PERB determinations

PERB determinations

Ruling by the Public Employment Relations Board

Community of interest: Individual, although paid at a supervisory pay level and substituted for the supervisor when the supervisor was absent, was determined to share  a community of interest with unit employees and thus could not be excluded from the negotiating unit without evidence that the individual performed supervisory duties such as assigning work and overtime to employees, evaluating employees, approving leave requests, disciplining workers, or other supervisory duties. Local 282 and Regional Transit Service, Inc., 35 PERB 3022

Duty of fair representation: Unit member's dissatisfaction with his or her representation by the union in a grievance that resulted in a negotiated settlement rather than proceeding to arbitration, did not, without more, establish a prima facie case that the union breached its duty of fair representation as a member's "disagreement with the tactics utilized or his or her dissatisfaction with the quality and extent of representation" does not constitute a breach of the union's duty of fair  representation. Bruns and Council 82, 35 PERB 2023

Lack of jurisdiction: PERB declined to assume jurisdiction to consider an individual's improper practice charge alleging the employer violated Sections 209-a.1(a) and 209-a.1(c) of the Civil Service Law because the individual was not a public employee within the meaning of the Taylor Law, observing that the individual was not on a state payroll and had neither paid union dues nor paid an agency fee to the collective bargaining unit's representative. Nagy and SUNY at Buffalo, 35 PERB 3025.

Similarly, in Arce and NYC Board of Education, 35 PERB 4576, a PERB Administrative Law Judge determined that SEIU Local 74 did not violate its duty of fair representation by failing to process a grievance filed by an individual independently hired by, and who worked directly for, a public school custodian because the individual was not a public employee as defined by the Taylor Law and thus he was not in the negotiating unit.

Negotiating a new practice: PERB rejected the union's argument that its burden of proof that the employer failed to negotiate an alleged change in a personnel practice is satisfied if it shows that the personnel practice is, itself, a mandatory subject of collective negotiations, ruling that the charging party must demonstrate 8-the existence of an "old practice" by showing that it was unequivocal, had been in existence for a significant period of time and that unit employees could reasonably expect the practice to continue. PBA-NYS Troopers and Division of State Police, 35 PERB 3024

Personal interests not protected by Taylor Law: An employee making complaints unrelated to any specific provision in the collective bargaining agreement and that essentially concern matters of private, personal interest, has not established any basis for prosecuting a claim that he or she was subjected to adverse personnel action because of his or her engaging in a protected activity within the meaning of the Taylor Law. Westhampton Beach Police PBA and Village of Westhampton Beach, 35 PERB 3026

Union animus: PERB rejected its Administrative Law Judge's conclusion that the Town of North Hempstead was guilty of union animus based on a finding that "but for" the union's president using "union business" release time, he would not have been involuntarily transferred to another unit because the Town's explanation for the transfer -- the need to reorganize a department -- was "largely unrebutted by the Union" and thus there was no basis to hold that the transfer was the result of improper motivation on the part of the Town. CSEA Local 1000 and Town of North Hempstead, 35 PERB 3027.

School administrators did not violate a student’s Constitutional right to “free speech” when it disciplined her for harassing a fellow student via after-school posting on the Internet

School administrators did not violate a student’s Constitutional right to “free speech” when it disciplined her for harassing a fellow student via after-school posting on the Internet

Kowalski v. Berkeley County Schools, United States Court of Appeals, Fourth Circuit, Docket #10-1098

A student sued West Virginia’s Berkeley County School District contending that it had violated her Constitutional right to free speech when it suspended her for creating a MySpace page ridiculing a fellow student. A federal District Court judge granted the school district’s motion for summary judgment, which ruling was affirmed by the Fourth Circuit U.S. Circuit Court of Appeals.

In this 42 USC 1983 action the court found that the student’s after-school “conduct was sufficiently connected to the school environment so as to implicate the [district’s] recognized authority to discipline speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school and collides with the rights of others.”

The full text of the decision is posted on the Internet at:

http://caselaw.findlaw.com/us-4th-circuit/1575495.html

Retiree's "double dipping" for retirement benefits prohibited

Retiree's "double dipping" for retirement benefits prohibited

Williams v McCall, 283 AD2d 808

John Williams, Jr. initially joined the New York State and Local Employees' Retirement System [ERS] in 1962 while employed by Creedmoor State Hospital. In 1969, he became a member of the New York City Police Department and became a member of the New York City Police Pension Fund [Fund]. In 1997 Williams began working full time for both the Police Department and Creedmoor simultaneously. This continued until he retired from the Police Department in 1990.

In 1990 Williams began to receive retirement benefits from the Fund while continuing to work full time at Creedmoor. He retired from Creedmoor in 1995 and began receiving benefits from ERS as well.*

Ultimately, ERS ruled that for purposes of calculating William's ERS retirement benefits, his employment at Creedmoor after July 3, 1990 could not be counted as service credit because he was receiving pension benefits from the Fund at that time. Williams appealed this ruling.

The Appellate Division affirmed the Retirement System's decision. The court said that it is well settled that “[a]s a general rule, an individual who is retired from service with the State, a municipal corporation or a political subdivision of the State may not engage in the practice known as 'double dipping', where [such the individual] simultaneously receives pension benefits and compensation for post-retirement public employment or service,” citing Incorporated Village of Nissequogue v New York State Civil Service Commission, 220 AD2d 53.

The Appellate Division ruled that because Williams began receiving pension benefits from the Fund in 1990 and continued to receive them during his employment at Creedmoor, the Comptroller had a rational basis for denying him service credit for this time period in calculating his ERS retirement benefits. The decision also points out that even if Williams “was specifically authorized to continue his post-retirement public service (which he was not on this record),” Retirement and Social Security Law Section 213(b) specifically prohibits the grant of service credit for such post-retirement employment.

The Appellate Division said that the fact that Williams worked for Creedmoor before and during his employment with the Police Department “does not compel a contrary conclusion.”

* Williams answered “no” in response to the question: are you a member of “any other Public Retirement System in the State” when he filed his application for ERS benefits in 1995.

Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

Fella v Rockland County, 297 AD2d 813

Rockland County Director of Hospitals Peter J. Fella was charged with sexual harassment. Found guilty, the County Executive imposed the penalty of suspension without pay for thirty days. Fella sued in an effort to have County Executive's action annulled.

The harassment charge had been filed by Jovita Catalan, a county employee. Her complaint alleged that Fella appointed Anne Gonzales, with whom he had a “romantic relationship,” to the position of Assistant Director of Nursing.

Catalan filed her complaint pursuant to the Rockland County Equal Employment Opportunity Policy [RCEEOP] alleging she was subjected to “discrimination, harassment or retaliation” on January 4, 2000, the day that the Fella told her that she would not be appointed to the Assistant Director position. Catalan contended that Gonzales was less qualified than she was and that Gonzales was appointed because she was Fella's girlfriend.

After an investigation, the Rockland County Director of Employee Rights and Equity Compliance concluded that Fella's promotion of an employee with whom he had a personal relationship created a hostile work environment.

Supreme Court Judge Nelson ruled that Fella’s conduct in promoting his paramour may have constituted poor judgment, and may subject him to discipline on other grounds, but did not constitute sexual discrimination prohibited by the RCEEOP. As the County failed to establish that this single instance of alleged favoritism based on a sexual relationship was punishable under the RCEEOP, Supreme Court annulled the determination and remitted the matter to the County for further proceedings.

The Appellate Division affirmed the lower court’s ruling, observing that the relevant provisions of the RCEEOP:

Prohibits discrimination in hiring and promotion on the basis of gender or sex or sexual orientation;

Encourages advancement for qualified individuals regardless of gender or sex or sexual orientation; and

Provides that employment decisions shall be made on the basis of merit, fitness, and equality of opportunity and without discrimination on the basis of gender or sex or sexual orientation.

The RCEEOP also states that sexual harassment is a form of employment discrimination based on gender.*

The Appellate Division said “that an isolated act of preferential treatment of another employee due to a romantic, consensual relationship” does not constitute sexual discrimination under either federal or State Law. In the words of the court, Preferential treatment, favoritism, and cronyism, while unjust and unfair, do not constitute sexual discrimination.

 

Noting that there was no evidence that Fella discriminated against employees on the basis of gender or that he made unwelcome sexual advances or demands on employees, the finding that Fella created a hostile work environment in violation of the RCEEOP was ruled arbitrary, capricious, and without a rational basis. The Appellate Division concluded that compliant was properly annulled by the Supreme Court Judge.

In another “favoritism case,” DeCintio v Westchester County Medical Center, 821 F2d 111, cert. denied, 484 U.S. 965, the U.S. Circuit Court of Appeals, 2nd Circuit, decided that the selection of a woman romantically involved with her supervisor for promotion did not constitute unlawful gender discrimination within the meaning of Title VII insofar as her male co-workers were concerned.

In DeCintio, male employees sued, complaining that their supervisor had tailored the job requirements for the position in such a way as only his woman friend could qualify. This, they argued, was discrimination on the basis of sex within the meaning of Title VII.

The Circuit Court decided that as any female employee interested in the job would have been in the same position as the male employees, there was no sex discrimination involved. It was the “special relationship” between the supervisor and his woman friend rather than sex discrimination that had resulted in the preferential treatment to which the male employees had objected. While unfair, said the Court, the supervisor's actions did not constitute a violation of Title VII.

* The RCEEOP defines sexual harassment as unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which "has the purpose or affect of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment."