-13-

Dep’t of Education v. Radef

OATH Index No. 1116/05 (July 11, 2005)

Charges of insubordination against custodian, who was ordered to terminate two workers, held not proven and dismissal of the charge recommended.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF EDUCATION

Petitioner

- against -

TRIFON RADEF

Respondent

______

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. Petitioner, the Department of Education, charged respondent Trifon Radef, a custodian, with refusing to obey an order from a supervisor to terminate two custodial employees.

A hearing on the charge was conducted before me on April 4, April 27, May 4, and May 23, 2005. Petitioner called three supervisors to describe meeting with respondent and ordering him to terminate two of his workers. Without disputing the supervisors' description of the meeting, respondent and a number of union officials contended that the order to terminate defied the accepted practice whereby custodial staff targeted for termination were placed on a list, making them ineligible to be paid with Department funds.

For the reasons provided below, I find that petitioner failed to establish that respondent's statements were insubordinate and that the charge should be dismissed.

ANALYSIS

This disciplinary case concerns allegations that, on October 5, 2004, respondent refused to obey orders given to him by a facilities manager to terminate two custodial workers. The order was based upon an investigation which found evidence that the two workers were employed on other jobs during their school work hours. The remarks which petitioner alleges to be insubordinate occurred during a two-hour discussion between respondent and the facilities manager concerning issues of Department and union policy, which prompted both respondent and the manager to seek guidance as to the rules regarding the termination of custodial employees. During the discussions, as at the hearing, respondent contended that the appropriate method to ensure that the custodial workers were terminated was to place them on the so-called ineligible list, while the manager insisted that the workers had to be dismissed by respondent based solely upon the investigation conclusions.

The grounds for dismissal of the workers were contained in a letter (Pet. Ex. 1) dated September 30, 2004, and apparently received in the Chancellor's office the same day. In this letter, the Special Commissioner of Investigation notified Chancellor Klein that two workers, Robert Kralick and Jimmie Roberts, employed as custodial staff workers at Edward R. Murrow High School in Brooklyn, had been found to have received pay as proctors on dates they reported to have been working overtime at the school (Tr. 15-16). This letter was evidently referred to Regional Facilities Manager William Estelle sometime following its receipt.

On October 4, 2004, Mr. Estelle scheduled a meeting with respondent, who had been assigned as the temporary custodian at the school only days before, to discuss the letter. Respondent arrived at the meeting at the borough headquarters around 1:30 p.m., and met with Mr. Estelle and Deputy Facilities Manager Bartholomew Cournane. The words actually exchanged between respondent and Mr. Estelle on October 5 were largely undisputed. Mr. Estelle provided respondent with a copy of the Special Commissioner's letter and told him that, based upon the investigation findings, it was respondent's responsibility to terminate both workers. According to Mr. Estelle, respondent spoke twice with his union representative and ultimately stated that the union had advised him that the order to terminate should be in writing or that the employees should be placed on the ineligible list, a procedure typically used to ensure that Department funds were not used to pay the salaries of workers found to have committed serious misconduct (Tr. 18-19). Mr. Estelle confirmed with the central office that the two workers would be placed on the ineligible list, probably within a day or two, and conveyed this information to respondent (Tr. 44).

Mr. Estelle told respondent that, if he did not obey the order to terminate the two workers, he would be removed from the assignment to Edward R. Murrow High School and Mr. Estelle would initiate disciplinary charges, beginning with a 30-day suspension and a letter of complaint (Tr. 23). Mr. Estelle recalled being aware that, sometime during the week, Mr. Kralick would be out of town due to a relative's death, but did not recall whether respondent provided him with this information (Tr. 36). At the close of the two-hour meeting, respondent still had not agreed to comply with Mr. Estelle's order to terminate the two employees.

On October 7, Mr. Estelle met with respondent and his union delegate and informed him that he was no longer assigned to Edward R. Murrow High School and delivered a letter of complaint (Pet. Ex. 3) stating that he would be disciplined (Tr. 45).

Respondent's version of the conference with Mr. Estelle was similar to that of Mr. Estelle and Mr. Cournane. He was assigned to the temporary care of Edward R. Murrow High School, a charter school in Brooklyn, on September 15, 2004. He recalled being called by Mr. Cournane on October 4, 2004, and directed to meet with Mr. Estelle the following day. When respondent asked Mr. Cournane what the meeting was about, Mr. Cournane assured him it was "nothing involving you." Respondent assumed that the meeting would be at the school, but received a call at 12:45 p.m. indicating that the meeting would be at the borough office. Respondent then drove to the office and met with Mr. Estelle and Mr. Cournane (Tr. 287-90).

Respondent confirmed that Mr. Estelle gave him a copy of the letter (Pet. Ex. 1) from the Special Commissioner of Investigation summarizing evidence that Mr. Kralick and Mr. Roberts, had been collecting wages for custodial work at the same times they were paid as school proctors. Respondent recognized the two workers as being long-time reliable staff members who virtually ran the school building. After respondent reviewed the letter, Mr. Estelle ordered respondent to terminate both workers. Respondent asked if the workers had been placed on the ineligible list. Mr. Estelle answered that they were not yet on the list but that he would make sure that they would be. Respondent asked Mr. Estelle to provide notice that the two workers were on the ineligible list or put his order to terminate them in writing. Mr. Estelle replied that there "were no longer any Board-ordered firings" and declined to provide anything further. Respondent told Mr. Estelle that Mr. Roberts was out of work following a kidney operation, while Mr. Kralick would be out of work the following day to travel to Florida for a relative's funeral. He assured Mr. Estelle that he would terminate the two workers as soon as they were placed on the ineligible list (Tr. 290-94).

After meeting with Mr. Estelle and Mr. Cournane for an hour, respondent called the union for advice. He spoke with union delegate Jimmy Wagner. Mr. Wagner related a story about another custodian named Hugh Doherty, to whom Mr. Estelle had also given a verbal order to terminate a worker. When the worker grieved the dismissal and was awarded back pay, Mr. Estelle denied giving the order and the Department refused to reimburse Mr. Doherty for the back pay. Mr. Wagner told respondent that he would be an "idiot" to fire the two workers without written documentation that he was required to do so, since he might be liable for "thousands and thousands of dollars" of back pay (Tr. 294).

When respondent returned to the meeting, he continued to indicate that he could not immediately comply with Mr. Estelle's order. Mr. Estelle received a telephone call from Mr. O'Connell and told respondent that respondent himself could request that the workers be placed on the ineligible list. Respondent said he had never heard of this. The meeting ended around 3:45 p.m., with respondent telling Mr. Estelle that he was "pretty set" not to terminate the workers immediately as Mr. Estelle had directed him to. Mr. Estelle warned respondent that he might be subject to counseling, discipline, or removal from his temporary assignment for refusing to obey the order to terminate. Respondent indicated that he was "confused" by Mr. Estelle's direct order to fire the workers followed by the assurances that this was not a Board-ordered firing (Tr. 295-96).

Union attorney Neil Lipton was notified by union delegate Matthew Wile about the situation regarding respondent. He called Deputy Director Robert Waters, of the Office of Labor Relations, to protest that the order to respondent was in violation of the Department policy regarding the procedures to discipline custodial workers and was "unconscionable." When Mr. Waters called Mr. Lipton back around 4:30 or 4:45 p.m., he told Mr. Lipton that Mr. Roberts and Mr. Kralick had just been placed on the ineligible list and that he had called someone "higher up" to discuss the matter (Tr. 260-61).

Mr. Waters confirmed that he called Stanley Trybulski, the attorney from the disciplinary unit in charge of the case, and was told to "butt out." Mr. Waters told Mr. Lipton there was therefore nothing more he could do, as reflected in a fax transmission (Resp. Ex. N) from Mr. Lipton to Mr. Waters (Tr. 101). Upon receiving the information from Mr. Waters concerning the workers being on the ineligible list, Mr. Lipton called Mr. Wile, who told him that the meeting with respondent was over and it was now "too late" (Tr. 261). Neither Mr. Estelle nor respondent were made aware that the workers were on the ineligible list until several days later.

Two days after the meeting with Mr. Estelle, respondent was given a letter complaining about his insubordination in refusing to follow an order and removing him from the temporary school assignment (Pet. Ex. 3). Respondent filed a grievance as to his removal, which remained pending at the time of the hearing. The instant disciplinary charges were served on December 9, 2004.

Following respondent's removal from the school, a company named Temco was hired to maintain it. Temco terminated both Mr. Kralick and Mr. Roberts. On February 27, 2005, an arbitrator held that Temco lacked "just cause" to terminate Mr. Kralick and awarded back pay from October 8, 2004, through the date of the arbitration decision (see Resp. Ex. M).

The majority of the evidence adduced during the disciplinary hearing here concerned, not what was said on October 5 by respondent and Mr. Estelle, but the issue of how and when the Department (and previously the Board) interacted with custodians and custodial workers, who were employed not by the agency but by the custodians. Indeed, the employment relationship between the Department and custodians is singular and complex. See Rico v. Board of Education Retirement System of the City of New York, 45 A.D.2d 727, 728, 356 N.Y.S.2d 350, 352 (2d Dep't 1974), aff'd, 36 N.Y.2d 884, 372 N.Y.S.2d 214 (1975). In certain respects, custodians are treated like independent contractors, with great autonomy in operating and meeting the needs of their assigned schools. Instead of receiving a direct salary, they are permitted to take "overages" to a maximum amount representing the difference between the amount of money budgeted for maintaining their schools and the amount actually spent in salaries, services, and supplies. In short, a custodian is imparted with a measure of managerial independence not shared by any other category of civil servant.

In light of the unique relationship of custodians to the agency managers, it was apparent that custodians are charged with discretion in carrying out their maintenance responsibilities as well as in dealing with personnel matters and that this authority limits the ability of Department managers to control the custodian's work-related decisions. Whereas even minor failures to strictly adhere to orders might be severely punished in paramilitary organizations, such as the Police Department or Department of Correction, where a failure to obey a supervisor's order can have disastrous consequences, see Dep't of Correction v. Rata, OATH Index No. 888/95 (Mar. 20, 1995); Dep't of Correction v. Mangham, OATH Index No. 257/93 (Jan. 14, 1993), custodians can decline to follow orders as to matters which are within their exclusive control and discretion, although they may ultimately be held accountable if they fail to meet the minimum standards for cleaning and maintaining their schools. The Department witnesses agreed, for example, that it would be improper for a Department manager to order a custodian to hire a specific employee, since authority to make personnel choices are vested solely in the custodians. Considering the scope of the custodians' autonomy, it seemed inevitable that, in speaking with agency managers such as Mr. Estelle, custodians would not be expected to blindly follow all orders given, but would rather be obliged to raise objections or propose alternate solutions if they believed a manager's orders to be unwise or to create unnecessary problems.

The evidence here indicated that, prior to 2002, the Board had ordered custodians to terminate certain employees where either an internal investigation or a criminal proceeding suggested that serious improprieties had occurred. For example, in a memo (Resp. Ex. D) dated December 23, 1999, Senior Director James Lonergan wrote to a Bronx custodian, "Due to the serious nature of the charges, you are hereby directed to terminate the above-named employee, without pay, effective immediately." Where the Board ordered the custodians to terminate workers and the workers succeeded in obtaining monetary awards pursuant to an arbitration, the Board paid for those awards (albeit reluctantly, according to respondent's witnesses).