Amending the qualifications for appointment to a position in the public service is a “Management Right” and is not a mandatory subject of collective bargaining

Amending the qualifications for appointment to a position in the public service is a “Management Right” and is not a mandatory subject of collective bargaining
Uniformed Firefighters Assn. of Greater N.Y., Local 94 v City of New York, 2013 NY Slip Op 03763, Appellate Division, First Department

State Supreme Court Judge Carol E. Huff denied the Uniformed Firefighters Association petition seeking to annul the New York City Board of Collective Bargaining’s (BCB), decision dismissing the Association’s improper practice complaint.

BCB had rejected the Association’s improper practice charge challenging the New York City Fire Department’s decision to change the job requirements for the position of fire company chauffeur without first negotiating the proposed change with the Association.

Sustaining the Supreme Court’s ruling, the Appellate Division said that BCB's determination was neither arbitrary and capricious, contrary to law, nor an abuse of discretion, explaining that the “ … Fire Department's decision to alter the job requirements for the position … was within the sound exercise of its managerial discretion.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03763.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending May 26, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Releases Report on Proposed NYS DREAM Act

New York State Comptroller Thomas P. DiNapoli released a reporton May 20, 2013 estimating the cost and economic benefits of the proposed New York State Development Relief and Education for Alien Minors Act, which would increase access to financial aid for undocumented college students.

The report concluded that extending eligibility for the state’s Tuition Assistance Program to undocumented undergraduate students would provide economic benefits to the state at a very small cost.

DiNapoli: Poughkeepsie Facing Severe Fiscal Stress

Inaccurate budgeting has created an $11 million general fund deficit in the city of Poughkeepsie, according to an auditissued on May 22, 2013  by State Comptroller Thomas P. DiNapoli. 

The report also found the city’s debt burden has increased 45 percent over the past five years.

DiNapoli Response to Arrest of Former Old Field Treasurer

While conducting an audit and investigation of the Village of Old Field in Suffolk County, State Comptroller Thomas P. DiNapoli’s staff uncovered the misappropriation of nearly $60,000 in village funds by Andrea Brosnan, the former village treasurer.

Comptroller DiNapoli Releases Municipal Audits

On May 22, 2013 New York State Comptroller Thomas P. DiNapoli announced   that his office completed audits of:

the Apalachin Fire District;

the Town of Hanover;

the Lakeville No. 2 Fire District;

the Town of Rhinebeck;

the Town of Summerville;

the Town of Southampton;

the Village of Sylvan Beach; and,

the Town of Wethersfield.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued on May 20, 2013:

Department of Health;

New York State Thruway Authority;

Rochester–Genesee Regional Transportation Authority;

Department of Environmental Conservation;

State University of New York, Fuller Road Management Company;

Department of Agriculture and Markets;

Capital District Transportation Authority;

Department of Transportation; and,

State University of New York: College at Plattsburgh.

Delaying the processing of an application for retirement and the denial of “retiree benefits” because of alleged employee misconduct

Delaying the processing of an application for retirement and the denial of “retiree benefits” because of alleged employee misconduct

Union Endicott Cent. Sch. Dist. v Endicott Teachers' Assn., 2013 NY Slip Op 50833(U), Supreme Court, Broome County [Not selected for publication in the Official Reports.]

State Supreme Court Judge Ferris D. Lebous’ decision in this action considered issues raised by the union on behalf of a retired teacher concerning the school district’s delay in processing her application for retirement benefits and her eligibility for retiree health insurance under a Collective Bargaining Agreement.

The events leading to this proceeding was summarized by the court as follows. :

A teacher for the Union-Endicott Central School District became “a person of interest” in an investigation involving stolen school property. The teacher, however, tendered her resignation before the investigation was completed. Although the resignation indicated that the teacher intended to resign and retire at the end of the academic year, the Board of Education decided to delay the processing of the teacher’s application for retirement pending determinations on criminal charges and disciplinary charges.

The Association filed grievances challenging the Board of Education's decision to delay the processing of the teacher’s retirement ("Grievance No.1") and its denial of the teacher’s retiree health insurance benefits ("Grievance No.2"). Judge Lebous stayed the arbitration of Grievance #1 as “not arbitrable,” but ordered the arbitration of Grievance #2 (see Union Endicott Cent. School Dist. v Endicott Teachers' Assn., 25 Misc 3d 1210 [A]).

The Appellate Division affirmed the court's rulings, holding that arbitration could not be compelled with respect to Grievance # 1 [see http://www.nycourts.gov/reporter/3dseries/2009/2009_01060.htm] and that Grievance #2, the grievance challenging the denial of the teacher’s health insurance benefits upon retirement, was arbitrable [see http://www.nycourts.gov/reporter/3dseries/2010/2010_07647.htm].

Ultimately, the arbitration hearing on the issue of the teacher’s eligibility for health insurance benefits upon retirement was conducted and arbitrator Louis Patack issued an Opinion and Award in favor of the teacher. The school district then filed a petition pursuant to CPLR Article 75 seeking a court order vacating the arbitrator’s award.

As phrased by the court, “The School District's primary argument in support of it's petition is that the arbitrator failed to consider the issue of [the teacher’s] misconduct” in terms of  “the faithless servant doctrine,” contending that the Appellate Division had “instructed” the consideration of that issue.  The School District claimed that this failure on the part of the arbitrator constituted “misconduct in rendering his award and constitutes a ground for vacating the same under CPLR §7511 (b) (1) (i) and (iii).”

Noting that the Appellate Division “… did not mandate that the arbitrator apply the doctrine but merely stated that '[t]he issue of the effect, if any, of [the teacher’s] alleged misconduct on her entitlement to benefits goes to the merits of her grievance, not to its arbitrability,'” Further, Judge Lebous rejected the School District's representation that the arbitrator failed to consider or address the faithless servant doctrine. Rather, said the court, the record “clearly reflects that the arbitrator did considerwhether the doctrine applied under the CBA and held that it did not.”

In addition the court commented that “as outlined by the Association,” the parties had entered into a stipulation at the arbitration hearing that the School District would offer evidence of [the teacher’s] alleged misconduct only if the arbitrator determined that the doctrine applied and because he did not so rule no such evidence was accepted.

Accordingly, the court denied the school district’s petition to vacate or modify the arbitration award and, in addition, denied its application for a stay of enforcement and implementation of the arbitration award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50833.htm