Monday, January 12, 2015

Violating an employer's known policy may result in disciplinary action and can constitute disqualifying misconduct for unemployment insurance benefit purposes


Violating an employer's known policy may result in disciplinary action and can constitute disqualifying misconduct for unemployment insurance benefit purposes
Matter of Intini (Commissioner of Labor),
2014 NY Slip Op 08933, Appellate Division, Third Department

The Unemployment Insurance Appeal Board which ruled that claimant Andrew J. Intini was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Supervisors of the municipality’s sanitation workers could assign individuals to work extra hours pursuant to an inverse seniority rotation policy. In June 2010, Intini, a municipal sanitation worker, was terminated from his position as a result of his refusal to work the additional time assigned to him by his supervisor. Intini filed a grievance challenging his termination and In November 2010 an arbitrator held that by refusing an order by a member of management, Intini had violated a written standard of conduct and, therefore, there was just cause for the termination. The arbitrator then reinstated Intini to his former position, which reinstatement was conditioned upon Intini not violating the appointing authority’s standards of conduct for six months. Intini did not appeal the arbitrator’s determination.

On January 6, 2011, Intini was assigned to work extra hours by his supervisor pursuant to the inverse seniority rotation policy. Intini again refused the assignment and following a hearing, the arbitrator ruled that by refusing an order by a member of management, Intini had violated “a written standard of conduct and, therefore, there was just cause for the termination.” Intini did not appeal this determination.

Intini then applied for unemployment insurance benefits. An Administrative Law Judge (ALJ) held a hearing and determined that Intini had been earlier afforded a full and fair opportunity to litigate the issue of his conduct before the arbitrator. Accordingly, the ALJ gave collateral estoppel effect to the arbitrator's findings of fact and ruled that Intini’s actions constituted misconduct under the Labor Law and denied his application for benefits.

The Unemployment Insurance Appeal Board affirmed the ALJ’s ruling and Intini appealed the Board’s decision. Intini contended that he was denied a full and fair opportunity to litigate the issue of misconduct before the arbitrator and, therefore, the Board erred in giving collateral estoppel effect to the arbitrator's factual findings.

The Appellate Division rejected Intini argument explaining that he was represented at the arbitration hearing by a nonattorney representative from his union,* and was given the opportunity to testify and present other evidence, and the union representative had cross-examined the employer's witnesses.

Thus, said the court, it could not conclude that the Board's decision to give collateral estoppel effect to the arbitrator's factual findings was affected by an error of law noting that a review of the record confirmed that the Board made "an independent evaluation as to whether that conduct constitutes 'misconduct' for the purposes of unemployment insurance."

The Appellate Division also noted that violating an employer's known policy “can constitute disqualifying misconduct for unemployment insurance benefit purposes.”

* §75.2 of the Civil Service, in pertinent part, provides: "The person or persons holding such hearing shall, upon the request of the person against whom charges are preferred, permit him to be represented by counsel, or by a representative of a recognized or certified employee organization, and shall allow him to summon witnesses in his behalf."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_08933.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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