A broad arbitration clause still must satisfy the “reasonable relationship test” for a court to grant a petition to compel arbitration

A broad arbitration clause still must satisfy the “reasonable relationship test” for a court to grant a petition to compel arbitration
Matter of Johnson City Professional Fire Fighters Local 921 v Village of Johnson City, Proceedings I and II, 2010 NY Slip Op 06029 [Appeals were consolidated by order of the Court]

In response to the Village’s initiating disciplinary action against certain members of Local 921, the Local filed a grievance demanding arbitration of an alleged breach of the collective bargaining agreement based on the Village’s unilateral selection of a hearing officer to preside over the disciplinary hearings.

On June 19, 2009 State Supreme Court Judge Ferris D. Lebous entered an order that, among other things, granted the Unions application to compel arbitration with respect its contract grievance concerning the selection of hearing officers [Proceeding No. 1].* On August 18, 2009, Judge Lebous entered an order denying the Village’s application for a permanent stay of arbitration [Proceeding No. 2], ruling that the issue was “referable to arbitration. The Village appealed both rulings.

The Appellate Division said “Whether a grievance may be arbitrated is decided by determining whether any statutory, constitutional or public policy prohibition bars arbitration of the dispute at issue and, if not, whether the parties agreed to arbitrate it.”

Citing Civil Service Law §75.2, the court said that the Village is statutorily vested with the power to designate a hearing officer in disciplinary proceedings.** However, this statutory power may be modified or superseded through collective bargaining or negotiation and a public employer may agree to submit disciplinary procedures to arbitration.

The Village argued that modification of such a statutory power must be voluntarily undertaken as the result of "a conscious choice" and that there was no such agreement.

The Appellate Division said that the CBA provides for arbitration of any dispute "involving the interpretation or application of any provisions of [the CBA]," a provision that the court had earlier described as broad. It then noted that "the court is limited to determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

In this instance the Appellate Division concluded that no such reasonable relationship existed between the CBA and the parties' dispute regarding the selection of a hearing officer. The Appellate Division explained that “The CBA does not mention the selection of disciplinary hearing officers; its sole reference to disciplinary proceedings is a requirement that any reprimand be conducted privately, in a manner to avoid embarrassment.”

In response to the Local’s assertion that that the CBA reflects the parties agreement to "follow [the Public Employment Relations Board's] rules of procedure for dispute resolution," which, in the Local’s view, "precluded the Village from unilaterally selecting a hearing officer."

However, said the court, the Local’s analysis would require the arbitrator to engage in contractual interpretation not only of the CBA, but also PERB's rules while the CBA despite the fact that the CBA limits the arbitrator's authority to disputes "involving the interpretation and application of any provisions of this agreement.”

In addition, the Appellate Division commented that the CBA's reference to the Public Employment Relations Board's rules of procedure is not pertinent as its applicability is expressly limited to disputes "involving the interpretation or application of any provisions of this agreement."

Reversing both Supreme Court’s rulings, the court said that “Even a broad arbitration clause is not unlimited in its scope; to satisfy the reasonable relationship test, a contractual interpretation must be 'at least colorable …. ' As no colorable interpretation of the CBA brings the selection of a disciplinary hearing officer within its general scope, we cannot conclude that the parties agreed to arbitrate their dispute on this subject.”

The practical effect of the ruling: The Appellate Division vacated the decision granting Local’s petition regarding the selection of a hearing officer [Proceeding No. 1} and granted the Village’s application to stay arbitration [Proceeding No. 2].


* The order enjoining further disciplinary proceedings and compelled arbitration of the grievance.

** Civil Service Law §76.4 provides that such statutory power may be modified or superseded through collective bargaining or negotiation whereby “such sections may be supplemented, modified or replaced by agreements negotiated between the State and an employee organization pursuant to Article 14 of the Civil Service Law.” Civil Service Law §75.2 has been relied upon for similar authority with respect to political subdivisions of the State while Education Law §3020-a provides the authority for disciplinary charges filed against an educator in the unclassified service to be considered by an arbitrator or arbitration panel and subject to the provisions of Article 75 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06029.htm

Six-month need for intermittent leave rendered employee unfit for duty

Six-month need for intermittent leave rendered employee unfit for duty
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

Charlene Wisbey was employed by the City of Lincoln, Nebraska as an emergency dispatcher. The position required Wisbey to receive calls for emergency services and dispatch emergency service units on a regular basis. Because of the potential life-saving aspect of her position, the City Expected Wisbey to function accurately while working under considerable pressure and to think and act quickly and calmly in emergency situations.

During January-February, Wisbey used a significant amount of sick leave for an upper respiratory infection, for which she received a letter of warning. To avoid further discipline, the City recommended that Wisbey apply for intermittent FMLA leave, which she did. The medical certification supporting her request for intermittent FMLA leave cited recurring cycles of depression and anxiety that interfered with her sleep, energy level, motivation, and concentration. It also stated that Wisbey was unable to perform the essential functions of her job. The certification concluded that Wisbey would need to take time off intermittently over the next 6 months or longer.

Concerned about her ability to perform her job as an emergency dispatcher, the City directed Wisbey to undergo a fitness-for-duty exam (FFD), which she did. The FFD concluded that Wisbey suffered from chronic relapsing depression which intermittently interfered wit her ability to function at full capacity at work, and that she was not fit for duty, especially regarding her ability to concentrate and her ongoing propensity to miss work. The City terminated Wisbey as unfit for duty. Wisbey filed suit alleging violations of the ADA and FMLA.

With respect to the ADA, the Court rejected Wisbey's argument that the City did not have a legitimate, non-discriminatory business necessity to require her to submit to the FFD. Citing a decision of the Second Circuit in Gajda v. Manhattan &Bronx Surface Transit Operating Autho., 396 F.3d 187 (2d Cir. 2005), the Eighth Circuit agreed that representations made in an employee's FMLA medical certification that the employee is unable to perform the functions of his or her position may serve as a legitimate, non-discriminatory basis for employer to require an FFD.

With respect to the FMLA, the Court rejected Wisbey's claim that the City interfered with her FMLA rights, noting that she was never denied FMLA leave. Significantly, quoting prior Eighth Circuit opinions, the Court noted that the FMLA "does not provide leave for leave's sake, but instead provides leave with an expectation an employee will return to work after the leave ends," Throneberry v. McGhee Desha County Hosp., 403 F.3d 972, 978 (8th Cir. 2005), and that "the FMLA doe snot provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment's notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement." Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir. 2002).

Because Wisbey requested "intermittent leave" for "six months or longer," the Court concluded that she did not have a right to FMLA leave. Without the right to FMLA leave, the City "could not have interfered with Wisbey's rights under the FMLA." The Court also rejected Wisbey's FMLA retaliation claim, finding that the decision to terminate her was not casually related to her request for FMLA leave a month before, but was due to the results of the FFD.

Mr. Bosland Comments: Long-term intermittent absences with little predictability or notice is the bane of employers who need employees present to get the work done. Of course, from the perspective of the employee who needs intermittent leave due to their own serious health condition or to care for a family member with a serious health condition, this is why the FMLA exits- to protect the employee from having to make a choice between their job and caring for their own or a family members medical needs.

For my money, the Eighth Circuit went too far by stating that an employee who needs intermittent FMLA leave for "6 months or more" somehow forfeits the right to take FMLA leave. The statement is flat out wrong. If an eligible employee meets all of the criteria, the FMLA affords the employee the right to take up to 12 weeks of intermittent FMLA leave for their own serious health condition, or the serious health condition of a covered family member, over the course of a 12-month leave year. Except perhaps in the Eighth Circuit, an employer that denied an eligible employee intermittent FMLA leave after six months - even though they have a certification stating that they needed intermittent leave for more than six months - relying on Wisbey would, in my estimation, interfere with that employee's FMLA rights. That could cost the employer big time in an FMLA interference suit.

What employers should take away from Wisbey is that an employee who needs intermittent FMLA leave long-term or forever may not be qualified for their position. Obviously, this will depend on the job duties of the position, including whether regular and predictable attendance is required. If they are not fit for the position because of their FMLA-covered condition, employers do not have to continue to employ the individual. The fact that, if employed, the individual would have the right to take intermittent FMLA leave is not controlling. Think of it this way: the FMLA entitles an employee to leave. If the same FMLA covered-condition that entitles an employee to take leave also interferes with the employees’ ability to adequately perform their job when they are at work, the FMLA does not protect the employee from discipline for poor performance for the job they did when at work.

Employers would be well advised to proceed with caution in applying Wisbey. Other courts may less quick to find that an employee needing intermittent FMLA leave is unfit for duty and, therefore, may be terminated -particularly where the employee has not exhausted his or her annual entitlement to FMLA leave.

The decision is available at:
http://www.ca8.uscourts.gov/opns/opFrame.html

Sustaining an injury driving to work in agency vehicle not a performance of duties injury for the purposes of eligibility for GML §207-c benefits

Sustaining an injury driving to work in agency vehicle not a performance of duties injury for the purposes of eligibility for GML §207-c benefits
Matter of Cady v County of Oneida, Supreme Court, Oneida County, 14 Misc3d 1234(A), Affirmed 38 AD3d 1320

David Cady, a Deputy/Investigator for the Oneida County's Sheriff's Department, was assigned an unmarked Sheriff's vehicle. He was authorized to keep the vehicle at his residence and use it to transport himself to and from his work site. Cady was involved in an automobile accident while he was driving to work.* The accident occurred about 10 minutes before Cady was scheduled to be at work.

Cady was injured in the accident and applied for and received worker's compensation benefits. He also applied for disability benefits pursuant to §207-c of the General Municipal Law. His application for §207-c benefits was denied by the County.

The reason advanced by the County: GML §207-c provides benefits for injuries to a deputy sheriff who has been injured in the performance of his duties and that at the time of the accident Cady had not commenced his work duty shift and therefore was not in the performance of his duties.

Cady appealed. The hearing officer concluded that Cady was not entitled to GML §207-c benefits because he was not injured in the performance of his duties. The hearing officer’s determination was adopted by the County. Cady sued, seeking a court order overturning the County’s determination.

Cady argued that he was in the performance of his duties because he is "on call" twenty-four hours a day and could be dispatched to emergencies or to investigate criminal acts. In addition, he claimed, he was directed to be observant for accidents and criminal activity while en route to work using the assigned car. Cady also contended the he was assigned a "take-home" vehicle for the Department's benefit.

The County claimed its conclusion that “Cady was not in the performance of his duties at the time the accident occurred” was neither irrational nor an abuse of discretion. It said that Cady conceded that during his drive to work on the day of the accident he was not dispatched to conduct any investigation nor did he observe any criminal activity.

Supreme Court Judge Grow ruled that the County’s determination that Cady does not qualify for GML §207-c benefits is not irrational, not based on an error of law, not arbitrary, capricious, nor an abuse of discretion, and confirmed the Hearing Officer's determination.

* According to the decision, Cady was not at fault.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2006/2006_52585.htm

Expanding exemptions from FOIL to protect "technology assets used to maintain public information"

Expanding exemptions from FOIL to protect "technology assets used to maintain public information"
Chapter 154 of the Law of 2010

The Governor has signed into law a bill amending the State’s Freedom of Information Law [Public Officers Law §87]. The bill, which amends Paragraph (i) of subdivision 2 of Section 87* is intended to providing agencies with authority to withhold disclosing of certain records when responding to FOIL requests.

Subdivision 2.1. now reads: (i) if disclosed, would jeopardize [an agency's] the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures”

The amendment was proposed by the State’s Office of Cyber Security and Critical Infrastructure and takes effect immediately.

* Deleted language in [brackets]; new language in italics.

Appeal to the Commissioner of Education dismissed for failure to name a necessary party

Appeal to the Commissioner of Education dismissed for failure to name a necessary party
Appeal of J.S. from action of the Board of Education of the Jordan-Elbridge Central School District and Superintendent Marilyn Dominick regarding a transfer.
Decision No. 16,077

J.S. served as the district’s elementary school principal of the Jordan-Elbridge Central School District and was granted tenure in the tenure area of “administrator.”

On June 8, 2009, the board authorized an investigation of complaints concerning the district’s elementary school and on the following day J.S. was transferred to the position of Special Project Administrator.

Contending that the transfer was made for disciplinary reasons in violation of the due process rights afforded her under Education Law §3020-a, J.S. asked the Commissioner to direct that the district to reinstate her as Elementary School Principal and that all references to the transfer be expunged from district records.

The Commissioner dismissed the appeal “for failure to join a necessary party.” Commenting 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.

The Commissioner explained that the remedy sought by J.S. is “reinstatement to her previous position as Elementary School Principal and that position is currently held by Elizabeth Primo, the interim Elementary School Principal, Primo’s rights would be adversely affected by a determination in [J.S.’s] favor.” Thus Primo is a necessary party and the appeal must be dismissed because of the failure of J.S. to name, and serve her, in the appeal.

In addition, the Commissioner stated that the appeal “must also be dismissed as untimely.” 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 record indicated that J.S was reassigned to the Special Project Administrator position on June 9, 2009 but her petition was not served until October 13, 2009.

Finally, the Commissioner said that J.S.’s appeal, absent the above noted procedural defects, would have been dismissed on the merits.

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

The Commissioner said that a board of education has "broad discretion in assigning members of its professional staff, so long as the employee’s tenure rights are not infringed upon." In this instance, said the Commissioner, notwithstanding J.S.’s claim that she was reassigned for disciplinary reasons and she was not accorded the due process protections of Education Law §3020-a, he did not find that J.S. had adequately demonstrate that her transfer was for disciplinary reasons and J.S. did not offered any evidence that disciplinary action was being contemplated prior to the reassignment.

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16077.htm