Using an employee personnel files to determine an appropriate disciplinary penalty

Using an employee personnel files to determine an appropriate disciplinary penalty

Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470

Perhaps the leading case concerning the use of an employee's personnel records in disciplinary procedures is the Court of Appeals’ decision in Bigelow v Trustees of the Village of Gouverneur

In Bigelow, the Court of Appeals held that if a civil service employee is found guilty of misconduct, a public employer may consider material included in the employee's personnel files in determining the appropriate sanction.

The employee, however, must first be advised of the information in his or her personnel record that the appointing authority will consider in determining the penalty and then must be given an opportunity to submit a written response concerning that information.

Individual serving in major nontenured policy-making or advisory position ineligible for unemployment insurance benefits upon separation

Individual serving in major nontenured policy-making or advisory position ineligible for unemployment insurance benefits upon separation

Fromer v Commissioner of Labor, 286 AD2d 816

The critical issue in this aspect of the litigation brought by Howard A. Fromer in his effort to obtain unemployment insurance benefits was his employment status with the now abolished State Energy Office: was he an independent officer of the agency?

The Appellate Division, Third Department, sustained a ruling by the Unemployment Insurance Appeals board holding that Fromer was not eligible for unemployment insurance benefits following his termination when his position was abolished. Fromer had served as general counsel to the State Energy Office from October 1988 until it was abolished on March 31, 1995.

The reason for Fromer's disqualification for benefits: The Board determined that Fromer served in a major nontenured policymaking or advisory position. Accordingly, he was “statutorily excluded” for such benefits by Labor Law Section 565(2)(e).

Earlier the Appellate Division had remanded the case to the Board for it to consider Fromer's argument that because he was a veteran within the meaning of Section 75 of the Civil Service Law, he was entitled to benefits [268 AD2d 707]. In considering this issue, the Board concluded that Fromer was an independent officer and, therefore, he was not entitled to limited tenure under Section 75. Fromer again appealed.

The Appellate Division again sustained the Board's determination, ruling that the protection afforded by Section 75 does not extend to those who hold “the position of private secretary, cashier or deputy of any official or department.” This listing, said the court, has been judicially interpreted to include independent officers, citing O'Day v Yeager, 308 NY 580.

Quoting from O'Day, the court commented that in determining whether a particular person is an independent officer, “[n]o automatic rule, no definitive signpost, is at hand, for it may fairly be said that each case must be decided upon its own facts.”

The court rejected Fromer's argument that because there was no statutory provision creating the position of general counsel for the Energy Office, there was no support for the Board's finding that he was an independent officer. It said that “[c]reation of the office by statute is a guide and not the sine qua non of whether a civil service position is independent.”

The Appellate Division said the record demonstrated that Fromer's position with the Energy Office was not that of a subordinate employee and that all of his duties and responsibilities required a high degree of initiative and independent thought and judgment.

Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

Matter of Veeder v New York State Police Dept., 2011 NY Slip Op 05921, Appellate Division, Third Department

The widow of a Division of State Police forensic scientist, Donna Veeder, filed an application for workers' compensation death benefits, claiming that her husband became depressed and committed suicide as a result of actions she alleged were taken against him by the Division in the course of an investigation of her late husband’s performance of his duties.

The Workers' Compensation Law Board affirmed, concluding that Workers' Compensation Law §2(7)* barred the claim since the Division's actions were made in good faith and were the result of "a lawful personnel decision involving an investigation and potential disciplinary action."

Veeder appealed contending that that §2(7) was inapplicable because her husband had committed suicide and thus his injuries cannot be "solely mental."

The Appellate Division rejected this argument, explaining that “The unrefuted psychiatric evidence contained in the record, as well as the suicide letters, make clear that decedent's suicide was predominantly the product of the depression and stress he experienced from the employer's inquiry” into his performance of his duties. Accordingly, if work-related stress is not compensable under Workers' Compensation Law §2(7), “it necessarily follows that any physical injury that resulted therefrom cannot be compensable either.”

Considering Veeder’s argument that the Division’s actions in this case were not undertaken in the context of a "disciplinary action" within the meaning of the statute, the Appellate Division decided that Board's finding lacks substantial evidence in the record.

The court noted that there was “unequivocally” testimony that “there was no disciplinary action underway during the inquiry” and that the purpose of the meetings was to review the procedures employed by Veeder’s late husband “in conducting the testing and to look into ways for the laboratory to improve its testing methods.”

As the Board, having found the Division's actions to constitute a "disciplinary action" under Workers' Compensation Law §2(7), it did not reach the employer's alternative argument that its actions in that regard could also be deemed an evaluation of decedent's work under the statute, and that the stress experienced by decedent was no greater than that normally encountered in the work environment.

Accordingly, the Appellate Division vacated the Board’s determination and remanded the matter to it “for resolution of these issues.”

* Workers' Compensation Law §2(7) provides, in relevant part, that "[t]he terms 'injury' and 'personal injury' shall not include an injury which is solely mental and is based on workrelated stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer"

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05921.htm

Leave for religious holidays

Leave for religious holidays

Burns v The Warwick Valley CSD, USDC, SDNY, 166 F. Supp. 2d 881

Warwick Valley Central School District teachers sued the district contending that the district's policy of asking about the religious tenets of employees' religion before granting “personal leave” for religious observances was unconstitutional. The teachers asked federal district court Justice McMahon to bar the district from making such inquiries in the future.

According to the teachers, the district's “new policy” implementing a Taylor Law contract in connection with the use of personal leave for religious observances provided for the district to first inquire about “formal religious practices of an applicant's organized religion.” If the District saw no conflict between those practices and working hours, it then made an inquiry testing the sincerity of the teacher's beliefs.*

The court ruled that the teachers did not show that the district's policy is likely to cause them recurring injury, noting that the parties stipulated that the district has given teachers all the leave they have requested since the new policy was implemented. This, said the Federal District Court, meant that the teachers did not have standing to sue, and granted the district's motion for summary judgment.

* In Port Washington USFD v Port Washington TA, 268 A.D.2d 523, motion for leave to appeal denied, 95 N.Y.2d 761, the Appellate Division ruled that a Taylor Law contract provision allowing an individual to be absent on a religious holiday with pay without charging his or her absence to leave credits violates the First Amendment. 

Appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law

Appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law

Mennella v Uniondale UFSD, App. Div., 2nd Dept., 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602

This case arose when Vincenza Mennella attempted to obtain court approval to file a late notice of claim in order to sue the Uniondale Union Free School District to recover damages for alleged racial discrimination and “fraudulent inducement.”

Mennella was still in her first year of a three-year probationary period when the school board voted to terminate her employment as the Dean of Students at the Uniondale High School.

As a condition precedent to commencement of a legal action against a school district, Section 3813(1) of the Education Law requires that a written verified claim be presented to the governing body of the school district within three months of accrual of the claim. Such a notice of claim must provide the school district with information as to the nature of the claim, the time when, the place where, and the manner in which, the claim arose as well as the essential fact concerning the claim.

In the Mennella case, the Appellate Division decided that a petition filed with the Commissioner of Education may constitute the functional equivalent of a Section 3813(1) notice of claim.

According to the ruling, six days after the school district terminated Mennella's probationary employment, she filed a petition with the Commissioner of Education seeking review of that determination.

Mennella's petition to the Commissioner of Education included allegations that the acting principal made certain statements indicative of racial discrimination. In the proceedings before the Commissioner of Education, the school district asserted that the allegations of racial discrimination were “baseless”.

The Appellate Division said that the petition to the Commissioner of Education constituted the functional equivalent of a notice of claim with respect to the Mennella's allegations of racial discrimination.

Abolishing a full-time position in favor of two part-time positions and the Doctrine of Legislative Equivalency

Abolishing a full-time position in favor of two part-time positions and the Doctrine of Legislative Equivalency

Matter of Lamb v Town of Esopus, 35 AD3d 1004, 827 N.Y.S.2d 307

The Lamb case raised two issues addressed by the Appellate Division. The first is relatively common, dealing with the abolishment of a position. The second is relatively rare: a claim that the doctrine of legislative equivalency was not applied in this case.

The Town of Esopus abolished the full-time building department aide position held by Debra L. Lamb and established two part-time positions instead. Lamb sued, seeking a court order directing Esopus to reinstate her to her former position with back pay and benefits. Supreme Court dismissed Lamb’s petition and the Appellate Division affirmed the lower court’s action.

Esopus claimed that it restructured its building department to keep down costs and increase efficiency. This, it contended, required elimination of Lamb’s full-time position. The Town also argued that Lamb did not have any tenure status in her position, which was a position in the non-competitive class.

The Appellate Division said that once the Town came forward with prima facie evidence that Lamb was not entitled to Civil Service Law protection, the burden shifted to her to raise a triable issue of fact regarding her entitlement to such protection. This, said the court, she failed to do.

While Lamb had been employed the Town for a number of years and passed a civil service examination qualifying her for numerous clerical positions, she failed to present proof that she was employed in a noncompetitive class position for five continuous years, a threshold requirement for tenure in the position (see Civil Service Law §75 [c]).*

Further, said the court, even had Lamb enjoyed the benefits accorded non-competitive class employees by §75.1(c) the Town could eliminate her position for purposes of economy or efficiency. It was Lamb’s burden to demonstrate that the elimination of her position was motivated by bad faith or was a subterfuge. Her efforts to meet this burden by contending that the Town failed to prove any cost savings resulted from its reorganization of the building department and elimination of her full-time position was rejected by the court.

The Town, said the court, showed that the reorganization increased efficiency by permitting it to hire a full-time building inspector by “transferring the benefits previously provided to [Lamb's] position.” The Town also said that the hiring several part-time workers also allowed the department to be open an additional 16 hours per week and not close during the lunch hour, thus increasing public access to the office.

The Appellate Division said that Lamb failed to meet her burden of overcoming the Town’s bona fide reasons for eliminating her position.

Lamb also argued that the elimination of her position violated the doctrine of legislative equivalency. Under that doctrine, said the court, "a position created by a legislative act can only be abolished by a correlative legislative act,” citing Matter of Torre v County of Nassau, 86 NY2d 421 and other cases.

According to the decision, it appears that Lamb’s position was created in January 2001 by a resolution providing for the “appointment of officers and employees,” and the same full-time position was eliminated when the Town enacted a resolution providing for the “appointment of officers and employees” in January 2005. As the position was created and abolished by the same means, the court said that the Town had acted in accord with the principle of legislative equivalency.

* Civil Service Law Section 75.1(c) provides that “an employee holding a position in the non-competitive class other than a position designated in the rules of the state or municipal civil service commission as confidential** or requiring the performance of functions influencing policy, who since his last entry into service has completed at least five years of continuous service in the non-competitive class in a position or positions not so designated in the rules as confidential or requiring the performance of functions influencing policy….”

** N.B. “confidential” within the meaning of Section 75.1(c) is not the equivalent of  “confidential” as that term is used in Article 14 of the Civil Service Law; the Taylor Law.

Public employer may be liable for damages suffered as a result of negligent supervision and negligent retention of its employees

Public employer may be liable for damages suffered as a result of negligent supervision and negligent retention of its employees

Gray v Schenectady City School Dist., 2011 NY Slip Op 05925, Appellate Division, Third Department

One of the defendant in this action, Steven Raucci, was employed by the Schenectady City School District) as its director of facilities. Raucci, however, did not appeared in this action as “In April 2010, he was convicted of 18 felony counts, including several for conduct against plaintiffs and their property during the time when he was employed by [Schenectady City School District].”

The Grays’ complaint alleged Raucci and the school district inflicted intentional emotional distress. In addition, their compliant charged the school district with “negligent 

In this appeal the school district argued that Supreme Court should have dismissed the complaint with respect to it.

The Appellate Division agreed in part, noting that “a claim of intentional infliction of emotional distress” requires the plaintiff to allege more than conduct that causes inconvenience or embarrassment, even if such conduct continues for a protracted period of time. The complaint, said the court, must also allege that the defendant's conduct was "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [was] utterly intolerable in a civilized community."

Although the court found that “Liberally construed,” the Grays’ allegations were sufficient to state a cause of action of intentional infliction of emotional distress against Raucci, the Appellate Division held that the school district’s “mere inaction after receiving complaints about Raucci's behavior” cannot be considered the type of extreme and outrageous conduct that is "utterly intolerable in a civilized community." Further, said the court, Schenectady could be held vicariously liable for Raucci’s tortious actions only if he committed them in furtherance of school district’s business and within the scope of his employment.

Thus, concluded the Appellate Division, Supreme Court should have granted the part of defendant's motion seeking dismissal of the first cause of action against it. 

Supreme Court, however, properly denied the part of the school district’s motion seeking to dismiss the causes of action alleging negligent supervision and negligent retention of Raucci. 

The Appellate Division explained that such claims require allegations that the school district knew or should have known of “its employee's propensity to engage in the conduct that caused the [Grays’] injuries, and that the alleged negligent supervision or retention [of Raucci] was a proximate cause of those injuries.” 

In this instance the Grays alleged that Raucci vandalized their property and threatened their personal safety. Such alleged conduct, said the court, certainly appears to fall outside the scope of his employment. Further, the Grays alleged that Raucci used the school district’s computers, material and personnel to harass and intimidate them and that, even after Schenectady was informed of Raucci's conduct targeting them, it failed to investigate or discipline him. 

The Appellate Division concluded that the complaint filed by the Grays “sufficiently alleged that [Schenectady’s] negligent supervision or retention of Raucci permitted him continued access to the means to carry out his actions, which caused [the Grays] injuries.” Accordingly, the Appellate Division ruled that Supreme Court “correctly refused to dismiss the second and third causes of action.” 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05925.htm

Only a governmental not-for-profit corporation’s records is subject to FOIL

Only a governmental not-for-profit corporation’s records is subject to FOIL

Matter of Rumore v Board of Educ. of City School Dist. of Buffalo, . 35 A.D.3d 1178

Philip Rumore, president of the Buffalo Teachers Federation, sought a court order directing the Board of Education of the City School District of Buffalo (Board) and the Education Innovation Consortium [EIC] to provide him with certain records and information pursuant to the Freedom of Information Law [FOIL] (Public Officers Law Article 6). The records sought included EIC’s salary and budgetary records.

Supreme Court granted Rumore’s petition in part by directing the Board to obtain those records from EIC and then to make them available to Rumore for copying. The Appellate Division disagreed and ruled that the lower court should have dismissed Rumore’s petition in its entirety.

The ruling points out that FOIL requires the disclosure of the records of an “agency”. The term “agency” is defined as "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature" (Public Officers Law §86 ).

Although a not-for-profit corporation may fall within the definition of an agency subject to FOIL if its purpose is governmental and it has the attributes of a public entity, here, said the court, the record demonstrated that EIC does not have those attributes.

Among the elements the court found persuasive in finding that EIC was not a governmental body were the following:

EIC's budget is not approved by any governmental agency;

EIC has a self-elected Board of Directors;

The School District has no authority to hire or discharge any employee of EIC;

EIC did not have offices in any District-owned building;

EIC provides services to the District on a fee-for-services basis; and

EIC provides services to other clients as well as the District

Thus, said the court, Supreme Court “erred in concluding that EIC is an agency subject to the mandates of FOIL.”

In addition, the Appellate Division said that it agreed with the arguments advanced by the Board and EIC that because the records sought by Rumore are not "kept, held, filed, produced or reproduced by, with or for" the District by EIC, they do not fall within the ambit of FOIL.

Presumption of work-connected heart attack for the purposes of Retirement and Social Security Law Section 363-a(1)

Presumption of work-connected heart attack for the purposes of Retirement and Social Security Law Section 363-a(1)

Tortorello v McCall, App. Div., 286 AD2d 841, Motion for leave to appeal denied, 97 NY2d 607

Roni Tortorello's husband, who was employed as a lieutenant in the Rockland County Sheriff's Department, collapsed at home after jogging earlier in the day and was pronounced dead at a hospital emergency room. The cause of death was listed as coronary occlusion due to coronary arteriosclerosis and thrombosis, with a prior myocardial infarction listed as a contributing condition.

The New York State Employees' Retirement System [ERS], concluding that Lt. Tortorello had not sustained an accident in service on the date of his death, rejected his widow's application for an accidental death benefit. ERS determined that Lt. Tortorello's death occurred at home on his day-off after jogging and thus was not the result of an accident sustained while in service.

Tortorello's widow sued, claiming that she was entitled to accidental death benefits because Section 557 of the Retirement and Social Security Law provides that “any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence”.

The Appellate Division disagreed with this theory, noting that the relevant statutory “heart presumption” clause provides that “any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence.” Accordingly, the “heart presumption” is a rebuttable presumption.

Here there was no medical evidence identifying any particular work-related incident as a possible cause of Lt. Tortorello coronary occlusion. Under these circumstances, and because it is not necessary that all possible accidental causes be disproved in order to rebut the statutory presumption, ERS could rationally focus on the day of Lt. Tortorello fatal cardiac event as the date of the presumptive accident. In effect, the court concluded that under the facts in this case, ERS had “rebutted the presumption.”

The court ruled that since the day on which he suffered the heart attack was a scheduled day off for Lt. Tortorello and as there was no evidence that he actually performed any of his police duties that day, ERS could rationally conclude that decedent did not sustain an accident in service on that day.

The Appellate Division commented that ERS has interpreted the “in service” requirement for an accidental death benefit as the equivalent of the “in service” requirement for accidental disability benefits ... and that it saw no basis to disturb that interpretation.

The court's conclusion: Tortorello's claim that the stress of late husband's duties caused or contributed to his disease of the heart and resulting coronary occlusion is unsupported by any medical evidence in the record. Further, risks inherent in her late husband's routine police duties are not accidental in nature.

In identical language, Retirement and Social Security Law Section 363-a(1) provides a “heart presumption” for firefighters. Presumably the court's rationale in deciding the Tortorello case would be applied in a similar situation involving a firefighter.

Evidence of pretext bars summary judgment of a Title VII complaint alleging unlawful discrimination because of race

Evidence of pretext bars summary judgment of a Title VII complaint alleging unlawful discrimination because of race

Curry v Menard, Inc., CA7, 00-4219, 270 F.3d. 473

Demonstrating that other employees of a different race were not subjected to the same disciplinary action for the same offense is sufficient to establish “pretext” for the purposes of Title VII.

Sylvia Curry, a black woman employed as a cashier at Menard's Sokie, Illinois store, complained that Menard Inc. had discharged her from her position because of her race.

Menard, on the other hand, said that Curry had been discharged in accordance with its “progressive discipline” policy after it found shortages in her cash receipts on three different occasions. The district court granted Menard's motion for summary judgment. The Court of Appeals overturned the lower court's ruling, noting that From January 1, 1997, to December 31, 1998, Curry was the only cashier to be suspended or terminated for violating the store's progressive discipline policy although the record shows that had the policy been strictly enforced sixteen other cashiers should have been suspended or terminated in that same time period.

The Circuit Court said that summary judgment is appropriate if there is no genuine issue as to any material fact. Under such circumstances the moving party is entitled to judgment as a matter of law. As Curry did not provide any direct evidence of discrimination because of her race, she had to prove a prima facie case of discrimination under the burden-shifting method. To establish a prima facie case of discrimination, Curry was required to show that:

1. She belongs to a protected class;

2. She performed her job according to Menard's legitimate expectations;

3. She suffered an adverse employment action; and

4. Similarly situated employees outside the protected class were treated more favorably.

A prima facie case creates a presumption of discrimination and shifts the burden to the employer to produce evidence of a legitimate, race-neutral reason for the adverse action taken against the employee. If the employer meets this burden, the plaintiff then has the burden of showing that the employer's stated “nondiscriminatory reason” is merely a pretext for discrimination.

Finding that Curry proved a prima facie case of unlawful discrimination, the court said that Menard contended that Curry was not meeting its legitimate performance expectations because she had accumulated three “cash drawer” violations. Arguing that it had dismissed Curry in accordance with its progressive discipline policy, Menard claimed it had shown that it had terminated Curry for nondiscriminatory reasons.

Curry, then, was required to show that Menard's explanation of its action was pretext for unlawful discrimination.

The Circuit Court decided that Curry had met this burden by establishing that two employees, Margaret Venetico and Anne Merurio, both non-black cashiers, had two or more cash discrepancies but were neither suspended nor terminated. The court decided that this was sufficient evidence of alleged pretext to survive Menard's motion for summary judgment.

The key element here was Curry's evidence that prior to, and after, the tenure of Michael Stanley as the manager of the store none of the cashiers who had discrepancies, including Curry, was disciplined under the company's “progressive discipline” policy. In contrast, while Stanley was the manager there were three employees who had cash shortages but only Curry was fired.

This, said the court, leaves a material question of fact of whether terminating Curry for breaching the policy was a pretext.

Accumulating tenure eligibility credit while serving as an “intern teacher” not authorized

Accumulating tenure eligibility credit while serving as an “intern teacher” not authorized

Matter of Berrios v Board of Educ. of Yonkers City School Dist., 2011 NY Slip Op 05804, Appellate Division, Second Department

The genesis of this case was the termination of Jesus Berrios by the Board of Education of the Yonkers City School District without a hearing. Berrios, contending that he had attained tenure in his position with the District by estoppel or acquiescence,*complained that the Board’s action violated his rights to due process as set out in Education Law §3020-a.

The thrust of Berrios’ argument was that he had “accumulate tenure credit” while teaching under “an intern teaching acquiesce certificate.” The Appellate Division rejected his theory, holding that in the absence of holding a valid teaching certificate, in contrast to being employed pursuant to an “intern certificate,” a teacher’s service could not be credited toward completion of a required probationary period.

The Appellate Division ruled that Berrios was terminated while serving as a probationary employee and such personnel may be terminated at any time during the probationary period without being given a reason and without a hearing.**

Another element in this case concerned so-called “Jarema Credit.”*** Noting that “[s]ervice as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher,” the Appellate Division observed that the Court of Appeals had held that a substitute teacher's three-year probationary period can be reduced to one year if the individual is eligible for "Jarema" credit.

Where, however, a teacher has not served as a regular substitute in the year immediately preceding a probationary appointment, such service will not count towards Jarema credit. In addition, said the court, case law supported its conclusion that Jarema credit cannot be awarded to a regular substitute teacher who does not possess a valid New York State teacher's certificate.

The court explained that “[a]llowing a substitute teacher to accumulate tenure credit for time spent teaching pursuant to an intern certificate would mandate that a school board grant or deny tenure to that teacher before he or she obtained a valid teacher's certificate.”

Rejecting Berrios’ contention that he acquired tenure by estoppel, the Appellate Division noted that a contrary determination would discourage school districts from employing students authorized to teach pursuant to intern certificates, thereby depriving both the school districts and the teachers of that valuable experience.

In light of the foregoing, the Appellate Division decided that Supreme Court correctly determined that Berrios did not earn tenure by estoppel because his first year of teaching as a substitute pursuant to an intern certificate was not creditable toward tenure. Thus, the Supreme Court was correct in denying his the petition, and properly dismissed the proceeding.

* Tenure by estoppel or acquiesce results "when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term" [McManus v Bd. of Educ. of Hempstead UFSD, 87 NY2d 183].

** See Education Law §2509[1][a]; §3014[1] N.B. The summary termination of a probationer, however, will not be permitted if it is determined to have been for an unconstitutional or unlawful purpose or reason.

*** Typically referred to by the name of the bill's sponsor, then Assemblyman Stephen J. Jarema, Education Law §2573[1][a], in pertinent part, provides that “Teachers and all other members of the teaching staff, authorized by section twenty-five hundred fifty-four of this article, shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years … the probationary period shall be limited to one year….”

:

**** Prior to February 2, 2004, the entry-level certificate for classroom teachers were denominated "provisional" and are now denominated "initial."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05804.htm

Arbitrating a grievance after the Taylor Law contract expires

Arbitrating a grievance after the Taylor Law contract expires

Uniformed Fire Fighters Assoc. Inc. v City of Mount Vernon, NYS Supreme Court, Justice Lefkowitz, Not selected for publication in the Official Reports

The 1996-2000 collective bargaining agreement between the Firefighters Union and the City of Mount Vernon provided that an issue involving random drug testing should be resolved by December 1, 1997 or it would be submitted to arbitration. The issue, however, was neither resolved nor submitted to arbitration.

The collective bargaining agreement expired on December 31, 2000. As no successor agreement had been negotiated, the provisions of Section 209-a(1) -- the so-called Triborough Amendment -- were triggered.*

On July 30, 2001 the city demanded that the drug testing issue be submitted to arbitration. The Union objected and asked State Supreme Court Justice Lefkowitz to stay the arbitration. Justice Lefkowitz granted the Union's motion, ruling that the City's demand to submit the matter to arbitration was untimely since the collective bargaining agreement had expired prior to its making the demand.

According to Justice Lefkowitz:

Absent conduct of the parties evincing survival of the arbitration clause notwithstanding expiration of the contract or an intent of survival contained within the parameters of the contract, an otherwise arbitrable dispute is not subject to arbitration upon expiration of the agreement “except as to rights and wrongs, which had already come into existence.

 

Justice Lefkowitz said that Section 209-a(1), making it an improper labor practice for a public employer to refuse to continue all the terms of an expired agreement until a new agreement is negotiated, applies only “insofar as the rights of the union are concerned.”

Justice Lefkowitz commented that “statutorily only the public employer is obligated to arbitrate with respect to the terms of the expired contract until a new agreement is effective."

Implicit in Justice Lefkowitz's interpretation: Section 209-a(1) provides that only the union may demand arbitration under the expired agreement's contract grievance procedure concerning an alleged violation of a term or condition contained the expired Taylor Law agreement.

However, in Schenectady v Lainhartsi, 177 AD2d 826, the Appellate Division, Third Department said that the expiration of a collective bargaining agreement did not result in the agreement's arbitration clause being unenforceable as Section 209-a(1) [see Footnote below] mandates the continuation of all of the terms of the expired agreement, including the arbitration provision. Presumably this means that the mandates set out in Section 209-a(1) apply equally to both the employer and the union.

In contrast, if a provision set out in an expired Taylor Law agreement itself contained a “sunset” provision, presumably that specific limitation would be observed and excluded from the mandates implicit in Section 209-a(1).

* Section 209-a(1) of the Civil Service Law, makes it an improper practice for a public employer “to refuse to continue all the terms of an expired agreement until a new agreement is negotiated.”