Free speech

Free speech
Council 82 [ex rel Kuhnel], v State of New York, App. Div., 255 AD2d 54, Affirmed, 94 NY2d 321

State Correction Department rules do not trump a correction officer’s First Amendment right to fly a Nazi flag at his home said the Appellate Division in a decision that affirmed an arbitrator’s ruling in the Kuhnel case. This “free speech” ruling was affirmed by the Court of Appeals.

Edward Kuhnel, a state correction officer, flew a Nazi flag from the front porch of his home. He was served with a notice of discipline charging him with violating a Correction Department’s rule providing that:

[a] no employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or [i]ts personnel; and

[b] an employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee.

Kuhnel was suspended without pay pending the completion of a disciplinary arbitration. An arbitrator decided that while the state had probable cause to suspend Kuhnel without pay pursuant to the collective bargaining agreement, he was not guilty of the charges contained in the notice of discipline.

The arbitrator ordered the department to reinstate Kuhnel to his position with back pay and benefits.

The department attempted to have the arbitrator’s award vacated [Section 7511 of the Civil Practice Law and Rules], while Council 82 moved to confirm the award. Rejecting the department’s claims that the arbitrator’s award was totally irrational, the Appellate Division focused on “whether the underlying arbitration or the award resulting therefrom was violative of a strong public policy.”

The court held that the department “failed to demonstrate either that the disciplinary charges brought against Kuhnel were not properly the subject of arbitration or that the public policy of this State, ... prohibits, in an absolute sense, the presence within our prison system of those that display the Nazi flag, or any other flag that may be seen as symbolizing bigotry, racism or totalitarianism.” Accordingly, said the court, it was “constrained to affirm” the arbitration award.

In affirming the Appellate Division’s decision, the Court of Appeals said:

"Simply put then, the issue before this Court is not whether we agree with the arbitrator's assessment of the evidence, interpretation of the contract or reasoning in fashioning the award. We are not authorized to revisit those questions. We must focus on the result only, and can vacate the award if the arbitration agreement itself violates public policy; if the award intrudes into areas reserved for others to resolve; or if, because of its reach, the award violates an explicit law of this State. Our analysis cannot change because the facts or implications of a case might be disturbing, or because an employee's conduct is particularly reprehensible…. However, in order for us to adopt the State's argument, we would have to reject the specific factual findings made by the arbitrator that Kuhnel in fact posed no such threat. As abhorrent as Kuhnel's personal conduct is, Judges cannot reject the factual findings of an arbitrator simply because they do not agree with them (see, United Paperworkers Intl. Union v Misco, Inc., 484 US 29, at 38)."
NYPPL

Testing for drugs

Testing for drugs
Roy v City of New York, 685 NY2d 668

How much evidence is sufficient to require an employee to take a drug test? And if the employee refuses to take the drug test, is that grounds for dismissal?

The Appellate Division addressed those questions in the Roy case. The court ruled that an informant’s statement to a police officer that she had observed Gary Roy, a New York City police officer, using drugs on numerous occasions constituted substantial evidence and provided the amount of reasonable suspicion required for an order directing a drug test for cause.

The Appellate Division said the informant’s story was reasonably detailed. The fact that some of information provided by the informant was self-incriminatory also suggested credibility to the court. The Appellate Division also commented that Roy’s termination for refusing to submit to a drug test when ordered to do so, under the circumstances, did not shock its sense of fairness, upholding Roy’s termination.

However, there was a “back pay” issue to be resolved. The Appellate Division said that Roy had been suspended without pay for more than 30 days pending resolution of the disciplinary action. The decision notes that Roy was suspended without pay on May 2, 1996 and dismissed, following the hearing and determination of the charge supporting the suspension, on July 26, 1996.

Since there was no evidence that Roy was responsible for the delay in the determination of the charge beyond the 30 days suspension period permitted by Civil Service Law Sections 75(3), he is entitled to back pay for the period from June 2, 1996 to July 26, 1996, less any earnings he may have received from other sources during that period.

This is somewhat troublesome, however. Sections 75, 76 and 77 of the Civil Service Law originally provided for such an adjustment for earnings received from other sources during a period of suspension without pay in excess of 30 days upon the restoration of the individual to his or her former position.

But these three sections were amended in 1984. Chapter 710 of the Law of 1984 deleted the phrase “compensation which he may have earned in any other employment or occupation....”

These sections now provide that an employee who is acquitted of disciplinary charges or whose reinstatement is directed by a civil service commission or the court is to be “restored to his position with full pay for the period of the suspension less the amount of any unemployment insurance benefits he may have received during such period.” It would seem that the same rationale would be applied in cases where an individual has been suspended without pay for a period in excess of that authorized by statute.

Similar language is used in Education Law Section 3020-a.4(b) with respect to the payment of back salary upon acquittal.
NYPPL

Whether a retiree may file a grievance alleging a “violation of the collective bargaining agreement” is for the arbitrator to decide

Whether a retiree may file a grievance alleging a “violation of the collective bargaining agreement” is for the arbitrator to decide
Matter of Peters v Union-Endicott Cent. School Dist., 2010 NY Slip Op 07647, decided on October 28, 2010, Appellate Division, Third Department
[see, also, Matter of Union-Endicott Cent. School Dist. v Endicott Teachers' Assn., 59 AD3d 799, http://publicpersonnellaw.blogspot.com/2010/02/absence-of-language-in-collective.html]

The Endicott Teachers' Association, representing its member, Joanne Peters, a teacher employed by the Union-Endicott Central School District, filed a grievance and demand for arbitration alleging the school district refused to provide health benefits pursuant to the collective bargaining agreement between the District and the ETA following her retirement.

Prior to Peters submitting her retirement application, the District and local police authorities commenced an investigation into allegations that Peters was stealing school materials and property and selling such items on the Internet. Peters submitted her application for retirement while under investigation but prior to her subsequent arrest and charge of grand larceny in the fourth degree.

Following her arrest, Peters was suspended from her postion and the District filed disciplinary charges against her pursuant to Education Law §3020-a. The district also delayed action on her retirement application. The hearing officer, however, found that Peters had severed her employment relationship with the District on July 1, 2007. As a result, the Hearing Officer concluded that the disciplinary charges against Peters were moot and granted her motion to dismiss the charges.*

The School Board, relying on the Hearing Officer's determination, adopted a resolution to retroactively terminate Peters effective July 1, 2007.

Ultimately the school district denied Peters demand for retiree health insurance benefits and ETA filed a demand for arbitration of her resulting grievance. Supreme Court denied the District's application to stay the arbitration.**

The Appellate Division said that the issue raised by the second grievance “distills to whether Peters is considered a retiree for purposes of entitlement to health insurance benefits pursuant to the CBA.”

Rejecting the district’s argument that public policy prohibits arbitration of the grievance on the basis that a determination as to an employee's employment status is a matter to be left to the board of education, the court held that "issues such as [a school district's] relationship to retired employees [and] whether retirees are covered by the grievance procedure . . . are for [an] arbitrator to decide.”

* N.B. 4 NYCRR 5.3[b], which applies to employees in the Classified Service, 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 [or her] termination shall be recorded as a dismissal rather than as a resignation.”

** As to the district’s argument that public policy prohibits conferring contractual benefits upon an employee guilty of misconduct under the "faithless servant" doctrine, Supreme Court said that the record “establishes that Ms. Peters entered a plea of not guilty to a charge of grand larceny and that said charge was ultimately dismissed.” Further, the charges filed against Peters pursuant to Education Law §3020-a “were likewise dismissed without any finding of guilt.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07647.htm
NYPPL