National Guardsman fired while on duty reinstated by Erie County

May 6, 2019

A laborer with the Erie County Department of Public Works, let go last summer while away on active duty with the Army National Guard, is being reinstated to his county job, County Executive Mark Poloncarz announced Monday. The move was announced just moments before Comptroller Stefan Mychajliw and the head of the union representing Sgt. Rapheal Ramos were to host a news conference demanding the employee's rehire.

Ramos, who began working for Erie County government in 2015, was fired last July while he was still on active duty. He had been called up for his latest stint with the National Guard in February 2018, going on unpaid leave to serve with the Citizens Preparedness Corps, a state emergency preparedness program which utilizes National Guard members to help communities prepare for disasters and then recover from them.

From left to right, Erie County Comptroller Stefan Mychajliw and AFSCME Local 1095 president Rich Canazzi speak about National Guard Sergeant Rapheal Ramos, who was dismissed last summer but was reinstated Monday as an Erie County employee.
Credit Michael Mroziak, WBFO

He remained on leave through July 2018, when he was relieved of his position. Late last week Comptroller Stefan Mychajliw, a political foe of Poloncarz, and American Federation of State, County and Municipal Employees Local 1095 President Richard Canazzi went public complaining of the dismissal and demanded Ramos' job be restored.

They had scheduled a news conference Monday afternoon to again demand Ramos be reinstated but, upon learning of the announcement by the county executive's office, welcomed the move but expressed regret that the matter had been prolonged.

"I firmly believe that it was absolutely, positively illegal for the County of Erie to terminate Sgt. Ramos," Mychajliw said. "The county was in violation of the law and the union, jointly with the Office of County Comptroller, was ready actually to file a lawsuit against Mark Poloncarz and the County of Erie in order to reinstate Sgt. Ramos."

On May 2, in response to Mychajliw's initial public comments on the matter, county officials insisted Ramos had failed to submit the paperwork required to report that his duty had been extended beyond the original expiration date of March 31.

"Therefore, in accordance with military and New York civil service law and due to his failure to return to work or make contact with the county upon the expiration of his domestic leave, the Department was forced to remove Mr. Ramos from county employment on July 12, 2018," stated Poloncarz in prepared written remarks issued May 2.

On Monday, the county executive's written statement shifted blame to the union representing Ramos: "Article 22 (Grievances and Arbitration) of the contractual bargaining agreement (“CBA”) between Erie County and AFSCME Local 1095 clearly states “the employee aggrieved shall present his grievance in writing through his Union Steward or other authorized union representative on a form to be provided, setting forth the date, time and place of the alleged grievance, facts of the grievance, the particular section of the collective bargaining agreement or personnel rules involved, and the relief sought to the employee’s department head or designee within fifteen (15) working days from the occurrence of the grievance or when the employee knew or should have known of the fact situation giving rise to the grievance.

"Fifteen working days from the date of Mr. Ramos’ termination means that, under the contract agreement in place, Mr. Ramos’ union representation should have filed this grievance by at least July 27, 2018. As mentioned earlier, Erie County was made aware of this grievance today, May 6, 2019, or a full 282 days after the contractually-approved time limit for a grievance to be filed. However, despite AFSCME’s inexplicable ten-month delay in filing it, this grievance is already being addressed by Erie County DPW."

Canazzi was asked why AFSCME Local 1095 was late with Ramos' grievance.

"Unfortunately with this gentleman, he was not located in this area, so a lot of information was sent to his parents' house," he explained. "The letters were being sent to another address. When he finally contacted the union hall in September (2018), we've already bypassed the 15 days.

"We had our attorneys that work alongside us advise what our next steps were. The next steps were to contact Mr. Ramos and have him conduct something with somebody within his proper unit. Once they sent over an official letter document, saying that was April 26th, which now we are within the 15 days. It no longer became just a collective bargaining agreement issue, it became being a violation of local, state or federal law."

Ramos remains on unpaid leave on his current active duty mission which began February 2018.

Last month, AFSCME Local 1095 endorsed Poloncarz's challenger in his November bid for re-election, Lynne Dixon. Canazzi, however, insists politics were not the motivation behind their complaint. Rather, he told reporters, it was about "doing the right thing."

"If we wanted to coordinate this where it was going to be beneficial for whomever, then we would have waited until closer to November," he said. "This had nothing to do with going after anyone near election time."

Mychajliw, meanwhile, suggests Poloncarz acted to reinstate Ramos because he found himself in the midst of a politically embarrassing situation. He also told reporters that action on behalf of Ramos was pursued on the advice of Major Daniel Nieroda, a Judge Advocate within the New York Army National Guard who in an email urged Ramos' union representatives to "please take any and all action necessary to enforce the above benefits conferred upon employees of Erie County Department of Public Works based upon military service."

"The county was aware of this for months," Mychajliw said. "They decided to continue to break the law and not put Sgt. Ramos back on the payroll. The major from New York State was crystal-clear, in giving the actual law when it comes to the leave of active-duty military members to Erie County, by saying Erie County broke the law by terminating him in the first place."

Poloncarz, in prepared remarks released Monday, expressed his support for county employees who serve in the military but added that Ramos has not yet informed officials of his plans.

"Erie County government supports active and reserve military personnel without question on deployments such as these, such as Commissioner of Public Works William Geary Jr.’s current domestic military leave in the Air Force Reserves," the county executive stated in writing. "Service to our country and community is always to be supported, respected and honored.”