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Wednesday, December 31, 2014

Although the “management rights” clause in the collective bargaining agreement permitted the employer to restructure its workforce, the union retained the right to bargain over the practical impact of such action on the remaining employees


Although the “management rights” clause in the collective bargaining agreement permitted the employer to restructure its workforce, the union retained the right to bargain over the practical impact of such action on the remaining employees
Sanitation Officers Assn. v City of New York, , 2014 NY Slip Op 08769, Appellate Division, First Department

Sanitation Officers Association, Local 444, SEIU, AFL-CIO (the Union), the exclusive bargaining representative of all supervisors and level-I superintendents employed by Department of Sanitation of the City of New York (DOS), filed a grievance under the parties' collective bargaining agreement (CBA) alleging that DOS improperly reassigned supervisors in violation of the CBA.

DOS, on the other hand, asserted as an affirmative defense that, for economic reasons, they exercised management rights reserved under the CBA by laying off 200 out of 330 supervisors, and reassigning the remaining supervisors to additional district sections. DOS contended that it had retained its management prerogative to restructure the workforce and the CBA expressly reserved its right to alter the ratio of supervisors to collection equipment.

The arbitrator found that although the union had established a prima facie violation of the CBA. The grievance, however, was denied as the arbitrator found that DOS had retained its management prerogative to restructure the workforce and the CBA expressly reserved its right to alter the ratio of supervisors to collection equipment.

The Union filed a petition pursuant to CPLR Article 75 seeking to vacate the arbitrator’s award.
Although Supreme Court had granted the Union’s petition and remanded the matter for consideration of an appropriate remedy, the Appellate Division unanimously reversed the Supreme Court’s ruling, on the law, and confirmed the award.

The Appellate Division explained that contrary the Union’s argument, arbitrator did not exceed his power in considering and crediting DOS's defense. The court said that the arbitrator's consideration of DOS’s defense was necessary to resolve the dispute submitted to him and his decision was not irrational nor did it exceed a specifically enumerated limitation on his power.
The court than noted that the arbitrator’s denial of the grievance did not impair the Union's right to bargain over the practical impact that the workforce reduction and reassignments have placed on the remaining employees.

Finding that the arbitrator’s decision did not violate the strong public policy favoring collective bargaining, the Appellate Division said that there no basis to overturn the arbitrator's interpretation of the issues and the scope of his authority, “which must be accorded substantial deference.”

The decision is posted on the Internet at:

Tuesday, December 30, 2014

A momentary lapse in judgment resulting in the employee’s termination may not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law


A momentary lapse in judgment resulting in the employee’s termination may not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law
Sullivan (Brookville Ctr. for Children's Servs., Inc.-- Commissioner of Labor), 2014 NY Slip Op 08703, Appellate Division, Third Department

A claimant for unemployment insurance benefits [Claimant] had been employed for almost seven years. She was terminated from her position as the result of her violating the employer's written policy prohibiting employees from posting on social media "during work hours, unless for specific and approved business purposes." 

The Unemployment Insurance Appeal Board determined that Claimant was entitled to receive unemployment insurance benefits because, in its view, she had not lost her job due to disqualifying misconduct. The employer appealed.

The Appellate Division commenced its discussion by noting that “The question of whether a claimant engaged in actions sufficient to disqualify him or her from receiving unemployment insurance benefits is a factual one for the Board to resolve.” Further, court said that the Boar’s “determination will not be disturbed if supported by substantial evidence." 

The court explained that not every discharge for cause rises to the level of misconduct, which is defined as "a willful and wanton disregard of the employer's interest." 

Noting that Claimant did not dispute that she was aware of the employer's policy on social media usage and that she nevertheless posted an item during work hours, the Appellate Division commented that the record indicated that it was “an isolated incident” and that Claimant had a clean disciplinary record prior to her termination. 

Citing Matter of Nangreave, 107 AD3d 1211, the court sustained the Board’s determination as “Substantial evidence thus supports the determination of the Board that ‘Claimant's’ behavior, while reflective of a momentary lapse in judgment, did not rise to the level of disqualifying misconduct”

The decision is posted on the Internet at:



Monday, December 29, 2014

An employer’s unilaterally adopted policy providing health insurance benefits to employees upon retirement may be rescinded with respect to employees retiring after the effective of the rescission

An employer’s unilaterally adopted policy providing health insurance benefits to employees upon retirement may be rescinded with respect to employees retiring after the effective of the rescission  
Covel v Town of Peru,2014 NY Slip Op 08686, Appellate Division, Third Department 

Donald E. Covel Jr., a former elected official and employee of the Town of Peru, commenced a CPLR Article 78 proceeding contending that the employee benefit policy unilaterally enacted by the Town in 1991-1992 served as an implied promise requiring the Town to pay his health insurance benefits after he retired in 2009 with 33 years of service as a part-time employee. 

The 1991-1992 policy provided, as relevant in this action, that a part-time employee eligible for the Town's health insurance plan "who subsequently retires with 20 years' continuous service will be allowed to carry health insurance into retirement for both the employee and the spouse with the premium being paid by the Town."

Supreme Court granted Peru’s motion to dismiss Covel’s petition, concluding, among other things, that the Town’s 1991-1992 policy did not constitute a contract and the Town's 2009 policy, which rescinded all prior policies and did not provide for payment of part-time employee's health insurance premiums upon retirement, was applicable. The Supreme Court noted that the 1991-1992 policy relied on by Covel was a unilateral offer from the Town that had been revoked prior to Covel's performance of the acts required for acceptance – retirement from service with the Town.

The Appellate Division affirmed the Supreme Court’s ruling, rejecting Covel argument that once he achieved 20 years of service his right to this retirement benefit vested no matter when he retired.

The Appellate Division disagreed and said that, in its view, the language of the 1991-1992 policy is susceptible to only one reasonable interpretation and should be enforced according to its plain terms. 

The court then said that the plain terms of the policy “require 20 years of continuous service and retirement in order for part-time employees to be entitled to have the Town pay insurance premiums.”

Concluding that Supreme Court's interpretation reflects "a practical construction of the language used so that the reasonable expectations of the parties are realized” the Appellate Divsion dismissed Covel’s appeal.

The decision is posted on the Internet at:
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Saturday, December 27, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 27, 2014


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 27, 2014
Click on text highlighted in color  to access the full report

DiNapoli: New Yorkers Foot the Bill for Billions in Public Authority Spending and Debt

Spending by New York’s largest public authorities jumped $3.5 billion since last reported in 2013, with state and local authorities reporting nearly $60 billion in spending in their latest annual filings, according to a report released Tuesday by State Comptroller Thomas P. DiNapoli. Meanwhile, the combined debt of state and local authorities topped a quarter of a trillion dollars.

DiNapoli: Cohocton Town Clerk Pleads Guilty in $36,000 Theft Former Cohocton Town Clerk Sandra Riley pleaded guilty in Steuben County Court Monday to stealing $36,000 in dog license and building permit fees after an audit and investigation by State Comptroller Thomas P. DiNapoli’s office revealed the theft of public funds.

New York State Comptroller Thomas P. DiNapoli Tuesday reminded New Yorkers that contributions to a New York State 529 College Savings Program account are tax deductible. New York’s 529 College Savings Program, an investment tool designed to help parents save for college, ranks among the best in the nation, and New York is one of a handful of states that offer state tax relief.

DiNapoli Releases November State Cash Report State tax collections through the first eight months of the state fiscal year totaled $41.8 billion, $242.2 million higher than projected in the latest Financial Plan update, according to the November cash report released Monday by New York State Comptroller Thomas P. DiNapoli. The state has also collected nearly $4.1 billion of the $5.5 billion expected from financial settlements since the budget was enacted, which is approximately $3.8 billion more than anticipated.
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Friday, December 26, 2014

Aide to Governor Cuomo's letter to State Regents Chancellor and State Education Commissioner seeks suggestions to improve the State's education system

Aide to Governor Cuomo's letter to State Regents Chancellor and State Education Commissioner seeks suggestions to improve the State's education system
Source: Hornell New York The Evening Tribune [Updated Dec 24, 2014]

An article appearing in the Hornell [NY] Evening Times captioned “Cuomo aide: Teacher reforms top governor's agenda,” by Al Bruce reports that “A letter sent to high-ranking state education officials last week by a top aide to Gov. Andrew M. Cuomo" seeks suggestions to improve the State's primary and secondary education operations.

The article indicates that “The three-page letter, although addressed to State Regents Chancellor Dr. Merryl H. Tisch and State Education Commissioner Dr. John B. King Jr., was distributed to superintendents of some member districts of Boards of Cooperative Education Services. Dr. James J. Malatras, director of state operations, asked the questions in the letter" dated December 18, 2014.

Mr. Bruce's article, which includes a number of the questions posed by Dr. Malatras, is posted on the Internet at:
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Wednesday, December 24, 2014

Court review of an interim order of an arbitrator



Court review of an interim order of an arbitrator
Kramer v Geldwert, 2014 NY Slip Op 08732, Appellate Division, First Department

Supreme Court denied the petitioner’s motion for discovery in aid of arbitration and dismissed the matter. The Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that although in exceptional circumstances, pre-hearing discovery pursuant to CPLR 3102(c) may be ordered after the demand for arbitration has been made, a court may not review the interim orders of an arbitrator.

Thus, concluded the Appellate Division, judicial review of procedural rulings made in the arbitration giving rise to this arbitration administered by the American Arbitration Association is barred’

The decision is posted on the Internet at:

Tuesday, December 23, 2014

Audit reports of public entities posted on the Internet by New York State's Comptroller Thomas P. DiNapoli on December 23, 2014



Audit reports of public entities posted on the Internet by New York State's Comptroller Thomas P. DiNapoli on December 23, 2014
Click on text highlighted in color  to access the full report


Town of Broome – Purchasing and Justice Court (Schoharie County)
The board did not ensure purchases were made at the lowest cost, in compliance with the town’s procurement policy, and used for proper Town purposes. The board also did not provide oversight to ensure the town justice recorded, deposited and disbursed all court money accurately and timely.

Candor Fire District – Controls Over Financial Activities (Tioga County)
The board did not ensure that the monthly budget-to-actual reports provided by the treasurer were complete and that miscellaneous revenues collected were recorded and deposited. In addition, the board attempted to segregate cash receipt duties by having the treasurer open the mail and forward all money received to a board member for deposit. However, there was no audit trail beginning with the initial point of cash collection to show the amounts the treasurer actually received.

County of Clinton Industrial Development Agency – Project Monitoring (2014M-205)
The board did not design and implement an adequate system to monitor IDA approved projects. For example, IDA officials did not have a system in place to track the amounts directly billed and collected by taxing jurisdictions for payments in lieu of taxes. The IDA also did not have an effective process in place to monitor and evaluate agreed-upon job expectations, which may have helped avoid a shortfall of 100 jobs for eight of the 10 projects reviewed.

Dutchess County – Court and Trust (2014M-293)
The records maintained by the surrogate’s court were generally up-to-date and complete. However, the condition of all court and trust funds were not reported to the Office of State Comptroller as required. Reports on the condition of court and trust funds was correct, however they did not include detailed descriptions of the projects closed during the 2013 fiscal year.

Genesee County – Court and Trust (2014M-322)
The records maintained by the surrogate’s court were generally up-to-date and complete. However, the clerk does not make an entry into the court and trust fund register of the money ordered to be paid.

Georgetown Fire District – Board Oversight (Madison County)
Board members did not ensure that complete and accurate accounting records were maintained, bank reconciliations were performed, annual financial reports were prepared and filed in a timely manner, and that the treasurer’s records were annually audited. Furthermore, because the records were in such poor condition, the board was precluded from fully understanding the district’s financial condition.

Greene County – Court and Trust (2014M-294)
The records maintained by the surrogate’s court and county clerk were generally up-to-date and complete. However, auditors identified $66,637 in funds that have not been turned over to the Office of State Comptroller as abandoned property, even though the funds have been in the custody of the treasurer for more than three years.

Hewlett Bay Fire District – Professional Services and Information Technology (Nassau County)
The board did not develop adequate procedures that required the solicitation of competition for the procurement of professional services. As a result, officials did not solicit competitive proposals for eight of the nine professionals who provided services totaling $150,800 during the audit period. In addition, the board has not adopted a comprehensive IT policy.

Long Lake Fire District No. 1 – Controls Over Financial Activities (Hamilton County)
The treasurer maintained adequate records of the district’s financial activity and provided detailed monthly and quarterly reports to the board. However, the treasurer has not filed an annual financial report with the Office of State Comptroller since August 2011.

Town of Milford – Justice Court Operations (Otsego County)
Although all three town justices deposited and disbursed court money properly during the audit period, they did not always ensure it was completely collected or accurately recorded and reported. Of 78 cases reviewed, auditors found various deficiencies among 39 cases.

New Woodstock Fire District – Controls Over Financial Activities (Madison County)
The secretary-treasurer maintained adequate financial records and the board generally provided adequate oversight of district financial activities. However, the district has not filed its annual financial report with the Office of State Comptroller for the last four years.

Town of Pierrepont – Fiscal Stress (St. Lawrence County)
The board adopted budgets that relied too heavily on appropriated fund balance as a financing source. Furthermore, the board did not require the bookkeeper to submit estimates of year-end fund balance and did not adopt a policy to determine the amount of unrestricted, unappropriated fund balance to maintain. This has led to significant reductions in the town’s fund balances from the beginning of 2011 to the end of 2013. In addition, the board has not developed a multiyear financial and capital plan to address the town’s long-term priorities.

City and Town of Poughkeepsie Joint Water Project – Board Oversight (Dutchess County)
The board does not ensure the joint water project is operated in accordance with the intermunicipal cooperation agreements. The board does not require the city to make its quarterly estimated payments for operating costs.
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