Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, October 14, 2012

Barring a former employee from property and Employee Does Not Have Right To Select Arbitrator

Toussaint v Local 100, TWU, CA2, U.S. App. LEXIS 16257

May an employer prohibit an individual it has dismissed from entering its property? The Second Circuit Court of Appeals ruled the employer may prohibit such an individual from entering its non-public areas.

A Transportation Workers Union representative had been dismissed from his position with the New York City Transit Authority [NYCTA]. NYCTA then banned the representative from the non-public areas of its property. The representative sued, contending that this action by NYCTA violated his First Amendment rights.

The Circuit Court affirmed a federal district court's dismissal of the Union representative’s petition. The lower court had determined that he "failed to show a likelihood of success on the merits" because:

1. He did not demonstrate that he was excluded from non-public areas because the Transit Authority's motivation was to impair the exercise of his First Amendment freedoms or;

2. The Transit Authority's rule barring discharged employees from non-public areas lacked a reasonable basis.

The representative also attempted to obtain a stay of arbitration, claiming that NYCTA and Local 100 went forward with his arbitration "without allowing him to participate in selecting a neutral arbitrator to chair the arbitration panel." The Circuit Court of Appeals rejected this representation as moot "because the arbitration [had] proceeded to conclusion."

Reprinted with permission New York Public Personnel Law

Mitchell Rubinstein

October 14, 2012 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Monday, October 8, 2012

National security trumps federal employee’s civil service protection

Various media reports

Newspapers and others have published articles about a United States Circuit Court decision that concluded that the federal Merit Systems Protective Board cannot consider appeals from federal workers demoted or terminated from their position based on their lack of  “security clearance.”
The Circuit Court held that ”the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.”
In response to a number of inquiries seeking a copy of the decision, the case is Berry [as Director, Office of Personnel Management] v Conyers and Northover and the Merit Systems Protective Board, # 2011-3207, Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1, US Circuit Court of Appeal, Federal Circuit.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

October 8, 2012 in Public Sector Employment Law, Public Sector Labor Law, Recent Developments | Permalink | Comments (0)

Sunday, August 5, 2012

Is Mayor Bloomberg Violating The Taylor Law By Advocating For a General Strike

Mayor Bloomberg Flirts With Violating The Taylor Law is an interesting article from New York Magazine.  Blommie is quoted as saying:

             "I don't understand why the police officers across this country don't stand up collectively and say             'We're going to go on strike. We're not going to protect you unless you, the public, through your             legislature, do what's required to keep us safe.' After all, police officers want to go home to their             families, and we're doing everything we can to make their job more difficult but more importantly             more dangerous."

It is of course, a violation of the Taylor Law for a public employee to call for a strike. The Mayor is a public employee. So did the Mayor violate the Taylor Law? That is certainly a debateable question. Interestingly, he is calling for a general type of strike which would effect all police departments. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

August 5, 2012 in Public Sector Labor Law | Permalink | Comments (1)

Wednesday, June 27, 2012

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days


The Westchester County Health Care Corporation adopted the recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the employee guilty of certain charges of misconduct and insubordination. It then terminated the individual from its employ.
Te Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary termination of an employee with respect to the merits of the appeal. The court held that contrary to the individual’s contention, Westchester’s determination that the individual was guilty of certain charges of misconduct and insubordination was supported by substantial evidence in the record.
The court also rejected the individual’s claim that she was denied a fair hearing due to the alleged bias of the hearing officer as being without merit, finding that there was no evidence in the record to support her contention that the hearing officer was biased.
As to the penalty imposed, dismissal, the court ruled that termination was “not so disproportionate to the offenses committed by the petitioner as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”
Although the Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary action, the court remanded the matter to the lower court for its determination regarding any back pay due the dismissed individual.
Here, said the court, the individual “correctly contends that she is entitled to back pay for the period she was suspended without pay in excess of 30 days, excluding delay, if any, occasioned by her, and less unemployment insurance benefits received for that period, if any,” citing Civil Service Law §75[3].
The decision is posted on the Internet at:


Reprinted with permission New York Public Personnel Blog

Mitchell H. Rubinstein

June 27, 2012 in New York Law, Public Sector Labor Law | Permalink | Comments (0)

Thursday, June 21, 2012

Supremes Issue Major Agency Fee Payer Decision

Knox v. SEIU____U.S.____(June 21, 2012)

June 21, 2012 in Public Sector Labor Law | Permalink | Comments (0)

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:

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:

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


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:

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:

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:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

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