Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, January 31, 2013

Law School Application Take A Dive

A recent NY Times article documents a 38% decline in law school applicants which would make a 38 year low, here. Why, increasing tuition and the decreasing amount of jobs. 

Mitchell H. Rubinstein

January 31, 2013 in Law Schools, Law Students | Permalink | Comments (0)

Wednesday, January 30, 2013

Failing to comply with the notice requirements for filing a demand for arbitration set out in the collective bargaining agreement is a fatal procedural defect

In the Matter of the Arbitration between Livingston County and the Livingston County Civil Serv. Employees Assn., Inc., Local 1000, 2012 NY Slip Op 08985, Appellate Division, Fourth Department
The County and Local 1000 of the Civil Service Employees Association, Inc. were involved in a grievance that was at the various steps set out in the CBA’s contract grievance procedure article. Ultimately the County denied the grievance by a written decision dated October 4, 2011. CSEA then advised the County by a letter dated October 27, 2011 that it intended to submit the grievance to arbitration. The County received CSEA’s letter on October 28, 2011.
The critical provision in the CBA central to this litigation required "[c]ompliance with the time limits for submitting a notice of intent to arbitrate [and such compliance] shall be a condition precedent to arbitration". The CBA also included a provision stating that "Failure to submit a notice of intent to submit a grievance to arbitration . . . shall thus bar the grievance from proceeding to arbitration."
The time limits set out in the CBA required that the party demanding arbitration must notify the other party of its intention to submit the matter to arbitration “no later than 15 working days after a written decision was issued at the second step of the grievance process.”
Livingston County asked Supreme Court to stay arbitration, contending that CSEA’s demand to submit the grievance to arbitration was untimely as it had not been notified of CSEA’s intent to do so within 15 working days of date of its denial of the grievance.
Supreme Court denied the County’s petition; the Appellate Division unanimously reversed the lower court ruling “on the law.”
The Appellate Division explained that although the CBA between the parties sets out a “broad arbitration agreement,” it also contains an express provision establishing a condition precedent to submitting the matter to arbitration and CSEA had not complied with this condition precedent..
The court also noted that where such a condition precedent is expressly made part of the CBA, the issue of compliance with the condition is for the court to decide in the first instance.
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

January 30, 2013 in Arbitration Law | Permalink | Comments (0)

Tuesday, January 29, 2013

Harassment For Wearing Romney T-Shirt??

Reportedly, according to the Pennsylvania Record, a student has filed suit against the Philadelphia School District claiming a violation of her free speech rights. Her suit alleges that her geometry teacher harassed her because she was wearing a Romney-Ryan T-shirt.

Source: Pennsylvania Record, 12/27/12, By Jon Campisi

January 29, 2013 in Employment Law | Permalink | Comments (0)

Monday, January 28, 2013

Court of Appeals to consider arbitration award reinstating school bus driver terminated from the position after testing positive for marihuana in a random drug test

Shenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864), 90 AD3d 1114
The Court of Appeals will hear Shenendehowa Central School District’s appeal from the Appellate Division's ruling sustaining an arbitrator’s award that reinstated a school bus driver terminated after testing positive for marihuana in a random drug test.
Motions by New York State School Boards Association, Inc. and by New York State United Teachers for leave to file briefs amicus curiae on the appeal were also granted by the court.
NYPPL summary the Appellate Division’s ruling in this action is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

January 28, 2013 in Arbitration Law | Permalink | Comments (0)

Sunday, January 27, 2013

Student Can Be Required To Wear ID Badge

A.H. v. Northside Indep. Sch. Dist., No. 12-1113 (W.D. Tex. Jan. 8, 2013), is an interesting decision. There, a federal district court denied a student’s motion for a preliminary injunction barring a school district from transferring her from the specialty program she attends back to her base school because she refuses to wear the required ID badge while on campus. The court rejected her claims that being required to wear the badge violated her First Amendment rights to the free exercise of religion and free speech, and her Fourteenth Amendment rights to due process and equal protection. In addition, the court found that the ID badge requirement did not violate her rights under the Texas Religious Freedom Act.

Mitchell H. Rubinstein

January 27, 2013 in Education Law | Permalink | Comments (0)

Thursday, January 24, 2013

D.C. Circuit Remands NLRB Rulings on T-Shirt, Provocative Language Policy

From the Daily Labor Report, Dec. 14, 2012:

The District of Columbia Circuit remands an unfair labor practice case to the National Labor Relations Board, finding the board failed to explain its conclusions that Medco Health Solutions of Nevada Inc. interfered with employee rights by asking an employee to remove a union-sanctioned T-shirt and by maintaining a ban on insulting, provocative, and confrontational messages on employee clothing (Medco Health Solutions of Las Vegas Inc. v. NLRB, D.C. Cir., No. 11-1282, 12/14/12).

Writing for the court, Judge Williams says the company made a "straightforward" argument that pharmacy worker Michael Shore wore a shirt that was insulting to Medco and harmful to the company's effort to attract and retain customers, who occasionally toured the facility where Shore worked. NLRB found Medco's claim of harm to customer relations lacked evidentiary support, but Williams says the board failed to adequately explain what evidence was required.


January 24, 2013 in NLRB | Permalink | Comments (0)

Profology and Other Adjunct News


The Rochester Democrat and Chronicle reports that Bob Ertischek, an adjunct professor at Monroe Community College in Rochester, has created a social media network for people working in higher education.  The site is called Profology.  The site describes itself as "a place where faculty and other higher education professionals can meet, exchange ideas and work to improve pedagogy, research, classroom technology and assessment, and more."  The platform actually opened in beta in 2011, and went fully operational sometime last year, but I just heard about it, so it's news to me.  And now, maybe to you.

IRS and Adjuncts

The IRS has posted guidance in the Federal Register relating to compensation for adjunct faculty, according to a Huffington Post report earlier this month.  From the HuffPo story:

The IRS noted in the Federal Register that "educational organizations generally do not track the full hours of service of adjunct faculty, but instead compensate adjunct faculty on the basis of credit hours taught." In short, most colleges are only paying part-time instructors for time spent in a classroom, and nothing for time spent grading or preparing.

The Treasury Department and the IRS are considering and "invite further comment on how best to determine the full-time status of employees" like educators, who may work many hours after students leave the classroom.

Correctly classifying adjunct, part-time or non-tenured faculty has taken on increased importance as the Affordable Care Act provisions relating to employer coverage come into effect.

Adjuncts and Governance

A joint subcommittee of the Association’s Committee on Contingency and the Profession and the Committee on College and University Governance, approved a final version of a report, "The Inclusion in Governance of Faculty Members Holding Contingent Appointments."  The report includes a broad range of recommendations designed to address the fact that more and more teaching at college and universities is performed by adjunct, part-time or non-tenured faculty.  Collene Flaherty at Inside Higher Ed has a summary and commentary on the report here.

Craig Estlinbaum

January 24, 2013 in Adjuncts in the News, College Professors, Colleges, Faculty in the News, Tax Law Information | Permalink | Comments (0)

Wednesday, January 23, 2013

Breaking News. Unionization Rates Continue to Decline

On January 23, 2013, the BLS released its annual report on the rate of unionization. Overall, the rate of unionization feel from 11.8% to 11.3%. Public sector workers had a 35.8 percent membership rate while the rate on unionization in the private sector dropped to 6.6%.

Significantly, however, union members continue to earn more than there non-union counterparts. As the report states:

In 2012, among full-time wage and salary workers, union members had median usual weekly
earnings of $943, while those who were not union members had median weekly earnings
of $742. In addition to coverage by a collective bargaining agreement, this earnings
difference reflects a variety of influences, including variations in the distributions
of union members and nonunion employees by occupation, industry, firm size, or geographic

The full report can be found here.

Mitchell H. Rubinstein

January 23, 2013 in Unions | Permalink | Comments (0)

New In Print: Reviewing Law Reviews

The California Law Review has published The Brennan Center Jorde Symposium on Constitutional Law in its December 2012, issue, with articles by Judge Diane P. Wood, Judge Marsha S. Berzon and Professor Kevin M. Quinn.  The DePaul Law Review's Winter 2012 issue includes the 17th Annual Clifford Symposium on Tort Law & Social Policy: "Festschrift for Robert Rabin."  Drake Law Review has published two recent sumposia issues - a Constitutional Law Symposium titled "Constitutionalism and the Poor," and the Ninth Annual American Judicature Society Symposium: "Lawyers, Judges and Money: Evolving Legal Issues Surrounding Spending on Judicial Elections." 

Duke Law Journal's December 2012, issue is a Special Symposium Issue on Custom and Law.  The December 2012, Florida Law Review includes the Dunwoody Distinguished Lecture in Law titled "Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a 'Controlled Activism' Alternative," by Martin H. Redish and Matthew B. Arnould

The November 2012, George Washington Law Review is a special issue, "Commemorating the 100th Anniversary of Farrand's Records of the Federal Convention."  Volume 100, No. 4 of the Kentucky Law Journal includes a symposium on state court funding, with a keynote address by Erwin Chemerinsky.  The Review of Litigation, Volume 31, Number 4, includes a symposium on class action lawsuits.

Volume 42, Number 4, Seton Hall Law Review includes a symposioum titled, "Implementing the Affordable Care Act: What Role fo Accountable Care Organizations?"  Volume 57, Number 3, South Dakota Law Review includes a symposium on the government speech doctrine.  Villanova Law Review's Volume 57, Number 3 includes the Norman J. Shachoy Symposium, "U.S. Taxation of Offshore Activity and Regulation of Executive Compensation."  The Summer 2012, University of Arkansas at Little Rock Law Review includes the Ben J. Altheimer Symposium, "eConflicts Resolved:  Evaluations of Legal Solutions to Information-Age Conflicts."  The November 2012, Vanderbilt Law Review includes a symposium, "Supply and Demand: Barriers to a New Energy Future."

Craig Estlinbaum

January 23, 2013 | Permalink | Comments (0)

Some Colleges Cut Adjunct Hours Over Health Care Act

Sam Baker (The Hill) reports:

Colleges and universities are reportedly cutting the hours their adjunct professors work in an effort to avoid the employer mandate in President Obama's signature healthcare law.

The Wall Street Journal noted the trend Friday, saying a handful of smaller schools in Ohio and Pennsylvania have begun to cap the number of courses adjunct professors can teach, so that they don't end up working more than 30 hours per week.

The healthcare law requires employers to offer coverage to all employees who work more than 30 hours, or pay a penalty to the IRS.

Full Story.

Craig Estlinbaum

January 23, 2013 in News, Schools | Permalink | Comments (0)

Tuesday, January 22, 2013

Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17

Opinions of the Attorney General, Formal Opinion 2012- F2

Public Officers Law §17 provides for the defense and indemnification of State officers and employees sued in a civil action or proceeding in any state or federal court for acts or omissions involving the performance of their official duties.
The Attorney General has advised Gina L. Bianchi, Esq., Deputy Commissioner and Counsel, New York State’s Division of Criminal Justice Services, that members of the Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17.
Presumably the same would be true with respect to the provisions of Public Officers Law §19's applicability  to such Council members. 
Public Officers Law §19 provides, in pertinent part, that it is “the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of his* public employment or duties upon his acquittal or upon the dismissal of the criminal charges against him.”
With respect to political subdivisions of the State, Public Officers Law §18 authorizes such entities, “by the adoption of local law, by-law, resolution, rule or regulation,” to provide for the defense and indemnification of its officers and employees in the event any such persons are sued in federal or state courts in a civil matter related to the performance of their official duties.
* §22 of the General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.”
The Attorney General's Opinion 2012-F2 is posted on the Internet as a PDF file at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

January 22, 2013 in Public Sector Employment Law | Permalink | Comments (3)

Vermont Law School Cost-Cutting Continues

Vermont Law School, facing declining enrollment and a $3.3 million deficit, has layed off 2 employees and bought out 10 more in its most recent cost-cutting move, according to the Associated Press.

Last November, the Law School announced the buy-out program, which at least to date has not been extended to faculty.  At Above The Law, however, Stacey Zaretsky, in a short blurb, suggests Vermont's cost-cutting days may not entirely be over, and the faculty may not fare so well in the next round of cuts (the link is behind a paywall).

Vermont Law School, a private, unaffiliated law school, is the only law school in the State of Vermont.

Craig Estlinbaum

January 22, 2013 in Law Schools, News | Permalink | Comments (0)

Monday, January 21, 2013

California Supreme Court Upholds Peaceful Labor Picketing on Private Sidewalks

From the Los Angeles Times today, this interesting decision on peaceful labor picketing on private sidewalks by the California Supreme Court:

Signature gatherers and protesters may be ejected from privately owned walkways outside a store, but labor unions may picket there peacefully, the California Supreme Court decided Thursday. The state high court unanimously agreed that private walkways in front of stores, unlike public areas in shopping malls, are not open forums accessible to anyone who wants to assemble to express a view. But the justices split, 6 to 1, in upholding two state laws that prevent courts from issuing injunctions against peaceful labor pickets on private property. The laws protecting labor pickets are justified "by the state's interest in promoting collective bargaining to resolve labor disputes," Justice Joyce L. Kennard wrote for the court California "may single out labor-related speech for particular protection or regulation" as an exercise in the economic regulation of labor relations, Kennard wrote.

Reprinted from Workplace Prof Blog

Mitchell H. Rubinstein

January 21, 2013 in Labor Law | Permalink | Comments (0)

NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract

 Alan Ritchey Inc., 359 N.L.R.B. No. 40, 12/14/12 [released 12/19/12]), is a major NLRB decision. The time after a union is certified until it reaches its first contract is often long and difficult. This decision holds, for the first time, that an employer MUST bargain with the union BEFORE imposes major discipline on unit employees notwithstanding the fact that a CBA has not been reached. As the NLRB stated:

Not every unilateral change that affects terms and conditions
of employment triggers the duty to bargain.
Rather, the Board asks “whether the changes had a material,
substantial, and significant impact on the employees’
terms and conditions of employment.” Toledo
Blade Co., 343 NLRB 385, 387 (2004) (emphasis
added). This test is a pragmatic one, designed to avoid
imposing a bargaining requirement in situations where
bargaining is unlikely to produce a different result and,
correspondingly, where unilateral action is unlikely to
suggest to employees that the union is ineffectual or to
precipitate a labor dispute. We draw on this basic principle,
adjusted to fit the present context, today. Disciplinary
actions such as suspension, demotion, and discharge
plainly have an inevitable and immediate impact on employees’
tenure, status, or earnings. Requiring bargaining
before these sanctions are imposed is appropriate, as
we will explain, because of this impact on the employee
and because of the harm caused to the union’s effectiveness
as the employees’ representative if bargaining is
postponed. Just as plainly, however, other actions that
may nevertheless be referred to as discipline and that are
rightly viewed as bargainable, such as oral and written
warnings, have a lesser impact on employees, viewed as
of the time when action is taken and assuming that they
do not themselves automatically result in additional discipline
based on an employer’s progressive disciplinary
system. Bargaining over these lesser sanctions—which
is required insofar as they have a “material, substantial,
and significant impact” on terms and conditions of employment—
may properly be deferred until after they are


January 21, 2013 in NLRB | Permalink | Comments (0)

Sunday, January 20, 2013

2d Circuit Appears Sympathetic To Employee Who Did Not Testify Because of Pending Criminal Case

Carnegie Linen v. NLRB, ___F.3d___(2d Cir. Nov. 29, 2012), is an interesting case. I bring it to your attention because it concerned a party who refused to participate because of a pending criminal matter. My understanding of the law was that if an individual refuses to testify in a civil matter, that can be used against him in that case. The 2d Circuit may have opened up a small crack to this argument, however, when it stated:

Finally, Petitioner claims that the ALJ’s denial of its request for adjournment violated
due process. Petitioner moved to adjourn until the conclusion of criminal charges filed against
Perlson, stemming from the coffee-throwing incident that the ALJ found violated Section
8(a)(1). Petitioner argues that, until the criminal charges have concluded, Perlson could not
testify without violating his Fifth Amendment right to avoid self-incrimination. Petitioner
argues that this required adjournment. However, we have held that “the granting or denial of a
continuance is a matter within the trial examiner’s discretion.” NLRB v. Interboro Contractors,
Inc., 432 F.2d 854, 860 (2d Cir. 1970). In this case, the ALJ adjourned the hearing for more than
six months to accommodate Perlson’s involvement in the criminal case; the ALJ denied a request
for a further adjournment after the criminal case itself was postponed for an additional two
months. In proceeding with the unfair labor practice hearing, the ALJ declined to draw a
negative inference against Petitioner due to Perlson’s failure to testify. Other witnesses testified
about the coffee incident on behalf of Petitioner. Accordingly, the ALJ did not abuse his

January 20, 2013 in Labor Law | Permalink | Comments (1)

Saturday, January 19, 2013

Hispanic, Black Workers Called ‘Taco Bell,' Other Slurs Have Title VII Claims, Court Says

A Puerto Rican bus driver and a black fueler-washer for a public transportation provider in New York who alleged they were subjected to offensive slurs, physical threats, and bullying can proceed to trial on their respective national origin and racial harassment claims under federal and state law. The Second Circuit decided  this decision on Dec. 21 (Rivera v. Rochester Genesee Reg'l Transp. Auth., 2d Cir., No. 11-762, 12/21/12).

January 19, 2013 | Permalink | Comments (0)

Friday, January 18, 2013

Breaking News! 7th Upholds The Constitutionality of Wisconsin Budget Repair Bill


Wisconsin Educational Council v. Walker, ____F.3d___(7th Cir. Jan. 18, 2013), is an important case that you are going to hear more about. In a 74 page decision, the 7th Circuit upholds the constitutionality of Wisconsin Act 10, the so-called Budget Repair Bill, Download WEAC v Walker -- 7th Circuit Decision 

The major challenge was on equal protection grounds. Specifically, the statute creates two classifications of public employees; public safety employees and general employees whom the restrictive labor relations provisions apply to. The prohibition of payroll deductions was also challenged on First Amendment grounds. The court rejected each of these arguments. 

The court applied the rational basis standard of review and concluded that the statute did not create view point discrimination. The court reasoned that differring treatment could be justified on the greater consequences of public safety worker strikes. 

The court did acknowledge the unions' agrument that it was only those same public safety unions who supported Governor Walker for election. So much for view point discrimination. 

Mitchell H. Rubinstein

January 18, 2013 in Politics, Public Sector Labor Law | Permalink | Comments (0)

Thursday, January 17, 2013

Seventh Circuit Ducks NLRB Quorum Issue, Finds Employee Challengers Lacked Standing

The Seventh Circuit Dec. 26 dismissed two petitions by employees who sought to challenge the constitutionality of President Obama's recess appointments of National Labor Relations Board members, finding the employees suffered no injuries from the NLRB rulings they appealed and lacked standing to obtain court review of the appointments ( Richards v. NLRB, 7th Cir., No. 12-1973, 12/26/12 )

January 17, 2013 in NLRB | Permalink | Comments (0)

Wednesday, January 16, 2013

Interpreting any statute, first and foremost, requires paying heed to the intent of the Legislature as reflected in the plain language of the statute

Samuelsen, as president of Local 100, Transport Workers Union of Greater New York v New York City Tr. Auth. et al, 2012 NY Slip Op 08780, Appellate Division, First Department
Local 100, Transport Workers Union of Greater New York [Union] is the exclusive collective bargaining representative of approximately 32,000 workers employed by various subordinate bodies and affiliates of the New York City Metropolitan Transportation Authority. One of its component units is the New York City Transit Authority (TA).
The Manhattan and Bronx Surface Transit Authority (MaBSTOA) was created by the Legislature in 1962 after the City of New York seized several privately owned and operated bus lines through its eminent domain power.*  
Public Authorities Law §1203-a, in pertinent part, provides: "[MaBSTOA] officers and employees shall not become, for any purpose, employees of the city or of the [TA] and shall not acquire civil service status or become members of the New York City Employees' Retirement System" (NYCERS). Although this arrangement was originally intended to operate "for a temporary period" (Public Authorities Law 1203-a[2]), it has continued until the present. Although the two authorities have remained separate legal entities, they  nevertheless developed, as a practical matter, functional overlap such as sharing common office facilities and a personnel department.
Certain differences, however, were maintained with respect to personnel matters. For example, the terms of employment for both TA and MaBSTOA employees were governed by a collective bargaining agreement [CBA], with certain exceptions such as the CBA providing that any layoffs of MaBSTOA employees would occur in reverse order of seniority, based upon date of hire. However there was no similar provision in that agreement concerning TA workers as the layoff of TA workers was controlled by the §§80 and 81 of the Civil Service Law. Another difference: set out in the CBA addressed “job selection.” MaBSTOA employees could pick only jobs associated with the bus lines operated by MaBSTOA while TA employees could pick only jobs associated with bus lines and subways operated by TA.
In December 2002, the TA and MaBSTOA executed a "Memorandum of Understanding" with the Union (MOU) that modified the CBA to provide for the consolidation of MaBSTOA and TA surface transit operations whereby "The Authority and the Union agree to the elimination of the artificial distinction between MaBSTOA and the Transit Authority….” To effectuate the MOU, the parties established a joint job pick procedure that allowed MaBSTOA and TA employees, subject to certain limitations, to "pick into" TA jobs and TA employees to "pick into" MaBSTOA jobs in accordance with a single, integrated seniority list, known as the "Consolidated Seniority List."
Asserting that this directly violates the prohibition in Public Authorities Law §1203-a(3)(b) against MaBSTOA employees becoming, "for any purpose, employees of the city or of the [TA],  the Union alleged that "as a result of" the MOU and the consolidation agreement, "employees of MaBSTOA are, for almost all purposes, employees of [the TA]. The Union further alleged that “MaBSTOA employees regularly work in [TA] facilities” and other than not having civil service status or participating in a different pension system, “MaBSTOA employees working for [TA] are for all purposes indistinguishable from [TA] employees."
The Union sought a judgment declaring that:
1. “No MaBSTOA employee may be treated as an employee of the TA for any purpose, and that the MOU and consolidation agreement are void and unenforceable to the extent that they have effectively made employees of MaBSTOA into employees of the TA.” and
2. Prohibiting the MaBSTOA from taking any action in accordance with the 2002 MOU and 2003 consolidation agreement that is prohibited under the Public Authorities Law, or that adversely affects the employment of any employee of MaBSTOA.
Supreme Court dismissed the Union’s complaint “for failure to state a cause of action.” The Appellate Division reversed the lower court’s ruling “on the law.”
As to Supreme Court’s finding that the Union’s compliant “failed to state a cause of action because nothing in the MOU or consolidation agreement indicated that MaBSTOA employees would gain civil service status or become members of NYCERS,” the Appellate Division explained that “[i]n interpreting any statute, we are required, first and foremost, to pay heed to the intent of the Legislature, as reflected by the plain language of the text,” citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.
In addition, said the court, "[i]n construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning."
Noting that a plaintiff’s pleading is to be afforded a liberal construction, the Appellate Division held that “the facts alleged in the complaint are to be accepted as true, and plaintiff is to be accorded the benefit of every possible favorable inference,” citing Leon v Martinez, 84 NY2d 83.
In the words of the court “… the language we are required to interpret is as follows: ‘[MaBSTOA] officers and employees shall not become, for any purpose, employees of the city or of the [TA] and shall not acquire civil service status or become members of [NYCERS]’ (Public Authorities Law 1203-a[3][b]). In our view, this plainly means that three separate prohibitions apply to MaBSTOA employees: (1) that they ‘shall not become, for any purpose,’ employees of the TA; and (2) that they shall not acquire civil service status; and (3) that they shall not become members of the NYCERS. Accordingly, we agree with the Union that, to the extent that the MOU and consolidation agreement, by merging many of the policies of the two authorities, such as probationary employment rules, disciplinary rules, and sick-leave rules, transform MaBSTOA employees into employees of the TA, the agreements violate the first prohibition.”
The Appellate Division rejected the City Transit Authority’s argument that "[t]he plain and obvious meaning of the 'for any purpose' language is to ensure that a MaBSTOA employee cannot, simply by virtue of employment by MaBSTOA, even in a contractually agreed upon commingled work force, acquire civil service status or membership in NYCERS."
The most glaring problem with this interpretation, said the court, is that “it is decidedly not what the statute says.” Rather, said the Appellate Division, “[t]he way the provision is written, the ‘and’ creates a separation between the ‘for any purpose’ clause and the rest of the sentence. It does not signal a modification to the ‘for any purpose’ clause or in any way refer back to it. Furthermore, defendants' interpretation renders the first prohibition superfluous, a result which ‘is to be avoided,’ [citing] Matter of Branford House v Michetti, 81 NY2d 681.”
In other words, said the court, “defendants argue that if a MaBSTOA employee cannot, under any circumstances, be subject to the Civil Service Law or participate in NYCERS, they simply cannot be considered TA ‘employees,’ rendering the first clause meaningless if not considered in the manner they urge. This approach is too narrow, for it pays no heed to the notion that different people working under the same employer can be classified differently.”
"In other words, not every employee in an organization is similarly situated. Here, the statute recognizes that MaBSTOA workers could become so integrated into the TA organization that they could be seen as TA employees, albeit without the protections of the Civil Service Law and the benefit of NYCERS participation. We simply discern nothing in the statutory language which confirms, as the dissent insists, that Civil Service Law protection is the distinguishing' or hallmark' quality of TA employment."
The majority, in response to a comment in the dissent, also observed that its approach was not in conflict with other provisions in the Public Authorities Law that might be interpreted as encouraging some standardization of the two agencies' operations.
Agreeing with the Union’s interpretation of Public Authorities Law §1203-a(3)(b), the Appellate Division held that complaint sufficiently alleged facts establishing that the MOU and consolidation agreement had the effect of conferring on MaBSTOA workers qualities of "employment" by the TA, it ruled that Supreme Court “erred in dismissing the complaint as not having stated a cause of action.”
* MaBSTOA became a subsidiary corporation of the TA.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

January 16, 2013 in Arbitration Law | Permalink | Comments (0)

Tort Law: Pets and Sentimental Value

The Supreme Court of Texas heard oral arguments on January 10 to answer whether or not a pet owner can recover for the sentimental value of a dog lost due to another's negligence. 

The case is Carla Strickland v. Kathryn and Jeremy Medlen (Case No. 12-0047).  The case came to the Texas high court following an intermediate appeallate court's opinion reversing a trial court's order dismissing the claim against Strickland with prejudice.  According to a David Yates report in the Southeast Texas Record, the allegations in the case are that an animal shelter took possession of the Medlen's dog after it escaped the Medlen's yard.  Jeremy Medlen went to pick up the animal, but did not have enough money to cover the fees.  Medlen alleges he was told he could come back with the money and a "hold for owner" tag would be put on the dog.  Strickland, it is alleged, neglegently put the dog on the list of animals to be euthanized, and it was, and when Medlen returned for the dog, he learned what had happened.

More after the jump:

Continue reading

January 16, 2013 in Interesting Cases, Remedies, State Law, Texas Law | Permalink | Comments (0)