Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, April 7, 2012

Union did not violate its duty of fair representation when it declined to submit a provisional employee’s disciplinary dismissal to arbitration

 Mahinda v Board of Collective Bargaining, 2012 NY Slip Op 00636, Appellate Division, First Department

After an informal conference and "Step II" hearing, disciplinary allegations against Josephine Mahinda, a provisional employee, were sustained, and her employment with the New York City Department of Transportation was terminated.
Subsequently Mahinda failed to establish that her employee organization, the Organization of Staff Analysts, [OAS], breached its duty of fair representation by failing to advance to arbitration the grievance arising out of her termination. 
Although Mahinda argued that OSA should have processed her grievance to arbitration, the Appellate Division said that she had not established that an agreement providing for provisional disciplinary procedures had been negotiated pursuant to §65(5)(g)* of the Civil Service Law. §65(5)(g) authorizes the City and certain other public employers to enter such agreements in the course of collective bargaining..
After considering other theories advanced by Mahinda to support her argument that she was entitled to submit the matter to arbitration, the Appellate Division ruled that “there was no basis on which to grant [Mahinda’s] request….”
Nor, said the court, was there any basis for granting her request to review the City's underlying decision to terminate her. As a provisional employee, Mahinda could be terminated at any time, "without a hearing, for almost any reason, or for no reason at all," unless such action constituted an unconstitutional or unlawful action.
Finding that Mahinda failed to demonstrate that in terminating her employment the City violated Civil Service Law §65, which governs provisional appointments, or any other constitutional or statutory provision,"nor had  she demonstrated that her employment was terminated in bad faith or that the termination was arbitrary and capricious," the Appellate Division dismissed her appeal
* Civil Service Law §65.5(g) authorizes “The city of New York; and any other entities whose civil service and examinations are administered by the New York City Department of Citywide Administrative Services [DCAS] and an Article 14 [Taylor Law] employee organization, to enter into agreements to provide disciplinary procedures applicable to provisional appointees who have served for a period of 24 months or more in a position which is covered by such an agreement. Further, no such provisional employee is to be deemed to be permanently appointed, nor may such disciplinary procedures be deemed to preclude removal of an employee as a result of the establishment of and appointments from an appropriate eligible list or in accordance with any other provision of law. [N.B. Repealed December 31, 2014]
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Duty of Fair Representation | Permalink


The author of any opinion or commentary on a decision by the court has the responsibility to review the facts that were before the court if they are to be credible. It is well established that there is corruption and prejudice in the New York State Supreme Court and the Appellate Division. This case exemplifies this corruption.

The facts of this case are a matter of public record. The decision is inconsistent. On what basis did the petitioner have an informal conference and hearing if it was not a right granted by a collective bargaining agreement? The collective bargaining agreements between the City of New York, DC37 and the Organization of Staff Analysts are a matter of public record and were provided to the court. They outline the negotiated rights of provisional employees that have worked for the City of New York for 24 months or more. If the court record has not been distorted and if impartially reviewed, it would be obvious that the decision has no bearing on the facts.

For example, Justice Scarpulla claimed that the petitioner admitted to being told that the case would not be arbitrated. There is nothing on the record to support this claim. She further claimed that the petitioner admitted to being told that negotiations were ongoing between the city and the union in August 2008. This is not supported by the record. This claim of ongoing negotiations was made in 2009 by a city attorney and the chair of the Organization of Staff Analysts. Proof was provided that negotiations on collective bargaining agreements were completed on 10/30/2008 for the Citywide agreement and 4/30/2009 for the Organization of Staff Analysts. This misrepresentation conceals perjury.

Petitioner was transferred in violation of the law and the personnel rules of the city of New York five months prior to the termination. Discipline for the first time in over five years less than a month after the transfer. Petitioner was investigated in violation of the collective bargaining agreement and public officer’s law. Evidence from this taped investigation was used in the determination to terminate.

These and other facts, which are a matter of public record, prove that the decisions by the Supreme Court and Appellate division are nonsensical

Posted by: Watho | Jul 29, 2012 6:10:07 PM

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