Employees of a state or a political subdivision of a state may not be required to pay an agency-shop fee to a union unless the employee affirmatively consents to pay such a fee

Employees of a state or a political subdivision of a state may not be required to pay an agency-shop fee to a union unless the employee affirmatively consents to pay such a fee

Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 85 U. S. ____ (2018).

Petitioner Mark Janus, an Illinois state employee whose collective bargaining unit is represented by a public-sector union [Union], refused to join the Union because he opposes many of its positions, including those taken by the Union in the course of collective bargaining. Janus, however, was required to pay an "agency shop fee" in lieu of paying "regular dues" to Union. The Governor of Illinois also opposed to many of the Union's positions and attempted to join in the litigation as a plaintiff but was held to "lack standing."

Janus, contending that the state law authorizing agency fees to be paid to a union representing state employees in collective bargaining was unconstitutional, sued the State of Illinois.

The United States Supreme Court held that the State’s extraction of agency fees from nonconsenting public-sector employees violated the First Amendment, overruling its earlier decision in Abood v Detroit Board of Education, 431 U. S. 209.

In Abood the high court ruled that an agency shop fee may cover a union's expenditures attributable to those activities “germane” to the union’s collective-bargaining activities, referred to as chargeable expenditures, but may not cover the union’s political and ideological projects, i.e., nonchargeable expenditures.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts  and Justices Kennedy, Thomas, and, Gorsuch joined. Justice Sotomayor filed a dissenting opinion and Justice Kagan filed a dissenting opinion in which Justices Ginsburg and Breyer and Sotomayor joined.

In the words of the majority, "... States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay."

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Matter of Terry v County of Schoharie, 2018 NY Slip Op 04612, Appellate Division, Third Department

Petitioner in this CPLR Article 78 action alleged that Schoharie County [Schoharie] had abolished her position in violated Civil Service Law §80 as it was done in bad faith and, with respect her federal claims, violated her constitutional rights to due process, equal protection and political affiliation.

Schoharie removed the proceeding to Federal District Court and that court ultimately dismissed all of Plaintiff's federal claims on the merits. The District Court, however, declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and remanded them back to Supreme Court. Supreme Court then granted Schoharie's motion for summary judgment dismissed Plaintiff's petition and Plaintiff appealed.

The Appellate Division, indicating that "A public employer may, in the absence of bad faith, collusion or fraud, abolish positions for the purposes of economy or efficiency",  noted that Schoharie had argued that Petitioner's position was abolished as part of a cost-saving measure due to fiscal restraints resulting from flooding caused by Hurricane Irene and was experiencing a loss of population as well as a shrinking tax base and had eliminated positions and restructured several County departments by consolidation or separation of functions. To rebut such proof the Appellate Division said that Petitioner was required to prove "that the abolition of [her] position was brought on by bad faith or in an effort to circumvent the Civil Service Law."

Addressing the issue of Schoharie's alleged bad faith, the Appellate Division said "hat issue was squarely addressed and decided by the District Court in its resolution of Petitioner's federal claims." In dismissing the federal claims, grounded upon the same allegations as those underlying the claimed Civil Service Law violations, the District Court "expressly held that the evidence submitted by [Schoharie] established that Petitioner's position was abolished as a cost-saving measure and that there was no evidence to support Petitioner's "self-serving testimony that [Schoharie] acted in bad faith" or in retaliation for Petitioner's change of political party enrollment.

Noting that the doctrine of collateral estoppel "precludes a party from relitigating an issue which has previously been decided against [him or] her in a proceeding in which [he or] she had a fair opportunity to fully litigate the point," regardless of whether the tribunals or causes of action are the same, the Appellate Division observed that the factual issue of bad faith "was raised, necessarily decided and material in the [District Court], and [Petitioner] had a full and fair opportunity to litigate the issue." Thus, said the court, Petitioner is barred by the principles of collateral estoppel from relitigating that issue in the course of her Article 78 action.

In the absence of bad faith, Schoharie's showing of an economic justification for the elimination of Petitioner's position could only be countered by proof that "no savings were accomplished or that someone was hired to replace [Petitioner]." Petitioner, however, did not dispute that the reorganization of her department and the concomitant elimination of her position, resulted in fiscal savings to the County or that Schoharie did not replace her.

Although Petitioner contended that many of her duties that Petitioner had been assumed by another Senior Planner and that Schoharie violated the prohibition in Civil Service Law §61(2) against assigning civil servants to out-of-title work by assigning supervisory responsibilities to that Senior Planner, the Appellate Division found that such work "either falls within the official duties set forth in the Senior Planner job classification or is a reasonable and logical outgrowth of those duties."

Accordingly, the Appellate Division concluded that Petitioner failed to raise an issue of fact in response to Schoharie's showing that its actions "were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency," her petition was properly dismissed by Supreme Court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04612.htm

Considering the employee's personnel history is setting a disciplinary penalty

Considering the employee's personnel history is setting a disciplinary penalty

Brizel v City of New York, 2018 NY Slip Op 03755, Appellate Division, First Department

Educator was served with disciplinary charges pursuant to Education Law §3020-a. The Arbitrator found the teacher, who had a 27-year career with the New York City Department of Education, guilty of misconduct and terminating his employment.

The Appellate Division confirmed the arbitration award, noting that the Educator's career, "was not without incident, as evidenced by his 2008 settlement of disciplinary charges." The court then observed that the Arbitrator "properly considered" an earlier settlement of those charges in setting the disiplinary penalty in this instance. In addition the Appellate Division noted that the Educator failed to acknowledge the gravity of his misconduct, continues to deny wrongdoing, and attempted to shift blame to his students.

Considering an employee's personnel history in setting a disciplinary penalty is permitted provided, as the Court of Appeals held in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470 and Doyle v Ten Broeck, 52 NY2d 625, the individual is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file.

Further, as the court noted in Shafer v Board of Fire Commr., Selkirk Fire Dist., 107 AD3d 1229, a series of petty offenses by a single individual may have a cumulative impact in the setting of a penalty. In fact, courts have approved the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.

In determining the appropriate penalty to be imposed, relevant issues include considering if this is the employee’s first offense of this nature, or is there a pattern of such offenses and had the employee been disciplined or served with disciplinary notice in the past.

In sustaining the Arbitrator's determination as to the penalty to be imposed in this instance, the Appellate Division said that "Under the circumstances presented, the penalty of termination does not shock our sense of fairness," citing Bolt v New York City Department of Education, 30 NY3d 1065.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03755.htm