Employee may not demand union proceed to arbitration as a matter of right

Employee may not demand union proceed to arbitration as a matter of right

Matter of Hoffman; Board of Education of the City of New York, 84 A.D.2d 840

 

Although it is generally held that only the Union or the Employer have the power to go to arbitration in connection with a contract grievance procedure, employees unhappy with their unions decision not to go to arbitration are now frequently turning to the courts for an order to permit their proceeding against the employer directly.

In Hoffman the Appellate Division ruled that the Union (in this instance the United Federation of Teachers) was not required to seek arbitration after having processed the employee’s grievance through the initial stages of the grievance procedure and received unfavorable results.

The court also said that if an employee wished to proceed directly against an employer when the Union refused to arbitrate, the employee would first have to show that the Union breached its duty of fair representation (i.e.: bad faith, arbitrariness or discriminatory conduct).

Here the employee had sought a benefit from an earlier arbitration award which gave relief for an “interrupted” sabbatical leave.  The employer refused to apply the arbitration award decision claiming that the employee’s application for the benefit was untimely. The Union had refused to arbitrate the question of timeliness after losing at all previous steps of the grievance procedure.

Union official’s advice to employee protected act

Union official’s advice to employee protected act

PERB Case U-5775

The union’s representative advised a co-worker not to answer questions concerning alleged violations of provisions of the “faculty handbook.”

The representative then received a letter, a copy of which was placed into his personnel file, indicating that the “instruction to the employee not to answer (the) question” was considered “insubordination ... and any recurrence ... would result in (a) recommendation ... that disciplinary action be taken.”

PERB ruled that the representative was engaged in a protected activity under the Taylor Law and directed the letter to be withdrawn and not considered for any purpose.

N.B. Although the Union’s representative’s right to give advice is protected, should the advice be incorrect, the employee who follows such advice may expose himself or herself to the risk of charges of misconduct or insubordination.

Retirement membership credit available only to employees

Retirement membership credit available only to employees

Sitrin v. Regan, 90 AD2d 583

Holding that she was an independent contractor and not an employee, the Appellate Division upheld the Employees’ Retirement System’s denial of certain (retroactive) membership service credit claimed by a member.

Citing a number of cases including Erwin v. Regan, 89 A.D.2d 753 [Affd. 58 N.Y.2d 722], the Court rejected Sitrin’s arguments noting that during the period for which membership was claimed she was paid by “voucher,” had no payroll deductions for retirement or social security, did not accrue vacation or sick leave credits and had conceded that the decisions she made were not subject to review.

This is another example of the strict standards applied by ERS in these cases, which standards have survived court tests.

         

Former employee's alleged constructive discharge and continuing violation claims rejected as untimely

Former employee's alleged constructive discharge and continuing violation claims rejected as untimely

Thomas v City of Oneonta, 2011 NY Slip Op 08711, Appellate Division, Third Department

Andrew Thomas, while serving as a City of Oneonta police officer, reported various acts of alleged on-duty misconduct allegedly committed by certain of his fellow officers to his supervisor and then repeated these allegations to the Chief of Police. As a result of an investigation of the officer’s allegations three officers were placed on suspension.

Shortly after Thomas had reported the alleged misconduct he was assigned “to the 4:00 P.M. to midnight shift (instead of his usual day shift), his days off would switch from weekends to midweek and he would be assigned certain additional duties previously performed by one of the suspended officers”

Thomas subsequently told his superior officers that he was being harassed by the suspended officers, contended that he was being punished for reporting the alleged misconduct.

Thomas then resigned from this position with the City of Oneonta Police Department and some time later served a notice of claim on the City [see General Municipal Law §50-e] and then commenced a lawsuit against City pursuant to Civil Service Law §75-b alleging, among other things, that he was the victim of retaliatory personnel actions. The City’s answer contended that Thomas’ action was filed after the Statute of Limitations had expired.

The Appellate Division said that in order to maintain such an action as this, a plaintiff is required to serve a notice of claim upon defendant within 90 days after his or her underlying claims arose and, further, must commence his or her action "within one year after the alleged retaliatory personnel action[s]" took place.

Here, said the court, Thomas’ claim arose when his work schedule and the assignment of additional duties became effective on or about October 6, 2009, but he had not served his notice of claim until February 5, 2010 — well beyond the 90-day statute of limitations period. In addition, the Appellate Division noted that the action was not commenced until November 3, 2010, clearly beyond the controlling one-year statute of limitations.

As to Thomas’ “constructive discharge claim,” the Appellate Division, citing Clark v State of New York, 302 AD2d 942, ruled that that claim “is equally untimely, as such claim arose when he tendered his resignation on November 2, 2009  — the date upon which Thomas "severed his relationship with his former employer" rather that not the date upon which he deemed his resignation to be effective.”

Addressing Thomas’ claim of a “continuous violation,” the court held that the continuing violation doctrine does not operate to toll either of these statute of limitations periods. The Appellate Division explained that, the doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08711.htm

Denial of tenure alleged to have been based on the educator’s exercising her First Amendment rights to free speech

Denial of tenure alleged to have been based on the educator’s exercising her First Amendment rights to free speech

Nagle v Mamaroneck Union Free School District, et al, USCA, Second Circuit, Docket #10-1420-cv

Nancy L. Nagle sued the Mamaroneck Union Free School District and a number school district officials alleging that she had been denied tenure and subjected to retaliation because she had exercised her First Amendment rights to free speech.

Nagle complaint alleged that the decision not to recommend her for tenure was made in retaliation for two acts that, she argued, were protected by the First Amendment.

One act on which Nagle based her claim involved her reporting alleged acts of child abuse by another teacher to her principal, including her claim that she witnessed the teacher striking a child while she was employed as a special education teacher by a public school in the State of Virginia.*

The second act alleged by Nagle was that she had received a copy of a teaching observation report of her class written and signed an assistant principal but that she declined to sign the report. However, she alleged, she received a copy that “appeared to bear her signature.” Reporting the “seemingly false signature” to school officials and the president of the teacher’s union, the matter was referred to police. Although the police “determined that no crime had been committed, a separate handwriting experts were employed by Nagle and by the District. Both experts concluded that the assistant principal had signed Nagle’s name to the document.**

Essentially the federal district court ruled that [1] Nagle’s speech was not protected within the meaning of the First Amendment because it was “personal” and it was not a matter of public concern and [2] ruled that the school officials had a “qualified immunity” in that, as a general rule, unless the individual is able to demonstrate "publication" and prove "malice," courts usually dispose of such cases involving a public employer by applying the doctrine of "qualified immunity."***

The Court of Appeals for the Second Circuit disagreed.

The court concluded that Nagle has made a prima facie showing that retaliation in violation of the First Amendment caused her to be denied tenure.

The Circuit Court said that although the School District’s rebuttal to Nagle’s prima facie case is subject to credibility, the issue of credibility cannot be resolved as a matter of law. Further, said the court, certain of the school administrators are not, “at this stage of the proceedings, entitled to qualified immunity.”

Accordingly, the Circuit Court vacated the district court’s order granting summary judgment and remanded the matter for further proceedings.

* According to the Circuit Court’s decision, the teacher alleged to have abused the students resigned, citing family reasons. . Nagle then reported what she had told school administrators to Virginia’s Department of Child Protective Services and to the Virginia state police. After a police investigation, the teacher was charged with several counts of felony child abuse; she eventually pled guilty to assault.

** The district “declined to renew” the assistant principal’s contract for the following year, and the assistant principal resigned

*** The Doctrine of Qualified Immunity protects public officials from being sued for damages unless it can be shown that they violated “clearly established” law of which a reasonable official in his position would have known. In contrast, the Doctrine of Absolute Immunity bars lawsuits against public officials based on their official acts or omissions without regard to motive. For example, a judge has complete protection from personal liability for exercising judicial functions.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/38102ca1-147a-4e75-85f4-f92e3c0f13f6/9/doc/10-1420_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/38102ca1-147a-4e75-85f4-f92e3c0f13f6/9/hilite/

Settlement of grievance binds all unit employees

Settlement of grievance binds all unit employees

Decisions of the Commissioner of Education, Decision #10728

Former Section 3102 (6) of the Education Law (repealed in 1971) permitted School Boards to place newly employed teachers on the salary schedule reflecting prior teaching service.

In 1978 the Nanuet Teachers Association brought a grievance claiming the District had violated a contract provision by failing to properly calculate the length of service of teachers earlier granted “transfer credit.”

The grievance was “settled” in the course of arbitration. As a result 39 “otherwise eligible” teachers did not have their transfer credit counted in computing their eligibility for longevity increments.

The 39 educators appealed to the Commissioner of Education, contending claiming that the “settlement” was not binding upon them and, further, their employee organization did not fairly represent them.

The Commissioner rejected the appeal. He indicated that the 39 teachers, not having “opted out” were bound by the agreement. The employee organization had brought the grievance on their behalf (among others) and that part of the agreement (which provided the District would not reduce the number of teachers employed by the District) was to their benefit.

As to the argument that the agreement violated “unambiguous case law” regarding the recognition of transfer credit, the Commissioner ruled that teachers may waive their legal rights under situations such as this, and if done so on their behalf by the employee organization, it is binding upon them.

The expiration of the three-year term contemplated by the agreement did not alter the understanding reached as to transfer credit and the teachers could not now claim such credits as though the settlement had never been agreed to by the parties.

As a general rule, when an employee organization acts within its authority, all the persons it represents are bound by the results, unless individuals indicate, before the fact, that they do not intend to be bound by the results.

Taping of a negotiating session prohibited by PERB

Taping of a negotiating session prohibited by PERB

Matter of County of Niagara, Case U-5735

PERB, affirming its Hearing Officer’s decision, held even the presence of a tape recorder at a negotiating session is improper if a party objects.

Earlier decisions had indicated that it was improper for a party to insist on the recording (by mechanical means) of negotiations.

The decision extends the prohibition to the mere presence of a tape recorder if a party finds it objectionable.

Of course the parties remain free to take contemporaneous written notes of the “history of negotiations”, but presumably verbatim transcriptions would also raise concerns which could inhibit negotiations and be prohibited if a party objects.

Appeal results in a “permanent” reprimand

Appeal results in a “permanent” reprimand

Decisions of the Commissioner of Education, Decision 10933

A teacher was found guilty of insubordination (refusal to act as a chaperone at a school event) and the disciplinary panel imposed the “penalty of a reprimand, to be expunged from ... (the) records if for the next two years there are no further disciplinary problems of a similar nature.”

The school district appealed to the Commissioner of Education, arguing that the penalty was not authorized by Section 3020-a of the Education Law.

The Commissioner agreed. He found that the penalty to be imposed is limited to one of the penalties enumerated in the law but that a reprimand is one of the penalties authorized.

He then held that the disciplinary panel lacked the authority to direct the Board of Education to later expunge the reprimand from the teacher’s file for “good behavior.” [See Opinions of the Attorney General 81-28].

The Commissioner then exercised his authority to impose a penalty, and ruled that a reprimand would be appropriate under the circumstances.

Presumably the reprimand will remain a permanent part of the teacher’s file unless the Board chooses to later remove it.

Filing an appeal from an administrative decision in accordance with a grievance procedure does not toll the running of the statute of limitations for bringing an Article 78 action

Filing an appeal from an administrative decision in accordance with a grievance procedure does not toll the running of the statute of limitations for bringing an Article 78 action

Matter of Matter of Hazeltine v City of New York, 2011 NY Slip Op 08625, Appellate Division, First Department.

The Appellate Division, pointing out that an Article 78 petition challenging an administrative personnel decision with which the employee is unhappy must be brought within four months of the effective date of termination dismissed Hazeltine’s complaint noting that the time to commence such an Article 78 proceeding  “is not extended by the [individual’s] pursuit of administrative remedies.

Hazeltine had appealed the personnel decision to higher authority in accordance with the procedures providing for such challenges.

In this instance, said the court, Hazeltine’s cause of action accrued on August 24, 2007 and his petition was not filed until November 2, 2009, more than two years after his cause of action accrued.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2011/2011_08625.htm

Fire District’s adverse impact on another protected class defense rejected

Fire District’s adverse impact on another protected class defense rejected

Source: Justia Reports: NAACP v North Hudson Reg’l Fire and Rescue, USCA, Third Circuit, Docket 10-3695

The municipalities that make up the fire protection district had populations that were 69.6% Hispanic, 22.9% white, and 3.4% African-American. In 2008, the district employed 302 firefighters: 240 whites, 58 Hispanics, and two African-Americans.

When this litigation began, the district sought to fill 35 to 40 new firefighter positions. Six Hispanic applicants earned passing scores on the firefighter exam and satisfied a residency requirement. Based on their scores they ranked 21, 25, 26, 45, 49, and 70 on the residents-only list. They would rank much lower if non-residents were included on the same list.

The NAACP successfully sued under Title VII of the Civil Rights Act of 1964, claiming that the residency requirement was invalid as having a disparate impact on African-American applicants. The fire district and the Hispanic applicants appealed.

The Third Circuit affirmed, rejecting the district's claims of concerns about impact on Hispanic applicants.

The decision is posted on the Internet at:

http://law.justia.com/cases/federal/appellate-courts/ca3/10-3965/103965p-2011-12-12.html

Restoration to eligible list a matter of discretion

Restoration to eligible list a matter of discretion

Lee v Director of Personnel [Not selected for publication in the Official Reports]

Does a person who is discharged for failure to satisfactorily complete the required probationary period have a right to be restored to the eligible list?

In Lee v Director of Personnel a Supreme Court judge said that according to the Rules of the City of New York, restoration to the eligible list was a discretionary determination by the Director of Personnel.

The decision indicated that the discharged employee would have to show that the decision not to restore his name to the eligible list was done in bad faith or that the refusal was arbitrary or capricious.

The court also commented that a probationary employee may be dismissed prior to the end of the probationary term without notice and hearing.

Concerning the employee organization’s duty to honor a unit member’s request to challenge an arbitration award

Concerning the employee organization’s duty to honor a unit member’s request to challenge an arbitration award

Albino v. the City of New York, 80 A.D.2d 261

A situation confronting public employee unions, and ultimately the employer, with increasing frequency is how far the union must go to meet its duty of providing those it represents with “fair representation.”

In Albino the Court provides a number of guidelines concerning this question.

The case arose when Albino was reassigned to a different work location after discussions with the Union. The reassignment was part of a reorganization of the Agency.

After the arbitrator ruled against the employee, the employee wanted the Union to appeal the award to the Court. The Union refused, indicating “that it appears that the arbitrator, in rendering a decision with which we do not agree, did not exceed his powers to interpret the terms of the agreement.”

The employee then attempted to sue the employer. The Court dismissed the case indicating that there was no evidence that there was any lack of fair representation by the Union.

Removal of a reprimand in an employee’s personnel file

Removal of a reprimand in an employee’s personnel file

Opinions of the Attorney General, Informal Opinion 81-28

May a reprimand placed in an employee’s file as a result of a negotiated settlement of a disciplinary action be later removed from the employee’s personnel file?

In Informal Opinion 81-28, the Attorney General indicated that it was permissible “to clear the record of an employee who in the past misbehaved, but who since has performed well.” In this case the Village Board of Trustees wished to remove the reprimand, which the Attorney General viewed as a “legislative act.” Presumably, an appointing officer has similar authority to remove the record of discipline by “executive action”.

Petitioning a court to remove certain officers of a political subdivision of the State

Petitioning a court to remove certain officers of a political subdivision of the State
Haase v DelVecchio, 2011 NY Slip Op 09127, Appellate Division, Second Department

§36 of the Public Officers Law provides for the removal of a town, village, improvement district or fire district officer except a justice of the peace, by the Supreme Court for misconduct, maladministration, malfeasance or malversation in office.

Further, an application for such removal may be made by any citizen resident of such town, village, improvement district or fire district or by the district attorney of the county in which such town, village or district is located may be made to the Appellate Division in the appropriate judicial department.

Daniel Hasse filed a petition seeking to remove Christopher DelVecchio from his public office in the Mastic Fire Department, Town of Brookhaven, Suffolk County, pursuant to §36 of the Public Officers Law.

Citing a number of decisions including Futia v Weaver, 85 AD3d 1165 and Montanio v Rowley, 39 AD3d 653, the Appellate Division dismissed Hasse’s petition holding that the allegations in the petition did not rise to the level of misconduct, maladministration, malfeasance, or malversation necessary to justify the extreme remedy of removal from office pursuant to Public Officers Law §36.

The court, however, rejected DelVecchio’s request for the imposition of sanctions against the Hasse in connection with the proceeding. DelVecchio has asked that the Appellate Division impose sanctions against Hasse pursuant to 22 NYCRR 130-1.1.

22 NYCRR 130-1.1 permits a court, at its discretion, to award a party or attorney in a civil action or proceeding before the court [except where prohibited by law] the costs actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in the regulation. In addition to, or in lieu of, awarding costs, the court, as a matter its exercising its discretion, may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in such frivolous conduct.

For the purposed of 22 NYCRR 130-1.1, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09127.htm

Contract grievance arbitration to go forward notwithstanding pending disciplinary action taken against the employee

Contract grievance arbitration to go forward notwithstanding pending disciplinary action taken against the employee

Cattaraugus Central Schools v. Cattaraugus Teacher’s Association, 84 A.D.2d 685

A teacher filed a grievance claiming a violation of the Taylor Law contract. After losing the grievance at Step 3, the teacher sought arbitration. The school district, however, obtained a stay of arbitration of the grievance in the light of a pending disciplinary action involving the teacher.  

On appeal the stay issued by Supreme Court was vacated.

The Appellate Division held that there was no bar to simultaneously pursuing remedies under the agreement and the Education Law, even if there might be different decisions as a result.

According to the decision, the only two questions to be considered by the court in connection with an attempt to stay arbitration are 

1. whether arbitration of the subject matter of the dispute is permissible under the Taylor Law ... and allowable as a matter of public policy (i.e., denial of tenure is not subject to arbitration; alleged procedural violations in connection with consideration for tenure is subject to arbitration is provided for in the agreement) and 

2. whether the parties agreed by the terms of their arbitration clause to submit the dispute to arbitration.