Wednesday, June 21, 2017

Expulsion of a public employee in a collective bargaining unit from membership in an employee organization recognized or certified for the purposes of the Taylor Law


Expulsion of a public employee in a collective bargaining unit from membership in an employee organization recognized or certified for the purposes of the Taylor Law
Montero v Police Assn. of the City of Yonkers, Inc., 2017 NY Slip Op 02040, Appellate Division, Second Department

Raymond Montero asked the Appellate Division to review a determination by Supreme Court that sustained the Police Association of the City of Yonkers, Inc., also known as Yonkers Police Benevolent Association [YPBA], expulsion of Montero from its membership. The Appellate Division annulled the lower court ruling, on the law, with costs, and granted Montero's petition.

YPBA had notified Montero of charges alleging he was guilty of certain misconduct and of a hearing scheduled to consider such charges. Montero chose not to appear at the hearing. Apparently YPBA conducted Monero's hearing in absentia and made a determination to expel him from membership in the organization.

Citing Matter of Kelly v Northport Yacht Club, Inc., 44 AD3d 858, the Appellate Division set out the standard for assuming jurisdiction in the matter as follows: "[W]here the constitution and by-laws of a voluntary association reasonably set forth grounds for expulsion and provide for a hearing upon notice to the member, judicial review of such proceedings is unavailable, unless the reason for expulsion is not a violation of the constitution or by-laws or is so trivial as to suggest that the action of the association was capricious or corrupt, or unless the association failed to administer its own rules fairly."

Here, said the court, YBPA determined that Montero committed conduct that was "prejudicial to the welfare of the Association," in violation of the bylaws, was arbitrary and capricious.

Montero was charged with providing "information" to the author of articles published online, providing that author with an email from the YPBA's president to the members, publishing that email online himself, with comments, and being involved in an altercation with another member. The court noted that "Other than the single identified email, there is no basis in the record on which to determine what, if any, other information was provided to the author of the articles by [Montero], and whether such unidentified information was detrimental to [YPBA]."

Although YPBA characterized the email as "confidential," the Appellate Division opined that there is no reason to conclude that the email, which was sent to all of the YPBA's members, was confidential as the email merely contained a statement indicating that the sharing of the email was "discouraged." Further, said the court, while Montero's was alleged to have disseminated "certain misinformation," during a time when YPBA was negotiating a contract with the City of Yonkers complicated the contract negotiations, YPBA failed to explain how the shared email, or the comments made by Montero, had such an effect or was detrimental to the welfare YPBA.

Quoting from Polin v Kaplan, 257 NY 277, the court observed that "If there be any public policy touching the government of labor unions, and there can be no doubt that there is, it is that traditionally democratic means of improving their union may be freely availed of by members without fear of harm or penalty. And this necessarily includes the right to criticize current union leadership. . . . The price of free expression and of political opposition within a union cannot be the risk of expulsion or other disciplinary action. In the final analysis, a labor union profits, as does any democratic body, more by permitting free expression and free political opposition than it may ever lose from any disunity that it may thus evidence."

Lastly, the court said that there was no rational basis for the conclusion that a brief physical altercation between Montero petitioner and another YPBA member "prejudice[d] the welfare" of organization.

The decision is posted on the Internet at:

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

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A Reasonable Penalty Under The Circumstances 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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