Public Employee Press

Arbitrator reverses firing at DCAS,
awards $192,000 to Plant Tender

High Pressure Plant Tender José Doné won $192,000 when an impartial arbitrator ordered the Dept. of Citywide Administrative Services to reinstate him with salary and seniority retroactive to his firing in 2001.

Doné, a member of Motor Vehicle Operators Local 983, had been on the job over 12 years when DCAS fired him and two other employees for allegedly stealing time from their city jobs while moonlighting.

“Our member was fired without due process,” said John Daprile, the Local 983 vice president who worked on the case with labor lawyer Stuart Lichten. Doné moonlighted for Brooklyn Hospital, a private institution. The hospital’s lenient supervision policies allow its boiler room employees to change their own work schedules by swapping shifts with co-workers. Such “mutuals” were allowed as long as three people were on duty and the change did not create overtime.

Fired without a hearing
A city investigator found four instances of shift overlaps of 30 minutes where Doné was on the job at DCAS while his name was signed in at Brooklyn Hospital — presumably by a co-worker replacing him on a mutual.

“This may have irritated the City,” Daprile said, “but it was not their jurisdiction.” When DCAS fired Doné without a hearing, Local 983 dug in its heels to save his job. “We always stand by our members,” said Local President Mark Rosenthal.

The case dragged on for more than three years, bouncing from the Office of Administrative Trails and Hearings to the Civil Service Commission and into New York State Supreme Court, where Judge William Wetzel upheld the CSC’s reversal of OATH’s judgment against Doné.

The Supreme Court decision “gave us a shot at justice and was the deciding factor in winning back the member’s job,” Lichten said. Finally, Doné’s case was heard at the Office of Collective Bargaining. With no witnesses testifying otherwise, an OCB arbitrator concluded: “The City had not one scintilla of evidence, much less proof,” that Doné was not at his DCAS job.

The arbitrator ordered DCAS to reinstate the DC 37 member and pay him three and one-half years’ salary, plus the annual and sick leave and seniority he would have accumulated over that period.

“The City tried to blame Mr. Doné and DC 37,” Lichten said, “but in the end they simply could not prove their claims. We did not accept the agency’s decision to fire a member who had never been disciplined for attendance or performance in his 12 years as a city employee. We fought back and did everything the right way and we won.”

— Diane S. Williams