Correction officer charged with disobeying an order to take a post assignment

Correction officer charged with disobeying an order to take a post assignment
NYC Department of Corrections v Callabrass, OATH Index #1981/10

Regina Callabrass, a New York City correction officer, was served with a number of disciplinary charges alleging, among other things, that she was guilty of disobeying an order to take a post assignment.

OATH Administrative Law Judge Tynia Richard recommended that the charge that the Callabrass disobeyed an order to take an assignment be dismissed. ALJ explained that when Callabrass objected to the assignment, the supervisor did not repeat the directive but, instead, commenced looking for another correction officer to accept the assignment.

With respect to Callabrass’ threat “to call in sick” when she received the unwanted assignment, the ALJ said that this constituted “conduct unbecoming an officer.” In addition Judge Richard found that Callabrass had made a false or misleading logbook entry.

After considering Callabrass’ long service record with no prior discipline, ALJ Richard recommended the imposition of a 5-day suspension without pay as the penalty for these two acts of misconduct.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1981.pdf

School board meetings are open to the public

School board meetings are open to the public
Goetschius v Greenburgh 11 UFSD, 244 A.D.2d 552

The school board of the Greenburgh 11 Union Free School District barred some of its educators from attending a board meeting at which it planned to consider the termination of certain teachers.

The educators sued, contending that the board’s action violated New York’s Open Meetings Law [Article 7, Public Officers Law]. The board, citing Sections 2801 and 3020-a of the Education Law, also argued that its action was lawful as those sections “supersede the Open Meetings Law.”

The Appellate Division rejected the board’s argument, pointing out that:

1. Sections 2801 and 3020-a “do not specifically allow the Board to exclude [the educators] from Board meetings” but, rather, allow boards of education to adopt rules and regulations for the maintenance of public order on school property;

2. Section 1708(3) specifically provides that “the meetings of all such boards [of education] shall be open to the public;”

3. Section 1708(3) overrides the general provisions of Sections 2801 and 3020-a; and

4. The State’s Open Meetings Law is not superseded by either Section 2801 or Section 3020-a.

The Appellate Division also observed that Section 110 of the Public Officers Law states that “any provision of a ... rule or regulation affecting a public body which is more restrictive with respect to public access shall be deemed superseded hereby to the extent that such provision is more restrictive than this article.”

The Appellate Division indicated that the Board “engaged in a persistent pattern of deliberate violations of the Open Meetings Law through insufficient notice, unreasonable starting times, improper convening of executive sessions, and improper exclusion of members of the public. It then upheld a Supreme Court justice’s ruling annulling certain of the board’s actions and awarding attorney fees to the educators.

The statute of limitations for litigating an alleged breach of a collective bargaining agreement is six years

The statute of limitations for litigating an alleged breach of a collective bargaining agreement is six years
Lagreca v City of Niagara Falls, 244 AD2d 862, leave to appeal denied, 91 NY2d 813.

The Lagreca decision points out that a law suit for an alleged breach of a collective bargaining agreement must be brought within six years of the act or omission claimed to constitute the breach.

When does the statute of limitations for the alleged breach of contract begin to run? On the date when the alleged breach occurred.

Bernadette J. Lagreca, the widow of a deceased city of Niagara Falls employee, sued the city because it had terminated her late husband’s life insurance policy in June 1988.

Lagreca contended that the cancellation of the policy violated the collective bargaining agreement then in effect. Lagreca, however, did not file her lawsuit until seven years after the insurance had been terminated. The court said that statute of limitation for breach of contract was six-years and had expired by the time the suit was filed.

The appellate division affirmed the Supreme Court’s dismissal of Lagreca’s petition, commenting that “the cause of action for breach of contract occurred at the time of the breach when the [city] terminated life insurance coverage of [Lagreca deceased husband] ... allegedly in violation of the collective bargaining agreement.”

Union security

Union security
Local 1095, AFSCME and Erie Community College, 30 PERB 4707

How much does it take to show that negotiating unit employees did not have “work exclusivity” with respect to a particular work site? If there is a history of work assignments being frequently switched between unit members and non-unit workers, the work is non-exclusive according to a PERB Administrative Law Judge.

Administrative Law Judge Jean Doerr ruled that Local 1095 failed to demonstrate that the union had “exclusivity” with respect to “second shift” security work being performed at an off-campus site of the college because employees of a private security company, Pro Service, had alternated with union members in providing security services at that location for a number of years.

In such cases, said Doerr, the “essential questions to be resolved are (1) has the work been performed exclusively by unit employees? and (2) are the reassigned tasks substantially similar to those previously performed by unit members? One of the points made in the decision was that “the work at issue shifted back and forth between [Local 1095] and Pro Guard from September 1995 through January 1997,” when Pro Guard again took over the entire operation.

Doerr said that given the “ever changing nature of the assignment,” it is difficult to see that [Local 1095] had any expectation that, after again resuming the work in April of 1996, the last “switch,” it would have the second shift assignment for any extended period of time.

Failure to exhaust available administrative remedies fatal to seeking court review

Failure to exhaust available administrative remedies fatal to seeking court review
White v Pozzi, 72 AD3d 1106*

Employee’s failure to exhaust his administrative remedies coupled with his failure to demonstrate an exception to the exhaustion requirement applied in his case requires the denial of his petition seeking judicial review of the disciplinary determination.

* Text of decision e-mailed to registered readers.