A union is not required to carry every grievance to the highest level to satisfy its duty of fair representation

A union is not required to carry every grievance to the highest level to satisfy its duty of fair representation
Delsante v CSEA Local 1000, AFSCME AFL-CIO, 2010 NY Slip Op 51145(U), decided on June 15, 2010, Supreme Court, Richmond County, Judge Judith N. McMahon [Not selected for publication in the Official Reports.]

Camille Delsante was serving her probationary period. After she received her first "Probationary Progress Report," which indicated that her time and attendance was unsatisfactory, she submitted her resignation stating that "I hereby offer my resignation from my position with the New York State Office of Parks, Recreation and Historic Preservation to seek other employment effective August 6th, 2008."

Kalliopi Zervos, a CSEA Labor Relations Specialist, met with Delsante to discuss her resignation and subsequently met with the Department's Associate Personnel Administrator, Joseph Lescinski, in an effort to resolve the dispute and possibly negotiate a rescission of the resignation.
After reviewing Delsante’s personnel record, Lescinski said that the appointing authority “would not rescind the resignation.” Zervos then advised Delsante that because of her probationary status she could not further pursue any grievance.

Delsante, contending that CSEA breached the duty of fair representation by failing to pursue a claim on her behalf, sued the union. In rebuttal, CSEA argued that it had fully represented Delsante but because of her probationary status the collective bargaining agreement limited the options for pursuing her claim. Accordingly, CSEA argued that it did not act in bad faith in not pursuing Delsante's claim.

Although Judge McMahon dismissed Delsante’s petition as untimely, she noted that although “academic,” Delsante’s petition would have been dismissed on the merits as CSEA “did not act arbitrary, discriminatory or in bad faith in addressing Delsante's claims.”

The court noted that with respect to claims based upon the alleged breach of a duty of fair representation, the charging party must establish that the union acted "deliberately invidious, arbitrary and founded in bad faith." Here, said the court, CSEA established that it pursued the avenues available to assist Delsante in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement Article §33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment".

Significantly, CSEA demonstrated that its representative met with Delsante; spoke with Mr. Lescinski in an effort to negotiate her reinstatement; and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited.

Citing Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, Judge McMahon said "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation.”

The court granted CSEA’s motion for summary judgment, dismissing Delsante’s petition in its entirety.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51145.htm

Court holds arbitrator’s misconstruing or disregarding the contract's plain meaning of no consequence as the determination was not irrational

Court holds arbitrator’s misconstruing or disregarding the contract's plain meaning of no consequence as the determination was not irrational
Matter of Buffalo Council of Supervisors v Board of Educ. of City School Dist. of Buffalo, 2010 NY Slip Op 05898, Decided on July 2, 2010, Appellate Division, Fourth Department

Buffalo had earlier negotiated with the Council and other employee unions in an attempt to persuade the unions to accept a single health insurance carrier plan in place of the multiple health insurance carrier plan then required by each union's collective bargaining agreement.* The Council refused to consent to the change and obtained an injunction to prevent respondent from imposing the single health insurance carrier plan on its members. After the School District laid off 26 of its members, allegedly “in anticipation of the budgetary shortfall” because of such refusal, the Council filed two contract grievances.

The Buffalo Council of Supervisors prevailed but Judge Donna M. Siwek, Supreme Court, Erie County, denied the Council CPLR Article 75 petition seeking to confirm the arbitration award that directed the Board of Education to reinstate 17 of its members that had been earlier laid off.

The Appellate Division, however, said that Supreme Court was incorrect in denying the Council’s petition in its entirety as the role of the courts with respect to disputes submitted to binding arbitration pursuant to a collective bargaining agreement is limited, and a court should not substitute its judgment for that of the arbitrator. Unless the arbitration award "is clearly violative of a strong public policy, . . . is totally or completely irrational, or . . . manifestly exceeds a specific, enumerated limitation on the arbitrator['s] power," the award must be confirmed.

As the arbitrator’s interpretation of the agreement to provide the Association with “an opportunity to be heard on the layoff and method of layoff of 26 assistant principals” is rationally based on the plain language of the relevant contract provision and to “the extent, if any, to which ‘the arbitrator may have misconstrued or disregarded the plain meaning of the contract’ is of no moment where, as here, the arbitrator's determination is not irrational.”

In contrast, said the Appellate Division, Supreme Court “properly refused to confirm that part of the arbitration award determining that [the school district violated Article 4 of the CBA] and directing [the school district] to reinstate all but the nine least senior assistant principals who had been laid off."

The arbitrator explicitly recognized that school district had the authority to lay off employees for economic reasons without violating the CBA but nevertheless concluded that the Council “bore a disproportionate share of the projected budgetary shortfall.” This was was incorrect as it was based on "the financial savings that resulted from the layoffs of Council's members against the $800,000 projected budgetary shortfall directly related to its refusal to accept the single health insurance carrier plan rather than against the $12 million projected overall budgetary shortfall for the fiscal year."

The court also faulted the arbitrator for failing to account for those laid-off employees who were not members of Council in his “determination of proportionality.” Accordingly, said the Appellate Division, “that part of the arbitration award is irrational because ‘there is no proof whatever to justify [it].'”

* (see generally Matter of Buffalo Teachers Fedn., Inc. v Board of Educ. of City School Dist. of City of Buffalo, 50 AD3d 1503, lv denied 11 NY3d 708).

The Council decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05898.htm

Disciplinary penalty reduced by court

Disciplinary penalty reduced by court
Catena v Village of Southampton, App. Div., 289 A.D.2d 487

The Village of Southampton dismissed Jeffrey Catena from his position as maintenance mechanic. Although Catena admitted his guilt, he appealed, contending that the penalty of dismissal was too harsh under the circumstances.

As a result Catena won a court order directing his reinstatement to his former position. In addition, the Supreme Court justice directed that Catena be given 60 days back pay and benefits. The Village appealed, contesting only that portion of the court's ruling requiring it to pay Catena 60 days of back pay.

The Appellate Division modified the back pay award, holding that the Village only had to pay Catena 30 days of back pay.

The Appellate Division said although Catena had admitted his guilt, which was supported by substantial evidence, "under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness" citing Pell v Board of Education, 34 NY2d 222.

In modifying the disciplinary penalty, the Appellate Division commented the Catena had 10 years of satisfactory service with the Village and his misconduct was an isolated event. The Village apparently agreed that dismissal was too harsh a penalty, as it did not appeal that portion of the Supreme Court's decision directing it to reinstate Catena to his former position.

Accordingly, said the court, Supreme Court properly granted the petition reinstating Catena. But the Supreme Court was incorrect when it awarded Catena 60 days back pay and benefits. Apparently the Supreme Court based this award on its belief that Catena was suspended for 60 days without pay or benefits.

The record indicated that Catena was actually suspended without pay for a period of only 30 days. The Appellate Division ruled that under the circumstances, his suspension for 30 days without pay or benefits is an appropriate penalty.

New York State Comptroller concludes State agencies could save millions by eliminating service contracts

New York State Comptroller concludes State agencies could save millions by eliminating service contracts
Source: Office of the State Comptroller

New York State agencies could save millions of dollars annually by maximizing available revenues and by eliminating unneeded personal and miscellaneous service contracts, according to three audits released on June 30, 2010 by State Comptroller Thomas P. DiNapoli.

The full text of the Comptroller’s press release, including links to the relevant audit reports, is posted on the Internet at:http://www.osc.state.ny.us/press/releases/july10/070110a.htm

Employee’s alerting the employer “after-the-fact” failed to place the employer on notice that the employee may have been seeking FMLA leave

Employee’s alerting the employer “after-the-fact” failed to place the employer on notice that the employee may have been seeking FMLA leave
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Joe Lane requested and was granted six months of intermittent FMLA leave to "care for " his mother, who suffered from diabetes, high blood pressure, weight loss, and arthritis. The medical certification he provided established that Lane would use the leave to assist his mother with meals and take her to doctors appointments, which he did without incident for approximately four months. Lane was absent four consecutive days beginning July 23, 2008. In violation of company policy, he did not call in his absences. When contacted, Lane explained that he took the last three consecutive days off because of flooding in the basement of his mother's home where he was staying. The company fired Lane.

Lane sued, alleging that his termination interfered with his FMLA rights as he should have been granted FMLA leave for the three-day period to clean up the flooded basement. He argued that he needed to clean up the basement because the sitting water was a breeding ground for disease that would aggravate his mother's hepatitis. An immediate problem was Lane's concession that he had not previously informed the company that his mother suffered from hepatitis. The company moved for summary judgment, arguing that the absence to clean up the flooded basement was not covered by the FMLA. The court agreed with the company.

The court initially noted that the absence to clean up the flooded basement fell outside the parameters of his approved certification for FMLA leave to provide his mother meals and take her to doctor's appointments. The court further noted that Lane had failed to offer evidence establishing that cleaning his mother's flooded basement fell with the FMLA's definition of "needed to care for" a covered family member due to a serious health condition. He did not offer evidence to back up his claim that his mother suffered from hepatitis, how such a condition constituted a "serious health condition" within the meaning of the FMLA, or how his mother's hepatitis was in danger of being aggravated if Lane did not immediately clean the flooding. Nor did he establish how cleaning the flooded basement fell within the requirement that physical or psychological care address the basic medical, hygienic, nutritional or safety needs of his mother. 29 CFR 825.124(a).

Finally, the court found that alerting his employer (after-the-fact) that he needed leave to clean his mother's flooded basement failed to place the employer on notice that the employee may have been seeking FMLA leave.

Lane v. Pontiac Osteopathic Hospital, Case No. 09-12634 (E.D. Mich. June 21, 2010).
http://scholar.google.com/scholar_case?case=16361142005570212643&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Mr. Bosland Comments: The decision demonstrates that, while broad, the "caring for" component of FMLA leave is not unlimited. Note the court's interest in the absence of evidence establishing how cleaning the flooded basement "cared for" the mother's condition. Courts have generally favored activities that directly provide care to the seriously ill family member over those, such as in this case, that may only indirectly provide physical or psychological care. Arguably, by cleaning up the mess himself, Lane may have relieved his mother from performing an activity that, with arthritis, she could not perform easily, if at all. He may have also provided her psychological care by relieving her of this responsibility. Sitting water may have presented safety issues as well. Apparently, these arguments were not sufficiently developed for the court.

One could argue that the court's interpretation of "caring for" is overly restrictive. For example, Lane goes over to his mother's home to make her a meal. In addition to providing her with physical care (the meal), he is providing her with psychological care by being with her. While his mother eats he goes down into the basement for something. In so doing, has he lost FMLA protection because he momentarily left the room where his mother is eating? Is physical and psychological care so limited? If Lane made lunch and, while his mother was eating, he slipped out of the house to get the mail from the mailbox at the curb, can he be fired for exceeding his medical certification? What if Lane was taking care of his mother a great distance from where he lived and worked and could not get back to work easily. Do FMLA protections turn on and off like a light switch depending on whether Lane is in the room with his mother? Is that what the FMLA is all about?

At the end of the day, Lane's failure to call-in his absence for four consecutive days without a credible explanation likely doomed his FMLA case.