Arbitrator’s disciplinary decision must be sustained by the court if there is a rational basis for, and sufficient evidence to support, the determination

Arbitrator’s disciplinary decision must be sustained by the court if there is a rational basis for, and sufficient evidence to support, the determination

Matter of Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 2011 NY Slip Op 08601, Appellate Division, Second Department

The §3020-a hearing officer sustained a charge of misconduct against the teacher and directed the placement of a counseling memo in her personnel file as the penalty to be imposed.

The charges filed against the teacher followed her participation in a teachers' union action involving approximately 15 teachers who parked their cars along the street in front of the school just before the start of the school day. The Board alleged that this "resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard."

In response to Article 75 petitions filed, respectively, by the teacher and the Board, Supreme Court granted the teacher’s petition to vacate the penalty portion of the hearing officers determination and denied the Board’s petition to vacate the award on the ground that the penalty imposed was too lenient. Supreme Court decided that the hearing officer's fact-findings did not support his finding of culpability, and thus, there was no rational basis for finding the teacher guilty of the disciplinary charges.

The Appellate Division modified the lower court’s ruling, explaining that where the parties are compelled to engage in arbitration by statute (see Education Law § 3020-a[5]), "judicial review under CPLR Article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record." Accordingly, to be sustained, the arbitrator’s award "must have evidentiary support and cannot be arbitrary and capricious."

Here, the hearing officer concluded that the undisputed "arrangement of cars in which [the teacher] participated created a safety hazard. Many students . . . could not be dropped off at curbside. Instead, the cars had to stop in the middle of the road and students had to walk in the road to enter the school."

Under these circumstances, said the court, there was a rational basis for, and sufficient evidence to support, the hearing officer's conclusion that the petitioner was culpable of the charge preferred against her. Accordingly, “Supreme Court erred in granting the [teacher’s] petition to vacate the determination on the basis that it was arbitrary and capricious.

Further, the Appellate Division said that Supreme Court should not have denied the Board’s petition on the grounds that it was “moot” but, rather, should have denied it on the merits as the penalty imposed by the arbitrator, placing a counseling memo in the teacher’s personnel file was within the arbitrator's power and did not violate public policy.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08601.htm

PERB determinations

PERB determinations

Use of automobiles

The Public Employment Relations Board has ruled that the use of automobiles is an item subject to mandatory negotiations. In a case involving the City of Buffalo (Case U-4473). PERB held that the City could not unilaterally restrict employees from using their automobiles in connection with their work as such action was a “unilateral discontinuation of a past practice.” Buffalo had stopped permitting certain employees to charge for the use of their car in connection with travel on the job and offered “bus fare” instead. In another case, PERB held that Nassau County could not stop its “past practice” of assigning certain workers County owned vehicles on a 24 hour basis without first negotiating the matter with the Union.

No smoking areas

The Steuben-Alleganay BOCES had designated certain areas as smoking areas for its employees, prohibiting smoking in other parts of the building. When the Union challenged the work rule, PERB affirmed a hearing officer’s ruling that the employer could not unilaterally restrict employees to smoking in specific areas of a building, as employee smoking is a mandatory item of negotiations under the Taylor Law (Case U-4259)

Two different complaints; two different forums

Two different complaints; two different forums

Gondola v. Center Moriches Union Free School District, 80 A.D.2d 600

When an employee attempted to maintain a complaint before the Division of Human Rights based on alleged discrimination and at the same time sue the employer for alleged breach of contract, the Supreme Court held that Section 297.9 of the Executive Law prohibited the employee from seeking relief on a single discriminatory grievance in two forums.

The Appellate Division reversed, pointing out that Section 296.9 “cannot be employed to bar an aggrieved person from maintaining a proceeding before the State Division of Human Rights based upon a discrimination complaint, while contemporaneously maintaining an action in the courts based on the alleged breach of an employment contract”, citing Matter of Richardson Employment Agency, 40 AD2d 585.

Pre-employment physical examination not employment

Pre-employment physical examination not employment

Rastaetter v. Charles S. Wilson Memorial Hospital, 436 N.Y.S.2d 47

An individual undergoing a required pre-employment physical examination is not to be considered an employee within the meaning of the Workers’ Compensation Law in the event the person is injured during the physical examination.

In Rastaetter the Appellate Division held that the principal factors to be considered in determining whether an employer-employee relationship exists under such law are the right to control, the method of payment, who furnishes the equipment, the right to discharge and the relative nature of the work.

The court then said “Clearly, these factors demonstrate that a pre-employment physical examination would not be covered by the Workers’ Compensation Law.”

The court also held that this was not a “try-out” situation, as the individual was not “trying out” for employment by working in any manner citing Matter of Smith, 4 AD2d 12 and Matter of Bode, 9 AD2d 969.