Uniontown ordered to reinstate Nypaver
Uniontown has been ordered to reinstate Myron Nypaver as fire chief and head code enforcement officer and compensate him for lost wages and benefits with interest. The order from the Pennsylvania Labor Relations Board (PLRB) stems from an unfair labor practice complaint filed by the union representing the city’s firefighters a week after City Council demoted Nypaver to assistant chief and terminated him as code officer in January 2009.
PLRB hearing examiner Jack E. Marino’s June 24 decision sides with the International Association of Firefighters Local 955’s compliant that the city violated the Pennsylvania Labor Relations Act by demoting Nypaver, eliminating his code enforcement duties, withholding his code enforcement pay and reprimanding him.
“The decision vindicated Myron Nypaver of allegations that he did anything inappropriate in regard to his salary,” said union attorney Joshua Bloom. “It vindicates him of any wrongdoing.”
Nypaver did not return a call seeking comment on the decision.
Charles Coldren, who was promoted from assistant chief to chief in May 2009 to replace Nypaver, and Councilman Gary Gearing, the director of public safety, said they hadn’t seen the decision and declined comment. Gearing was not a council member when the action was taken against Nypaver.
Mayor Ed Fike said he hadn’t seen the decision, but he would review it and meet with the solicitor to consider an appeal.
“I’m sure no one’s going to roll over and play dead. When a guy’s convicted of murder he can appeal,” Fike said. “It doesn’t surprise me. The hearing officer was on their side from the get go and that’s the way it’s set up. They’re there to represent the employee.”
He said council corrected a conflict of interest by removing former Councilman Gary Crozier, who is Nypaver’s father in law, from the director of public safety position, which oversees the fire department, and demoting Nypaver from the chief’s position.
Fike said he doesn’t believe anyone should be allowed to tell the city who its fire chief will be and he does not support reinstating Nypaver as code enforcement officer.
The decision can be appealed within 20 days.
Council voted 4-1 to demote and terminate Nypaver after Fike and City Clerk Kimberly Marshall, who is Fike’s daughter, reported that Nypaver had been receiving $10,000 a year in undocumented pay in 2006 and 2007. Councilman Francis “Joby” Palumbo voted against both moves.
Marino’s decision states neither Fike, Marshall nor any other city official contacted former Councilman Bob Cerjanec, the director of accounts and finance, or former solicitor Daniel Webster, who were in office when the raise was given, about the $10,000.
Nypaver was hired as a firefighter in February 1989, promoted to assistant chief in February 2004 and began performing code enforcement duties in 2002, according to the 16-page decision.
Through February 2004, the city paid him about $5,800 a year for his code enforcement work, but that pay was eliminated when he was promoted to fire chief, according to the decision.
He did not get a pay raise with the promotion. “Nypaver lost income when he was promoted,” the decision states.
Marino said other council members asked Cerjanec to adjust Nypaver’s salary in late 2006 for 2007 and Cerjanec did so by re-adjusting an old resolution to include a raise, cost-of-living increase and a longevity pay increase that satisfied the other council members.
Council approved giving Nypaver a $10,000 raise in the 2007 budget for his code enforcement work and his promotion, but Crozier didn’t participate in the vote that gave Nypaver the extra $10,000, according to the decision.
In the 2009 salary ordinance that council approved, Nypaver’s fire chief salary was $42,685 and his code enforcement pay was $6,000.
After Fike took office in January 2008, Crozier noticed a $10,000 line item for code enforcement while reviewing budget proposals for 2009 in late 2008 and told Marshall that code enforcement should be itemized under the fire department budget, according to the decision.
At the October 2008 council meeting when six firefighters were laid off, Nypaver spoke up on behalf of the firemen and raised concerns that the layoffs would endanger public safety. Through later negotiations between the city and union, only three were laid off.
At a special meeting in November 2008, Council discussed laying off three more firemen. Nypaver again spoke against the layoffs and other firefighters attended to protest the layoffs.
Marino said Nypaver did not direct the other firefighters to attend the meeting.
In December that year, Nypaver filed a grievance complaining that the city was violating the city-union contract by withholding the $384.61 he receive bi-weekly for code enforcement.
After he filed the grievance, he was summoned to Fike’s office where Fike reprimanded him for speaking up at the special meeting and for violating a city policy by allowing on-duty firefighters to attend the meeting, according to the decision.
Marino said off-duty firefighters staffed both fire stations so on-duty firefighters could attend the meeting and the city had no policy prohibiting off-duty firefighters from covering for on-duty firefighters, according to the decision.
The firefighters brought radios and a fire truck to the special meeting in City Hall, which is about 100 yards from the Central Fire Station, Marino noted in his decision.
Nypaver filed another grievance saying Fike’s reprimand violated the city’s administrative code and ordinances and Fike did not have the public safety director present during the reprimand.
The union argued that the city retaliated and discriminated against Nypaver for supporting the union and public safety and the city’s reasons for taking action against him were “transparently pretextual,” according to the decision. The close timing between Nypaver speaking up for the firefighters and the city’s action against him supports the claim of unlawful discrimination, according to the decision.
The city argued that its actions were not pretextual and if its actions were not wise or correct, they were not unfair practices as long as they were not motivated by animosity, according to the decision.