AMERICAN ARBITRATION ASSOCIATION In the Matter of the Arbitration : Re: Ol 17 0003 0535 (Usher Piller} between THE PUBLIC EMPLOYEES FEDERATION (AEL-CIO), DECISION AND and - AWARD THE STATE OF NEW YORK (NYS Office of Temporary and Disability Assistance) BEFORE: Mary L. Crangle, Arbitrator APPEARANCES: For the Union: John F. Kershko, Esq. For the Employer: John T. Nieckar2 111, Human Resources Specialist 2, Labor Relations Peter NW. Sinclair, Associate Counsel, Office of Legal Affairs The Public Employees Federation ("PEF” or “Wnion”) is the collective bargaining representative of a unit of professional, scientific and technical services employees working for the State of New York, including those holding the title of Management Specialist 2. PEF and the State ofNew York (“State”) are parties to a collective bargaining agreement (“Agreement”) that, in relevant part, provides for the arbitration of unresolved disciplinary grievances. Pursuant to that Agreement, the parties appeared before the undersigned Arbitrator on November 7, 2017, February 12, 2018, April 19, 2018, August 27, 2018, November 6, 2019, November 12, 2019 and November 13, 2019 for hearings on the grievance described below." The arbitrator was selected pursuant to the procedures set forth in the Agreement. The parties presented evidence and argument, engaged in the examination and cross- examination of sworn/affirmed witnesses, and otherwise supported their respective positions.’ The record was declared closed on January 7, 2020 upon the arbitrators receipt of the parties’ post-hearing written submissions. The Grievant, Usher Piller (“Grievant” or “Piller”) is employed as a Management Specialist 2 in the New York State Office of Temporary and Disability Assistance (“OTDA"). The Grievant is assigned to an OTDA office in New York City ' In addition I conducted an in person conference with the parties’ representatives on July 26, 2018 to address evidentiary issues. The hiatus in hearing dates between August ‘of 2018 and November of 2019 was due to the unavailability of the Grievant's counsel during that time. ? On November 11, 2019] issued an Interim Decision in writing in this matter reaffirming my oral ruling sustaining the Gricvant’s objection to the use of his swipe records in this proceeding. [ incorporate this Interim Decision in my Decision and ‘Award herein,where he works in the program integrity unit, investigating clients te detect amy receipt of duplicative benefits. The Grievant has 38 years of service and no disciplinary record.* He is also a union representative. The Grievant was served with a Notice of Discipline dated March 23, 2017 that reads as follows:? NOTICE OF DISCIPLINE 1) You are guilty of misconduct for violating OTDA's Electronic Mail Use Policy, found in Chapter 4, Section 8, of OTDA's Administrative Policies and Procedures Manual (APPM), which states that, “Office e-mail service is provided exclusively for necessary business and not for the personal use of employees” and “excessive personal use of e-mail of use of e-mail for private business or employment may subject employees to disciplinary action.” Specifically, from March 25, 2016 through March 19, 2017, you used the Office’s e-mail to draft, send and/or receive approximately 6,176 e-mails, which were for your personal use and/or private business. (Copies of which are attached as “Exhibit a.”) 2} You are guilty of misconduct for violating OTDA’s Proper Use of State Equipment policy found in Chapter L, Section 35 of the APPM which states that, “OTDA computers shall be used only for official state business”. Specifically, from March 25, 2016 through March 19, 2017, you used your state-issued computer to draft, send and/or receive approximately 6,176 e-mails, which were * While the State alleged in its closing arguments that the Grievant had previously been the subject of NODs issued in 1988 and in 1998, no evidence of this was ineluded in the record, and find no reference to such in State Exhibit 25 in evidence, “The Grievant raised a number of procedural issues by Motion to Dismiss at the hearings concerning service of the NOD including allegations that the Grievant was not served with two copies of the NOD and that the exhibits neferenced therein were served electronically by flash drive, I denied the Motions and reiterate my decision herein3) 4) 5) not official State business. (Copies of which are attached as “Exhibit A.”) You are guilty of misconduct for violating OTDA’s Proper Use of State Equipment policy found in Chapter 1, Section 35 of the APPM which states that, “OTDA computers shall be used only for official state business.” Specifically, from March 25, 2016 through March 13, 2017, you created, opened, or modified 226 files on your state-issued computer and/or network drive which were not for official State business. (The names and locations of these files are identified in the Excel Spread Sheet attached as “Exhibit B.”) You are guilty of insubordination for failing to follew directives te not use the Office's email service and State’s equipment for union related activities. On February 12, 2013, Andrew Georgiades, directed you to not use the Office's equipment for union business. on January 13, 2011, Andrew Georgiades sent you an email directing you to refrain from using agency issued equipment to conduct union business. On January 27, 2000, Gary Martinus sent you a memo directing you to cease use of the Agency’s email system to circulate correspondences among union members Specifically, from March 25, 2016 through March 19, 2017, you drafted, sent and/or received union related emails using the Office's email service. (Copies of which are included in the “Exhibit A.”) Specifically, from March 25, 2016 through March 15, 2017, you created, opened, modified or saved 186 files on your state-issued computer and/or network drive and which were union related. (The names and locations of these files are identified in the Excel Spread Sheet attached as “Exhibit B.”) You are guilty of misconduct for violating OTDA's Time Card Processing policy found in Chapter 1, Section 26 III(C) of the APPM which states that, “Employees are responsible for the maintenance of their own attendance yecords (time card or Time and Accrual Record). They are required to account for arrivals and departures by assuring that the hours on the attendance record accurate reflect the working hour for each day.”6) 7) 8) Specifically, from March 24, 2016 to March 8, 2017, the attendance records (a.k.a. timesheets, time cards or time and accrual records} you completed and submitted did not accurately reflect your arrivals and/or departures and the hours you worked on the dates identified in the Excel Spread Sheet attached as “Exhibit c.” You are guilty of misconduct for violating OTDA's Attendance and Leave policies found in Article III (1) of OTDA's Employee Handbook, which states that, “The time and accrual record is the legal document upon which the paycheck is based. Any falsification of the record is a serious offense and is grounds for disciplinary action”. Specifically, from March 24, 2016 to March @, 2017, you falsified your time and accrual records (a.k.a. timesheets, time cards or attendance records) when you certified that you worked hours that you did not work on the dates identified in the Excel Spread Sheet attached as “Exhibit C.” You are guilty of misconduct as defined in Chapter 3, Section 1 (IV) of the APPM which states that, miscenduct includes “such acts as . . . fraudulent practices.” Specifically, you knowingly completed and submitted an attendance record (a.k.a. timesheet, time card, or time and accrual record) in which you represented that you worked 7.5 hours on August 17, 2016, in erder to obtain a tinancial benefit, when in fact, you did not work at all that day. You are guilty of misconduct as defined in Chapter 3, Section I({IV) of the APPM which states that, misconduct includes “such acts as . . . fraudulent practices.” Specifically, you intentionally completed and submitted attendance records (a.k.a. timesheets, time cards or time and accrual records) in which you misrepresented your hours worked in order to obtain financial benefit, to wit, from December 23, 2016 to Maren 3, 2017, you represented on your attendance records that you worked hours that you did not work on the dates identified in the Excel Spread Sheet attached as “Exhibit C.”Your misrepresentations were intentional because on December 22, 2016, your supervisor, Andrew Georgiades, directed you to arrive in the office at your work station on time (9:30 a.m.) each day and to leave the office per your work schedule ("-Th. 6:30 p.m. and Fridays 1:00 p.m.}. Mr. Georgiades also informed you that when arriving late you should submit your leave requests timely and you were no longer allowed to “stay late” to make up for your late arrivals 9) You are guilty of misconduct for violating Section 175.05(L)of the Penal Law of the State of New York, entitled, “Falsifying Business Records in the Second Degree” which states that: “A person is guilty of falsifying business records in the second degree when, with intent to defraud he: makes or causes a false entry in the business records of an enterprise.” Specifically, with intent to defraud your employer, you completed and submitted an attendance record (a.k.a. timesheet, time card, or time and accrual record) in which you represented that you worked 7.5 hours on August 17, 2016, when in fact, you did not work at all that day. 0} You are guilty of misconduct for violating Section 175.05(1)of the Penal Law of the State of New York, entitled, “falsifying Business Records in the Second Degree” which states that: “A person is guilty of falsifying business records in the second degree when, with intent to defraud he: makes or causes a false entry in the business records of un enterprise.” Specifically, with intent to defraud your employer, you submitted falsified attendance records (a.k.a. timesheets, time cards, or time and accrual records} from December 23, 2016 to March 8, 2017, in which you represented that you worked hours that you did not work on the dates identified in the Excel Spread Sheet attached as “Exhibit Cc.” You are subject to discipline for your misconduct based on Article II, Section @ of OTDA’s Smployee Handbook which states that, “Employees are required to obey all federal, State and local laws . . . Any violation of law and/or policy may result in disciplinary action.”Your actions demonstrate an intent to defraud because on December 22, 2016, your supervisor, Andrew Georgiades, directed you to arrive in the office at your work station on time (9:30 a.m.) each day and to leave the office per your work schedule (M-Th. 6:30 p.m. and Fridays 1:00 p.m.). Mr. Georgiades also informed you that when arriving late you should submit your leave requests timely and you were ne longer allowed to * late” to make up for your late arrivals. 11)You are guilty of misconduct for vielating Section 175.35(1) of the Penal Law of the State of New York, entitled “Offering a False Instrument for Filing in the First Degree” which states that: “a person is guilty of offering a false instrument for filing in the first degree when: knowing that a written instrument contains a false statement or false information, and with intent te defraud the State . he or she offers or presents it to a public office . . . with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office.” Specifically, with intent to defraud your employer (the State of New York) you offered or submitted an attendance record (a.k.a. timesheet, time card, or time and accrual record) knowing that it contained false information, to wit, that you worked 7.5 hours on August 17, 2016, when in fact, you did not work at all on that aay. 12)You are guilty of misconduct for violating Section 175.35(1) of the Penal Law of the State of New York, entitled “Offering a False Instrument for Filing in the First Degree” which states that: “a person is guilty of offering a false instrument for filing in the first degree when: knowing that a written instrument contains a false statement or false information, and with intent to defraud the state . . . he or she offers or presents it to a public office . . . with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office.” Specifically, with intent to defraud your employer (the State of New York) you offered or submitted attendance records (a.k.a timesheets, time cards, or time andaccrual records) from December 23, 2016 to March 8, 2017, in which you represented that you worked hours that you did not work on the dates identified in the Excel Spread Sheet attached as “Exhibit C.” Your actions demonstrate an intent to defraud because on December 22, 2016, your supervisor, Andrew Georgiades, directed you to arrive in the office at your work station on time (9:30 a-m.} each day and to leave the office per your work schedule (M-Th. 6:30 p.m. and Fridays 1:00 p.m.}. Mr. Georgiades also informed you that when arriving late you should submit your leave requests timely and you were no longer allowed to “stay late” te make up for your late arrivals. 13)¥ou are guilty of insubordination for failing to follow directives concerning the hours you are permitted to be in the workplace. Specifically, on December 22, 2016, your supervisor, Andrew Georgiades, directed you te arrive in the office at your work station on time (9:30 a.m.) each day and to leave the office per your work schedule (N-Th. 6:30 p.m. and Fridays 1:00 p.m.}. In disregard of this directive, you arrived at the workplace before your official start time, and/or remained in the workplace after you official end time on the dates identified in the Excel Spread Sheet attached as “Exhibit c.~ Despite many attempts on the part of your supervisor and matiayers to assist you in correcting your patterns of misconduct, your behavior has continued, unabated. Your personal actions described above constitute misconduct and a significant breach of trust. As a result, termination of your employment is the only appropriate penalty. The Grievant as also suspended without pay on March 20, 2017, amended by the employer to April 13, 2017, the date of service of the Notice of Discipline, because “a determination was made that there is probablecause that your continued presence on the jeb represents @ potential danger to persons or property or would severely interfere with operations”. A timely grievance was filed by the Union contesting the Notice of Discipline as well as the immediate suspension and the instant proceeding ensured. The parties agreed that the following are the issues to be decided by me in this matter 1, Did the employer prove quilt of the charges and just cause to discipline the grievant as alleged in the NOD dated March 23, 2017? 2, If so, what, if any, penalty is appropriate? 3. Did the employer prave probable cause to suspend the grievant without pay effective March 20, 2017 {amended by the Employer to april 19, 2017)? DECISION The Charges in this matter can be divided into two eategories. Charges 1 through 4 concern the Grievant's alleged improper use of State equipment, and particularly his use of his OTDA computer and GTDA e-mail for other than official business. Charges 5 through 13 concern theGrievant's alleged misconduct with respect to his time and attendance. I will address these categories separately. The credible evidence in this matter substantiates the allegations in Charges 1 through 4 that the Grievant sent or received over 6,000 emails over the one year period specified that had no relation to his employment. About one-third of these emails that the Grievant received were from many different subscription services such as The Jerusalem Post, the Albany Times Union, Capalbo’s Gift Baskets, Extended Stay, Iceland Review on Line, Linkedin, and Unity Coalition for Israel. None of these emails bore any relationship to the Grievant's job duties or the mission of OTDA, ‘The Grievant's use of his OTDA e-mail account to receive these emails was clearly improper. The Grievant was using his OTDA email address as if it were his personal account. This non-business use was contrary to OTDA policy and far exceeded the incidental or necessary personal purposes allowed by policy. The Grievant asserts that he should not be held responsible for many of these emails because they were unsolicited and/or they arrived in his inbox during non- work hours. I disagree. The Grievant had to have initially contacted these sites in order for the emails to continue Most, if not all, of these emails indicated that theGrievant was receiving them as a subscriber and offered the option of unsubscribing. The Grievant never availed himself of that opportunity and therefore the reasonable inference is that he sought and welcomed these emails into his OTDA email account. The timing of receipt is irrelevant. The Grievant also received and/or sent over 4,500 emails using his OTDA email account during the period cited in the NOD related to union matters that had nething to do with his employment at OTDA.' The Grievant was a Council leader for PEF during this time period. His union responsibilities included agencies other than OTDA, and namely the Office of Children and Family Services (“OCFS”) and the Office ef the Medicaid Inspector General (“OMIG“). The Grievant had both personal and PEF email accounts during this time period although he again used his ODA email account fer correspondence related to non-OTDA unien matters. His non-business use of his OTDA computer and email was contrary te OTDA policy and contrary to explicit directives he had been given not to use OTDA email for union activities. Finally the record evidence establishes that the Grievant used his OTDA email account for over 300 emails of * None of the emails that are at issue in this matter concem the Grievant's use of his OTDA computer for union issues related to OTDA matters. The State permitted such use. 11a personal nature during the time period cited in the NOD. Again, this personal use was contrary to OTDA policy and far exceeded the incidental or necessary personal purposes permitted by policy. Accordingly, I find that the State has proven by the requisite preponderance of the evidence the factual allegations in Charges 1 and 2 of the NOD and that the Geievant’s actions alleged therein constituted misconduct Charges 1 and 2 of the NOD are sustained. In Charge 3 the State alleges that the Grievant used his OTDA computer to create, apen or modify 226 files that were not work related. The record evidence establishes that these files contained such materials as photographs, articles, videos, personal correspondence, union documents and correspondence, union flyers and press releases, minutes of union meetings, as well as a number of files in a language other than English, none of which were related to the Grievant's job responsibilities. I find that the State has proven, by the requisite preponderance of the evidence, the factual allegations in Charge 3 and that the Grievant engaged in misconduct as a result. The Grievant’s conduct violated OTPA policy. Charge 3 is sustained. Charge 4 alleges that the Grievant was insubordinate when he used his OTDA computer for union activities during Rthe time period cited in the NOD after having been directed not to do so. The record evidence establishes that in February of 2013 the Grievant’s supervisor, Andrew Georgiades, met with the Grievant and informed him that he was not permitted to use of his work computer and work email address for union business. The Grievant had been previously warned to cease this conduct in January of 2011 and in January of 2000. Furthermore, the OTDA Administrative Policies and Procedures Manual (“APPM”) clearly states that OTDA computers are to be used only for official State business and that they may not be used for non-work related purposes including for personal purpeses or outside activities. The Grievant was reminded of this by bulletin number 15-08 sent to all OTDA employees, including the Grievant, on March 12, 2015, and again by bulletin 16- 10 on March $, 2016 and bulletin 17-8 on March 2, 2017. The Grievant was clearly aware of these policies yet blatantly chese to disregard them and was insubordinate as a result. The Grievant testified in this proceeding that he believed that all union communications are “official state business” and that there could be no lawful restriction en his use of his OTDA work computer te communicate about union issues, even those that are unrelated to OTDA. The Grievant further testified that he had “a good faith 1Bbelief” that his use of his OTDA computer and email for union related communications was justified and permissible. The Grievant is mistaken. If the Grievant believed that he should be permitted to use his OTDA computer and the OTDA e-mail system for non-OTDA union business, he could have used remedies available te him to contest the directives he was given. Rather, the Grievant simply decided that his employer’s policies and directives were not applicable to him and blatantly disregarded them. The State has proven by the requisite preponderance of the evidence that the Grievant was insubordinate as a result. Charge 4 is sustained. Charges 5 through 13 deal with the Grievant's time and attendance. During the time period at issue in the NOD, the Grievant was scheduled to work from 9:30 a.m. to 6:30 p.m. Monday through Thursday, and from 9:30 a.m. to 1:30 p.m. on Friday. The Grievant’s time and attendance records are maintained and completed by the Grievant for each pay period in an electronic system (“LATS”), and prior to May of 2016 were maintained in ACTS, and were expected to be accurate. Employees certify that their attendance records are accurate when they are submitted electronically. The testimony of the Grievant's supervisor establishes that the Grievant refused to adhere to his assigned schedule and 14routinely came in late, and then stayed late during the time peried at issue in the NOD. The Grievant did not dispute this testimony. The Grievant’s supervisor also testified that when he would confront the Grievant about coming in late, the Grievant would challenge him and then continue his pattern ef arriving well beyond his scheduled report time. The record evidence establishes that on December 22, 2016 the Grievant was informed in writing by Georgiades that he could not longer come in at 10:30 a.m. and stay late “to make up” his late arrival. The Grievant was specifically advised at that time to be at his work station on time at 9:30 a.m. and te leave the office in accordance with his scheduled departure time. He was also instructed to complete leave requests promptly if he came in late. The Grievant's time records for the period of time addressed in the NOD, and in evidence, indicate that on the days that the Grievant was at work, he arrived at 9:30 a.m. and departed at 5:30 p.m. The Grievant, however, acknowledged that he continued to adhere to his own preferred work schedule rather than the work schedule he was assigned and the work schadule he certified to as accurate on his time and accrual records. The Grievant acknowledged in his testimony that he continued te arrive 15at work at 10:30 a.m. rather than his assigned time of 9:30 a.m. because he needed that time to work on union related matters and he then would stay until 6:30 p.m. to make up the time. The Grievant further testified that, notwithstanding Georgiades’s December 16, 2016 directive, he believed that his preferred work schedule was acceptable since his time and accrual records were consistently approved. Again, the Grievant is mistaken. He received a directive that he failed, and refused, to follow. If the Grievant needed work time to engage in union activities, he could have requested such leave. If granted, it should have been So recorded on his time and accrual sheet, and not as time worked. Rather, the Grievant continued to complete his time and accrual sheets as though he was at work on OTDA business beginning at 9:30 a.m. and ending at 5:30 p.m. This was not accurate or truthful. As a Management Specialist 2 the Grievant was expected to not only comport his conduct to the directives of his supervisors, he was also expected to accurately record his time without having to be micromanaged. Accordingly, I find that the State has proven by the requisite preponderance of the evidence the allegations in Charges 5, 6 and & and that they constitute misconduct. Charges 5, 6 and 8 are sustained. 6The State failed to present any legally competent proof with respect to Charges 7, 9 and 11 and therefore withdrew these Charges in its post-hearing submission. Accordingly, Charges 7, 9 and 11 in the NOD are dismissed. I also dismiss Charges 10, 12 and 13 of the NOD since they allege criminal activity in violation of the state Penal Laws. I find that determinations of guilt or innocence in criminal matters are beyond my purview as a disciplinary arbitrator and thus these charges are not properly before me. Having sustained Charges 1, 2, 3, 4, 5, 6, and 8, I now turn to the matter of penalty. As set forth above, the Grievant is guilty of misconduct for using state resources for non-worked related purposes and for insubordinately continuing to do so despite having been directed to cease such use, The Grievant is also guilty of misconduct for failing to adhere to his assigned work schedule and for failing to accurately record his time worked on his time and attendance accrual records. The Grievant testified in this matter and I had the opportunity to observe not only his testimony but also his demeanor. It is clear that the Grievant believes he is justified in using his work computer and OTDA email for non-work purposes and that the State is precluded from restricting his use. The Grievant v7also clearly believes that he can set his own work schedule to accommodate his union activities. The Grievant's failure te recognize his misconduct or to change his conduct after specific direction to do se supports a severe penalty. However, I find that the proposed penalty of termination Jacks the requisite just cause. The Grievant is a long term employee with ne proven prior disciplinary record. There is no evidence that his unauthorized use of State resources, or hig failure to adhere to his assigned work schedule as proven, interfered with the performance of his assigned work duties. Accordingly I find that the appropriate penalty to be imposed in this matter is a six (6) month disciplinary suspension without pay. This penalty balances the State's legitimate concerns that the Grievant feels no obligation to abide by State policy or his employer’s directives, with the parties’ acknowledged commitment to progressive discipline. The Grievant is now clearly on notice that he must not use his OTDA computer or the OTDA e-mail system for non OTDA business, including union business unrelated to OTDA, and that he must adhere ta his assigned work schedule and accurately enter his time worked in the LATS system. If the Grievant repeats any of the conduct at issue in this NOD, he will be putting his future employment in jeopardy. 18.I now address the issue of the Grievant’s immediate suspension without pay. The Grievant moved for reinstatement after the State rested its case contending that the State lacked the requisite probable cause for immediate suspension as of April 13, 2017. I reserved on the motion at that time. After considering all the credible evidence in the record I find that the State lacked the requisite probable cause to suspend the Grievant without pay as of April 19, 2017. The allegations of misuse of state resources, and the allegations ef time and attendance abuses, did not establish the requisite probable cause that the Grievant’s continued prosence on the job at that time represented a potential danger te persons or Property or would severely interfere with operations as required by the parties’ Agreement. 1. The employer proved guilt of Charges 1, 2, 3, 4, 5, 6 and 8 as alleged in the NOD dated March 23, 2017 and therefore just cause to discipline the grievant. Charges 7, 9, 10, 11, 12 and 13 are dismissed in their entirety. 192. The appropriate penalty to be imposed is a six (6) month disciplinary suspension without pay. 3. ‘The employer did not prove probable cause te suspend the grievant without pay é¢ffective March 20, 2017 (amended by the Employer to April 19, 2017). Mag k, Coa Mary L. rangle Arbitrator Dated: February 3, 2020 I, MARY L. CRANGLE, do hereby affirm that I am the individual deseribed herein and whe executed this instrument, with is my Decision and Award. Muay Cearedle Mary ut les a February 3, 2020 20