Adjunct Law Prof Blog

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

 

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beneficial to employees now in effect [that] are not specifically provided for in [the CBA] or [that] have not been replaced by provisions of [the CBA] shall remain in effect for the duration of [the CBA], unless mutually agreed otherwise between the City and [petitioner Buffalo Police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 

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

 

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

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

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

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
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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

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: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02109.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

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

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

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 (3^rd 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

 

Court annuls penalty imposed after finding appointing authority failed to investigate before taking disciplinary action against individual

Matter of Titone v Rocky Point Fire Dept., 2010 NY Slip Op 33037(U), October 25, 2010, Supreme Court, Suffolk County, Judge Jeffrey Arlen Spinner [Not selected for publication in the Official Reports]

Joseph A Titone filed a petition “in the nature of mandamus” pursuant to Article 78 of the CPLR challenging his suspension from his position as Captain of Company One of the Rocky Point Volunteer Fire Department and asked the court to direct the Board of Commissioners of the Fire Department to annul its action and to expunge the suspension from his record.

The genesis of Titone’s suspension was a letter he wrote to John Celentano, Chief of Rocky Point Fire Department, in which Titone indicated that a department rescue boat was out of service for “work that should have been performed off season” and a Company One fire truck was allowed to remain in service without operational mechanical or electrical sirens.

Celentano summarily suspended Titone from the Department without notice or hearing, for “for improper conduct.” Twenty-seven days later the Chair of the Board of Fire Commissioners reinstated Titone to active duty as Captain of Company One, but warned him that any further “infractions would result in his dismissal from the Department.”

Titone contending that the Chair’s letter failed to specify the reason for his suspension; failed to state any final determination regarding the suspension; failed to indicate what conduct would be considered “a further infraction;” and failed to address the effects of the suspension, such as possibly preventing him from seeking any Department elective office for the following three years, sued.

Judge Spinner granted Titone’s petition “in all respects,” and denied the Department’s application seeking dismissal of his complaint “in all respects”.

Indicating that it is “indisputable that the standard of review for determinations of Board of Fire Commissioners and Celentano is whether the decision rendered is arbitrary, capricious and, or, unlawful, Judge Spinner said that “Nowhere do Respondents demonstrate that they made any inquiry whatsoever into the facts before rendering their decision to suspend [Titone], making their actions indisputably arbitrary and capricious.”

The court noted that, as Titone’s Counsel “adeptly points out that, rather than investigating the fact that rescue equipment was in need of repair, they rushed to punish [Titone] for abiding by his oath to protect and serve the public.” The opinion then states:“This Court is most perplexed by how legitimate concern for the safety of the firefighters volunteering to respond to emergencies and the taxpayers the Respondents serve comes to be characterized as defamation.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_33037.pdf

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Breaking News Copy of Decision Enjoining Wisconsin Union Busting Bill

Unless you have be living under a bus, by now you have heard that a lower court judge enjoined the enforcement of the union busting bill that was signed into law by Wisconsin Gov. Walker. The decision is Wisconsin v. Fitzgerald, (March 18, 2011) and can be downloaded here Download Wisconsin v. Fitzgerald (March 18, 2011). 

The decision was based upon the following langague in the Open Meeting Law. 

“Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than two hours in advance of the meeting.”

There is no primary authority in Wisconsin interpreting this language. The decision by Judge Sumi is a bit disappointing to me. It is only 8 double spaced pages long and appears and reads like a speech. No doubt that this case is going to the Wisconsin Supreme Court so I am surprised that the decision was not more scholarly. 

However, this does not mean that the Judge was wrong or that the decision should be reversed. While the decision does not do a good job in documenting the facts, if less than 2 hours notice were given then the court's decision is clearly correct and ultimately the legislation will be declared void. Even if 2 hour notice were given, it seems that there is also a strong argument that 24 hours notice still should have been given. I fail to understand how it would have been "impractical" to give shorter notice.

Therefore, my view is that at the end of the day this decision will be upheld on appeal even though it could have been written in a more scholarly fashion.

More interesting to me is whether Gov. Walker will give up the fight on this Bill and simply pass another. My guess is that he will not because he does not want to admit that he was wrong-very wrong.

Mitchell H. Rubinstein 

 

PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period

CSEA Local 1000 and Westchester County, 32 PERB 3017

Westchester County terminated probationary employee Michael Holcomb.

CSEA objected, contending that Holcomb was discharged because of his participation in union-related “protected activities” in violation of the Taylor Law.

PERB’s administrative law judge [ALJ] ruled that Kenneth Grauer, Holcomb’s supervisor, wrote a negative evaluation that was “tainted by union animus” and that this contributed to Holcomb’s dismissal.

Westchester appealed, arguing that Holcomb’s separation “was motivated by only legitimate business reasons” and, further, Holcomb was not protected in his activities because “he was not a union representative and was not engaged in union-sanctioned activity.”

PERB agreed with the ALJ’s finding but said that the remedial order should be modified. “Grauer believed Holcomb to be a union activist and that belief contributed to his negative recommendation.” PERB said that action taken against a unit member based upon a belief can violate the Taylor Law, citing its ruling in Holbrook Fire Department, 30 PERB 3062.

PERB commented that “while it may be true that an employer is free to terminate a probationary employee for any cause or no cause at all, this principle plainly does not apply if the employee is terminated in violation of law.”

PERB directed Westchester to offer Holcomb a second probationary period under another supervisor. It also said that if Holcomb successfully completed this second probationary period, which should not be less than the minimum probationary period authorized, Westchester should compensate him for lost pay and benefits, “less any earnings or other compensation received by him” from the date of his probationary termination through the date of his reinstatement to his former title.

Reproduced with permission New York Public Personnel Law

Mitchell H. Rubinstein

More On Public Sector Union Busting. Ohio Wants To Designate Prof.'s As Managerial Employees

Joe Hodnecki, over at Law Librarian Blog follows up on a posting I did on Union Busting in Wisconsin and elsewhere.  Joe points out that a proposal in Ohio would designate professors as managerial employees. Joe does not  view this as union busting per se, but an attempt to deal with economic realities. 

With respect Joe, that is laughable. Collective bargaining has been working in Ohio for years. If it is about economics, then the Governor should seek concessions from the unions to deal with those tough economic issues. Tenure rights are not collective bargaining rights. Additionally, if there were not a union to protect tenure and provide representation when necessary, that right could be marginalized. 

In terms of calling professors managerial employees. That is an obvious attempt to apply Yeshiva private sector principles to the public sector. But that is like comparing apples to organges. A public university is not an independent institution. It is financed by the state and subject to state policies. While I am not familar with Ohio law, my bet is that the legislature sets the tutition as well as tenure issues. While the profs may be managers over the students, they are not the managers of the university. Therefore, the Supreme Court's 1980 Yeshiva University case should have no application-unless of course it is put their by legislation. That is why I believe this proposed legislaation is another example of union busting period. 

Mitchell H. Rubinstein

All about New York State’s Taylor Law Summary of Taylor Law basics

Posted on the Internet is John M. Crotty’s Introduction to the Taylor Law.

Mr. Crotty, an attorney and arbitrator, explains the key elements of the Taylor Law and its application and administration, its history, collective bargaining under its provisions and a number of landmark PERB and court rulings interpreting its provision.

The text of this 29 page outline is posted on the Internet at:
http://www.nysdeputy.org/Archives,%20Wage%20Comparisons/Taylor%20Law%20Overview.pdf

Reprinted with permission New York Public Personnel Law

Note, material-though dated may be useful to researchers.

Mitchell H. Rubinstein

California’s Supreme Court confirms longstanding California rule concerning employee layoffs

IAFF, Local 188 vs. Public Employment Relations Board [City of Richmond (Real Party in Interest),] California Supreme Court No. S172377

Source: Meyers Nave PLC. -- The Public Blog, posted athttp://www.publiclawnews.com/public_law_news/2011/01/ -- Reproduced with permission. Copyright © 2011, Meyers Nave. All rights reserved 

"On Monday, January 24, 2011, the California Supreme Court issued an opinion regarding an employer's duty to bargain under the Meyers-Milias-Brown Act ("MMBA") in connection with layoffs. The opinion was authored by Acting Chief Justice Kennard, with a concurring and dissenting opinion filed by Justice Baxter.

"The Bottom Line: The Supreme Court simply affirmed a longstanding rule - that there is no duty to bargain over an employer's decision to layoff, but there is a duty to bargain over the implementation and effects of the decision. This has been the ongoing advice of labor attorneys for years. There is no new law in this decision that should cause public employers to change their practices.

"Discussion: Since approximately 1974, it has been the rule in California that public employers need not negotiate with labor unions about the decision to initiate layoffs. However, public employers must negotiate concerning the effects or impacts of the layoffs. The City of Richmond observed this advice in connection with firefighter layoffs, and the Fire Union claimed that the failure to negotiate constituted an unfair practice under the MMBA.

"This case affirms the rule. The Court expressly states: "We now reaffirm this rule. Under the MMBA, a local public entity that is faced with a decline in revenues or other financial adversity may unilaterally decide to lay off some of its employees to reduce its labor costs. In this situation, a public employer must, however, give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, and the timing of the layoffs, as well as the effects of the layoffs on the workload and safety of the remaining employees." (Op. at 19.)

"One additional aspect of the opinion is to define the criteria for permitting review of a decision by the [California] Public Employment Relations Board ("PERB"). The Court agreed with the court of appeal that when PERB refuses to issue a complaint under the MMBA, a superior court may review the decision by mandamus. The review is limited to determining "whether PERB's decision violates a constitutional right, exceeds a specific grant of authority, or is based on an erroneous statutory construction." 

"Justice Baxter dissented from this portion of the opinion.

Reprinted with permission New York Public Personnel Law.

Mitchell H. Rubinstein 

1st Dep't. Issues Major Public Sector DFR Decision

Rosioreanu v. NYC OCB, ___A.D.3d____(1st Dep't. Nov. 4, 2010), is a major DFR decision in New York Public Sector Labor Law. The First Department holds that BOTH the public employer and the union are necessary parties in any DFR litigation. As the court stated:

The application court correctly found the City, petitioner's public agency employer and petitioner's union to be necessary parties to this proceeding, but incorrectly held they could not be joined because the statute of limitations had run. "When a person who should be joined . . . has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned" (CPLR 1001[b]), and after joinder, the necessary parties may assert the defense of statute of limitations, if so advised (Friedland v Hickox, 60 AD3d 426 [2009]). This Court, however, may consider the merits of the alternative ground raised in respondent's motion, which was to dismiss the petition for failure to state a cause of action (see Subolo Contr. Corp. v County of Westchester, 282 AD2d 737, 738 [2001]).

Mitchell H. Rubinstein

Supremes Hold No 1983 Liability Unless Municipal Custom or Policy Involved

• Los Angeles County, Calif. v. Humphries, 562 U.S. ___(Nov. 30, 2010) was just decided by the Supremes. In a short decision, the Court held that a municipality is not liable for civil rights violations under 42 U.S.C. §1983 regardless of whether the relief sought by the plaintiffs is prospective or for monetary damages unless the plaintiffs can show that their injury was caused by a municipal policy or custom. The case involved two plaintiffs who continued to be listed on a California registry of persons investigated for child abuse even though the plaintiffs were exonerated some time after the initial accusations of child abuse. They challenged the state law, which requires listing persons in the registry who have been reported as child abusers and for whom the relevant state agency finds the allegations "not unfounded" even if the allegations are "inconclusive or unsubstantiated." The Ninth Circuit held the state law deprived the plaintiffs of constitutional rights by failing to include a procedural mechanism through which the plaintiffs could contest inclusion in the registry. Los Angeles County, who was sued along with the state attorney general and other local officials, argued it should not be liable for damages under § 1983 because it was state policy, not county policy, that deprived the plaintiffs of their rights. Justice Stephen G. Breyer, writing for a unanimous court, applied Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), and ruled that Monell's dictate that a municipality only be liable under §1983 where an injury is caused by a municipal "policy or custom" applies even when the plaintiffs are seeking prospective relief such as an injunction or a declaratory judgment. 

Mitchell H. Rubinstein

An Education Law §3813(1) “Notice of Claim” is required only in the event money damages are sought

 

Civil Serv. Employees Assn., Inc. v Board of Educ. of City of Yonkers, 2011 NY Slip Op 06211, Appellate Division, Second Department

The Civil Service Employees Association filed an Article 78 petition seeking a court order directing “specific performance” of a collective bargaining agreement.

The Appellate Division sustained Supreme Court’s disposition of CSEA’s petition, explaining that as CSEA was only seeking equitable relief, and not money damages, it was not required to serve a notice of claim under Education Law §3813(1).*

As to Supreme Court’s rejection of CSEA’s motion to convert the action to a declaratory judgment action, the Appellate Division ruled that there is only one form of civil action so there is no need to convert this action in order for CSEA to seek declaratory relief.

* Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of an action against a school district (Matter of Surdo v Levittown Pub. School Dist., 41 AD3d 486, Education Law §3813; General Municipal Law §50-e[1][a]).  

 

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein