Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement

Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement
Matter of Glick v Commissioner of Labor, 2010 NY Slip Op 07103, decided on October 7, 2010, Appellate Division, Third Department

Joseph Glick was terminated from his position with the Office of Children and Family Services on October 27, 2005. He applied for and received unemployment insurance benefits in the amount of $10,165.50, covering the period from November 2005 through May 2006.

Subsequently Glick sued Children and Family Services alleging wrongful discharge. Ultimately the matter was settled and Glick received $92,317.15 in back pay covering the period between his termination in October 2005 and May 1, 2008.

The Department of Labor then notified Glick that, in light of the settlement, he was no longer entitled to the unemployment insurance benefits he received because he was not totally unemployed "at that time." When Labor Department charged Glick with a recoverable overpayment of unemployment benefits in the amount of $10,165.50, he sued.

The Appellate Division affirmed Labor’s determination, holding that a lump-sum payment of back pay constitutes wages for the purpose of determining benefits and, therefore, the Board's determination that Glick was not totally unemployed and the overpayment was recoverable is supported by substantial evidence.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07103.htm
NYPPL

Collateral estoppel

Collateral estoppel
Jaworowski v NYC Transit Authority, 2nd Circuit, 182 F. 3d 900, Cert. denied, 99–542

The doctrine of collateral estoppel prevents a party from relitigating issues previously considered by one forum in a second forum. The doctrine is based on the concept that a party may not relitigate an issue if the identical issue was necessarily decided in a previous proceeding, provided that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action.

The Jaworowski case demonstrates the elements considered by courts when determining whether the doctrine applies in a particular situation with respect to whether or not the identical issue was decided in a previous proceeding or whether there was an opportunity for such issues to be considered.

Leonard Jaworowski was terminated from his position with the New York Transit Authority following a disciplinary arbitration. He brought an Article 75 action in State Supreme Court in an effort to have the arbitration award vacated. Unsuccessful in this effort, Jaworowski next filed a lawsuit in federal district court pursuant to 42 USC Section 1983 alleging “various constitutional infirmities in an arbitration proceeding arising out of disciplinary charges brought against him by the Authority.”

The Authority claimed Jaworowski’s federal action was barred under the doctrine of collateral estoppel because he already had “his day in court” on these issues as a result his bringing an Article 75 action. The district court agreed, ruling that Jaworowski was estopped from suing on these claims because they had been previously litigated in his Article 75 action brought in New York state court. The Circuit Court of Appeals affirmed the lower court’s ruling.

Jaworowski’s major argument was that the doctrine of collateral estoppel should not bar his federal suit because the claims he was asserting in his Section 1983 complaint were not identical to those he litigated in state court. His reason was that the standards of review of arbitrations differ between New York state courts and federal courts.

According to Jaworowski, to prevail in state court he would have had to prove that the alleged due process violations rendered the arbitration irrational, while in federal court he need only show that the arbitration violated due process.

The Circuit Court of Appeals said that his argument “mistakenly conflates two different grounds for setting aside an arbitration under New York law.” Although one ground for vacating an arbitration decision is to show that the award is “totally irrational,” a court applying New York law will also vacate an arbitration if it finds that the arbitration violated due process, citing Beckman v Greentree Securities, Inc., 87 NY2d 566.

The Circuit Court said that the district court correctly dismissed his Section 1983 action because New York State courts do not review constitutional challenges to arbitration decisions more deferentially than do federal courts.
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Union takes disciplinary action against union member

Union takes disciplinary action against union member
Perez v Local 39, IUOE, USDC EDNY

Can a union member slander his or her union leadership and avoid internal union discipline? Yes, as the Perez case shows.

The membership of Local 39, International Union of Operating Engineers, disciplined Richard Perez for “willfully slandering and libeling another member of the Union.” The penalty imposed: a fine of $4,177 and an order directing Perez to write letters of apology.

The General Executive Board of the International upheld the decision, but reduced the fine to $2,088.50 on the condition that the Perez “apologize.” Perez refused to apologize, and was barred from attending the meetings of Local 30.

Perez sued, contending that his “free speech” rights, guaranteed by Section 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 USC. Section 411(a)(2), were violated.

A federal district court judge agreed, noting that the Second Circuit U.S. Court of Appeals, which has jurisdiction in New York, Connecticut and Vermont, has interpreted LMRDA “liberally.”

The U.S. District Court for the Eastern District of New York ruled that the LMRDA protects union members’ rights to freely express their opinions about union matters, even where that expression amounts to libel or slander,” citing DeCarlo v. Salamone, 977 F. Supp 617.

Section 101(a) (2) of the LMRDA, 29 USC. Section 411(a) (2), provides, in relevant part, that “Every member of any labor organization shall have the right to ... express any views, arguments, or opinions ... provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations” [29 USC. Section 411(a) (2)].

The Local’s membership took disciplinary action against Perez because he wrote “a scathing letter” to Frank Hanley, the General President of the International Union of Operating Engineers, complaining about alleged retaliation he suffered after a 1995 union election. The court said that “whether or not [the Local] may have been justified in disciplining [Perez] for some other reason, their inclusion of the charge of libel ran afoul of [his] rights under the LMRDA.”
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