Anti-union animus found to have motivated the employer's taking disciplinary action against an employee resulting in the employee being suspended and demoted

Supreme Court, New York County, denied a petition filed by the City of New York [City] seeking to annul the determination of the Board of Collective Bargaining of the City of New York [Board] granting the improper practice petition filed by the Marine Engineers' Beneficial Association, AFL-CIO (MEBA). The City appealed the Supreme Court's ruling.

The Appellate Division unanimously affirmed the Supreme Court's ruling, explaining that  Supreme Court had properly [1] denied the City's petition and [2] granted the Board's cross-motions to dismiss the proceeding, as the Supreme Court's decision was rational and was supported by the evidence in the record.

Pointing out that the Board had a rational basis to conclude that anti-union animus motivated the employee's suspension and demotion, the Appellate Division's decision also  noted that the testimony in the record from multiple witnesses indicated that the discipline imposed was disproportionate to the offenses and similarly situated employees who engaged in the same conduct received no discipline. 

The Appellate Division's decision also reported that "the witness testimony and documentary evidence established a temporal relationship between the union activity the employee engaged in and the disciplinary action taken" by the City.

The Appellate Division opined that it was also proper "for the Board to reinstate the employee based on the Board's finding that anti-union animus was the substantially motivating cause of his dismissal, and not merely one of the reasons therefor".

Click HERE to access the decision of the Appellate Division posted on the Internet.

The scope of the public policy exception to an arbitrator's power

A New York State Supreme Court granted the State of New York - Unified Court System's [UCS] petition seeking to permanently stay arbitration sought by UCS and denied the cross-motion of the Civil Service Employees Association [CSEA] to compel arbitration.  The Appellate Division unanimously reversed the  lower court's ruling "on the law", dismissed UCS's petition, granted CSEA's motion, and then directed the parties to proceed to arbitration.

CSEA had filed a grievance on behalf of a member [Grievant] in the collective bargaining represent by CSEA challenging USC's summarily removing the Grievant from his position of Principal Law Clerk after the Grievant had successfully completed the required probationary period. 

UCS told Grievant that he was "in the wrong job title, job grade, and salary", contending that a recent audit of its employee records revealed that Grievant was improperly in the title of the position, Principal Law Clerk, as his judicial assignment did not meet the appropriate criteria of a Principal Law Clerk to two "multi-bench judges" and this error would be corrected by "redesignating" the title of Grievant's position to Associate Court Attorney. 

USC's letter also indicated that although Grievant's designation as a Principal Law Clerk resulted in a payment of a salary greater than the salary due him by reason of his serving in the position of  Associate Court Attorney, UCS would not seek to recoup any salary overpayment but his future compensation would be "adjusted prospectively" to the lower salary payable to an Associate Court Attorney.

The Appellate Division held that Supreme Court erred when it permanently stayed CSEA's demand for arbitration of this matter "as public policy does not preclude arbitration of the narrow issue underlying CSEA's grievance": did UCS's actions  constituted a reclassification of Grievant's title from Principal Law Clerk to the title of Associate Court Attorney, resulting in a reduction of his salary grade, violate the parties' collective bargaining agreement.

The Appellate Division noted that the grievance did not challenge UCS's authority to classify, reclassify, allocate, or reallocate UCS positions as authorized by 22 NYCRR 25.5(a), opining that CSEA sought an interpretation of Articles 19 and 20 of the collective bargaining agreement then in force to determine whether UCS's actions "violated the parties' contractual rights and responsibilities". In the words of the Appellate Division, "[in] light of the narrow scope of the public policy exception to an arbitrator's power, the matter is arbitrable, especially because it concerns a public employment collective bargaining agreement".

Click HERE to access the Appellate Division's decision posted on the Internet.

An appeal of a school board's decision submitted to the Commissioner of Education dismissed because it had not been properly served on the school board

New York State Commissioner of Education Betty A. Rosa dismissed an appeal challenging a School Board's [Board] decision denying the parent's [Petitioners] request for afterschool transportation for the Petitioners' two children because the appeal had not been properly served. 

The Commissioner found that the Petitioners' appeal had not personally served on the Board but was "sent via certified mail with return receipt requested".  This, said the Commissioner, "is not a method of service authorized by 8 NYCRR 275.8 (a)". 

The Commissioner explained that Section 275.8 (a) of the Commissioner’s regulations "requires that the petition be personally served upon each named respondent". Further, the Commissioner observed that "If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]".

Noting that the petition was not personally served on the Board but was sent via "certified mail with return receipt requested", the Commissioner dismissed the parents' appeal for lack of proper service.

Click HERE to access the decision of the Commissioner posted on the Internet.