IN THE MATTER OF THE ARBITRATION BETWEEN:

ONONDAGA COUNTY DEPUTY SHERIFFS'

- and - NYPERB Case No.

ONONDAGACOUNTYANDSHERIFF
OF ONONDAGA COUNTY
Discipline-Kevin Drumm

Syracuse, New York

APPEARANCES:

For the Grievant

Mimi Satter, Esq.

For the Employer

Thomas Kutzer, Esq.

I. BACKGROUND

The above named Union and Employer are parties to a collective bargaining

agreement that provides for the arbitration of unresolved disputes that may arise during

the term of the Agreement. Under the Union's internal rules, the Union does not provide

representation for grievants in cases of alleged off-duty misconduct. At the hearing in

Syracuse, New York on March 19, 2019, the parties could not agree to a stipulated issue.
The Employer argues that the issue should properly be stated as: "Is the 21-day

suspension of Grievant for just cause pursuant to Article 17 of the Parties' Collective

Bargaining Agreement based on the Notice and Specification of Charges dated October

10, 2017?" The Grievant argues that the issue should properly be stated as: "What

penalty, if any, is appropriate for the events of October 6, 2017 under the just cause

standard of the collective bargaining agreement?

After analyzing the testimony and evidence presented at the hearing as well as the

parties' post-hearing briefs, the Arbitrator concludes that the issue properly presented is:

"Did the District violate Article 17 of the Parties' Collective Bargaining

Agreement, specifically the provision indicating that a member may be

disciplined only for just cause? If not, what shall the remedy be?"

The relevant provisions of the collective bargaining agreement cited by the parties

state:

ARTICLE 4 County Management

The Association agrees that the County of Onondaga and/or the County
Legislature and the Sheriff, hereinafter known as the Employer, shall retain complete
authority for the policies and administration of all County departments, offices or
agencies which it exercises under the provisions of iaw and the Constitution of the State
of New York and/or the United States of America and in fulfilling its rights and
responsibilities under this agreement. Any matter involving the management of
governmental operations vested by law in the Sheriff and not covered by this agreement
is in the province of the Sheriff.

The rights and responsibilities of the Employer include, but are not necessarily limited to
the following: (1) to determine the standards of service to be offered by its offices,
agencies, and departments; (2) to direct, hire, promote, appraise, transfer, assign, retain
employees and to suspend, demote, discharge or take disciplinary action against
employees; (3) to relieve employees from their duties because of lack of work or for

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other legitimate reasons; (4) to maintain the efficiency of government operations
entrusted to them; (5) to determine the methods, means and personnel by which such
operations are to be conducted; ( 6) to take whatever actions may be necessary to carry
out the mission, policies or purposes of the department, office or agency concerned; (7) to
establish any reasonable rules and regulations; (8) to establish specifications for each
class of positions and to classify or reclassify and to allocate or reallocate new or existing
positions.

The Association further agrees that the provisions of this Article are not subject to the
grievance procedures as set forth herein unless in the exercise of said rights and
responsibilities the Employer has violated a specific term or regulation of this agreement.

Article 17 Discipline and Discharge

In all cases where a hearing officer is to be appointed by the Sheriff pursuant to Section
75 of the Civil Service Law of the State ofNew York, the sheriff agrees to provide
members with the options to elect either (a) or (b) as set forth below:

1.

* * *
B. Binding Arbitration- the member may elect to continue to proceed under Step
4 of Article 29 of this agreement. ... In addition, the arbitrator shall be limited to
determining if the member has been disciplined for just cause and if so, the appropriate
penalty to be imposed. The decision of the arbitrator shall be final and binding upon the
member and the Sheriff, subject to Article 75 of the CPLR.

The relevant provisions of the Departmental Duty Manual state:

Section 1.1 :

Members shall know and comply with all rules of conduct, regulations,
procedures and directives established under the authority of the Sheriff.
Negligence, reluctance or failure to comply will make a member subject to
disciplinary action. Provisions of any article, rule or procedure may be waived at
the discretion of the Sheriff.

Section 3.26:

Members shall, whether on or off duty, conduct themselves in a professional

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 The Employer called one witness, Undersheriff Jason Cassalia. Mr. Cassalia

testified that following an October 6, 2017 incident involving the Grievant, Mr. Drumm,

charges were brought on October 10 based on what was known at that time, although an

investigation by the Internal Affairs Division continued. The October 10 notice and

specification of charges (Joint Exh. 2) cited Sections 1.1 and 3.26 of the Departmental

Duty Manual. There were two specifications, each stating that Mr. Drumm was involved

in a property damage motor vehicle accident on October 6 and left the scene and

separately citing the two sections o~ the Departmental Duty Manual. A letter to Mr.

Drumm dated October 10, 2017 and signed by the Sheriff's Office Human Resources

Manager Maureen Murphy stated that he was suspended without pay for a period of

twenty-one calendar days and that he was to contact her on October 27 for his post-

suspension assignment.

Mr. Cassalia further testified that he was the person who had the fmal say on

determining the charges and penalty on October 10, and that while he originally

determined that a 30-day suspension would be appropriate, the suspension was reduced to

21 days so that the Grievant's health benefits would not lapse. In addition, Mr. Cassalia

testified that the suspension was reasonable because the Grievant had left the scene of a

significant motor vehicle accident and that his off-duty misconduct was contrary to the

public expectation regarding police honesty and affected his ability to do his job.

On cross-examination, Mr. Cassalia testified that he was contacted on the night of

the incident at some time between 9:00 and 10:00 p.m. by Chief Ciciarelli who told him

that no one had been hurt in the accident and that the grievant had been drinking but did

not appear to be intoxicated. Mr. Cassalia further stated that he did not go to the scene

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and had no personal knowledge as to whether alcohol was involved and did not know

whether Mr. Ciciarelli went to the scene. In addition, Mr. Cassalia testified that when he

spoke to Mr. Drumm on October 7, he told him that the incident could be very impactful

on his career or just a "bwnp in the road.,

On further cross-examination, Undersheriff Cassalia testified that he did not

remember whether he told union representatives during his October 10 meetings with

them that the penalty would be limited to suspension and whether the grievant would be

required to attend an alcohol rehabilitation program, although he stated that by that point

he had learned that the Grievant had gone off the road, which was the reason for the

continuing investigation. Mr. Cassalia testified that there were a lot of press and public

inquiries concerning the incident. In addition, Mr. Casssalia testified that he did not

remember imposing any additional penalties on the grievant. Mr. Cassalia further

testified that he did not remember having any conversations with Mr. Drumm concerning

his assignment to the Temporary Assignment Unit (TAU) on October 31 or how long he

was there, although he was eventually reassigned to the Property Unit after the

investigation was concluded.

In response to a question regarding Mr. Drumm's certificate of conviction for

leaving the scene of an accident on December 17, 2018, Mr. Cassalia testified that

leaving the scene of an accident is a traffic infraction akin to speeding or running a red

light and that he did not know offhand of any other police officer who had received a 21-

day suspension for such an infraction, although such suspensions have been imposed for

other violations of the duty manual.

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 With regard to the TAU, Mr. Cassalia testified that the use of the unit had been

fOlmd legal and that he did not know if the unit is considered a punishment, but that Mr.

Drumm would not have been eligible for overtime or parking reimbursement while

working in the unit and that he did not know how holiday pay was treated for officers in

the unit.

With regard to the misdemeanor charges for criminal mischief in the fourth

degree brought against Mr. Drumm on November 9, 2017, Mr. Cassalia testified that he

was a part of a group that included the sheriff and the chief of police that reached the

decision to bring the charges for criminal mischief in the fourth degree after a full

investigation. The charges stated that on October 6, 2017, Mr. Drumm recklessly

damaged a mailbox, lawn and driveway by driving off the roadway on Route 80 in his

partially disabled truck and driving around the property in an attempt to leave (Exh.

Drumm 1). Mr. Cassalia testified that the property owner did not want charges brought

against Mr. Drumm and that he did not know of anyone else who had been charged with

criminal mischief in the fourth degree for property damage.

Mr. Cassalia also testified with regard to a number of other instances involving

other officers who had been disciplined following earlier incidents. Mr. Cassalia stated

that one officer, Daniel Myers, had received a three-day suspension and a loss of two

vacation days for leaving the scene of an accident, although he did not recall if Mr. Myers

had been assigned to the TAU. Mr. Cassalia had limited knowledge with regard to two

other employees who had been disciplined in earlier cases.

On re-direct, Mr. Cassalia testified that he did not know who brought up the

subject of an alcohol rehabilitation program for the Grievant, but that he thought it was a

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good idea, although it was not part of the 21-day suspension for Mr. Drumm's off-duty

misconduct. In addition, Mr. Cassalia testified that the sheriff had discretion to determine

whether an employee would be allowed to do outside work and that there was an ongoing

investigation of the Grievant until the misdemeanor charge was adjudicated. Mr. Cassalia

further testified that with regard to a permit for outside work, he did not know whether

Mr. Dnunm had a work permit or the details of his conversation with a union officer

about the subject or whether he had spoken to the sheriff about the matter.

Jeffrey Passino, detective and Union president, testified that he met with Mr.

Cassalia on October 10, following the incident, and that Cassalia told him that Drumm

may have a drinking problem and suggested that he attend an alcohol rehabilitation

program. Mr. Passino further testified that he thought the 30-day suspension, which was

reduced to 21 days and was dependent on Drumm attending a rehab program, was a good

deal. In addition, Mr. Passino testified that Mr. Drumm told him that he did not have a

drinking problem, but nevertheless agreed to attend a rehabilitation program if necessary.

Mr. Passino further testified that in a subsequent meeting at headquarters with Mr.

Cassalia and the Grievant, he understood that Mr. Drumm was to begin his rehab

program that day, he would receive a 21-day suspension and would then be placed back

on patrol. In addition, Mr. Passino testified that a residential alcohol rehabilitation

program near the Grievant' s home was found on that day and that Mr. Drumm

successfully completed the program in 14 days

With regard to Mr. Drumm's subsequent assignment to the TAU, Mr. Passino

testified that he believed that the TAU was disciplinary, that no productive work was

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done there, that all employees assigned to the TAU were subject to discipline and that

they did not receive overtime or holiday pay.

At another meeting that he attended with Mr. Cassalia and Mr. Drumm about one

month after the October 10 meeting, Mr. Passino testified that Mr. Cassalia told the

Grievant that he had no integrity, that he would not be allowed to return to road patrol

duty and suggested that he look for work elsewhere. Mr. Passino further testified that he

told Drumm not to resign and that Mr. Drumm was then arrested on the misdemeanor

charge for the property damage he had caused. In addition, Mr. Passino testified that he

had never arrested anybody on such a charge and noted that what made it worse was that

the person whose property was damaged did not want Mr. Drumm prosecuted and there

was no estimate of the damages. Mr. Passino testified that at the meeting, Mr. Cassalia

told him with regard to Drumm's assignment to TAU, that he did not recall that the

penalty to the Grievant would be limited to a 21-day suspension and that Mr. Cassalia did

not make all of the decisions, leaving Mr. Passino with the impression that the sheriff had

overruled the undersheriff.

Mr. Passino further testified that about two to three months after the November

meeting, he spoke to Mr. Cassalia again about removing the Grievant from the TAU, and

was told by Cassalia that he would speak to the sheriff. Mr. Drumm was eventually

moved from the TAU to the Property Unit in May 2018 around the time the TAU was

converted into a makeshift office. In addition, Mr. Passino testified that he had spoken to

Mr. Cassalia about getting a permit for Mr. Drumm to allow him to do outside work

again and was told by Mr. Cassalia that he had never beard about the· permit being

revoked and that he was told by Mr. Drumm that his application had been denied.

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 Mr. Passino further testified that another officer, who was intoxicated when he hit

another car on the side of the road, John Rosello, had received a 30-day suspension, was

not placed in the TAU and was not required to go into an alcohol rehabilitation program.

On cross-examination, Mr. Passino testified that that it was Mr. Cassalia who

wanted him to get Mr. Drumm into an alcohol rehabilitation program and that it was not

his idea. In addition, Mr. Passino testified that he was aware of the ongoing investigation

of Mr. Drumm when he agreed to the 21-day suspension and that the assignment of Mr.

Drumm to the Property Unit was a proper assignment.

The Grievant, Kevin Drumm, testified that the misdemeanor charge was dropped

in December 2018 by the Tully Town Court after he pleaded guilty to the original charge

of leaving the scene of an accident, paid a $250 fine and a $93 surcharge, hired an

attorney and spent approximately $2500 and after several adjournments at the request of

the prosecution. Mr. Drumm further testified that there were a number of other losses he

bore from the Department's refusal to permit him to do outside work and his placement

in the TAU. These included approximately $9000 per year based on his tax receipts for

his outside work due to the loss of his permit and the loss of his badge and gun while he

was in the TAU. In addition, Mr. Drumm testified that while he got his badge and gun

back when he was placed in the Property Unit on May 22, 2018, he was told that he

would not receive his work permit due to the internal charges. Mr. Drumm further

testified that he was not allowed to work on holidays while he was in the TAU, believed

that he may have lost some overtime that became available after January 1, 2018 and was

required to pay $35 per week for parking because free parking was not available for

members of the TAU.

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 On cross-examination, Mr. Drumm testified that he had told the internal affairs

investigators that he did not realize he had sideswiped another vehicle, but thought he had

hit debris in the road when he had taken his eyes off the road to pick up some food that

had fallen to the floor of his truck, and that he realized that what he did was wrong. In

addition, Mr. Drumm testified that his truck was damaged as well but that he did not stop

at that time. Mr. Drumm further testified that he had four or five beers in the three hours

prior to the accident, but that he was not charged with driving while intoxicated, that he

had passed the alcohol testing he was given and was told that alcohol was no longer a

factor in the investigation.

Melissa Berlinski, Union treasurer, testified that she was the person who found

the alcohol rehabilitation program that the Grievant attended after being told by the

undersheriff, Mr. Cassalia, to put Mr. Drumm into a program that day and after making a

number of calls before finding an opening for the grievant.

II. CONTENTIONS OF THE PARTIES

The Union

The Grievant argues first that the County could not prove that the Grievant

committed work-related misconduct and that the level of discipline was appropriate, as

required by the "just cause" standard.

The Grievant argues that the 21-day suspension was conditioned on immediate

rehabilitation treatment and that the Union made great efforts so that Mr. Drumm could

receive such immediate treatment and contends that only the conditional nature of the

offer would have resulted in the Union making such efforts. The Grievant further argues

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that the testimony of the witnesses called on his behalf consistently demonstrate that they

all understood that there would be no additional discipline, unlike the testimony of

Undersheriff Cassalia, the Employer's only witness, who claimed not to recall the details

of the Employer's offer. The Grievant maintains that Mr. Drumm fulfilled his end of the

bargain while the Employer did not, requiring that the suspension be eliminated entirely

or reduced with the appropriate backpay.

With regard to the misdemeanor charge brought against Mr. Drumm, the Grievant

argues that although Mr. Cassalia stated that Mr. Drumm had been dishonest during the

investigation, he did not explain why no additional disciplinary charges were brought or

why the misdemeanor alleged criminal mischief, not dishonesty, although the "victim"

did not want Mr. Drumm to be prosecuted. The Grievant contends the charge was an

attempt to further punish the Grievant following press coverage of the Employer's

perceived mishandling of the investigation and was merged into a guilty plea to the

original infraction after the sheriff's re-election. The Grievant maintains that the Sheriff

used its unique function as a law enforcement agency to further punish Mr. Drumm and

that he should be made whole for damages related to the unjust issuance of the

misdemeanor charge, including the $2500 in attorneys' fees he incurred.

With regard to the Grievant's assignment to TAU, the Grievant argues that Union

President Passino credibly testified that the TAU is a form of punishment that required

disciplined employees to sit in a windowless room for eight hours each day reading duty

manuals without access to a phone or computer and was a waste of Employer money and

resources. The Grievant contends that while use of the TAU is legitimate for unit

members facing disciplinary action under the 2011 PERB decision cited by the

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Employer, in this case it constituted continued punishment for Mr. Drumm beyond his

agreed to 21-day suspension. The Grievant notes Mr. Cassalia's testimony that he did not

know how long the Grievant stayed in the TAU and his later testimony suggesting that

the investigation of Mr. Drumm was not complete until the criminal mischief charge was

resolved in November 2018, approximately six months after he was transferred from

TAU to the Property and Evidence unit. The Grievant contends that Mr. Cassalia's

"muddled and ambivalent testimony" resulted from the Employer's belated realization

that to the extent that it argued that PERB recognized TAU as a legitimate duty

assignment for officers facing discipline, it had conceded that Mr. Drumm had been

subjected to punishment far beyond the 21-day suspension.

The Grievant additionally argues that Mr. Drumm is entitled to the holiday premium

pay he would have received under the collective bargaining agreement during the

approximately seven months that he was in the TAU that he did not receive as a member

of the TAU, where he was barred from working on holidays that fell on his regularly

scheduled days, thereby denying him from receiving premium pay under the Agreement.

The Grievant further notes that bargaining unit members are entitled to one and one-half

times their regular rate of pay for overtime hours worked and that officers in the TAU are

effectively barred from working overtime. The Grievant contends that Mr. Drumm is

therefore entitled to the average overtime worked by deputies during the time he was in

the TAU. The Union also contends that the Grievant should also be reimbursed for the

daily parking fee of$7 that he paid during the 33 weeks he was in the TAU.

The Grievant also argues that prior to October 2017, Mr. Drumm performed off-duty

security work providing him with about $9000 per year, as indicated by his 2016 and

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20 17 tax records, and that he would have continued doing that work if he had not lost his

outside work pennit. The Grievant maintains that although the Agreement permits

outside work, Mr. Cassalia testified that the ultimate decision to approve a work permit is

in the Employer's sole discretion and that he makes the decision on behalf of the sheriff.

The Grievant argues that Mr. Drumm's testimony clearly shows that he had not received

his work permit despite his application for a permit after being released from the TAU,

and that this refusal constitutes additional punishment inflicted upon the Grievant.

The Grievant also contends that he suffered humiliation as a result of having his gun

and badge taken away after the incident and not being returned until he left the TAU,

although he recognizes that relief for pain and suffering is not available in arbitration. Mr.

Drumm argues that other than his mistake in taking his eyes off of the road momentarily, ·

he has done everything he was supposed to do, including truthfully telling the officers at

the scene of the accident what had happened. The Grievant further contends that he has

been accused of dishonesty without any formal charges being made.

In addition, the Grievant argues that his punishment has been vastly disproportionate to

punishment meted out in similar cases. As an example, Grievant cites a 2015 incident

involving Deputy Daniel Myers in which he received discipline for leaving the scene of a

fatal hit and run accident in which both he and the driver were suspected of drinking and

he received a penalty of three days suspension and loss of two vacation days. The

Grievant also cites an incident involving Deputy John Rosello in which Mr. Rosello was

charged with driving while intoxicated after striking and damaging a tractor trailer and

received a 30-day suspension but was not required to check into an alcohol rehabilitation

program. The Grievant notes that in both instances Undersheriff Cassalia could not

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remember whether the officers were placed in the TAU. The Grievant argues that an

examination of the incidents demonstrates that any shortcomings on his part pale in

comparison to those of the deputies who received lesser discipline, and that the difference

in this case was that there was media coverage of the County Sheriff's investigation and

the perception that he received special treatment.

Finally, the Griev.a nt argues that he is not responsible for any perceived mishandling

of the investigation by the County Sheriff. Mr. Dnunm contends that any adverse media

coverage of the investigation relates to the inner workings of the County Sheriff and

cannot be attributed to him, and that he should not be punished for events over which he

had no control.

The Grievant maintains that he should be made whole for all of his losses and be

given the opportunity to return to the Road Patrol Unit if he so desires and that the

Arbitrator should retain jurisdiction in the event that the parties are not able to agree on

the amount of make-whole relief.

The Employer

The Employer argues first that the Grievant violated both Section 1.1 and Section

3 .26 of the Departmental Duty Manual and that by pleading guilty in court, he

acknowledged both the violation of Section 3.26 and the violation of the law. The

Employer further argues that while leaving the scene of an accident is inappropriate for

anyone, it is particularly inappropriate for a deputy, whose duties and responsibilities

include arresting people who do exactly what he did. In addition, the Employer argues

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that the heavy newspaper coverage of the accident and its aftermath brought public scorn

for the Grievant's misconduct.

The Employer further argues that the TAU has been recognized by PERB as a

legitimate assignment. OCSPA and County and OCSO, U-29713 (2011). The Employer

maintains that it has a practice of placing deputies in TAU for off-duty misconduct,

including criminal charges. In addition, the Employer cites the testimony of the Union

president that the Property Unit is an appropriate assignment. The Employer maintains

that Undersheriff Cassalia denied any deal made with the Union president and argues that

because the investigation was just beginning, the Grievant was placed in a rehabilitation

facility, and that additional fmdings of wrongdoing made him subject to additional

charges.

The Employer additi<i>nally argues that the 21-day suspension is not an unreasonable

penalty under the circumstances and must be upheld. The Employer maintains that the

Grievant's testimony concerning the original accident involving another large true~ that

he did not know that he hit someone, is disingenuous because the accident caused a part

to dislodge and a cracked axle. The Employer argues that the Grievant must have known

that he hit someone and that he was concerned about his physical state because of the

amount of beer that he had drank, causing him to try to escape. The Employer contends

that the damage to Grievant's car, causing him to lurch off the road, disrupted his escape.

The Employer further argues that a lesser penalty would have an effect on the morale

of officers who do not break the law when off-duty and contends that the Union's policy

of not representing members who are involved in such misconduct is insightful and

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arguably indicates that the Union has made a value judgment that it cannot support such

behavior.

ID. OPINION

As a preliminary matter, the Arbitrator determined that Grievant's discipline in

this ca_se went beyond the 21-day suspension to include his placement in the TAU and the

refusal to reissue a permit for security work. This determination is made because there is

simply no explanation for the Employer's actions other than its reaction to Mr. Drumm's

off-duty misconduct and press coverage of the incident and the subsequent investigation.

While placement of an employee in the TAU and refusal to issue or reissue work permits

are certainly determinations that the Employer may make under certain circumstances,

they are not a matter of unfettered discretion and are subject to the just cause provision.

Upon analysis of the testimony and documentary evidence produced in this case, it is

clear that additional penalties beyond the 21-day suspension were not for just cause and

that some but not all of the remedies requested by the Grievant are appropriate.

First, with regard to the 21-day suspension itself, there is nothing in the record of this

hearing requiring that the original suspension imposed by the Employer and agreed to by

Mr. Drumm be eliminated or reduced. Mr. Drumm admittedly left the scene of an

accident and admitted to such in court proceedings. Whether he did so purposely, as the

Employer contends, or mistakenly, as Mr. Drumm claims, his failure to stop and

.determine exactly what had happened is a serious breach of conduct, particularly for a

Road Patrol Unit deputy, whose job is to enforce the very law he was violating. The

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public and the press have a right to be alarmed by such misconduct even if it technically

amounts to a traffic infraction akin to speeding or running a red light.

Nor does the Grievant's argument regarding the misdemeanor charge brought against

him present an issue appropriate for remedy by an arbitrator under the just cause

provision. Whether or not the County Sheriff was justified in bringing such a charge, in

bringing the charge the County Sheriff was functioning as a law enforcement agency

rather than as an employer. Any claim for wrongful ptosecution and the attendant

damages it imposed upon the Grievant does not belong in the arbitral forum.

The Employer's placement of the Grievant in the TAU for a period of approximately

seven months provides a much stronger argument that the Employer violated the just

cause provision. As the Employer properly argues, the PERB decision cited gives it the

right to use the TAU under some circumstances and the Employer was within its rights to

place the Grievant in the TAU for a short period after his return to complete an

investigation, despite any belief on the part of the Grievant and the Union that the

Grievant would be placed back in the Road Patrol Unit upon the end of the suspension.

However, the right to utilize the TAU for employees being investigated for off-duty

misconduct does not mean that the Employer could indefinitely place employees in that

unit without consideration of the Agreement's just cause provision. Here there is no

evidence that the investigation of Mr. Drumm continued beyond the November 9 arrest

for misdemeanor criminal mischief in the fourth degree for an incident that the Employer

was aware of at the time it agreed to the original 21-day suspension. The uncontradicted

testimony as to the unusual nature of the charge and the fact that it was eventually

diropped further support the Grievant's argument that placement of the Grievant in the

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TAU for an additional six months to read duty manuals was additional discipline beyond

the 21-day suspension agreed to in discussions between the undersheriff and Union

representatives.

While there were many allusions in the testimony to the role that alcohol may have

played in the October 6 incident, dishonesty by the Grievant during the investigation and

press reaction to the incident and the subsequent investigation, there was no evidence

produced by the Employer at the hearing as to any continuing alcohol problem the

Grievant may have had following his successful completion of the rehabilitation program,

the nature of the Grievant's dishonesty discovered in its investigation or how press

reaction would have made it impossible to return Grievant to any unit other than the

TAU. Nor did the testimony concerning other employees involved in off-duty incidents at

least as serious as the Grievant's show a consistent policy of placing such officers in the

TAU for an extended period.

Similarly, the Department did not present any reason for denial of Grievant's request

for reissuance of a secondary work permit following his release from the TAU. Like the

extended period of time that Grievant was kept in the TAU, the refusal to allow Mr.

Drumm to engage in secondary security employment may reasonably be seen as

additional discipline and is therefore subject to the just cause provision. Since no valid

explanation for the Department's refusal was presented to the Grievant after he applied

for the permit and no reason was presented at the hearing, there has been no just cause

shown for adding this discipline in addition to to the 21-day suspension originally

imposed, particularly since there is no nexus shown between the incident leading to the

discipline and the Grievant's outside employment.

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 With regard to remedies, the Grievant's request for holiday pay and overtime he would

have received had he not been kept in the TAU after completion of the investigation is

reasonable since they are benefits that are generally received and can be calculated

without too much difficulty. Parking fees that the Grievant incurred because of his

assignment to the TAU are also easily calculable. Similarly, the amount of secondary

work that grievant would have done if he had not been denied a work permit for

secondary security work can also be calculated on the basis of recent tax returns.

However, Grievant's request for attorneys' fees is denied because there is neither a

contractual nor statutory basis in this case for attorneys' fees and no evidence of

Employer misconduct that can be categorized as clearly willful or egregious. Similarly,

there is no basis for ordering the Grievant to be reassigned to the Road Patrol Unit

because the Employer generally has the right to right to transfer and assign employees

between units not established specifically for employees who are subject to disciplinary

action and investigation.

AWARD

The Employer violated Article 17 of the Parties' Collective Bargaining

Agreement, specifically the provision indicating that a member may be disciplined only

for just cause. The grievance is therefore upheld. The Employer is ordered to reimburse

Grievant for lost holiday days and overtime he would have received as an employee in

the Property Unit or other unit from November 9, 2017 to May 22,2018, as well as the

cost of his parking fees during that period. The Employer is also ordered to reissue a

work permit to Grievant in order to allow him to again engage in outside security

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employment. In addition, the Employer is ordered to reimburse Grievant for the amount

of money he would have received, based on his tax records for the prior two years, for his

secondary employment from November 9, 2017 to the date on which he receives his

secondary employment permit. The Arbitrator retains jurisdiction for the limited purpose

of deciding any issues that may arise pertaining to the remedy.

AFFIRMATION

STATE OF NEW YORK)

The undersigned, under penalty of perjury, affirms that he is the Arbitrator in the within
proceeding, and signed same in accordance with the arbitration law of the State ofNew
York.

Howard J. Stiefel, Arbitrator

May 12,2019

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