Incorporating the terms of a collective bargaining agreement in an employment contract by reference sets the contract’s controlling provisions

Incorporating the terms of a collective bargaining agreement in an employment contract by reference sets the contract’s controlling provisions
Drucker v Hofstra Univ., App. Div., Second Dept, 279 A.D.2d 472

The Drucker case demonstrates the fact that if the terms of a collective bargaining agreement have been incorporated by reference into an employment contract between the individual and his or her employer, the courts will hold the parties to the controlling provisions set out in the collective bargaining agreement.

Hoftra University said that it was terminating Susan J. Drucker from her position as Chair of the Department of Speech Communication and Rhetorical Studies "for good cause" .

The reason given by Hofstra for Drucker's dismissal: she had failed to maintain "an effective communication climate" with her faculty in violation of Hofstra University's Faculty Policy.

Drucker appealed, contending that her termination was unlawful because she had been employed "unconditionally."

The Appellate Division affirmed a lower court's dismissal of her petition, commenting that the University's action was not arbitrary, capricious, or irrational.

Instead of being hired "unconditionally," the court said that the collective bargaining agreement was "incorporated by reference into [Drucker's] contract of employment...."

The collective bargaining agreement provided that Drucker could be removed for "good cause" upon the filing of a petition signed by two-thirds of the membership of her department, followed by a meeting between the dean and the department membership.

Finding that the record demonstrated that the University had followed the procedures set out in the collective bargaining agreement and that Drucker "had ample opportunity to present her side of the case," the Appellate Division concluded that there was no basis for nullifying the University's action.

Claiming entitlement to payment for unused vacation and sick leave credit upon resignation

Claiming entitlement to payment for unused vacation and sick leave credit upon resignation
Sherwood v Town of Lancaster, 2010 NY Slip Op 06057, Decided on July 9, 2010, Appellate Division, Fourth Department

Richard J. Sherwood “abruptly resigned” from his position of Town Attorney, Town of Lancaster, “in order to avoid his imminent termination.”*

Sherwood subsequently filed a petition pursuant to CPLR Article 78 seeking credit for unused vacation and sick leave accrued as of the date of his retirement from his position as Town Attorney. Supreme Court ruled that Sherwood was ineligible to receive a credit for unused vacation and sick leave that he had accrued and he appealed.

The Appellate Division noted that the controlling provision set out in a collective bargaining agreement** addressing the liquidation of accrued but unused vacation days in Sherwood’s situation provided that "[i]f an employee is separated from Town service for any reason except termination for cause or resignation on less than ten working days' notice, he/she shall be paid in full for any unused vacation to which he/she is entitled."

It was undisputed that Sherwood gave less than 10 working days' notice of his resignation. The Appellate Division said that Sherwood would have been entitled to a credit for unused vacation days that he accrued had he not resigned and simply awaited the Town Board's decision not to reappoint him. “As he instead chose to resign effective immediately, he is not entitled to that credit.”

However, said the court, Sherwood also contended that he was entitled to “a credit for accrued but unused sick leave pursuant to Article 5 of the [collective bargaining agreement].” Section 5.4.1 provides of the CBA provides that "[p]rior to the retirement, the employee may apply to the Town Board for a lump sum payment of sixty (60%) percent of the cash value of his or her accumulated sick leave as of the date of retirement."

The Appellate Division said that Supreme Court erred in determining that "[s]ection 5.4 of the [CBA] renders eligible only those employees who have actually applied for retirement through the NYS Employee's Retirement System to receive a lump sum payment for accrued sick time." Under the facts regarding Sherwood’s leaving town service, the Appellate Division concluded that the CBA provisions concerning retirement unambiguously apply him” and thus he was a credit for unused sick leave that he accrued.

The court modified the lower court’s decision by reinstating Sherwood's claim for unused sick leave credit under the CBA as well as Retirement and Social Security Law §41(j)*** for the period running from the date of his appointment as Town Attorney effective January 1, 1996, through the date of his retirement, and remitted the matter to Supreme Court to determine “the number of accumulated sick days or hours, if any,” for which Sherwood is entitled to credit.

* Sherwood’s resignation on January 7, 2008 was precipitated by his learning that the Town Board, meeting later that same day, would not reappoint him to the position of Town Attorney.

** The Town Board had earlier adopted a resolution making the provisions of the collective bargaining agreement between the Town and Civil Service Employees Association for the Town's employees in the "White Collar Unit" applicable to unrepresented employees such as Sherwood.

*** Retirement and Social Security Law §41(j) provides for an “Allowance for unused sick leave for members in the employ of the state.” §2.8 of the Retirement and Social Security Law defines the term “employer” as “The state, a participating employer, and any other unit of government or organization obligated or agreeing, under this article, to make contributions to the retirement system on behalf of its employees.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06057.htm

A name clearing hearing available if adverse allegations are shared with another agency or administrator without the assurance of confidentiality

A name clearing hearing available if adverse allegations are shared with another agency or administrator without the assurance of confidentiality
Vandine v Greece Cent. School Dist., 2010 NY Slip Op 06059, Decided on July 9, 2010, Appellate Division, Fourth Department

Douglas W. Vandine commenced filed a petition pursuant to CPLR Article 78 seeking a court order directing the Greece CSD to hold a name-clearing hearing with respect to allegations associated with his termination from his probationary position with the district.

Supreme Court dismissed Vandine’s petition but the Appellate Division ruled that this was incorrect.

The Appellate Division noted that in the event "a government employee is dismissed for stigmatizing reasons that seriously imperil [his or her] opportunity to acquire future employment, the individual is entitled to an opportunity to refute the charge” if he or she demonstrates that there "has been a public disclosure by the employer of stigmatizing reasons for the discharge."

Typically, said the court, “the submission of a complaint to the New York State Department of Education (SED) based upon the allegations underlying [Vandine's] termination does not constitute such a public disclosure.”

Here, however, the court decided that although a confidential communication with an authorized governmental administrator or agency does not constitute public disclosure, here SED may determine that, based on allegations in the complaint, there exists a substantial question concerning Vandine's moral character that ultimately could result in the revocation of his teaching certificate. Accordingly the Appellate Division concluded that as 8 NYCRR 83.1 et seq,. the applicable regulations, do not specifically provide for confidentiality, there is a potential for public disclosure sufficient to establish Vandine's entitlement to a name-clearing hearing.

Reversing the lower court’s decision, the Appellate Division explained that a name clearing hearing was justified because under the controlling regulations Vandine would be given a hearing on the complaint submitted to SED by the school district only if a determination is made that the allegations raise a substantial question concerning his moral character.

Accordingly, the Appellate Division ruled that as Vandine is not guaranteed a hearing on the complaint, he may be foreclosed from any opportunity to refute the allegations absent a name-clearing hearing held by the school district.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06059.htm