Unit exclusivity

Unit exclusivity
CSEA and Warrensburg CSD, 30 PERB 3056
Suffolk Co Corrections Officers Assoc v PERB, App. Div., 246 A.D.2d 660

Exclusivity is an important issue to a collective bargaining unit. It sets out those tasks that may be performed only by unit members to the exclusion of all others. An employer violates its duty to negotiate under Section 209-a.1(d) of the Civil Service Law if it unilaterally transfers work “established and maintained exclusively by a collective bargaining unit” to non-unit workers.

In the Warrensburg case, CSEA Local 857 charged that the Warrensburg Central School District violated Section 209-a.1(d) when it assigned chaperoning duties at plays and concerts to employees represented by the Warrensburg Teachers Association [Association], a different negotiating unit.

The District contended that under a memorandum of understanding, members of the Teachers Association had “the right of first refusal in chaperoning all school events.”

PERB sustained its administrative law judge’s finding that District administrators regularly served in a chaperoning capacity at these events and thus CSEA did not have exclusivity with respect to performing such duties.

PERB said that collective bargaining agreements between the Association and the District dating back to 1982 specifically covered “chaperoning duties and rights,” while Local 857 agreements were silent with respect to such activities.

PERB rejected Local 857’s argument that it had “exclusivity” with respect to concerts conducted at the high school while Association members regularly chaperoned elementary school concerts, commenting that “the location of a concert, being unrelated to chaperoning duties, cannot form any discernible boundary within which to test exclusivity.”

A similar case involved the Suffolk County Court, First District, located in Hauppauge, which employed 18 correction officers who were responsible for the care and custody of detainees being held there.

In 1992 the Court was moved to Central Islip from Hauppauge and the 18 correction officers were reassigned to the Suffolk County Maximum Security facility in Riverhead. Deputy sheriffs were assigned to take care of the detainees at the Court’s Central Islip facility.

The Suffolk County Correction Officers Association [SCCOA], filed an improper practice charge against the County with PERB, contending that the County’s unilateral transferring the responsibility for District Court detainees to deputy sheriffs violated Section 201.a[1](d) and (e) of the Civil Service Law. SCCOA argued that the Taylor Law required that “prior negotiations” be undertaken before such a change could be implemented.

A PERB administrative law judge [ALJ] determined that SCCOA did not prove that its unit members had previously performed the duties reassigned to the deputy sheriffs exclusively. After PERB affirmed the ALJ’s ruling, SCCOA appealed. The Appellate Division affirmed PERB’s determination.
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Court vacates hearing officer’s disciplinary determination after finding that it was arbitrary and capricious

Court vacates hearing officer’s disciplinary determination after finding that it was arbitrary and capricious
Trupiano v Meadow Union Free School Dist., 2010 NY Slip Op 32264(U), August 10, 2010, Supreme Court, Nassau County, Judge: Michele M. Woodard [Not selected for publication in the Official Reports]

From September 2004 through March 2007, the East Meadow UFSD teachers engaged in numerous activities to protest the fact that they did not have a successor collective bargaining agreement in place,* including picketing the School District's school buildings.

East Meadow, pursuant to Education Law §3020-a, preferred disciplinary charges on one of its teachers, Gina Trupiano, alleging that Trupiano “intentionally created a health and safety risk by purposefully situating her vehicle alongside the curb … in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard.”

Hearing Officer Howard C. Edelman found that although Trupiano “did not knowingly and purposely park her vehicle alongside the curb … he concluded that by doing so, Trupiano "created a safety hazard to children” and sustained the charge. The penalty imposed: Trupiano received a counseling memo as the penalty.

Judge Woodward vacated the hearing officer’s award, finding that, in this instance, the Hearing Officer s decision that Trupiano is culpable of the charge preferred against her is not "amply supported by the evidence."

In the words of the court, “While the Hearing Officer s decision is indeed thoughtful, the irony is that the Hearing Officer therein repeatedly acknowledges that Trupiano broke no laws on March 2, 2007, was engaged in a constitutionally protected form of free speech and that she "obviously... did not wish harm to any child."

Accordingly, the court ruled that the disciplinary determination was "arbitrary or capricious."

* The terms and conditions addressing mandatory subjects of collective bargaining set out in the expired collective bargaining agreement are continued in effect pending the successor agreement in accordance with PERB’s so-called “Triborough Doctrine” promulgated in 1972.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32264.pdf

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http://thedisciplinebook.blogspot.com/
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Some procedural basics in perfecting an appeal to the Commissioner of Education

Some procedural basics in perfecting an appeal to the Commissioner of Education
Kathleen Vendel, et al., v the Board of Education of the Marion Central School District, Decisions of the Commissioner of Education, Decision #16,134

The decision of the Commissioner of Education in Vendel sets out a number of procedural elements that must be satisfied in order to perfect an appeal to the Commissioner. Significantly, a party's failure to comply with one or more of these requirements could prove fatal to the Commissioner's considering the merits of the appeal.

Some 100 residents of the Marion Central School District appealed the School Board decision concerning the public's participation at board meetings. The Board had adopted a policy limiting non-members of the Board interested in speaking at its meetings to three minutes. Also in Vendel's submission to the Commissioner was an appeal involving "certain interactions with the community” by the Board and an application seeking “the removal of various individuals” from the Board.

The Commissioner dismissed Vendel's appeal and application without considering the merits of the allegations, explaining:

1. The individuals filing an appeal must have standing. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Merely having status as a resident and a taxpayer in a school district is not sufficient to confer standing to challenge school board policies.

Except with respect to Vendel’s allegations concerning alleged harassment, said the Commissioner, “there has been no showing that any of the petitioners are personally aggrieved by the board policy or actions complained of.” The appeal, therefore, was dismissed for lack of standing, except with respect to Vendel’s claims relating to the harassment complaint.

2. Verification of the appeal. The appeal was defective as “neither the petition nor petitioners’ reply are properly verified.”

The Commissioner noted that 8 NYCRR §275.5 of the Commissioner's Regulations require all pleadings in an appeal to the Commissioner be verified.*

3. Failure to name a necessary party. To the extent that the petition seeks removal of individual board members petitioners have failed to join them as parties.

The Commissioner pointed out 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.**

4. Jurisdiction of the Commissioner. As to the “propriety of the actions of the Trooper” in the course of events leading to the appeal, the Commissioner said that the Trooper is not an officer or employee of the School District and thus is not subject to the jurisdiction of the Commissioner of Education.

5. Statute of limitations to file an appeal. The Commissioner commented that the petitioners challenge any actions in relation to the July 13, 2009 board meeting but was not commenced until September 1, 2009.

Citing 8 NYCRR §275.16, the Commissioner said that “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 Commissioner did make one observation concerning one of the issues presented by Vendel “for the benefit of the parties” -participation of individuals at board meetings.

Regarding taxpayers and residents of a school district participating in board meetings, the Commissioner said that a board of education should, whenever possible and appropriate, consider public input on matters under consideration. However, the Commissioner also noted that a school board has the right to control the agenda at board meetings and “there is no statutory mandate that requires a board to permit public input at its meetings.”

* The affidavit of verification was stated to have been made “on the oath of Carol Moranz” but was signed by Vendel. Moranz was not a petitioner in this appeal and the Commissioner’s regulations require the petition to be verified under oath of at least one of the petitioners (see 8 NYCRR §275.5).

** Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and the petition so as to inform the individual that he or she should respond to the petition and enter a defense.

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16134.htm
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Full evidentiary hearing required before discontinuing GML Section 207-a benefits

Full evidentiary hearing required before discontinuing GML Section 207-a benefits
Giorgio v Bucci, Appellate Division, 246 A.D.2d 711, Motion to appeal denied, 91 N.Y.2d 814

Thomas Giorgio, a Binghamton firefighter, began receiving disability benefits pursuant to Section 207-a effective January 13, 1996 based on his claim of a work-related injury on that date. On May 23, 1996 Binghamton told Giorgio that his benefits were being terminated, alleging that there was “newly discovered evidence that his condition predated the January 13, 1996 incident.”

Giorgio sued, but withdrew that action when the City agreed to continue his benefits and give him a “pre-termination hearing.” The City upheld the original decision to deny him Section 207-a benefits on the grounds that Giorgio’s injury was not the result of a work-related incident. Again Giorgio sued, seeking reinstatement to the payroll, restoration of his leave credits and a declaration that the administrative procedure used by the City was unconstitutional.

On the merits of Giorgio’s “due process claims,” the Appellate Division said that he had been denied “the right to a full evidentiary hearing prior to the termination of his benefits.” Why? Because, said the Court, Giorgio had not been allowed to confront and cross-examine witnesses or to offer evidence on his own behalf.

The lesson here is that when an employer holds a hearing to determine whether Section 207-a [and, presumably, Section 207-c] benefits should be discontinued, it must be a full evidentiary hearing, complying with all the requirements of administrative due process.

Claiming drug abuse as a disability under the Americans with Disabilities Act

Claiming drug abuse as a disability under the Americans with Disabilities Act
D’Amico v Bruno, CA2, 132 F.3d 145

Vito D’Amico, a New York City firefighter, complained that the Department violated the Rehabilitation Act of 1973 (an anti-discrimination law that applies to federally-funded employers) when it dismissed him from his position with the Fire Department of the City of New York (NYFD) because of his use of illegal drugs. The U.S. Circuit Court of Appeals affirmed the federal district court’s dismissal of D’Amico charges. In so doing the Court set out a comprehensive summary of the various factors considered by the federal courts in such cases.

D’Amico joined NYFD in 1982. In April 1988, D’Amico was arrested for assault, possession of a controlled substance, and resisting arrest. Following this arrest, the NYFD referred D’Amico to counseling within the NYFD.

In September 1988, the NYFD received an anonymous letter accusing D’Amico of using and selling cocaine. NYFD ordered D’Amico to submit to a urine test on December 13, 1988. D’Amico tested positive for cocaine and NYFD suspended him without pay. The suspension was lifted in January 1989, pending the outcome of disciplinary action taken against him. D’Amico, meanwhile, had entered an inpatient drug treatment program on April 17, 1989, which it was reported that he had successfully completed on May 15, 1989.

OATH Administrative Law Judge Ray Fleischhacker presided over the disciplinary hearing held on June 23, 1989 and found D’Amico guilty of 4 of the 5 charges filed against him. The Commissioner accepted the ALJ’s findings and recommendations and terminated D’Amico effective September 5, 1989. The Commissioner said that “[i]n light of the grave responsibilities entrusted to a firefighter, [D’Amico’s] continued employment with the Fire Department presents a significant risk, both to the general public and to his fellow firefighters.”

Under the Rehabilitation Act, the plaintiff bears the initial burden of establishing a prima facie case. In a case where the employer relies on the plaintiff’s handicap as the reason for the adverse employment decision, the employer may rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to qualifications for the position.

The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that he or she is qualified for the position despite his or her disability.

D’Amico had to establish a prima facie case by proving that: (1) he is an individual with a disability; (2) he was otherwise qualified for a position; (3) he was denied that position on the basis of his disability, and (4) NYFD receives federal funds.

Although it was conceded that D’Amico satisfied items (3) and (4), NYFD contended that D’Amico was neither an “individual with a disability,” nor “otherwise qualified” to be a firefighter.

Substance abuse is a recognized disability for purposes of the Rehabilitation Act, and an employer may violate the Act by taking an adverse employment action against an employee who has overcome past substance abuse problems but the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs.

According to the Circuit Court, the critical issue was whether D’Amico was a “current substance abuser” is the time of his discharge. The court said the actual date of discharge was not critical but serves “rather as a guidepost from which to determine whether the employer acted with justification.” The Court defined a “current substance abuser” as an individual whose substance abuse problem is severe and recent enough that the employer is justified in believing that the employee is unable to perform the essential duties of his job.

The employer must therefore evaluate (1) the level of responsibility entrusted to the employee, (2) the employer’s applicable job and performance requirements, (3) the level of competence ordinarily required to perform the task in question, and (4) the employee’s past performance record. Further, it must consider both the type of position for which the plaintiff claims to be otherwise qualified and the consequences of a potential mishap.

The Circuit Court pointed out with approval that in DiPompo v West Point Military Academy, 770 F. Supp. 887, Federal District Court Judge Michael B. Mukasey said “[W]hat may be a reasonable risk for a postal worker ... whose job generally does not pose great hazards to those who perform it or to the public they serve, is not necessarily a reasonable risk for a firefighter, whose job is defined at almost every turn by the potential for disaster to himself and others.”
Concluding that D’Amico’s history of cocaine addiction, together with the NYFD’s judgment as to the possibility of, and the risks inherent in, a relapse, the Circuit Court said that NYFD was justified in terminating D’Amico’s employment as a firefighter.