Matter of Monroe County v New York State Pub. Empl. Relations Bd., 2011 NY Slip Op 05170
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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.
June 30, 2011
PERB rules employer’s conducting a survey of unit members to determine if a recognized or certified collective bargaining agent should continue to represent the unit an improper employer practice
Matter of Monroe County v New York State Pub. Empl. Relations Bd., 2011 NY Slip Op 05170
June 29, 2011
Actively participating in the arbitration process without objection precludes the party later claiming that the matter presented to the arbitrator was not subject to arbitration
Matter of Jandrew v County of Cortland, 2011 NY Slip Op 04143, Appellate Division, Third Department
Cortland County terminated Bryon Jandrew from his position with the County.
June 28, 2011
Substantial evidence that the educator would be reemployed during the succeeding school year defeats teacher’s claim for unemployment insurance between school years
Matter of Murphy v Commissioner of Labor, 2011 NY Slip Op 05396, Appellate Division, Third Department
A professional employed by an educational institution is ineligible for unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment.*
Patricia J. Murphy was employed as a per diem substitute teacher in Manhattan and the Bronx by the New York City Department of Education during the 2008-2009 school year for a total of 154 days. On June 12, 2009, claimant was sent a letter by the employer assuring her of continued employment during the upcoming 2009-2010 school year, with the amount of work available and the economic terms and conditions of employment to be substantially the same as in the previous year.
Murphy applied for unemployment insurance benefits for the summer of 2009 buts the Unemployment Insurance Appeal Board ultimately determined that she was ineligible to receive them as she had received a reasonable assurance of continued employment. Murphy appealed the Board’s determination.
The Appellate Division affirmed the Board’s ruling, holding that the testimony by the school district, together with the letter sent to Murphy indicating a belief she would be offered the same amount of work during the succeeding academic year, provide substantial evidence to support the Board's determination.
June 27, 2011
Request for reconsideration of an administrative determination does not toll the running of the statute of limitation
Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA
June 24, 2011
June 23, 2011
Employee terminated for cause may grieve the employer’s denying the individual post-employment health insurance benefits
Matter of Union- Endicott Cent. School Dist. v Union-Endicott Maintenance Workers' Assn., 2011 NY Slip Op 05167, Appellate Division, Third Department
George Kolmel, was employed as a maintenance worker for some 35 years by the Union-Endicott Central School District. In May 2009 Kolmel submitted a letter of resignation setting out an effective date of September 30, 2009.
The school district, however, disregarded his resignation letter pursuant to 4 NYCRR 5.3 (b)* and filed disciplinary charges against him pursuant to Civil Service Law §75. Following the §75 hearing on the disciplinary charges, but before a decision was rendered, the Union-Endicott Maintenance Workers Association filed a grievance on behalf of Kolmel alleging that the school district violated the CBA by conditioning Kolmel's entitlement to retirement health insurance benefits upon the outcome of the disciplinary proceeding by electing to disregard Kolmel's letter of resignation and pursue disciplinary charges against him.**
The disciplinary hearing officer sustained the charges against Kolmel and recommended his termination. The Board of Education adopted the hearing officer’s findings and recommendations and terminated Kolmel. It then denied his grievance on the ground that, since he was terminated from employment, he was not a "retiree" for purposes of retirement health benefits under the CBA.
The Union filed a demand for arbitration but the school district filed a petition pursuant to Civil Practice Law and Rules §7503, seeking a court order to stay the arbitration of the grievance.
Supreme Court denied the school districts motion to stay arbitration, finding that there was no public policy prohibiting arbitration of the issue of Kolmel's entitlement to post-employment health benefits and that the dispute was one which the parties had agreed to arbitrate under the CBA.
In considering the school district’s appeal of the Supreme Court’s ruling, the Appellate Division said that: "The court's role in reviewing applications to stay arbitration is . . . a limited one," citing Matter of Enlarged City School Dist. of Troy [Troy Teachers Assn, 69 NY2d 905.”
Further, said the court, in considering the school district’s appeal, it applies a “two-pronged test” for determining whether a grievance is arbitrable, and must decide:
1. Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance; and
2. If no such prohibition exists, the court must determine if the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.
As to the public policy issue, the Appellate Division said that the school district argues that “public policy prohibits arbitration of the matter since determination of Kolmel's employment status is governed by 4 NYCRR 5.3(b), which provides that "when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation."
Essentially the school district contended that “to allow an arbitrator to determine whether Kolmel retired or was dismissed for purposes of receiving retiree benefits under the CBA would violate the policy considerations embodied in 4 NYCRR 5.3(b) in that it would defeat its authority to disregard petitioner's resignation and ignore Kolmel's status as a dismissed employee under the regulation.”
The Appellate Division disagreed, explaining that “[I]t is well settled that 'there is no prohibition against arbitrating a dispute originating from the terms of a collective bargaining agreement concerning health insurance benefits for retirees,'" citing Matter of Peters v Union-Endicott Cent. School Dist., 77 AD3d at 1239.”
The school district, said the court, had not identified any statute, precedent or public policy that prohibits arbitration of a dispute over the provision of contractual post-employment retirement benefits to an employee who has committed a crime or otherwise engaged in misconduct. Further, although 4 NYCRR 5.3 (b) provides for an employee's termination under these circumstances to be recorded as a dismissal rather than a resignation, no law or policy requires an employee's status under 4 NYCRR 5.3 (b) to be determinative of that employee's status under the CBA.
The Appellate Division concluded that “The issue of the effect, if any, of Kolmel's status as a dismissed employee pursuant to 4 NYCRR 5.3 (b) — as well as his alleged misconduct — as it pertains to his entitlement to benefits goes to the merits of the grievance, not to its arbitrability.”
The Appellate Division also rejected the school district’s argument that Kolmel had no right to arbitration under the CBA as a dismissed employee, noting that the broad arbitration clause permitted the Union to demand arbitration if dissatisfied with the decision at Stage 3 of the grievance process. Moreover, said the court, issues such as a school district's relationship to retired or discharged employees and the question of whether such former employees are covered by the grievance procedure are for the arbitrator to decide.
* N.B. 4 NYCRR 5.3(b) applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides: 4 NYCRR 1, Application of Rules, states that “Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service” [emphasis supplied]. However, many local civil service commissions and personnel officers have adopted a similar rule.
** Kolmel otherwise met the requirements to receive retirement health benefits under the CBA.
The decision is posted on the Internet at:
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