Determining if a dispute between a public employer and a public employee organization is arbitrable

In this hybrid Article 75 proceeding the Board of Education [Board] sought a court order pursuant to CPLR article 75 permanently staying an arbitration. Supreme Court denied the petition and granted the Federation of Teachers' [Federation] motion to compel arbitration. The Appellate Division affirmed the Supreme Court's ruling.

Federation had filed a grievance alleging that the Board had violated a term and condition of the relevant collective bargaining agreement [CBA] between the parties by failing to enforce a parking space assignment set out in the CBA.

The Appellate Division, citing Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 153 AD3d 617, said that "Public policy in New York favors arbitral resolution of public sector labor disputes"  but that a dispute between a public sector employer and a public sector employee organization is only arbitrable if it satisfies a two-prong test.

The first prong of this two-point test to be satisfied is the absence of any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If the court finds that there is no such prohibition against the arbitration, it must then determine if the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

In this instance the Board did not contend that arbitrating the Federation's grievance was barred by law or public policy. Accordingly, the issue to be addressed by the Appellate Division was whether the Board and Federation did, in fact, agree to arbitrate the particular dispute. To resolve this question the court must determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Recalling that in analogous cases "this Court had held that the arbitration provision of the CBA at issue here is broad,"* the Appellate Division concluded that there was "a reasonable relationship between the subject matter of the dispute, staff parking, and the general subject matter of the CBA, including conditions of employment" and affirmed the decision of the Supreme Court.

* See Board of Educ., Yonkers City School Dist. v Yonkers Fedn. of Teachers, 110 AD2d 897, 898-899; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 81 AD2d 585; and Matter of Board of Education of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 49 AD2d 753.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01343.htm

New York State Governor Cuomo waives the statutory 15-day "waiting period" for a public employee's effective date of retirement

New York State Comptroller DiNapoli requested the Executive Order* in order to safeguard benefits for families who may lose a loved one to COVID-19 before their service retirement can be made official. The Executive Order applies to member of the New York State and Local Retirement System.

“Many government workers are on the front lines battling the coronavirus in their communities every day,” DiNapoli said. “God forbid something should happen to them before their retirement becomes effective. Waiving the waiting period after filing for service retirement benefits ensures their families will get the benefits that were intended for them. My thanks to Governor Cuomo for acting on my request and taking steps to protect our heroic state and local workers and their families in these tough times.”

Under the existing law, members of the New York State and Local Employees Retirement System (NYSLRS) must wait 15 days before their service retirement date is effective. This window exists to give the member time to change their mind about their retirement, since the decision is irrevocable. If members of the Employees Retirement System were to die before the period was over, however, their service retirement would not be effective and their beneficiary would lose the retirement benefits the member wanted to provide for them.

Executive Order 202.18 authorizes a retroactive waiver of the 15 day waiting period to March 7, 2020, the date that the state emergency was declared, for members who have died of a COVID-related illness. The EO will enable the many members who are eligible to retire and experience the sudden onset of COVID-19, to choose an effective date of retirement that is less than 15 days from the date of filing. Beneficiaries of Police and Fire members already have the ability to choose service retirement benefits if the member dies before retirement is effective.

NYSLRS recommends that members place an effective date of retirement on their application or if filing using Retirement Online. Alternatively, members using a paper application may indicate “ASAP” in the effective date field and their retirement will be effective on the day after the application is filed with NYSLRS.

DiNapoli wrote to Governor Cuomo last week to request the Executive Order, which rescinds the 15-day window for NYSLRS’ members applying for service retirement during the current state of emergency through May 16, 2020.

* Click on the text in color to link to the full text of the referenced item.

Workers' compensation benefit voided as a result of making a false statement or misrepresentation

Following establishing a claim for workers' compensation benefits by an employee [Claimant], which claim was subsequently amended twice to include other injuries, the self-insured employer [Employer] raised the issue of whether Claimant had violated Workers' Compensation Law §114-a by making a false statement or representation of a material fact for the purpose of obtaining workers' compensation benefits.

Following a hearing, a Workers' Compensation Law Administrative Law Judge [ALJ] found that Claimant violated §114-a and imposed a penalty of "a rescission of awards, as well as a disqualification of future awards." Claimant subsequently appealed a panel of the Workers' Compensation Board sustaining the ALJ's determination.

The Appellate Division upheld the Board's decision. Citing §114-a [1], the court explained that "A fact is considered material when it is significant or essential to the issue or matter at hand." Further, if supported by substantial evidence, the Appellate Division explained that the Board's determination that a person violated Workers' Compensation Law §114-a will not be disturbed.

In this instance the Board had found that Claimant violated §114-a by making a false statement of fact about her work activities and by failing to disclose critical information to an examining physician.*

Because substantial evidence supports the Board's determination that claimant violated Workers' Compensation Law §114-a, the Appellate Division held that "it will not be disturbed," and found Claimant's challenge to the imposed penalty to be without merit.

* The Appellate Division noted that its review of the record confirms the Board's finding that although Claimant testified that, since her classification with a permanent total disability, she had not worked in any capacity or run any businesses, in the subsequent disqualification hearing that Claimant stated that she had operated a photography business and took photographs for parties and family events.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02209.htm