Authority to modify or vacate an arbitration award may be limited by the terms of a collective bargaining agreement

A collective bargaining agreement between the parties provided that if an employee was found guilty of charges involving an assault, the appointing authority had the power to set and impose a penalty.

An employee was charged with assaulting another worker. Found guilty of the charge, the penalty imposed by the appointing authority was dismissal. The union, on behalf of the employee, appealed the appointing authority's determination to the Tripartite Arbitration Board [Board] in accordance with the controlling contract disciplinary grievance procedure.

When the Board denied the grievance but modified the penalty imposed to a suspension rather than termination, the appointing authority filed an Article 75 petition pursuant to §7511 petition seeking to vacate the Board's action. The appointing authority contended that the Board had exceeded its authority when it modified the penalty the appointing authority had imposed.

Supreme Court agreed and vacated that portion of the award that modified the penalty imposed by the appointing authority. The Appellate Division subsequently rejected the union's appeal challenging the lower court's ruling. The Appellate Division said that a court could vacate an arbitrator's award for a limited numbers of reasons, including:

a. the violation of a strong public policy;

b. finding that the award was irrational; or

c. determining that the award clearly exceeded a specific limitation on the arbitrator's powers.

Here the Appellate Division found the limitation described in (c) above controlled as the collective bargaining agreement specifically provided that where the Board sustained the disciplinary charges, the penalty imposed by the Authority must be sustained as well.

Accordingly, the Court ruled that the Board, having sustained the assault charge, had no authority to modify the penalty fixed by the appointing authority -- termination of the employee.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997660239ad2d4211268

Imposing the penalty of termination on an employee found guilty of misconduct following a disciplinary hearing overturned as "shocking to the conscience of the court"

A police officer was found guilty of misconduct after a disciplinary hearing. The Police Commissioner imposed the penalty of  dismissal. The Appellate Division modified the penalty imposed on the Petitioner by the Commissioner that resulted in the officer's termination and the forfeiture of his retirement benefits "on the law" and remanded the matter to the Commissioner "for determination of a lesser penalty."

Petitioner had admitted to the theft of $20 from an undercover officer illegally parked near a hydrant and acting intoxicated in the course of an integrity test* targeting Petitioner's partner. Evidence supported the finding that Petitioner also made false statements in the course of an official investigation in violation of the Police Department's Patrol Guide.

Although the Appellate Division concluded that there was no basis to disturb the credibility determinations of the Hearing Officer, it found that "under the circumstances presented here," the penalty of termination and forfeiture of [Petitioner's] pension "shocked the court's conscience and sense of fairness" and thus violated the so-called Pell Doctrine.**

The court opined that the question of whether a penalty is so disproportionate to the misconduct as to shock the conscience requires a case by case factual analysis and found mitigating factors that required it to vacate  the penalty of dismissal and the deprivation of Petitioner's right to his accrued pension. The Appellate Division characterized such a disciplinary penalty as an "affront to our sense of fairness" and "shock[s] the conscience" by the Appellate Division.

Considering mitigating factors, the majority of the court,*** conceding that Petitioner's conduct was "troubling," concluded that Petitioner's misconduct "was an aberration from his otherwise exemplary career," noting that Petitioner:

1. Had nearly twenty years of police service with the Police Department, prior to which he served in the United States Army for eight years where he was a sergeant in the military police, receiving an honorable discharge;

2. During his tenure with the Police Department, Petitioner had no formal disciplinary history, and received a total of 38 medals for "Excellent Police Duty" and "Meritorious Police Duty;" and

3. The loss of Petitioner's pension would work a financial hardship on his wife, who is diagnosed with cancer, and their now 10-year-old daughter.

* An integrity test places a police officer in a lifelike scenario to ascertain whether the officer would act in accordance with the law and Police Department policies.

** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

*** Judges Richter and Kern dissented in part in a memorandum by Judge Richter, concluded that in view of Petitioner's "on-duty theft of money and his subsequent false statements, both of which are offenses involving moral turpitude, the penalty of termination is not so disproportionate to the offense as to shock one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06568.htm

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A Reasonable Disciplinary Penalty Under the Circumstances

Applying the terms of a settlement agreement settling a disciplinary action

During the course of Plaintiff's disciplinary hearing Plaintiff, represented by counsel, entered into a settlement agreement with the appointing authority [Employer] acting "on its own behalf and on behalf of its present and former ... employees." The settlement agreement provided that the Employer would discontinue the disciplinary proceeding and remove a letter of disciplinary charges from the Plaintiff's personnel file while Plaintiff agreed to retire from his employment with the Employer and to release the Employer and its employees "from all claims or causes of action he may have or claim to have . . . including any and all claims in any way arising out of, or related to, his employment with the Employer, or his separation from that employment."

Subsequently Plaintiff commenced an action to recover damages for defamation, alleging that the individuals [Defendants] named in his complaint, also employees of the Employer, had falsely accused him of actions that led to the disciplinary charges that were preferred by the Employer against him.

Defendants move to dismiss the complaint, submitting a copy of the settlement agreement that had been executed by the Plaintiff in connection with the discontinuance of the disciplinary proceeding that had been brought against him.

Notwithstanding Plaintiff's argument to the contrary, Supreme Court granted the Defendant's motion "for failure to state a cause of action" and Plaintiff appealed.

The Appellate Division explained that [1] the terms of the release contained in the settlement agreement clearly and unambiguously encompass Plaintiff's action and [2] Plaintiff failed to allege any unlawful or wrongful threat by the Employer that could serve as the basis of a claim of duress, which was the only ground the plaintiff alleged to void the release. Thus, opined the Appellate Division, "the release executed by the [Plaintiff] should be enforced according to its terms."

The Appellate Division noted the following elements with respect to a release that will be enforced by a court:

1. "A release is a contract, and its construction is governed by contract law;"

2.  "A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release";

3 "Where . . . the language of a release is clear and unambiguous, the signing of a release is a jural act 'binding on the parties';"

4.  "Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release"; and

5. "Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden ... to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06588.htm

Criteria for promotion are a managerial prerogative and thus not a mandatory subject of collective bargaining

The New York City Correction Officers' Benevolent Association [Petitioner] filed an  Article 78 petition to challenge a determination by New York City Board of Collective Bargaining [BCB] which concluded that New York City Department of Corrections [DOC] and the City of New York [City] did not commit an improper practice under the City Collective Bargaining Law [CBL] when it altered the procedures pursuant to which correction officers represented by Petitioner secure promotions to the title of correction captain.

Petitioner had filed an improper practice petition with BCB alleging that the City and DOC violated New York City when DOC issued Directive 2230, entitled "Pre-Promotional Assignment Procedures" in accordance with a consent order approved by a federal district court in a case involving allegations of excessive use of force incidents in DOC facilities.*

The relevant provision in Directive 2230 concerns promotions within DOC provided for (1) a review of a correction officer's use of force and disciplinary history during the five years prior to the consideration for promotion; (2) a prohibition of the promotion of candidates who were found guilty or plead guilty on two or more occasions to five categories of discipline for excessive use of force during the prior five year period; and (3) a prohibition of a promotion from correction officer to captain while disciplinary charges related to use of force incidents are pending.

Board of Education, City School District of City of NY. v New York State Public Employment Relations Board, 75 NY2d 660, Supreme Court observed that "[i]n cases involving the issue of mandatory or prohibited bargaining subjects under the Civil Service Law, we have defined our review power as a limited one: [s]o long as [the agency's] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation." Further, opined Supreme Court, "New York courts have deferred to BCB's expertise in applying and interpreting the provisions of the CBL," citing New York City Dept. of Sanitation v MacDonald, 87 NY2d 650.

BCB had found that Directive 2230 does not constitute a unilateral change to a term of condition of employment, thus DOC did not make a unilateral change to a mandatory subject of collective bargaining, noting that in prior cases BCB had held that criteria for promotion are a managerial prerogative and not a mandatory subject of collective bargaining. Here, said the court, BCB concluded "that the contested changes in promotions set forth in Directive 2230 concern criteria for 'promotion"

Noting that BCB had found that DOC "exercised its managerial prerogative" when it took into consideration DOC took into consideration use of force incidents when considering  promotion to captain a correction officer's use of force incidents, finding that these elements "most akin to promotional considerations like aptitude, demeanor, and judgment, or to awarding greater points for those candidates with a less extensive disciplinary history."

Supreme Court held that these conclusions by BCB were rational and consistent with its  decisions in other cases and thus were "legally permissible" and there was "no breach of constitutional rights [or] protections" in its determination.  Accordingly, said Supreme Court, it had "no power to substitute another interpretation" in considering the arguments advanced by Petitioner.

Addressing Petitioner arguments that the Directive 2230 criteria regarding whether a corrections officer should be recommended for promotion to captain is analogous to imposing mandatory penalties for disciplinary violations, a mandatory subject of collective bargaining, Supreme Court opined that "New York courts, like BCB in the instant proceeding, have held that discipline is not the same as failure to promote."

The court then granted the motions advanced by BCB, the City and DOC to dismiss the Petitioner's Article 78 action.

* See Nunez v City of New York, 11 Civ 5845 (SDNY 2015),

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/pdfs/2019/2019_32628.pdf

Rescinding or withdrawing a letter of resignation

The employee [Plaintiff] in this action was a civilian employee of a police department [Department]. A detainee had died in her holding cell at police headquarters while the Plaintiff was on duty. The New York State's Attorney General's Office investigated the death of the detainee and recommended "administrative action regarding the Plaintiff's conduct" be initiated by the Department.

The then Department's appointing authority "authorized" the Plaintiff's supervisor "to resolve the disciplinary issue by accepting a letter of resignation" from the Plaintiff. The supervisor told Plaintiff that if he did not resign from his position a formal disciplinary proceeding would be commenced against him. Plaintiff tendered his resignation letter immediately after his meeting with his supervisor.

The next day, however, Plaintiff sent a letter to his supervisor rescinding his resignation. About two weeks later the Department notified the Plaintiff' that it had rejected his effort to rescind his resignation. Plaintiff then commenced a CPLR Article 78 proceeding seeking a court order [1] vacating the Department's decision, [2] directing the Department to reinstate him to his former position and [3] to pay Plaintiff "damages and back pay. The Supreme Court granted Plaintiff's petition and the Department appealed.

With respect to resigning from a position in the classified service, the Appellate Division, citing 4 NYCRR 5.3(b), said that such resignations are to be delivered to, or filed in the office of, the appointing authority* and that 4 NYCRR 5.3(c) provides that "a resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority without the consent of the appointing authority."

However, the court noted that the Department's appointing authority was not authorized to delegate his authority to receive the delivery of an employee's written resignation to another individual.

Although the heads of other departments in the jurisdiction were specifically authorized to delegate the power to receive the delivery of an employee's resignation to a designated individual, the powers and duties of the Department's appointing authority "did not specifically provide for any such delegation of the [appointing authority's] power to a subordinate." Accordingly, the Appellate Division held that Plaintiff's supervisor "was without authority to receive delivery of [Plaintiff's] resignation letter" on behalf of the Department's appointing authority.

As there was no indication in the record that Plaintiff's letter of resignation was delivered to the appointing authority or filed by or on behalf of the Plaintiff with the appointing authority's office prior to the Plaintiff's request to rescind it, "such that the [appointing authority's] consent to [its withdrawal] was necessary," the Plaintiff was not preclude from "unilaterally rescinding his resignation."

It should be noted that  the Plaintiff  was informed that if he did not submit his resignation to his supervisor a formal disciplinary proceeding against him would be initiated. Does such a demand constitutes “duress or threat” that will defeat the “voluntariness” of the resignation and make it meaningless? Case law indicates that in the absence of extenuating circumstances such as an excessively lengthy or intense questioning, courts will not deem the individual's resignation to have been obtained under duress.

In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeal addressed a situation where an employee was offered the option of resigning from his position or having formal disciplinary charges filed against him. Although permitted to confer with a union official, when the employee asked for additional time to consult with an attorney, he was told that unless he submitted his written at that very moment, disciplinary charges would be filed against him. He submitted his resignation but four days later attempted to withdraw or rescind his resignation, which he contended had been “forced” from him.

Ultimately the Court of Appeals held that a threat to file formal disciplinary  charges against an employee if he declined to submit his resignation "does not constitute duress," explaining that as the appointing authority had the legal right, if not the duty, to file disciplinary charges against the individual, threatening to do what the appointing authority had the legal right to do is not duress.

In contrast to an individual's efforts to withdraw his or her resignation, an appointing authority may elect to ignore a lawfully delivered resignation.

4 NYCRR 5.3(b), which as noted earlier applies to State employees in the classified service, provides that in the event “… 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 termination shall be recorded as a dismissal rather than as a resignation". Many civil service commissions of political subdivisions of the State have adopted a similar provision.

* 4 NYCRR 1.1 et seq. applies to incumbents of positions in the classified service of the State as the employer and to public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the New York State Department of Civil Service. Here the "local civil service commission" had adopted personnel rules similar to those set out in 4 NYCRR 1.1 et seq. which applied to all positions in the classified service of the county and all civil divisions "which are or may hereafter be under the jurisdiction" of the local commission.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06601.htm

New York's Adirondack Council's 2019-20 State of the Park report posted on the Internet

Subtitled Challenged by Success, New York's Adirondack Council's 2019-20 State of the Park report is posted on the Internet at https://www.adirondackcouncil.org/vs-uploads/sop_archive/1567097203_SOP_2019_2.pdf

Employee terminated for mishandling cash transactions

A City School District School Board [School Board] charged its cashier [Petitioner] with misconduct based on allegations that she failed to record various purchases of milk and juice by students as well as purchases of food by adults. In addition, she was charged with failing to account for "pre-identified bills."

Testimony was provided by Petitioner's co-workers, who had been instructed to observe her handling of "cash transactions" for a period of time by their supervisor. The Appellate Division said that this testimony, together with certain documentary evidence in the record of the disciplinary hearing, "provided the necessary substantial evidence to support the hearing officer's finding of misconduct and incompetency" and the adoption of  those findings by the School Board.

The Appellate Division also ruled that dismissal was not disproportionate to the offenses committed, citing the Pell standard. The Court said that "having violated her position as an employee entrusted with School District money, termination in all respects was proper."

An employee may claim that his or her theft of money from an employer was the result of a disability. If, indeed, the misconduct can be attributed to a disability in some degree, must the appointing authority refrain from disciplining the individual?

No, according to the Equal Employment Opportunity Commission, which opined that "an employer may discipline an employee with a disability for engaging in misconduct if it would take the same disciplinary action against an employee without a disability.*

Further, 8 FEP Manual 40-5.7259 indicates that "an employer does not have to excuse ... misconduct, even if the misconduct results from an impairment that rises to the level of a disability if it does not excuse similar misconduct from its other employees."

* See EEOC 915.002.

The decision is posted on the Internet at:

https://www.leagle.com/decision/19971076238ad2d8381281

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A Reasonable Disciplinary Penalty Under the Circumstances

Employer's personnel policy manual setting out reasons why an employee could be subject to dismissal does not constitute a "written contract" of employment

The Board of Trustees of the Library System [System] dismissed an employee [Plaintiff] from her position with the System. Plaintiff sued, contending that her termination constituted a breach in her contract of employment.

A New York State Supreme Court judge found that Plaintiff was an employee at will and dismissed her complaint. When Plaintiff appealed, the Appellate Division sustained the lower court's ruling, explaining that Plaintiff did not demonstrate that she had a written contract of employment with the System, much less that it had been breached.

While the Library System's "Personnel Policy and Procedure Manual set out a number of reasons why an employee could be terminated such as "unfitness, incompetence, and mental or physical disability, the Appellate Division concluded that this was not a "written contract of employment." Accordingly, the setting out of such reasons for termination in the policy manual "did not limit ... [the System's] right to discharge an employee at will to just and sufficient cause only."

The decision also notes that absent an agreement establishing employment for a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party.

Finding that Plaintiff was an employee at will and thus she could be terminated at any time, for any reason, except an unlawful reason, or for no reason whatsoever, the Appellate Division said Plaintiff's "complaint sounding in breach of contract and detrimental reliance was properly dismissed" by Supreme Court.

In contrast, as the Court of Appeals held in Antinore v State, 40 NY2d 6, where an individual is within the ambit of a statutory disciplinary procedure such as Civil Service Law §75 or §3020-a of the Education Law, or a contract disciplinary grievance procedure set out in a collective bargaining agreement, the employee is entitled to administrative due process.

In Antinore the Court explained that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997611239ad2d3722272

Employer fined and held liable for lost wages and benefits for violating certain New York City's Earned Safe and Sick Time Act provisions

A law firm and its founding partner [Respondents] were charged with violating New York City's Earned Safe and Sick Time Act (“ESSTA”) when it terminated an employee allegedly for exercising his rights under ESSTA, required him to provide details of his medical condition, and failed to maintain "sufficient written sick leave policies."

New York City's Office of Administrative Trials and Hearings [OATH]  Administrative Law Judge Kevin F. Casey found that the employee’s use or attempted use of his sick time was one of the motivating factors for his firing and he did not credit the Respondent’s claim that the termination was for non-medical reasons.

Finding the firm’s founding partner and the law firm to be jointly liable for the violations, Judge Casey ordered the Respondents to pay a fine of $1,500 and $172,215.30 in relief to the former employee. 

The ALJ's decision, OATH Index No. 514/19, is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-514MD.pdf

Violating New York City's Earned Safe and Sick Time Act (“ESSTA”) results in a fine and the payment of damages to the employee

A law firm and its founding partner [Respondents] were charged with violating New York City's Earned Safe and Sick Time Act (“ESSTA”) when it terminated an employee allegedly for exercising his rights under ESSTA, required him to provide details of his medical condition, and failed to maintain "sufficient written sick leave policies."

New York City's Office of Administrative Trials and Hearings [OATH]  Administrative Law Judge Kevin F. Casey found that the employee’s use or attempted use of his sick time was one of the motivating factors for his firing and he did not credit the Respondent’s claim that the termination was for non-medical reasons.

Finding the firm’s founding partner and the law firm to be jointly liable for the violations, Judge Casey ordered the Respondents to pay a fine of $1,500 and $172,215.30 in relief to the former employee. 

The ALJ's decision, OATH Index No. 514/19, is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-514MD.pdf

Legacy Contaminants of Emerging Concern: Lead (Pb), Flint (MI), and Human Health

Source:  This article by Robert A. Michaels, PhD, CEP was published online by the Environmental Claims Journal.  The full text of this article is available at no charge at:

https://www.researchgate.net/publication/335432817_Legacy_Contaminants_of_Emerging_Concern_Lead_Pb_Flint_MI_and_Human_Health_published_online_12_September_2019_print_expected_January_2020.    

ABSTRACT

As a heavy metal industrially mined for millenia, lead (Pb) is a legacy contaminant. It is also a contaminant of emerging concern because of its persistence, toxicity, and recent discovery of its resurgence in drinking water serving homes and schools, recently and most notoriously in Flint, Michigan. Concern about lead, however, has reemerged beyond Flint, exemplifying adoption of bad science policy despite availability of relevant good science. Much is known about lead toxicity, and profiled here. Whereas adults chronically exposed to lead may experience peripheral neuropathy, infants and children are more susceptible. They constitute sensitive subpopulations because their blood-brain barriers are immature, making them susceptible to central nervous system effects, most notably reduced IQ, when lead penetrates to developing brains. Failure to protect disadvantaged populations in Flint and beyond despite availability of proven science and inexpensive technology also exemplifies instances of environmental injustice. Emerging concern about lead thus illustrates failure of social as well as science policy. A critical lesson to be learned is that vigilance must be maintained, as knowledge about lead exposure and toxic effects provided by science does not automatically result in consistent and evenhanded legal and regulatory protection provided by government.

Contact Dr. Michaels via e-mail at ram@ramtrac.com.

Direct dealings with members in a negotiating unit

"Direct dealing" involves an employer establishing or attempting to establish a negotiating relationship with one or more unit members to the exclusion of the employees' exclusive bargaining agent.

In Local 650 and the City of Buffalo, 30 PERB 3020, PERB decided that the City of Buffalo had not engaged in "direct dealing," but PERB concluded that the city had unlawfully interfered with an employee's statutory right to representation.

A part-time administrative program aide, [Aide] was initially hired  and scheduled to work from 10 a.m. until 3 p.m. Her supervisor allowed her some flexibility, but a dispute eventually arose about her hours. The City eventually abolished the Aide's position and terminated her.

PERB found that the record demonstrates that Aide would not have been terminated nor her position abolished had the Local agreed to her starting at 10 a.m. Indeed, PERB's decision reports that the City admitted that Aide was terminated "because [the Local's] proposals on her behalf in negotiations regarding work schedule were 'unacceptable' to the City."

PERB decided that Aide's termination violated §209-a.1(a) of the Civil Service Law [the Taylor Law] regardless of whether her work schedule was a mandatory or non-mandatory subject of negotiations, explaining that the City's action violated Aide's right to have union representation within the meaning of §202 of the Taylor Law.

It seems clear that an employer does not have a legal duty to negotiate with a union if a subject matter proposed for discussion is non-mandatory. But the absence of a legal duty to bargain does not mean that the employer is allowed to take action against an employee because of the nature of  the help extended to that employee by the union. Simply put, PERB held that Buffalo based its action on an impermissible reason.

The City could have taken action against Aide for not complying for its directive regarding her reporting to work. But it could not lawfully terminate her simply because the local had pursued a negotiating position that the City considered impossible.

PERB ordered the City to recreate Aide's former position and reinstate her to it, with back salary and benefits.