Resolving a dispute that arose in the course of negotiating a collective bargaining agreement

The Detective Association [Plaintiff] alleged that the City of New York [City] made an oral promise in the course of its collective bargaining negotiations with the Plaintiff that in the event it reached a collective bargaining agreement [CBA] with the Plaintiffs before reaching a CBA with another union with which it was then engaged in collective bargaining, the Benevolent Association, it would not then use its contract with the Benevolent Association as leverage to extract additional concessions from Plaintiff.

After negotiating a CBA with the Plaintiff, the  City subsequently entered in a CBA with the Benevolent Association that included a wage increase for incumbent officers 2.25% higher than Plaintiff had received on behalf of its negotiating unit members. This increase was funded by reducing entry level pay and, or, benefits for new officers in the Benevolent Association negotiating unit, a practice known as "selling the unborn." 

Plaintiff contended that it did not represent entry-level members and the City said Plaintiff would have to make concessions such as giving back certain benefits then being enjoyed by Detective Association unit members if it wished to obtain the same 2.25% wage increase for individuals in its negotiating unit as the Benevolent Association had negotiated for its unit members, a practice known as "attrition bargaining."

Plaintiff sued, seeking a declaration that its unit member are entitled to the 2.25% wage increase and the City is estopped from demanding that funds for the increase be achieved through "attrition bargaining". 

Supreme Court denied the City's motion to dismiss Plaintiff's complaint in its entirety, which ruling was unanimously reversed, on the law, by the Appellate Division.

The Appellate Division explained that in this instance Plaintiff was attempting to have the court interpret the CBA between the City and the Plaintiff on grounds of fairness and equity -- impliedly to include a 2.25% wage increase -- places this dispute squarely within the definition of a grievance within the meaning of the CBA, i.e., "a dispute concerning the ... interpretation of the terms of this collective bargaining agreement." 

Accordingly, opined the Appellate Division, the issue must be resolved pursuant to the grievance procedures set forth in the CBA which provides that in the event a matter is not resolved at an earlier stage, it will be arbitrated before the New York City Board of Collective Bargaining (BCB).

The Appellate Division concluded that this dispute was within BCB's primary jurisdiction as Plaintiff alleged  that the City not only failed to "implement" the CBA between the parties, but subverted it by negotiating a CBA with another employee organization that entailed "selling the unborn" and thus had "engaged in conduct antithetical to good faith bargaining as defined in [the New York City] Administrative Code §12-306(c)."

In the words of the Appellate Division, "This is a claim of 'improper practices' that is properly addressed by BCB," citing §12-309[a][4] of the Administrative Code of the City of New York.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01711.htm

Threatening an employee with disciplinary action if he does not resign from his position

The plaintiff [Petitioner] brought an action in federal district court alleging that the Town of East Haven, Connecticut [Town] discriminated against her because of her age in violation of the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. §§621‐634, and Connecticut state law.

The federal district court granted Town's motion for summary judgment on the sole ground that Petitioner had failed to make out a prima facie case of any adverse employment action because Petitioner chose to retire rather than attend a scheduled disciplinary hearing. This,  in the words of the U.S. Circuit Court of Appeals, Second Circuit, was "the only merits‐based challenge presented in the Townʹs summary judgment motion."

Petitioner appealed the district court's ruling contending that the court erred in failing to view her evidence that her retirement was not voluntary but was coerced by the threat of likely termination as the result of a disciplinary action undertaken by Town against her and thus constituted a constructive discharge.

The Circuit Court agreed, holding that viewing the evidence in the light most favorable to Petitioner sufficed to present genuine issues of fact "as to whether a reasonable person in Petitioner's shoes would have felt compelled to retire." Again, in the words of the Circuit Court, "If this case were tried, a factfinder, applying the correct legal standard to the issue of constructive discharge, could rationally find that an employee in [Petitoner's] shoes would have felt compelled to submit her resignation stating that she was retiring, rather than face nearly certain termination."

The Circuit Court vacated the district court's judgment and remanded the matter to the lower court for further proceedings.

In Rychlick v Coughlin, 99 A.D.2d 863, aff'd 63 NY2d 643, the Appellate Division opined that threatening to do what the appointing authority has a right to do – in this instance filing  disciplinary charges against Rychlick if he refused to resign from his position -- did not constitute coercion so as to make Rychlick’s resignation involuntary. 

Further, 4 NYCRR 5.3(b), which applies to officers and employees of the State as the employer, in pertinent part provides that "... when 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 local jurisdictions in New York State have adopted a similar rule or regulation.

The Circuit Court of Appeal's decision is posted on the Internet at:

https://www.leagle.com/decision/infco20200310084

Determining the beneficiaries of a retiree's death benefit

The retiree [Decedent], a member of the New York City Employees' System, [CERS] retired in March 2016. On November 21, 2016, Decedent submitted a notarized retirement option election form to CRES in which she designated the Plaintiff [Beneficiary 1] in this action as the beneficiary of the death benefit payable by CRES to her designated beneficiary. 

On November 25, 2016, Decedent submitted a second form to CERS designating two different individuals, Beneficiary 2 and Beneficiary 3, to receive her CERS death benefit. 

Decedent died on December 16, 2016.

On March 1, 2017, Beneficiary 1 appeared in person at the CERS customer service center and filled out a request for information form seeking the identity of Decedent's death benefit beneficiary. NYCERS mailed a letter dated March 22, 2017 to Beneficiary 1 stating that Beneficiary 2 and Beneficiary 3 were the beneficiaries of Decedent's death benefit. On March 27, 2017 Beneficiary 1  returned to the CERS customer service center and submitted a letter to CERS demanding that CERS halt the distribution of any monies attributed to Decedent's death benefit to Beneficiary 2 and, or, Beneficiary 3. 

CERS subsequently sent a letter dated March 30, 2017 to Beneficiary 1 stating that the death benefit would be paid to Beneficiary 2 and Beneficiary 3 because the last notarized retirement option election form that CERS received from the Decedent designated them as the beneficiaries of Decedent's death benefit.*

In December 2017, Beneficiary 1 initiated an action pursuant to CPLR Article 78, "in the nature of mandamus"**  seeking a court order compelling CERS to pay the Decedent's death benefit to her. CERS and Beneficiary 2 separately moved to dismiss the petition as time-barred.

Supreme Court, in effect granting the motions submitted by CERS and Beneficiary 2, denied Beneficiary's 1 petition, and dismissed the proceeding, explaining that the CERS letter dated March 30, 2017, was a final determination which was mailed to the address provided by Beneficiary 1 and, accordingly, her CPLR petition was untimely under the controlling four-month statute of limitations which began to run "after the [CERS] refusal" to comply with  Beneficiary's 1 request that CERS discontinue distribution of any monies to Beneficiary 2 and, or, Beneficiary 3.  Beneficiary 1 appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division sustained the lower court decision, observing that CERS' letter dated March 30, 2017, was an unequivocal refusal to comply with Beneficiary 1's  demand, which constituted a final determination by CERS for the purposed of the determining the date on which the statute of limitations commenced to run. As that letter was mailed to the address indicated on the New York State Identification Card that Beneficiary 1 provided as proof of her identification at the time of her demand, which, said the court, CERS had every right to rely upon as Beneficiary 1's correct address. Further, CERS did not receive any notice that the letter dated March 30, 2017 it mailed to Beneficiary 1 was returned to it as undeliverable.

Accordingly, the Appellate Division stated that it agreed with the Supreme Court's determination granting the separate motions of CERS and B2 to dismiss Beneficiary 1's CPLR Article 78 petition as untimely and dismissing the proceeding.

* In disputes such as these the Retirement System typically takes the position that it is merely a "stakeholder" and "awaits the court's order instructing payment" in the event its decision is challenged.

** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03016.htm

Proper service on a necessary party is critical to satisfying jurisdictional requirements

The employee in this action [Petitioner] submitted two appeals to the Commissioner of Education challenging her School District employer's changing her full-time position to a part-time position. Ultimately the Commissioner consolidated the two appeals and dismissed them, finding that they were both procedurally and substantively deficient. Petitioner then commenced a CPLR Article 78 proceeding against, among others, the Commissioner and the Department of Education [State].

The State move to dismiss the action, advancing the affirmative defense of lack of personal jurisdiction due to defective service. Supreme Court determined that Petitioner had failed to properly serve the State and that, inasmuch as the Commissioner was a necessary party, "the failure to obtain personal jurisdiction over her warranted dismissal of the proceeding in its entirety." Petitioner appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division explained that although Petitioner had effectuated service upon the Commissioner and the Department of Education, that service was jurisdictionally defective inasmuch as Petitioner failed to also "serve a copy of the notice of petition on the Attorney General's office as required by CPLR §7804 (c)." Observing that the Commissioner, at a minimum, was a necessary party given that the proceeding was commenced to challenge the Commissioner's determination, the court said that contrary to Petitioner's contention, "her pro se* status and the Attorney General's actual awareness of the proceeding" did not serve to cure or excuse Petitioner's failing to serve necessary parties.

Finding that Supreme Court properly concluded that the failure to obtain personal jurisdiction over the Commissioner warranted dismissal of the Article 78 proceeding in its entirety, the Appellate Division affirmed the lower court's ruling.

* Latin: A term use to describe a litigant representing himself or acting on his own behalf in a civil action. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02834.htm

COVID-19 and Workers' Compensation - Questions and Answers posted by the NYS Workers' Compensation Board

The New York State Workers Compensation Board has published a COVID-19 and Workers’ Compensation "Questions and Answers" document to answer questions about workers’ compensation benefits available to employees who get infected by COVID-19 while on the job.

The document is posted on the Board’s website and its content is outlined below.


EMPLOYEES: If you believe you became ill with COVID-19 due to your work, you should tell your employer as soon as possible, file an Employee Claim (Form C-3) with the Board, and see a doctor to obtain a diagnosis. For more details, please see the How Do I File a Claim? section below.

EMPLOYERS: If a worker reports that they are sick due to a workplace exposure, you must contact your workers’ compensation insurance carrier immediately. The insurance carrier then has 18 days to act on the claim and must begin paying benefits within this time frame if the claim is accepted. Please share this information with your employees.

Can I receive workers’ compensation benefits if I get COVID-19 while working?

Yes. Depending on the facts, you may receive workers’ compensation benefits in New York State due to COVID-19 exposure. Employers must carry workers’ compensation insurance to pay benefits to workers who are made ill or injured due to their employment. This is known as a work-related illness or injury. Immigration status is not a factor.

For over a century, the New York State Workers’ Compensation Board (Board) has responded to outbreaks and chronic injuries by ensuring that claims are handled quickly and benefits are paid promptly. From diseases like tuberculosis and asbestosis, to the tragedy of 9/11, and to the opioid crisis, the Board has always risen to meet the needs of injured workers across the state. COVID-19 is no exception.

What happens if I file a claim?

Your claim will be reviewed by your employer’s workers’ compensation insurance carrier. If the insurance carrier accepts the claim, your COVID-19 claim will be payable (known as compensable). If the carrier disputes the claim, a judge at the Board will decide whether the claim should be paid. The judge will listen to your testimony and the testimony of your medical provider to get the facts about where you work, whether you were exposed to COVID-19, the extent of your exposure, and whether exposure to COVID-19 was prevalent in your work environment.

What benefits are available?

The Worker’s Compensation Law provides for:
Payment of an injured worker’s medical treatment for a work-related illness or injury.
Wage replacement benefits if your illness prevents you from working.
Benefits to an employee’s surviving dependents in the event of death.
Reimbursement of funeral expenses up to $12,500 in New York City, Nassau, Suffolk, Rockland, and Westchester counties, and up to $10,500 in the other counties of New York.

Which work environments are more likely to result in COVID-19 claims?

Individuals who work in an environment where exposure risks are significantly higher are more likely to have compensable COVID-19 claims. Some employees are working closely with the public in locations where COVID-19 exposure is documented. This includes health care workers, first responders, transportation workers, corrections officers, and food service workers. Some workers may also have work-related claims if they directly interact with the public while working, such as retail workers.

What information is needed to show that a COVID-19 claim is work-related?

Most workers will never be able to point to the moment or method of exposure to COVID-19, but workers can demonstrate the significantly elevated risk in their workplace by demonstrating the nature and extent of their work in an environment where exposure to COVID-19 was prevalent. You should provide details about where you work, how often you work, and the type of job duties you perform, especially those involving contact with the public. You need to have a medical report, from an authorized workers’ compensation medical provider, stating that your work caused your illness. A positive test result is best, but a medical report, from an authorized workers’ compensation medical provider, showing a diagnosis via PCR test, or by virtue of an examination by a treating physician, may be used.

How do I file a claim?

Tell your employer, as soon as possible, that you are sick. Tell your employer in writing, via email or handwritten or typed letter. Do not send a text message, if you can avoid it.

Fill out the Employee Claim (Form C-3) and send it to the Board. You can file the form online, or mail the paper form to the address listed.

See a doctor authorized to treat workers’ compensation patients when you can. You can now do so via video or telephone. You can search for a Board-authorized doctor at wcb.ny.gov.

Tell the workers’ compensation doctor who treats you that you believe you contracted COVID-19 while at work. If your doctor agrees, the doctor will send the report to the insurance company and the Board.

If the doctor has your positive COVID-19 test result, the doctor should send that in. If you have the positive test result, either give it to your doctor or send a copy of it to the Board with your claim form.

How long does the process take?

When you tell your employer that you are ill due to your employment, your employer should immediately inform its insurance carrier. The insurance carrier has 18 days to act on the claim and begin paying benefits if it accepts it. As claims are received, the Board will make every effort to process those claims as quickly as possible. The Board holds hearings on disputed issues, when necessary, to ensure that benefits are promptly paid to affected workers, allowing them to pay their bills and continue supporting their families.

Is help available?

You can call the NYS Workers Compensation Board at (800) 580-6665 if you’re having difficulties or need information. Please let us know if you face resistance or obstacles to getting information about the claims process or are discouraged from filing a claim. We will help you. You can also write to AdvInjWkr@wcb.ny.gov.

The Chair of the Workers' Compensation Board has sent a letter to all insurance carriers, encouraging them to be helpful to workers, and to investigate and pay claims as quickly as possible.


For more information:

This document and other COVID-19 resources are available on the WCB Information Related To Novel Coronavirus (COVID-19) webpage.

Audits by New York State Comptroller Thomas P. DiNapoli issued during the week ending June 5, 2020

New York State Comptroller Thomas P. DiNapoli announced the following local government audits were issued during the week ending June 5, 2020. 

Click on the text typed in color to access the full text of the audit.

Office of Addiction Services and Supports (OASAS): Oversight of Drug Disposal (2018-S-64) Overall, OASAS addiction treatment centers and OASAS-certified providers have met the regulatory requirements for collecting and disposing of unneeded drugs. However, there are improvement opportunities in some of their pharmaceutical management practices. While some of the sampled providers had effective controls over the drug disposal process, which followed the regulations and were environmentally friendly, others did not use environmentally sound methods of disposal whenever possible.

Division of State Police: Processing of Sexual Offense Evidence Collection Kits (2019-S-44) From Nov. 28, 2017 to Oct. 31, 2019, the state police processed 1,656 kits. Only 356 of the 1,656 kits (21 percent) were completed within the time frames prescribed by law. As of Oct. 31, 2019, state police had 1,916 kits that needed to be processed, and as of that date, the required processing time frame had elapsed for 1,681 kits (88 percent).

Department of Taxation and Finance: Collection of Petroleum Business Tax and Motor Fuel Excise Tax (2018-S-28) Diesel and motor fuel distributors may be required to provide collateral security in an amount provided for in statute or determined by the department. Distributors whose combined tax liability exceeds $5 million for the department’s reference period must enroll in its PrompTax electronic filing and payment program and prepay a portion of each month’s tax liability. Auditors found the department does not review distributors’ existing collateral security amounts to determine if they continue to be appropriate and identified distributors that were not enrolled in PrompTax and were not prepaying their tax liability as required.

Office of Temporary and Disability Assistance: National Directory of New Hires Data Security (2019-S-67) The office has taken actions to comply with the federal requirements for securing directory data. Auditors found that the office is fully compliant with 30 of the 32 requirements; the remaining two requirements were found to be not applicable.

Islip Fire District – Financial Condition (Suffolk County) The board did not effectively monitor expenditures and fund balance. As a result, the unrestricted fund balance deficit increased to as much as $171,492 during the audit period. Auditors also determined that the board did not properly plan for the funding of and spending from reserves. In addition, the board transferred unavailable funds to its capital reserves, and expended funds from reserves without adequate public notice; for example, transfers to reserves totaling $593,941 and expenditures from reserves totaling $841,477 that were not included in the budgets.

Sodus Center Fire District – Board Oversight (Wayne County) The board maintained a lax control environment and did not carry out its responsibility to oversee district financial operations and safeguard district assets. Auditors determined that the board allowed the treasurer to perform all key aspects of district financial operations without providing independent oversight.

City of Long Beach – Budget Review (Nassau County) Significant revenue and expenditure projections in the proposed budget are reasonable.      

Although the city appears to have budgeted sufficiently for termination salary payments for the 2020-21 fiscal year, auditors caution the city that its continued practice of borrowing to fund these operating costs is not fiscally prudent. The city has improved its projections for overtime costs in certain departments. However, it does not appear that the total appropriation will be sufficient. The city’s proposed budget includes a tax levy of $46.6 million which is $4,136 above the limit established by law.

Mottville Fire District – Budgeting and Financial Recordkeeping (Onondaga County) The board’s budgets were incomplete because the real property tax levy and a schedule of other estimated revenues were not included. Auditors also determined that the board did not adopt a fund balance policy or establish targeted funding levels for its reserve funds. In addition, the treasurer did not maintain accurate and reliable accounting records.

Rockland County – Sale of Estate Real Property The Office of Public Administrator (PA) guidelines regarding the sale of estate real property state that the PA shall determine fair market value and sell all real property or cooperative apartments at public auction or by private sale at the highest and best price available. Auditors determined that the administrator did not always get a professional appraisal for estate houses before listing them for sale.

Town of Smithville - Annual and Claims Auditing (Chenango County) The board did not annually audit the records of the supervisor or town clerk. Auditors also found that the board did not perform a deliberate and thorough audit of claims.

Wyoming County Court and Trust Funds The records maintained by the treasurer were not complete. Auditors found two actions, totaling $30,455, in the treasurer’s custody that were not recorded on the annual report sent to the State Comptroller’s Office as required. In addition, auditors identified one action for $28,204.84 that improperly remained in the treasurer’s custody that should have been turned over to the State Comptroller as abandoned property

City of Yonkers – Budget Review (Westchester County) Under the proposed budget, the city will have exhausted 80.1 percent of its constitutional tax limit. Auditors caution the city that if property values do not increase, its ability to increase taxes may be reduced in future years.

Town of Yorktown - Information Technology (Westchester County) Personal internet use was found on computers assigned to 10 employees, including four who routinely accessed personal, private and sensitive information (PPSI). Auditors found town officials did not adequately manage user accounts. In addition, the board did not develop a disaster recovery plan. Sensitive information technology (IT) control weaknesses were communicated confidentially to officials.

Unilaterally altering a past practice that impacts on a mandatory subject of negotiation

In this action the Appellate Division was asked to review two determinations of the Public Employment Relations Board [PERB] that found that the State of New York [State] committed an improper employer practice.

Civil Service Law §200 et seq., the so-called Taylor Law, requires a New York State public employer to bargain in good faith with its employees regarding all terms and conditions of employment.* Further, the presumption in favor of collective bargaining "may be overcome only in special circumstances where the legislative intent to remove the issue from mandatory bargaining is plain and clear." 

The genesis of the filing of improper employer practice claims in this action by various employee organizations [Unions] representing employees in collective bargaining units was a bulletin issued by the New York State Department of Civil Service stating that "a fee schedule had been created for the processing of applications for promotional and transitional examinations"** under color of a provision set out in the State Budget. Ultimately PERB found that the Unions had a reasonable expectation of a past practice of not charging applicants for such examinations a fee was an economic benefit and, therefore, was a subject of mandatory negotiation.

State commenced this CPLR Article 78 proceeding seeking annulment of PERB's determinations. PERB responded and, in addition, asserted a counterclaim seeking to enforce its remedial order. 

Observing "Whether a past practice exists depends on whether it was unequivocal and was continued uninterrupted for a period of time under the circumstances to create a reasonable expectation among the affected unit employees that the practice would continue, the Appellate Division said that its review of a PERB determination was limited to whether it is supported by substantial evidence, i.e., whether there is a basis in the record allowing for the conclusion that PERB's decision was legally permissible, rational and thus not arbitrary and capricious." 

Rejecting State's assertion that the application fee was not a term and condition of employment, the Appellate Division agreed with PERB's finding that the employees at issue received an economic benefit by not having to pay an application fee for promotional examinations. 

Further, the court said that it disagreed with State's contention that "under Civil Service Law §50(5), the creation of a fee schedule was a prohibited or permissive subject of bargaining," noting that PERB had opined that CSL §50(5) contains "no express prohibition on the bargaining of application fees." Indeed, the Appellate Division noted that the statute "also gives [the State] discretion to charge or abolish fees ... and, therefore, is not "so unequivocal a directive to take certain action that it leaves no room for bargaining." 

Finding no error in PERB's determination that the application fee was a mandatory subject of negotiation, the Appellate Division turned to the issue of ""past practice," explaining that it was undisputed that: 

1. For at least 10 years prior to the challenged bulletin advising of the creation of a fee schedule, fees were not charged to employees who wanted to take a promotional or transitional examination; and 

2. There were no negotiations with any of the employee organizations regarding these fees. 

Although on two occasions proposals were submitted, presumably by the State, to establish a fee schedule for promotional and transitional examinations, they were ultimately rejected and PERB concluded that the employees represented by the Unions had a reasonable expectation that the practice of not charging fees would continue. 

Finding that there was substantial evidence supporting PERB's determination that the State had engaged in an improper practice, the Appellate Division said it would not disturbed PERB's ruling. 

Addressing PERB's counterclaim for a judgment of enforcement of its remedial order, the Appellate Division held that it should be granted given that it "could be reasonably applied, was not unduly burdensome and seemingly furthered the goal of reaching a fair negotiated result." 

* See Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73.

** The Appellate Division also noted that the fees were to be applied only to promotional and transitional examinations, which target current state employees, as opposed to open examinations, which pertain to the public at large. 

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_02839.htm

Determining if an expired collective bargaining agreement provided certain retirees with vested health insurance benefits

Plaintiffs in this action are teachers who retired from their positions with the  Central School District [District] in June 2011 and who at the time they retired were covered by the provisions set out in "an expired collective bargaining agreement" [CBA] between the Teachers Association [Association] and the District.

That CBA had "expired" on June 30, 2010 [Former CBA]. A successor CBA [Successor CBA] between the DTA and the District was ratified in October 2013 and its provisions were made applicable retroactively effective July 1, 2010.

The Former CBA provided, among other things, that the District would pay 100% of the health insurance premiums for health insurance coverage for retired employees and their dependents. The Successor CBA between the DTA and the District was ratified in October 2013 and no longer provided that the District would pay 100% of the health insurance premiums for such coverage for retired employees and their dependents. Rather the Successor CBA required certain employee contributions for health insurance premiums for both individual and dependent coverages. 

In January 2014, Plaintiffs individually submitted verified claims to the District  stating that their vested contract rights had been violated when they were required to pay five percent of the required  health insurance premium for coverage and in October 2014 commenced this action, contending that the Former CBA, rather than the Successor CBA, controlled with respect to their health insurance premium costs in retirement for individual and dependent coverage. 

Ultimately Supreme Court, among other things, granted Plaintiffs' motions for summary judgment, finding that the Former CBA was still effective at the time that Plaintiffs had retired and that there was no evidence that they waived their retiree health insurance benefits under the Former CBA. The District appealed the Supreme Court's ruling.

Observing that "the essential facts are not in dispute," the Appellate Division said "this case presents questions of law"  —  specifically:

1. What health insurance provisions apply to plaintiffs — the Former CBA or the Successor CBA; and 

2. Whether Plaintiffs' health insurance rights vested under the Former CBA. 

Noting that Civil Service Law §209-a (1) (e), the so-called Taylor Law, "requires an employer to continue all the terms of an expired CBA while a new agreement is being negotiated," the Appellate Division opined that "the assumption is that all terms of a CBA remain in effect during collective bargaining of a successor agreement," citing Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 20 NY3d 651.

Although the court said that typically "contractual rights and obligations do not survive beyond the termination of a [CBA], rights which accrued or vested under the [old CBA] will, as a general rule, survive termination of the [old CBA]."*  Thus courts "must look to well-established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right." 

While a court when determining whether a CBA creates a vested right to future benefits  should not construe ambiguous writings to create lifetime promises, when an agreement is ambiguous or subject to more than one interpretation is it appropriate for the court to consider extrinsic evidence to determine the parties' intent and "it is logical to assume [from the absence of any such durational language of how long retirees will receive benefits] that the bargaining unit intended to insulate retirees from losing important insurance rights during subsequent negotiations by using language in each and every contract which fixed their rights to coverage as of the time they retired."

The Appellate Division decided that Supreme Court properly found that, pursuant to Civil Service Law §209-a(1), because the Successor CBA had not yet been ratified at the time Plaintiffs retired, the terms of the Former CBA remained in effect pending the negotiation and ratification of the Successor CBA. Accordingly, the question turns to whether Plaintiffs' contractual rights vested under the Former CBA  survived its termination.

Finding that the language in the Former CBA was ambiguous, the Appellate Division said that this "permits this Court to look outside the contract to extrinsic evidence to discover the intent behind this provision of the Former CBA and in this instance the evidence adduced "supports the conclusion that it was the District's intent to provide full coverage for retired employees such as Plaintiffs."**

The court also noted that retirees were not permitted to vote in the ratification of the Successor CBA process and that such an absence of voting rights "further indicates that [the District] intended to protect Plaintiffs from losing their health insurance benefits," and concluded that Plaintiffs' rights vested under the Former CBA and survived its termination.

Finally, the Appellate Division said it was "unpersuaded by [the District's] contention that Plaintiffs waived their health insurance rights under the Former CBA" as they ratified the Successor CBA by their receipt and retaining retroactive pay in 2014 for the 2010-2011 school year, and the Successor CBA contained a clause making it applicable retroactively. Indeed, said the court, the record indicates that Plaintiffs had been making their health insurance premium payments under protest and had told the District that acceptance of such retroactive salary payments would not constitute such a waiver.

Supreme Court, said the Appellate Division, properly inferred that it was not Petitioner's  intention to waive the benefits provided them under the Former CBA*** and thus Supreme Court properly granted Plaintiffs' motions for summary judgment and denied the District's motion for summary judgment.

* See Kolbe v Tibbetts, 22 NY3d 344.

** The District's amended response to a Plaintiff's demand for interrogatories stated the it interpreted the language "district participation rate in effect of 1/1/84" "to refer to those employees who retire under the [Former CBA] receiving the same benefit as employees who were retired as of 1/1/84."

*** The Appellate Division said that one of the Petitioners had "made clear in her letter of resignation, she had an agreement with [the District] that she would receive the retroactive [salary] payment while retaining the [health insurance] benefits of the old CBA."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_02843.htm

Court sustains dismissal of a teacher found to have placed a student at serious risk of harm

A teacher [Plaintiff] employed by the New York City Department of Education [DOE] was served with disciplinary charges and specifications pursuant to Education Law §3020-a. The arbitrator found Plaintiff guilty of having had a physical altercation with a student and the penalty imposed on the teacher was dismissal from his position.

Plaintiff then filed an appeal pursuant to CPLR Article 75 in Supreme Court challenging his termination from his position. Finding that the penalty imposed, dismissal, was disproportionate to Plaintiff's offense, Supreme Court vacated the penalty set in the arbitration award and remanding the matter to DOE to provide for a hearing before a different arbitrator, who would then issue a new penalty determination. DOE appealed Supreme Court's ruling and the Appellate Division unanimously vacated the lower court's decision on the law.

The Appellate Division, noting that Plaintiff did not contest the  arbitrator's finding at his disciplinary hearing that he had punched a student twice in the head or face while physically removing him from the classroom, said that the record demonstrates that the arbitrator considered all the circumstances, including the fast-developing situation necessitating the student's removal from the classroom and generally credited Plaintiff's testimony. 

The court concluded that regardless of whether or not the arbitrator erred in finding that Plaintiff's denial of having thrown punches precluded a finding of remorse, the record showing minor injuries to the student, and a separate finding by the arbitrator that Plaintiff's actions put the student at serious risk of harm, supports imposing the penalty of dismissal based on the Plaintiff's use of excessive force.

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, the Appellate Division opined that "Contrary to Supreme Court's finding, the penalty of termination of [Plaintiff's] employment was not so disproportionate to his offense as to shock one's sense of fairness" and reinstated the penalty  initially imposed on Plaintiff by the arbitrator, dismissal from his position. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02893.htm

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A Reasonable Disciplinary Penalty Under the Circumstances
 Determining an appropriate disciplinary penalty to be imposed on an employee
 in the public service found guilty of misconduct or incompetence.
For more information click on http://booklocker.com/7401.html
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Processing a Freedom of Information request

In Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, the Court of Appeals, quoting Matter of Fink v Lefkowitz, 47 NY2d 567, said that "To promote open government and public accountability, FOIL* imposes a broad duty on government agencies to make their records available to the public. The statute is based on the policy that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government'." 

In the instant action Plaintiff-Appellant's [Plaintiff] FOIL request asked the New York City Department of Education's [DOE] for copies of forms used by its employees' to request approval to be absent from work for religious observances in cases where the request was denied during a specified period of time. DOE denied Plaintiff's request on the ground that the requested records were not described so as to enable it, with reasonable effort, to conduct a search to locate and identify them.** This decision was sustained administrative appeal.

Plaintiff then initiated a CPLR Article 78 action seeking a court order compelling DOE (1) to produce such records pursuant to FOIL and (2) for an award of attorney's fees and litigation costs. Supreme Court denied the petition and, in effect, dismissed the proceeding, which ruling the Plaintiff appealed to the Appellate Division.

The Appellate Division explained that FOIL requires that documents requested be "reasonably described" in order to enable the agency to locate the records in question." With respect to DOE's denial of Plaintiff's request on the ground that the requested records were not reasonably described, the court opined that DOE conceded that it would be able to locate the requested records as they "are maintained at the schools where the relevant employees are currently or were last assigned."

Considering the fact that DOE "knows where the requested records are located," the Appellate Division rejected DOE's claim that it would be burdensome for it to conduct a search of the personnel files at each of its 1,700 schools to produce the requested records. In particular the court noted that FOIL provides that the "agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article."

However, the issue of "burdensome" for DOE to produce the requested records and, or, whether DOE is able to engage an outside professional service to cull the records sought was not addressed by the Supreme Court and the Appellate Division said it could not resolve this issue "on this record" as, among other things:

1. It is unclear as to how much time would be involved for an employee at each school to review the relevant files; and 

2. Although Plaintiff has expressed its willingness to reimburse DOE for reasonable costs involved in having DOE's employees, or an appropriate third party, review and copy the relevant DOE's records, there is no information in the record as to what that cost would be or whether the Plaintiff would, in fact, be willing to reimburse DOE for the full amount of those costs, once those costs are determined.

Accordingly, the Appellate Division vacated the Supreme Court's judgment, reinstate the petition, and remit the matter to the lower court "further proceedings, including additional submissions by the parties, and a new determination of the petition." 

As the petition remains undetermined, the Appellate Division also ruled that Plaintiff's request for an award of attorney's fees and litigation costs was premature.

* Public Officers Law Article 6 [see generally POL §84]

** DOE explained that the requested records were "not coded or stored electronically"  and in order to locate and identify the requested records, more than 100,000 individual personnel files would have to be searched. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02758.htm

Duty to provide a safe workplace does not extend to injuries resulting from hazards that are inherent in the work the employee is to perform

The plaintiffs [Plaintiff] in this action to recover damages for personal injuries "suffered on the job" was employed as a sanitation worker by the City of New York [City]. Plaintiff claimed that he was injured while he and a coworker were working "on the job" lifting a heavy bag of garbage as the result of his coworker's losing his grip on the bag. 

Plaintiff sued the City claiming, among other things, "common-law negligence and loss of consortium" as the result of [a] his coworker's negligence and [b] the City's negligence in the coworker's training and supervision. City moved for summary judgment dismissing the complaint, contending, among other things, that the injury was caused by an inherent hazard of the job for sanitation workers and that the injured Plaintiff's coworker was not negligent. 

Supreme Court granted the City's motion for summary judgment dismissing the complaint and Plaintiff appealed from those branches of the City's motion that resulted in the dismissal of Plaintiffs causes of action alleging common-law negligence and loss of consortium.

The Appellate Division sustained the Supreme Court's determination, explaining that although employers in New York State generally "have a common-law duty to provide their employees with a safe place to work," there is an exception to that rule whereby the duty "does not extend to hazards that are part of, or inherent in, the very work the employee is to perform". In this instance, said the court, "The hazard of being injured as a result of lifting a heavy garbage bag and loading it into a sanitation truck is inherent in the work of a sanitation worker," citing Marin v San Martin Rest., 287 AD2d 441.

The court ruled that City had established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the injured Plaintiff"s coworker was not acting negligently or differently than a reasonably prudent sanitation worker would, and that Plaintiff"s injury resulted from a risk inherent in his assigned work as a sanitation worker.

Finding that Plaintiff failed to raise a triable issue of fact, the Appellate Division said that it agreed with the Supreme Court's determination to grant those branches of the City's motion that were for summary judgment dismissing the causes of action alleging common-law negligence and loss of consortium.

Presumably Plaintiff would be eligible for workers' compensation benefits otherwise available to him.

The decision is posted on the Internet at:
https://www.leagle.com/decision/innyco20200520293