Unit exclusivity
CSEA and Warrensburg CSD, 30 PERB 3056
Suffolk Co Corrections Officers Assoc v PERB, App. Div., 246 A.D.2d 660
Exclusivity is an important issue to a collective bargaining unit. It sets out those tasks that may be performed only by unit members to the exclusion of all others. An employer violates its duty to negotiate under Section 209-a.1(d) of the Civil Service Law if it unilaterally transfers work “established and maintained exclusively by a collective bargaining unit” to non-unit workers.
In the Warrensburg case, CSEA Local 857 charged that the Warrensburg Central School District violated Section 209-a.1(d) when it assigned chaperoning duties at plays and concerts to employees represented by the Warrensburg Teachers Association [Association], a different negotiating unit.
The District contended that under a memorandum of understanding, members of the Teachers Association had “the right of first refusal in chaperoning all school events.”
PERB sustained its administrative law judge’s finding that District administrators regularly served in a chaperoning capacity at these events and thus CSEA did not have exclusivity with respect to performing such duties.
PERB said that collective bargaining agreements between the Association and the District dating back to 1982 specifically covered “chaperoning duties and rights,” while Local 857 agreements were silent with respect to such activities.
PERB rejected Local 857’s argument that it had “exclusivity” with respect to concerts conducted at the high school while Association members regularly chaperoned elementary school concerts, commenting that “the location of a concert, being unrelated to chaperoning duties, cannot form any discernible boundary within which to test exclusivity.”
A similar case involved the Suffolk County Court, First District, located in Hauppauge, which employed 18 correction officers who were responsible for the care and custody of detainees being held there.
In 1992 the Court was moved to Central Islip from Hauppauge and the 18 correction officers were reassigned to the Suffolk County Maximum Security facility in Riverhead. Deputy sheriffs were assigned to take care of the detainees at the Court’s Central Islip facility.
The Suffolk County Correction Officers Association [SCCOA], filed an improper practice charge against the County with PERB, contending that the County’s unilateral transferring the responsibility for District Court detainees to deputy sheriffs violated Section 201.a[1](d) and (e) of the Civil Service Law. SCCOA argued that the Taylor Law required that “prior negotiations” be undertaken before such a change could be implemented.
A PERB administrative law judge [ALJ] determined that SCCOA did not prove that its unit members had previously performed the duties reassigned to the deputy sheriffs exclusively. After PERB affirmed the ALJ’s ruling, SCCOA appealed. The Appellate Division affirmed PERB’s determination.
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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
Sep 9, 2010
Sep 8, 2010
Court vacates hearing officer’s disciplinary determination after finding that it was arbitrary and capricious
Court vacates hearing officer’s disciplinary determination after finding that it was arbitrary and capricious
Trupiano v Meadow Union Free School Dist., 2010 NY Slip Op 32264(U), August 10, 2010, Supreme Court, Nassau County, Judge: Michele M. Woodard [Not selected for publication in the Official Reports]
From September 2004 through March 2007, the East Meadow UFSD teachers engaged in numerous activities to protest the fact that they did not have a successor collective bargaining agreement in place,* including picketing the School District's school buildings.
East Meadow, pursuant to Education Law §3020-a, preferred disciplinary charges on one of its teachers, Gina Trupiano, alleging that Trupiano “intentionally created a health and safety risk by purposefully situating her vehicle alongside the curb … in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard.”
Hearing Officer Howard C. Edelman found that although Trupiano “did not knowingly and purposely park her vehicle alongside the curb … he concluded that by doing so, Trupiano "created a safety hazard to children” and sustained the charge. The penalty imposed: Trupiano received a counseling memo as the penalty.
Judge Woodward vacated the hearing officer’s award, finding that, in this instance, the Hearing Officer s decision that Trupiano is culpable of the charge preferred against her is not "amply supported by the evidence."
In the words of the court, “While the Hearing Officer s decision is indeed thoughtful, the irony is that the Hearing Officer therein repeatedly acknowledges that Trupiano broke no laws on March 2, 2007, was engaged in a constitutionally protected form of free speech and that she "obviously... did not wish harm to any child."
Accordingly, the court ruled that the disciplinary determination was "arbitrary or capricious."
* The terms and conditions addressing mandatory subjects of collective bargaining set out in the expired collective bargaining agreement are continued in effect pending the successor agreement in accordance with PERB’s so-called “Triborough Doctrine” promulgated in 1972.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32264.pdf
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here:
http://thedisciplinebook.blogspot.com/
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Trupiano v Meadow Union Free School Dist., 2010 NY Slip Op 32264(U), August 10, 2010, Supreme Court, Nassau County, Judge: Michele M. Woodard [Not selected for publication in the Official Reports]
From September 2004 through March 2007, the East Meadow UFSD teachers engaged in numerous activities to protest the fact that they did not have a successor collective bargaining agreement in place,* including picketing the School District's school buildings.
East Meadow, pursuant to Education Law §3020-a, preferred disciplinary charges on one of its teachers, Gina Trupiano, alleging that Trupiano “intentionally created a health and safety risk by purposefully situating her vehicle alongside the curb … in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard.”
Hearing Officer Howard C. Edelman found that although Trupiano “did not knowingly and purposely park her vehicle alongside the curb … he concluded that by doing so, Trupiano "created a safety hazard to children” and sustained the charge. The penalty imposed: Trupiano received a counseling memo as the penalty.
Judge Woodward vacated the hearing officer’s award, finding that, in this instance, the Hearing Officer s decision that Trupiano is culpable of the charge preferred against her is not "amply supported by the evidence."
In the words of the court, “While the Hearing Officer s decision is indeed thoughtful, the irony is that the Hearing Officer therein repeatedly acknowledges that Trupiano broke no laws on March 2, 2007, was engaged in a constitutionally protected form of free speech and that she "obviously... did not wish harm to any child."
Accordingly, the court ruled that the disciplinary determination was "arbitrary or capricious."
* The terms and conditions addressing mandatory subjects of collective bargaining set out in the expired collective bargaining agreement are continued in effect pending the successor agreement in accordance with PERB’s so-called “Triborough Doctrine” promulgated in 1972.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32264.pdf
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here:
http://thedisciplinebook.blogspot.com/
============================================
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Some procedural basics in perfecting an appeal to the Commissioner of Education
Some procedural basics in perfecting an appeal to the Commissioner of Education
Kathleen Vendel, et al., v the Board of Education of the Marion Central School District, Decisions of the Commissioner of Education, Decision #16,134
The decision of the Commissioner of Education in Vendel sets out a number of procedural elements that must be satisfied in order to perfect an appeal to the Commissioner. Significantly, a party's failure to comply with one or more of these requirements could prove fatal to the Commissioner's considering the merits of the appeal.
Some 100 residents of the Marion Central School District appealed the School Board decision concerning the public's participation at board meetings. The Board had adopted a policy limiting non-members of the Board interested in speaking at its meetings to three minutes. Also in Vendel's submission to the Commissioner was an appeal involving "certain interactions with the community” by the Board and an application seeking “the removal of various individuals” from the Board.
The Commissioner dismissed Vendel's appeal and application without considering the merits of the allegations, explaining:
1. The individuals filing an appeal must have standing. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Merely having status as a resident and a taxpayer in a school district is not sufficient to confer standing to challenge school board policies.
Except with respect to Vendel’s allegations concerning alleged harassment, said the Commissioner, “there has been no showing that any of the petitioners are personally aggrieved by the board policy or actions complained of.” The appeal, therefore, was dismissed for lack of standing, except with respect to Vendel’s claims relating to the harassment complaint.
2. Verification of the appeal. The appeal was defective as “neither the petition nor petitioners’ reply are properly verified.”
The Commissioner noted that 8 NYCRR §275.5 of the Commissioner's Regulations require all pleadings in an appeal to the Commissioner be verified.*
3. Failure to name a necessary party. To the extent that the petition seeks removal of individual board members petitioners have failed to join them as parties.
The Commissioner pointed out that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.**
4. Jurisdiction of the Commissioner. As to the “propriety of the actions of the Trooper” in the course of events leading to the appeal, the Commissioner said that the Trooper is not an officer or employee of the School District and thus is not subject to the jurisdiction of the Commissioner of Education.
5. Statute of limitations to file an appeal. The Commissioner commented that the petitioners challenge any actions in relation to the July 13, 2009 board meeting but was not commenced until September 1, 2009.
Citing 8 NYCRR §275.16, the Commissioner said that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”
The Commissioner did make one observation concerning one of the issues presented by Vendel “for the benefit of the parties” -participation of individuals at board meetings.
Regarding taxpayers and residents of a school district participating in board meetings, the Commissioner said that a board of education should, whenever possible and appropriate, consider public input on matters under consideration. However, the Commissioner also noted that a school board has the right to control the agenda at board meetings and “there is no statutory mandate that requires a board to permit public input at its meetings.”
* The affidavit of verification was stated to have been made “on the oath of Carol Moranz” but was signed by Vendel. Moranz was not a petitioner in this appeal and the Commissioner’s regulations require the petition to be verified under oath of at least one of the petitioners (see 8 NYCRR §275.5).
** Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and the petition so as to inform the individual that he or she should respond to the petition and enter a defense.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16134.htm
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Kathleen Vendel, et al., v the Board of Education of the Marion Central School District, Decisions of the Commissioner of Education, Decision #16,134
The decision of the Commissioner of Education in Vendel sets out a number of procedural elements that must be satisfied in order to perfect an appeal to the Commissioner. Significantly, a party's failure to comply with one or more of these requirements could prove fatal to the Commissioner's considering the merits of the appeal.
Some 100 residents of the Marion Central School District appealed the School Board decision concerning the public's participation at board meetings. The Board had adopted a policy limiting non-members of the Board interested in speaking at its meetings to three minutes. Also in Vendel's submission to the Commissioner was an appeal involving "certain interactions with the community” by the Board and an application seeking “the removal of various individuals” from the Board.
The Commissioner dismissed Vendel's appeal and application without considering the merits of the allegations, explaining:
1. The individuals filing an appeal must have standing. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Merely having status as a resident and a taxpayer in a school district is not sufficient to confer standing to challenge school board policies.
Except with respect to Vendel’s allegations concerning alleged harassment, said the Commissioner, “there has been no showing that any of the petitioners are personally aggrieved by the board policy or actions complained of.” The appeal, therefore, was dismissed for lack of standing, except with respect to Vendel’s claims relating to the harassment complaint.
2. Verification of the appeal. The appeal was defective as “neither the petition nor petitioners’ reply are properly verified.”
The Commissioner noted that 8 NYCRR §275.5 of the Commissioner's Regulations require all pleadings in an appeal to the Commissioner be verified.*
3. Failure to name a necessary party. To the extent that the petition seeks removal of individual board members petitioners have failed to join them as parties.
The Commissioner pointed out that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.**
4. Jurisdiction of the Commissioner. As to the “propriety of the actions of the Trooper” in the course of events leading to the appeal, the Commissioner said that the Trooper is not an officer or employee of the School District and thus is not subject to the jurisdiction of the Commissioner of Education.
5. Statute of limitations to file an appeal. The Commissioner commented that the petitioners challenge any actions in relation to the July 13, 2009 board meeting but was not commenced until September 1, 2009.
Citing 8 NYCRR §275.16, the Commissioner said that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”
The Commissioner did make one observation concerning one of the issues presented by Vendel “for the benefit of the parties” -participation of individuals at board meetings.
Regarding taxpayers and residents of a school district participating in board meetings, the Commissioner said that a board of education should, whenever possible and appropriate, consider public input on matters under consideration. However, the Commissioner also noted that a school board has the right to control the agenda at board meetings and “there is no statutory mandate that requires a board to permit public input at its meetings.”
* The affidavit of verification was stated to have been made “on the oath of Carol Moranz” but was signed by Vendel. Moranz was not a petitioner in this appeal and the Commissioner’s regulations require the petition to be verified under oath of at least one of the petitioners (see 8 NYCRR §275.5).
** Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and the petition so as to inform the individual that he or she should respond to the petition and enter a defense.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16134.htm
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Full evidentiary hearing required before discontinuing GML Section 207-a benefits
Full evidentiary hearing required before discontinuing GML Section 207-a benefits
Giorgio v Bucci, Appellate Division, 246 A.D.2d 711, Motion to appeal denied, 91 N.Y.2d 814
Thomas Giorgio, a Binghamton firefighter, began receiving disability benefits pursuant to Section 207-a effective January 13, 1996 based on his claim of a work-related injury on that date. On May 23, 1996 Binghamton told Giorgio that his benefits were being terminated, alleging that there was “newly discovered evidence that his condition predated the January 13, 1996 incident.”
Giorgio sued, but withdrew that action when the City agreed to continue his benefits and give him a “pre-termination hearing.” The City upheld the original decision to deny him Section 207-a benefits on the grounds that Giorgio’s injury was not the result of a work-related incident. Again Giorgio sued, seeking reinstatement to the payroll, restoration of his leave credits and a declaration that the administrative procedure used by the City was unconstitutional.
On the merits of Giorgio’s “due process claims,” the Appellate Division said that he had been denied “the right to a full evidentiary hearing prior to the termination of his benefits.” Why? Because, said the Court, Giorgio had not been allowed to confront and cross-examine witnesses or to offer evidence on his own behalf.
The lesson here is that when an employer holds a hearing to determine whether Section 207-a [and, presumably, Section 207-c] benefits should be discontinued, it must be a full evidentiary hearing, complying with all the requirements of administrative due process.
Giorgio v Bucci, Appellate Division, 246 A.D.2d 711, Motion to appeal denied, 91 N.Y.2d 814
Thomas Giorgio, a Binghamton firefighter, began receiving disability benefits pursuant to Section 207-a effective January 13, 1996 based on his claim of a work-related injury on that date. On May 23, 1996 Binghamton told Giorgio that his benefits were being terminated, alleging that there was “newly discovered evidence that his condition predated the January 13, 1996 incident.”
Giorgio sued, but withdrew that action when the City agreed to continue his benefits and give him a “pre-termination hearing.” The City upheld the original decision to deny him Section 207-a benefits on the grounds that Giorgio’s injury was not the result of a work-related incident. Again Giorgio sued, seeking reinstatement to the payroll, restoration of his leave credits and a declaration that the administrative procedure used by the City was unconstitutional.
On the merits of Giorgio’s “due process claims,” the Appellate Division said that he had been denied “the right to a full evidentiary hearing prior to the termination of his benefits.” Why? Because, said the Court, Giorgio had not been allowed to confront and cross-examine witnesses or to offer evidence on his own behalf.
The lesson here is that when an employer holds a hearing to determine whether Section 207-a [and, presumably, Section 207-c] benefits should be discontinued, it must be a full evidentiary hearing, complying with all the requirements of administrative due process.
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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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