patrolmen’s Benevolent Ass’n, Decision No. B-25-2003 at 13; Local 1182, Communications Workers of America. Decision No. B-26-96 at 23. The City’s proffered legitimate business reasons for terminating Puglisi rest upon the credibility of DiMeglia’s testimony that the conditional and the unsatisfactory evaluations, and then the recommendation that Puglisi be terminated for his time and leave deficiencies, were all motivated not by any animus, but rather by performance considerations. The credibility of DiMeglia’s testimony as to the evaluation process and the termination, however, is significantly undermined by its inconsistency with the rest of the evidence submitted, and by the illogical assumptions on which that testimony rests. Thus, we find the business reasons offered are not legitimate, but are rather pretextual, and therefore unlawful under the NYCCBL. See City Employee’s Union Local 237, Decision B-3-2006 at 15. DiMeglia’s testimony about the two evaluations received by Puglisi while at Brooklyn Maintenance is simply not credible. DiMeglia testified that he had been instructed by the DEP’s main office that if an employee is rated either conditional or unsatisfactory in any one category evaluated, the same rating must be applied to every other category, and must be the overall rating.
Decision No. B-12-2006 17 [Tr. 207-09.] This contention is belied by both the documentary evidence submitted, in the form of Puglisi’s three evaluations from earlier phases of his probation in Manhattan, in one of which he was rated overall as “very good” despite receiving an “unsatisfactory” rating in one area. Additionally, Brathwaite’s testimony was inconsistent with DiMeglia’s account, in that Brathwaite stated that he had personally seen evaluations that were not identical in the rating given in every category. [Tr. 257-258.] Finally, this testimony is not logical; the practice of rating employees’ performance in different categories would be rendered purposeless if an unsatisfactory rating in any one category required all categories to be so rated. DiMeglia’s testimony on this point was simply not credible as a statement as to what DEP’s practice was and was not even true as to the employees in his superintendency. Other irregularities and inconsistencies with established practice tend to support the inference that DiMeglia singled out Puglisi for disparate treatment. For example, DiMeglia himself drafted Puglisi’s “conditional” and his “unsatisfactory” evaluations, while his prior evaluations had been drafted by his immediate supervisors. DiMeglia admitted that his writing Puglisi’s evaluation was singular, testifying that he had not written any employee’s evaluation in his eleven years as borough superintendent. [Tr. 220, 165-166.] Moreover, DiMeglia admitted that he was unfamiliar with Puglisi’s work performance and lacked a basis of knowledge with which to evaluate it. DeMartino credibly testified that DiMeglio told him directly that, had another supervisor, such as Fackovec, Puglisi’s supervisor on the night shift, sought to describe Puglisi’s performance in areas other than time and attendance in any manner other than unsatisfactory, DiMeglia would have required that it be changed to an unsatisfactory rating. We find that DiMeglia’s insistence that Puglisi’s performance be evaluated in a specific and unfavorable way, despite a direct lack of knowledge to
Decision No. B-12-2006 18 Puglisi’s actual performance on specific tasks, strongly supports an inference that he was motivated by retaliatory animus. DiMeglia’s animus toward Puglisi, arising only after his recourse to the Union for aid, is further shown by his incredible testimony at the hearing in this matter. In addition to the testimony pointed out above, DiMeglia’s account of the interaction between himself and Puglisi is further undermined by the testimony of Francis and Puglisi, who contradicted the claim that Puglisi swore at DiMeglia prior to DiMeglia’s raising his voice. [Tr.13-14, 107-108.] DiMeglia himself noted that it was “surpris[ing]” that a probationer would, absent any provocation, swear at a borough superintendent. [Tr. 179.] Despite this, DiMeglia did not take any disciplinary action against Puglisi, not even including this alleged incident as part of his negative evaluation of Puglisi. DiMeglia’s testimony on this point is not credible and further undermines his credibility on the other disputed issues. Similarly, the City has argued that Puglisi was guilty of “time and leave abuse, including the submission of fraudulent medical documentation, refusal to timely submit medical documentation for absences, etc.” These grounds were not borne out at the hearing in this matter, however. The testimony was uncontradicted that Puglisi’s vacation in September 2004 was approved by DEP agents in Manhattan. Puglise was docked for time that he took which he did not have in his leave bank, and no other adverse action was taken against him at that time. Only after he brought the Union into the matter was any further disciplinary action threatened against him by DiMeglia. With respect to the asserted failure to submit medical documentation for subsequent absences in a timely fashion, the testimony failed to bear out the City’s defense. Although DiMeglia testified that he did not see any documentation regarding Puglisi’s December 2004 and January 2005
Decision No. B-12-2006 19 absences, he testified that he would not have known if such documentation had been timely provided to Brathwaite or to the two office clerks. [Tr. 222.] Copies of Puglisi’s medical documentation for these absences was received into evidence, and Puglisi testified that he had placed it in the box provided for such purpose. The City did not call either the two clerks or any other witness who could testify as to when and if the documents were received. Moreover, no testimony was adduced from any witness with direct knowledge stating that Puglisi was told that his documentation had not been received and requiring him to produce it. DiMeglia testified that he did not convey such an order to Puglisi but that Brathwaite or the timekeeper, whom the City did not call, did. [Tr. 283-284.] Brathwaite, however, testified unequivocally that he did not convey such an instruction to Puglisi, stating that DiMeglia did. [Tr. 260]. Neither witness contradicts Puglisi’s testimony that nobody gave him such an instruction. [Tr. 272.] Indeed, Brathwaite testified to his understanding of the DEP’s practice that employees were entitled to two written warnings and conceded that Puglisi had not received such warnings. On this record, we conclude that the City’s failure to prove that Puglisi was informed that documentation was missing or that he was warned of the possible consequences vitiates the credibility of its business reason defense. Finally, the ground cited by Schneider in his memorandum recommending termination, that is, an allegedly “persistent and habitual pattern of lateness,” also is unpersuasive here. Although Puglisi was late several times while he served in Manhattan during an earlier phase of his probationary period, none of these latenesses were deemed grounds for discipline until he engaged in protected activity. Indeed, the latenesses from the earlier phase of his probationary period were not even cited on his performance evaluations covering that time period, even though the evaluation
Decision No. B-12-2006 20 form had a category inviting comment on “punctuality, impact on the work of others, etc.” In all but one of his prior evaluations, Puglisi received no comment as to punctuality. To the contrary,in the September 1, 2004, evaluation, his supervisor stated that “Mr. Puglisi comes to work on time and works well with others.” Only after Puglisi sought the assistance of his Union in addressing his leave balance problem after he was assigned to Brooklyn Maintenance was lateness cited as an issue. In sum, we find that the manner in which DiMeglia evaluated Puglisi’s performance, the manner in which documentation for leave time was handled, and the assertion of punctuality problems during the time period at issue, all fail to support the City’s contention that Puglisi’s termination was taken for legitimate business reasons. The evidence of DiMeglia’s anger about Puglisi’s calling the Union in and his determination to commandeer Puglisi’s performance evaluations lead us to conclude that the actions DEP took against Puglisi were retaliatory in violation of NYCCBL § 12-306(a)(3) and, derivatively, of § 12-306(a)(1) as well. NYCCBL § 12-306(a)(1) states that it is unlawful for a public employer “to interfere with, restrain or coerce public employees in the exercise of their rights granted in section 12-305 of this chapter.” Sergeants Benevolent Ass’n, Decision No. B-22-2005 at 19. We find that DiMeglia’s anger about calling the Union in and the negative performance evaluations which resulted are sufficiently coercive as to discourage and inhibit other Union members from calling on their representatives to assist in the same way that Puglisi did in this case, thus, violative of NYCCBL § 12-306(a)(1). For these reasons, we grant the instant petition, and direct DEP to reinstate Puglisi to his probationary position with back pay and benefits to the date of the wrongful termination, and to cease and desist from retaliating against him on the basis of the wrongfully motivated actions described herein. Puglisi shall be entitled to continue his probationary service for the period
Decision No. B-12-2006 21 remaining at the time of his unlawful termination as described herein. During the remaining period of probationary service, Puglisi shall be entitled to a re-evaluation of his performance, for the entire period of time of his employment at Brooklyn Maintenance. Such re-evaluation shall be prepared in good faith and without regard to his protected union activity, by a supervisor other than Louis DiMeglia.
Decision No. B-12-2006 22 ORDER Pursuant to the powers vested in the Board of Collective Bargaining by the New York City Collective Bargaining Law, it is hereby ORDERED, that the improper practice petition filed by Local 376, District Council 37, AFSCME, against the City of New York and the Department of Environmental Protection, docketed as BCB-2469-05, is granted; and it is further DIRECTED, that the Department of Environmental Protection cease and desist from retaliating against Frank Puglisi on the basis of the wrongfully motivated actions described herein; and it is further DIRECTED, that the Department of Environmental Protection reinstate Frank Puglisi to his probationary position with back pay and benefits to the date of the wrongful termination; and it is further DIRECTED, that the Department of Environmental Protection, through a supervisor other than Louis DiMeglia, and without input or supervision by Louis DiMeglia, re-evaluate Frank Puglisi’s performance for the entire period of time of his employment at Brooklyn Maintenance in good faith and without regard to his protected union activity. Dated: April 4, 2006 New York, New York MARLENE A. GOLD CHAIR GEORGE NICOLAU MEMBER CAROL A. WITTENBERG MEMBER
Decision No. B-12-2006 23 CHARLES G. MOERDLER MEMBER M. DAVID ZURNDORFER MEMBER
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