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Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, June 10, 2012

NY Court of Appeals Holds More Stringent Dual Employment Standards Are Mandatory Subjects

Matter of NYC Transit Authority v. PERB, ___N.Y. 3d____(June 17, 2012), is an important case. The employer unilaterally imposed more stringent dual employment standards for certain employees. Though not explained in the decision, these policies appear to have limited employee moonlighting. In upholding PERB's finding that an IP occurred, the Court explained:

It is well settled that "[t]he Taylor Law (Civil Service Law art 14) requires collective bargaining over all 'terms and conditions of employment'" (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563[*3]572 [2006], quoting Civil Service Law § 204 [2]). Where a public employee alleges that a public employer has failed to negotiate the terms and conditions of employment — an improper employer practice (see Civil Service Law § 209-a [1] [d]), PERB has exclusive jurisdiction to resolve the dispute between the parties (see Civil Service Law § 205 [5] [d]; see also Matter of Zuckerman v Board of Educ. of City School Dist. of City of N.Y., 44 NY2d 336, 342 [1978]). We "have made clear that 'the presumption . . . that all terms and conditions of employment are subject to mandatory bargaining' cannot easily be overcome" (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. 6 NY3d at 572, quoting Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 79 [2000]). However, "certain decisions of an employer, though not without impact upon its employees, may not be deemed mandatorily negotiable terms and conditions of employment[] . . . because they are inherently and fundamentally policy decisions relating to the primary mission of the public employer" (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 669 [1990]; see also Matter of County of Erie v State of N.Y. Pub. Empl. Relations Bd., 12 NY3d 72, 78 [2009]).

Here, the NYCTA urges us to hold that its implementation of more stringent dual employment standards was mission-related and, therefore, not subject to collective bargaining. It is indisputable that the NYCTA's core mission is to provide a safe system of public transit (see Public Authorities Law §§ 1202 [1], 1204 [15]). Although we need not "defer to PERB's judgment" (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 575) on whether an employer's unilateral policy decision relates to its primary mission, the record in this case is inadequate to support the NYCTA's argument that the dual employment standards at issue were in furtherance of its core mission of public safety. As noted earlier, the NYCTA did not rely on particular safety studies when it imposed these new standards. Moreover, the NYCTA did not explain why it chose to impose the more restrictive dual employment standards on certain safety-sensitive employees — train conductors, train operators and tower operators — while exempting others — bus operators and train dispatchers — who share similar job functions. Simply put, on the limited record before us, there is an insufficient basis to disturb PERB's determination.

Mitchell H. Rubinstein

 

June 10, 2012 in New York Law, Public Sector Labor Law | Permalink | Comments (0)

Monday, May 28, 2012

U.S. Supreme Court renders unanimous decision: private individuals working on temporary basis for government are entitled to qualified immunity from § 1983 suits

Filarsky v. Delia, No. 10-1018 (U.S. Apr. 17, 2012)

May 28, 2012 in Public Sector Labor Law | Permalink | Comments (0)

Thursday, May 3, 2012

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so

 

Arbitration between the Town Of Saugerties and the Town of Saugerties Policeman's Benevolent Assn., 2012 NY Slip Op 00458, Appellate Division, Third Department
The Town of Saugerties challenged the Supreme Court's denial of its CPLR 7503 petition to stay the arbitration of a grievance filed by the Town of Saugerties Policeman's Benevolent Association [PBA] concerning an order that required a police officer to work in excess of an eight-hour tour.
The Collective Bargaining Agreement (CBA) stated, among other things, that the Town "agrees to comply with the requirements of §971 of the Unconsolidated Laws of New York."*
Courts, said the Appellate Division, determine arbitrability according to a two-prong test:
1. May the parties arbitrate the dispute and, if so,
2. Whether the parties in fact agreed to do so.
The Town contended that demand to arbitrate fails both tests as the resolution of the dispute:
1. Requires the application or interpretation of the terms of a statute and public policy will not permit an arbitrator to apply or interpret a statute, and
2. The parties did not agree to arbitrate the application or interpretation of the statute at issue here.
The Appellate Davison decided that neither of the Town’s arguments had merit, explaining that the CBA incorporates §971 by reference, making the language of the statute a substantive provision of the CBA.
Further, said the court, the Town had identified any public policy that would preclude the arbitrator from interpreting such language set out in the CBA.
In addition, the court noted that the CBA defines disputes as "[a]ny grievance arising concerning the interpretation or application of the terms of this contract or the rights claimed thereunder and/or working conditions."
As the dispute underlying the PBA’s grievance concerns overtime, which is clearly a working condition, clearly one that the parties intended to arbitrate the Appellate Division concluded that Supreme Court correctly granted the PBA’s cross motion to compel arbitration and dismissed the Town’s petition.
* §971 of the Unconsolidated Law, in relevant part, provides that police officers shall not be assigned to tours of duty exceeding eight consecutive hours of each consecutive 24 hours, with certain exceptions. See, also,  Police Asso. of the City of Mt. Vernon v City of Mt. Vernon, 279 A.D.2d 561, posted on the Internet at: http://caselaw.findlaw.com/ny-supreme-court/1055483.html


The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

 

May 3, 2012 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Wednesday, April 18, 2012

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

 

NYC Department of Sanitation v E.L., OATH Index #2107/11
The Department of Sanitation charged a sanitation worker, E.L., with failure to complete a federally mandated drug test in violation of Rule 2.5 of the Department’s Code of Conduct. 
E.L. had appeared for the test and was cooperative but was unable to provide the required amount of urine in the three hours he was given. He subsequently submitted a note from his urologist, explaining that E.L. had urological conditions that could have prevented him from urinating. Later E.L. was diagnosed as having prostate cancer. 
The Medical Review Officer (MRO), who had no specialized knowledge in urology, ruled that the note submitted by E.L.’s physician were insufficient to excuse for E.L.’s failure to provide a sufficient sample.  In addition, the MRO refused to consider E.L.’s prostate cancer as that condition was not diagnosed within the five-day time period the regulations gave test subjects for providing a note. 
As a result, the MRO marked respondent as having refused to take the drug test and the Department initiated disciplinary action against E.L. 
OATH Administrative Law Judge Kara J. Miller found that both the test collector and the MRO failed to follow federal drug testing procedures, and these procedural errors mandated cancellation of E.L.’s test. 
In addition Judge Miller ruled that even absent the necessity for cancellation, the charges against E.L. should be dismissed as his actions were not willful and the evidence established that he was physically unable to provide the required amount of urine when asked to the urine sample requested and dismissed the charges the Department had filed against E.L.  
The decision is posted on the Internet at:

 

http://archive.citylaw.org/oath/11_Cases/11-2107.pdf

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 18, 2012 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (3)

Thursday, April 5, 2012

The arbitrator does not have the power to modify an arbitration award that has been judicially confirmed

 

Kalyanaram v New York Inst. of Tech., 2012 NY Slip Op 00309, Appellate Division, First Department
The Appellate Division rejected a party to the arbitration assertion that disputes concerning the performance of the remedy provisions of the arbitration award should be determined by the arbitrator as being without merit in this instance.
The court explained that “Since a final arbitration award has been rendered finally resolving the dispute between the parties, and the award has been judicially confirmed (79 AD3d 418 [2010], lv denied 17 NY3d 712 [2011]), a judgment enforceable by the courts has been entered (see CPLR 7514),” the arbitrator isfunctus officio, “without power to amend or modify the final award.”
Functus officio means "having performed his office." Where, as here, there has been a final judicial determination concerning the matter, the arbitrator no longer has jurisdiction.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

 

April 5, 2012 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Sunday, February 5, 2012

Arizona Senate Rules Committee Would Prohibit Bargaining In Public Sector

    Sometimes I do not understand what this world is coming to. A Arizona Senate Rules Committee recently passed a number of anti-union Bills which have no chance of being enacted into law, including:
    SB 1485: Would prohibit public sector collective bargaining and would preempt any local laws providing for local collective bargaining.
    • SB 1487: Would outlaw payroll deduction for all public sector union dues.
    • SB 1484: Would require public employers to obtain annual written or electronic authorization for any third party payroll deductions.
    Mitchell H. Rubinstein


 

February 5, 2012 in Public Sector Labor Law | Permalink | Comments (0)

Monday, January 2, 2012

Personal interests not protected by the Taylor Law

 

Westhampton Beach Police PBA and Village of Westhampton Beach, 35 PERB 3026

 

An employee making complaints unrelated to any specific provision in the collective bargaining agreement and that essentially concern matters of private, personal interest, has not established any basis for prosecuting a claim that he or she was subjected to adverse personnel action because of his or her engaging in a protected activity within the meaning of the Taylor Law. 

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

January 2, 2012 in Public Sector Labor Law | Permalink | Comments (0)

Wednesday, November 16, 2011

Breaking News International Labor Organization Rules That Taylor Law Ban On Strike Is Improper

The TWU filed a complaint, here, alleging the ban on public employee strikes and the penalties issued against the TWU in 2006 NYC Transit Strike were improper. On Nov. 1, 2011, the ILO issued a lengthly decision, here, agreeing with the TWU, reasoning in part:

As regards the overall prohibition of strike action in the public service under the Taylor Law, the Committee recalls that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests [see Digest, op. cit., para. 521]. While the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), the Committee recalls that the transportation sector, including metropolitan transport, does not constitute an essential service in the strict sense of the term [see Digest, op. cit., paras 576 and 587]. GB.312/INS/9 190 GB312-INS_9_[2011-11-0195-1]-Web only-En.docx 

The TWU web site contains additional information about this important decision. 

So what does this mean?? I am afraid very little. The decision itself notes that the U.S. has not ratified a treaty and presumably this means that the U.S. is not bound by the decision which simply recommends that the U.S. take steps to rectify the situation and make the union and its President, who was jailed for striking, whole. 

The decision could mean something in the political arena. However, since this decision does not appear to break new ground and public employee strikes have been unlawful in many states for many years, the prospect for any real change would appear to be quite small.

Remarkably, little press has been generated about this important issue. Hopefully, that will change. 

Mitchell H. Rubinstein

 

November 16, 2011 in Public Sector Labor Law | Permalink | Comments (1)

Sunday, August 14, 2011

N.Y. Police Disciplinary Hearings Can Be Public

3ddept.

Matter of Doe v. City of Schenectady, ___A.D.3d____(3d Dep't May 5, 2011), is an interesting case. The court holds that police disciplinary hearings can be open to the public. As the court explained:

In any event, petitioners' contention that Civil Rights Law § 50-a mandates that disciplinary hearings be closed to the public is belied by both the language of the statute and its legislative history. Section 50-a (1) provides, in pertinent part:

All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in [CPL 1.20] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.


Section 50-a created, for reasons that will be discussed below, an exemption from document disclosure that might otherwise occur under the Freedom of Information Law (see Public Officers Law art 6; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 567 [1986]). Nothing in section 50-a mentions the word disciplinary hearing, let alone requires that such hearings be held in private, and we discern no import from this omission other than the obvious — that the failure of the Legislature to include it within the statute is an indication that its exclusion was intended (see Pajak v Pajak, 56 NY2d 394, 397 [1982]; Matter of Collins v Dukes Plumbing & Sewer Serv., Inc., 75 AD3d 697, 699-700 [2010], lv granted 15 NY3d 713 [2010]; see also McKinney's Cons Laws of NY, Book 1, Statutes § 74 ["[T]he failure of the Legislature to include [a] matter within the scope of an act may be construed as an indication that its exclusion was intended."], § 94 ["The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction."]; Bright Homes v Wright, 8 NY2d 157, 162 [1960] ["Courts are not supposed to legislate under the guise of interpretation, and in the long run it is better to adhere closely to this principle and leave it to the Legislature to correct evils if any exist."]; People v Olah, 300 NY 96, 102 [1949] ["A statute must be construed and applied as it is written by the Legislature, not as some judges may believe it should have been written." (citation omitted)];Matter of Kittredge v Planning Bd. of Town of Liberty, 57 AD3d 1336, 1339 [2008] ["In construing a statute, a court must attempt to harmonize all its provisions and to give meaning to all its parts, considered as a whole, in accord with legislative intent. Such intent and meaning is best determined from the plain language of the statutory text." (citations omitted)]).

The legislative history of Civil Rights Law § 50-a is similarly unavailing to petitioners' position. The "statute was intended to apply to situations where a party to an underlying criminal or civil action is seeking documents in a police officer's personnel file, and was apparently designed to prevent 'fishing expeditions' to find material to use in cross-examination" (Matter of[*4]Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, 95 [1985], affd 67 NY2d 562 [1986] [citation omitted]; see Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 154 [1999]; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [2001], lv denied 96 NY2d 710 [2001]; Carpenter v City of Plattsburgh, 105 AD2d at 298; Senate and Assembly Introducer Mem in Support, Bill Jacket, L 1976, ch 413; Mem of Div of Criminal Justice Servs, Bill Jacket, L 1976, ch 413). The Court of Appeals has confirmed that "the legislative intent underlying the enactment of Civil Rights Law § 50-a was narrowly specific, to prevent time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 569 [internal quotations marks and citation omitted]). Significantly, none of the legislative history mentions the topic of disciplinary hearings.

Mitchell H. Rubinstein

 

August 14, 2011 in Public Sector Labor Law | Permalink | Comments (0)

Friday, July 22, 2011

Gov. Walker To Now Use Prison Labor

Remember Gov. Walker and Wisconsin. Whatever your views on the so called "Budget Repair Bill," you must admit that this guy is radical. He now wants to use prison labor to replace union labor with prison labor. The Cap Times reports:

Gov. Scott Walker ran for election on a promise to create 250,000 jobs during his first term in office. Now it seems some of that job growth has found its way to at least one county jail in Wisconsin.

Racine County Executive Jim Ladwig told several media outlets earlier this week he plans to add shoveling, landscaping and painting to the to-do lists of county inmates. Until recently, inmates were only allowed to cut the grass along highways.

That changed Wednesday when the state's controversial collective bargaining law took effect.

Read more: http://host.madison.com/ct/news/local/govt-and-politics/capitol-report/article_abc24a50-a362-11e0-bef3-001cc4c002e0.html#ixzz1Sqwooa8h

Mitchell H. Rubinstein

 

July 22, 2011 in Public Sector Labor Law, Recent Developments, Unions | Permalink | Comments (3)

Wednesday, July 13, 2011

Past Practice Binding Even In The Absence Of Contractual Language

Matter of Meegan v. Brown, ____A.D.3d____(4th Dep't. Feb. 18, 2011), is an important case.  Stay applications are often sought because the grievance is not related to a provision of a CBA. The argument is that the arbitrator has no authority to add contractual language.

What about past practices? There are some older cases that require a past practice clause in the CBA; otherwise there would be no contractual violation. However, Meegan makes clear that a past practice clause is no longer required. As the court explains:

"[A] past practice concerning [fringe] benefits for current employees, even where unrelated to any specific contractual provision, cannot be unilaterally modified by the public employer" (Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, 332). The public employer has "a duty to negotiate with the bargaining representative of current employees regarding any change in past practice affecting [such] benefits" (id.). 

While this case did not have a past practice clause it did have a clause which the court described as follows:

In addition, the CBA contains a "Maintenance of Benefits" clause pursuant to which "[a]ll conditions or provisions beneficial to employees now in effect [that] are not specifically provided for in [the CBA] or [that] have not been replaced by provisions of [the CBA] shall remain in effect for the duration of [the CBA], unless mutually agreed otherwise between the City and [petitioner Buffalo Police Benevolent Association]." Thus, respondents also had a contractual duty to negotiate a change in the past practice and lacked the authority to discontinue unilaterally the payment of the benefits at issue to police officers receiving General Municipal Law § 207-c benefits. Questions with respect to the scope and intent of the "Maintenance of Benefits" clause and the past practice are the proper subjects of arbitration, and past practice may be relied upon by the arbitrator in rendering a decision.

Query whether the decision would have been decided differently if the CBA did not have this clause. In light of the holding above, I doubt it.

Mitchell H. Rubinstein

Hat Tip: New York Public Personnel Law 

July 13, 2011 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Saturday, July 9, 2011

Alabama Teachers' Union To Challenge State Law Banning Union Checkoff

The Alabama Education Association (AEA) and its political action committee, has filed suit in federal court against the State of Alabama alleging that the state enacted legislation prohibiting teachers from allowing automatic payroll deductions for union dues is unconstitutional. The statute makes union members criminally liable if such dues or PAC contributions are used for “phone calling for any political purpose,” or “distributing political literature of any type.” According to the suit, “Plaintiffs are challenging legislation rushed through an extraordinary special session of a newly elected legislature, at the behest of a governor with weeks left in his final term of office, for the purpose of harming and retaliation against an employee organization because of its constitutionally protected advocacy regarding issues and candidates.” The suit also charges, ” the challenged legislation was enacted in the guise of ‘ethics reform’ but is designed to silence political opposition.”

Source: Courthouse News Service, 2/18/11

AEA legal complaint

Mitchell H. Rubinstein

 

July 9, 2011 in Public Sector Labor Law | Permalink | Comments (0)

Thursday, June 30, 2011

Great Article On Public Sector Bargaining Crisis In This Country

Joe Slater, one of the most important scholars whose focus is public sector labor law, recently published an important article for the American Constitution Society, The Assault on Public Sector Collective Bargaining: Real Harms and Imaginary Benefits (2011). As the article states:

Perhaps the most striking political development in 2011 is the widespread and aggressive assault on public sector collective bargaining rights.  While the most highly publicized and most significant changes have taken place in Wisconsin and Ohio, moves are afoot in a number of states.  These changes represent the most radical revisions to labor law in the U.S. in decades, and they have set off a political firestorm.This brief will argue that these attacks are deeply misguided.  They serve no purpose beyond a partisan attempt to weaken a key supporter of the Democratic party and they do not address budget deficits.  Instead, they take away a core right that has been recognized in the vast majority of the United States for up to half a century, a right that is considered fundamental in much of the industrialized world, a right that helps individual teachers, firefighters, police officers, and other public employees in their day-to-day lives at the workplace, a right that helps sustain a vital middle class, and a right that helps ensure talented and skilled people will find public service an attractive career option.

I am sure that Joe will be turning this piece into a law review article. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

June 30, 2011 in Articles, Law Review Ideas, Public Sector Labor Law | Permalink | Comments (0)

Wednesday, June 15, 2011

Wisconsin Supreme Court Upholds Union Busting Law

In case you have not heard (it has been all over the media), late yesterday afternoon the Supreme Court of Wisconsin reversed Dane County Circuit Court Judge Sumi’s decision. Act 10, Wisconsin's union busting law, becomes effective upon publication. he link to the decision is: http://wicourts.gov/supreme/scopin.jsp?begin_date=06/14/2011&end_date=06/14/2011&SortBy=date.

I am sure that this is not the end of the battle. But round one goes to Governor Walker

Mitchell H. Rubinstein

June 15, 2011 in Public Sector Labor Law, Unions | Permalink | Comments (0)

Sunday, May 29, 2011

Employer’s claim that a provision in the expired CBA was subject to a sunset provision in the absence of a successor agreement to go to arbitration

Matter of Schuyler County v Schuyler County Highway Unit, Local 849, Unit 8600, AFSCME, CSEA Local 1000, 2011 NY Slip Op 00479, Appellate Division, Third Department

The parties entered into a collective bargaining agreement (CBA) for the years 2006-2009 that provided for a four-step grievance process, the third being advisory arbitration.

The CBA's compensation provisions included a clause specifying that employees would receive wage step increases every year, with the steps defined in a wage schedule showing the effect that annual base wage increases from 2006-2009 would have on them.

When a successor agreement negotiated in a timely fashion, Schuyler County declined to grant employees step increases in 2010. The County contended that the increases at issue “were not intended to continue beyond the term of the CBA”

Local 849 filed a grievance which was denied by the County. When the Local demanded that the grievance be submitted to arbitration the County filed an Article 75 petition seeking a court order staying arbitration.

Although Supreme Court granted the County’s petition, the Appellate Division reversed the lower court’s ruling.

The Appellate Division explained that the issue was whether the step increase provision of the CBA continued upon that agreement's expiration and, in that regard, Civil Service Law §209-a (1)(e) provides that an expired CBA's provisions will continue until a new agreement is negotiated unless those provisions create "rights which by their very terms were intended to expire with the agreement."*

The court said that there was neither law nor policy barring either party from submitting a question of contract interpretation regarding wages to arbitration, including the central issue in this action: "whether the CBA's language evinces an intent to an intent to 'sunset' the step increase provision."

Turning to the County’s argument that an arbitration award interpreting the CBA in such a way as to require post-expiration step increases would be violative of public policy, the Appellate Division said that "such a potential does not mandate a stay of arbitration.” The court said that should the County’s claim prove correct, the remedy is vacatur," citing Matter of County of Sullivan,** rather than a court order staying the arbitration.

* Section 209-a(1)(e) is the codification the Triboro Doctrine earlier promulgated by PERB.

** Sullivan County Empls. Assn., 235 AD2d at 750].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00479.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

May 29, 2011 in Public Sector Labor Law | Permalink | Comments (0)

Saturday, April 23, 2011

Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award

Matter of Jordan v Human Resources Admin. City of New York, 2010 NY Slip Op 08575, Decided on November 16, 2010, Appellate Division, Second Department

The Appellate Division ruled that Jerome E. Jordan failed to establish any grounds for vacating the arbitration award, including his argument that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”

N.B. In some instances a contract disciplinary procedure set out in a collective bargaining agreement provides that party may elect to have a transcript of the disciplinary arbitration hearing taken. Typically the cost of making a transcript of the hearing is at the requesting party’s own expense and frequently the CBA requires that the party requesting the transcript provide a copy to the arbitrator and the other party.

In contrast to a disciplinary arbitration, where the arbitrator makes the final determination, Civil Service Law §75 not only requires that a transcript of the hearing be made, it also requires that a transcript of the hearing be provided free of charge to the employee.

Further, a hearing officer or panel submits a report and a recommendation as to the penalty to be imposed to the appointing authority and it is responsibility of the appointing authority to conduct an independent review of the facts before rendering its decision.

In Ligreci v Honors, 162 AD2d 1010, the Appellate Division found that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing. Further, the courts have held that the failure to include transcript of the disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”

Similarly, in a disciplinary action pursuant to, and consistent with, §3020-a of the Education Law, 8 NYCRR 82-1.11(c) provides that the Commissioner of Education is to arrange for “the preparation of a hearing transcript by a competent stenographer and shall compensate the stenographer for the cost of preparing the transcript and copies thereof for the hearing officer, each panel member, the department, the employee and the board.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08575.htm
NYPPL

Disciplinary proceedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules

Disciplinary proceedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules
Gordon v Town of Queensbury, App. Div., 256 AD2d 784

Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town’s action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made “in bad faith.”

Rule XIV.5 of the Warren County Civil Service Commission requires that “a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto.”

Here, however, the Appellate Division decided that “the disciplinary provisions” set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission’s rules. In its analysis of the case, the court pointed out that:

1. A county civil service commission has the authority to promulgate rules for the “conditions and extent of probationary service” which [when filed] have the force and effect of law.

2. “A violation of such rules may be sufficient to trigger a trial on the issue of bad faith.”

3. The former employee “bears the burden of presenting competent proof that his or her dismissal was made in bad faith.”

But, the court said, “it is equally true ... that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is ‘entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement.”

The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.

Also noted in the opinion was the fact that “it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith.

Since Gordon “failed to tender proof sufficient to raise a triable issue of fact in this regard,” the court decided that no hearing was required concerning the Town’s motivation in discharging him from the position and dismissed the appeal.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 23, 2011 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Thursday, April 21, 2011

Where a collective bargaining agreement sets out a “board agreement to arbitrate,” the arbitrator, rather than the court, is to determine if the grievance is subject to arbitration

Matter of City of Binghamton v Binghamton Police Benevolent Assn., Inc., 2011 NY Slip Op 02109, Appellate Division, Third Department
When the Binghamton chief of police instituted new rules concerning the use of sick leave and subsequently counseled a police officer about an alleged pattern of suspected sick leave abuse and the need to provide a physician’s notes for all future sick leave absences, the Police Benevolent Association filed a grievance alleging a violation of the collective bargaining agreement between the Association and the City. In addition, the Association contended that the new policy constituted “departure from past practices.”

The grievance was denied by both the police chief and a representative of the mayor. The City, in response to the Association demand to submit the grievance to arbitration, filed a petition pursuant to Article 75 of the CPLR seeking a stay of arbitration. Supreme Court denied the petition and the City appealed.

The Appellate Division affirmed the Supreme Court’s determination, noting that the sole issue to be resolved was whether the parties to the CBA agreed to refer disputes in this specific area to arbitration. 

In such situation, said the Appellate Division, courts "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

As the parties' broad agreement to arbitrate provided that "[a]ny grievance or dispute which may arise between the parties involving the application, meaning, or interpretation of this [a]greement," the Appellate Division ruled that the subject matter of the dispute bears a reasonable relationship to the articulated contract provisions and, therefore, it is for an arbitrator to decide in the first instance whether the precise scope of those provisions covers the issues presented in the Association’s grievance.

The decision is posted on the Internet at: 
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

April 21, 2011 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (1)

Wednesday, April 20, 2011

Collective bargaining agreement requires village to reimburse its retirees participating in its health insurance plan their Medicare premiums

Millington v Village of S. Glens Falls, 2010 NY Slip Op 20470, Decided on September 30, 2010, Supreme Court, Saratoga County, Judge Thomas D. Nolan

Marvin Millington and the class he represents are retired employees of Village of South Glens Falls and prior to their respective retirements, were members of a collective bargaining unit represented by the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO.

Effective April 1, 2007 the Village terminated its practice of reimbursing all qualifying Village retirees the cost of their Medicaid Part B premium. Millington, contending that the Village’s action violated the collective bargaining agreements between the Village and CSEA, sued seeking a court order directing the Village reimburse all eligible retirees for such premiums in full.

The Village, on the other hand, contended that it is required to pay either a retiree's medical health insurance premium or Medicare Part B premium, but not both and that it neither violated the law nor the collective bargaining agreement when it terminated its prior practice of paying both premiums.

The Village's private medical insurance plan, Empire Blue Cross, requires every participant in the plan at age 65 to sign up for Medicare Part B as a condition to continued coverage. The Village directly paid the Empire Blue Cross premium while the Medicare Part B premium was deducted from the retiree's Social Security benefit and then the Village reimbursed the employee for that premium.*

Although the Village, said the court, was not required to provide health insurance benefits to a retired employee absent an enforceable contractual obligation to do so, here Judge Nolan said “the salient issue is whether the word "or" in the collective bargaining agreements supports, as a matter of law, the Village's interpretation.” He found that it did not, noting that “While the efforts of the Village to reduce costs are praiseworthy, its interpretation of the word "or" in its disjunctive sense does not square with the rest of the language of the most recent contract in force since 1995.”

The court found that when the medical insurance provisions in the agreements are read as a whole, the retirees were contractually entitled to receive continued coverage under the Village's medical insurance plan with the Village to pay 100% of the qualifying retiree's medical insurance premiums. Accordingly, said Judge Nolan, the Village was responsible to pay 100% of the cost of health insurance for any and all retired Village employees hired before June 1, 1995 including such retirees' Medicare Part B premium.

Further, said the court, Millington and all members of the class he represents were to be reimbursed by the Village “for any and all Medicare Part B premiums which they have individually paid since April 1, 2007, with statutory interest….”

* See Civil Service Law §167-a, reimbursement for Medicare premium charges, with respect to political subdivisions of the State that are “participating employers” in the New York State Health Insurance Program [NYSHIP].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20470.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 20, 2011 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Sunday, April 17, 2011

The party objecting to an arbitration award has a heavy burden to meet to prevail

Matter of Cherry v New York State Ins. Fund, 2011 NY Slip Op 02797, Appellate Division, First Department

Supreme Court denied Stephanie Cherry’s Article 75 petition seeking to vacate the arbitration award upholding State Insurance Fund’s determination to terminate her employment based on violations of its zero-tolerance workplace violence policy.

Cherry appealed but the Appellate Division ruled that Cherry failed to meet her heavy burden of establishing that the arbitration award was irrational, or in violation of any of the grounds enumerated in CPLR 7511(b).*

Further, said the court, “There exists no basis to disturb an arbitrator's finding because ‘unless there is no proof whatever to justify the award so as to render it entirely irrational . . .the arbitrator's finding is not subject to judicial oversight.’”

Addressing another argument raised by Cherry, -- the award should be vacated due to [the State Insurance Fund’s] non-compliance with the procedures of CPLR Article 75 – the Appellate Division said that she had waived such a basis for challenging the award because she had continued participating in the arbitration proceeding “without objection."

* In addition to the grounds for vacating an arbitration award set out in CPLR Article 75, awards have been vacated by the courts based on a finding that the award violated a strong public policy.

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02797.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

April 17, 2011 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Saturday, April 16, 2011

Supreme Court heard oral argument on “constitutionalizing” public employee grievances

The Supreme Court has heard oral arguments in Borough of Duryea, Pennsylvania v. Guarnieri, 364 Fed.Appx. 749 (3rd Cir. 2010), cert. granted, 78 USLW 3731, 131 S.Ct. 456 (October 12, 2010), in which it is asked to consider whether a grievance filed against an employer by a public employee is a “petition” falling under the Petition Clause of the First Amendment, and therefore entitled to special protection.

Note that the 3rd Circuit decision is unreported. So much for courts deciding which decisions should be formally published. 

Mitchell H. Rubinstein

 

April 16, 2011 in Law Review Ideas, Public Sector Labor Law | Permalink | Comments (0)