Since at least the late 1970's, DOCS has taken the position that it has the right to deny the reassignment of employees against where Notices of Discipline are pending. Such reassignments are normally made strictly by seniority and in the order of the employee's request. DOCS' refusal to let employees facing discipline reassign often places additional pressure on these employees to settle cases, particularly if the member was anxious to transfer out of the facility where the charges arose. As you know, disciplinary cases can pend for many months before they are resolved in arbitration.

Earlier this year, DOCS refused to allow the reassignment of an officer who was facing a non-termination NOD, even though she was next on the list for reassignment. NYSCOPBA grieved the refusal, alleging that refusing to reassign this officer because charges were pending against her violated Article 8 by imposing punishment without an arbitrator's ruling.

DOCS argued that Council 82 had consented to this practice. Although DOCS never produced any written agreement signed by Council 82, the past practice was indisputable. DOCS asserted only that it would, in certain cases, allow reassignments in its discretion. Under the new settlement agreement, which is attached, DOCS now must accord normal reassignment rights to all members facing non-termination disciplinary charges.

The settlement does not extend new protections to members facing termination charges. While there was a chance of winning this protection if we went to arbitration, we considered this a very risky strategy, particularly because of the long past practice favoring DOCS' position. Had we arbitrated, we felt there was a significant possibility that DOCS' position would be upheld and that we would be stuck with the current practice in all cases. Additionally, even if we had arbitrated and won regarding the termination cases, it would not help members who are suspended since a suspended employee obviously cannot reassign to another facility. We were also concerned that even if we prevailed regarding the termination cases, in cases where DOCS really wanted to prevent a member from reassigning, it would simply suspend the employee.

This settlement adds new protections for members in the majority of disciplinary cases. Any further expansion of protections in this area will have to be accomplished through negotiations. Please do not hesitate to contact us if you have any questions about this settlement. Thank you.