Determining a union’s right to arbitrate

Determining a union’s right to arbitrate
Batavia CSD v Batavia Teachers’ Assn., App. Div., Fourth Dept., 265 AD2d 806
Jefferson County v Jefferson Co. Deputy Sheriff’s Assn., App. Div., Fourth Dept., 265 AD2d 802

The Appellate Division, Fourth Department, handed down two rulings that addressed efforts by public employers to prevent the arbitration of grievances filed by unions on behalf of members.

The Batavia Case

The Batavia Teachers’ Association demanded arbitration of grievances it filed on behalf of two certified teachers who were not selected to fill vacant interscholastic coaching positions. The association contended that [1] the district’s selection procedure violated the negotiated agreement’s contract provisions dealing with appointment to coaching positions and [2] uncertified applicants were “improperly appointed when certified candidates were available.”

Essentially the school district asked for the stay of arbitration because “public policy prohibits an arbitrator from reviewing the Board’s hiring decisions.”

Here, however, the Appellate Division viewed this argument as irrelevant under the circumstances. It said that the association was not seeking to arbitrate the school board’s exercise of discretion in making those hiring decisions. Rather, said the court, the association claimed that the Board did not adhere to its procedural obligations in making its hiring decisions.

Accordingly, although part of the relief sought by the two employees was their respective appointment to the coaching positions, the Appellate Division ruled that public policy did not prohibit submission of these two grievances to arbitration, affirming a state Supreme Court justice’s ruling denying the district’s petition to stay the arbitration.

In Port Washington Union Free School District v Port Washington Teachers Association, 45 NY2d 411, the Court of Appeals said that “[a] stay of arbitration on [public] policy grounds is ‘premature and unjustified’, even though the remedy sought may not, due to [public] policy concerns, be enforceable, where it is possible that the arbitrator may use his broad powers to fashion a remedy ‘adequately narrowed to encompass only procedural guarantees’”.

Accordingly, in determining whether a public sector grievance is subject to arbitration, the court must first determine is whether or not arbitration of the subject matter of the grievances is authorized by the Taylor Law. As the Court of Appeals said in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509, if the demand for arbitration passes this first test, the court must then determine if the parties appear to have agreed “by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.”

Finding that the collective bargaining agreement contained a broad arbitration clause and that there was a “reasonable relationship” between the subject matter of the dispute and the general subject matter of the parties’ collective bargaining agreement, the Appellate Division concluded that the two grievances should be submitted to an arbitrator. The court commented that once the arbitrator assumes jurisdiction over the grievances, he or she will:

1. Make “a more exacting interpretation of the precise scope of the substantive provisions of the Taylor Law agreement; and

2. Determine whether the subject matter of the dispute fits within such substantive provisions.


The Jefferson County Case

Jefferson County Deputy Sheriff Gary M. Belch was found guilty of disciplinary charges by an arbitrator. The sheriff, however, imposed a harsher penalty than the one recommended by the arbitrator. As a result, the union served a demand for arbitration, claiming that the sheriff had imposed the heavier penalty in retaliation for Belch’s exercising his right to submit the disciplinary action to arbitration.

The Appellate Division ruled that the County’s petition for a stay of the arbitration should be denied. Although Jefferson County contended that the Sheriff’s decision to increase the penalty recommended by the arbitrator is not subject to further arbitration, the court said it disagreed.

According to the ruling, “the allegation of retaliation is covered under the agreement’s definition of grievance,” and thus the proper procedure to address a grievance is arbitration. The court said that with respect to other grounds for staying the arbitration advanced by the county, “it is for the arbitrator to determine whether this arbitration is barred by collateral estoppel or res judicata.”

There was a technical element to this appeal that should be noted. The county’s petition was initially rejected by a State Supreme Court justice on the grounds that it was untimely. The Appellate Division, however, observed the union’s demand for arbitration was served on the sheriff, rather than the proper party -- the county.

Why wasn’t service on the sheriff proper? Because, said the court,” the sheriff was neither a party to the collective bargaining agreement nor an individual designated to accept service on behalf of [the county].”

This failure to comply with the service provisions of Section 7503 of the Civil Practice Law and Rules tolled the time limit for service of a petition to stay arbitration. The county was subsequently properly served with the demand and therefore its motion to stay the arbitration was held timely as measured from the date of “proper service” on it.

Why it is necessary for a party to go to court to obtain a stay of arbitration? Because if it refuses to participate in the arbitration and does not have the authority of the court in the form of a “stay of arbitration,” the arbitration can proceed “in absentia.” For example, in Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division ruled that an arbitrator may [1] proceed with a disciplinary arbitration notwithstanding the fact that the appointing authority refused to participate in the proceeding and [2] thereafter make a final, binding determination.

On the other hand, in Suffolk County v SCCC Faculty Association, the Appellate Division pointed out that if a party participates in arbitration when “it did not have to,” it cannot later seek to vacate the arbitration award “because it was not required to submit to the arbitration of the issue.”
.NYPPL

Appointment to the position of detective

Appointment to the position of detective
Ryff v Safir, App. Div., First Dept., 264 AD2d 349

The Ryff case sets out some standards that the Appellate Division, First Department, said should be considered in determining if a police officer who has temporarily served as a detective for at least 18 months is entitled to hold that title on a permanent basis without further examination.

Kevin T. Ryff, a New York City Police Department Harbor Unit Vessel Theft Team member, had been recommended for Detective Third Grade status by his commanding officer.

The recommendation reflected the commanding officer’s view that the duties of members of the Vessel Theft Team mirrored the investigative duties of the Detective Bureau investigators in the Auto Crime Division Special Operations Squad. Auto Crime Squad members were promoted to Detective Third Grade after 18 months of service.

New York City’s Administrative Code Section 14-103(b)(2) provides that any person who has received permanent appointment as a police officer and is temporarily assigned to perform the duties of a detective shall, whenever such assignment exceeds eighteen months in duration, be appointed as a detective and receive the compensation ordinarily paid to a detective performing such duties.*

The commissioner, however, rejected the recommendation, indicating that “the 18-month rule does not apply to the Harbor Unit Vessel Theft Team because that unit is not included in the ‘historical career path program’ it has for detective.” Ryff, however, persuaded a State Supreme Court judge to direct the commissioner to designate him a Detective Third Grade retroactive to the date he had completed 18 months of investigative service, with accompanying seniority and benefits. The Supreme Court judge ruled:

1. The commissioner “no longer has discretion to determine whether a particular assignment equals a detective function” and

2. It is the nature of the duties performed and whether they are equivalent to detective functions, not the specific unit in which they are performed, which is determinative” of whether the officer is entitled to be designated Detective Third Grade.

The Appellate Division, however, vacated the lower court’s order. Although the Supreme Court judge concluded that since Ryff “had performed “investigatory duties” for more than 18 months while with the Vessel Theft Team of the Harbor Unit, he was entitled to be designated as a Detective Third Grade with the requisite benefits,” the Appellate Division ruled that such a decision was premature. It said that a hearing was required to resolve two basic issues:

1. Does the scope of Administrative Code Section 14-103(b)(2) rest on the nature of the work performed and, if so,

2. Did Ryff’s work include “investigatory duties”?

Finding that the record was insufficient to determine whether the investigative duties actually performed by Ryff were comparable to those carried out by police officers who received detective status upon completion of 18 months of investigative duties performed in other units, the Appellate Division remanded the matter for a hearing to determine these two critical issues.**

This ruling suggests that such determinations must be made on a “case-by-case” basis and simply relying on the “official job description” will not be viewed by the courts as sufficient.

* New York State Civil Service Law Section 58.4(c), to the extent that it provided that sworn officers of municipal jurisdiction other than the City of New York were to be deemed “permanently appointed” as a detective after having temporarily served as a detective for at least 18 months, was held to violate Article 6, Section 5 [the “merit and fitness” requirement] of the State Constitution [Wood v Irving, 85 NY2d 238, 1995]. Chapter 134 of the Laws of 1997 was adopted in an effort to meet this criticism by the Court of Appeal, wherein the legislature stated “that an individual who performs in an investigatory position in a manner sufficiently satisfactory to the appropriate supervisors to hold such an assignment for a period of eighteen months, has demonstrated fitness for the position of detective or investigator within such police
or sheriffs department at least as sufficiently as could be ascertained by means of a competitive examination.”

** Ryff served as a member of the Police Department’s Harbor Unit’s Vessel Theft Team from April 4, 1995 to February 28, 1997, when he retired.
.NYPPL

AIDS phobia

AIDS phobia
Libasci v Rockville Centre Housing Auth., NYS Supreme Ct., Nassau County, [Not selected for inclusion in the Official Reports]

Libasci and a fellow Rockville Centre sanitation worker, Joseph DeJesus, were removing trash from the Rockville Housing Authority when an insulin needle protruding from a trash bag stuck Libasci.

Libasci was treated at the South Nassau Communities Hospital Emergency Room and given a tetanus shot. Subsequent blood tests were negative for infectious diseases.

On February 18, 1997, Libasci sued for negligence based what State Supreme Court Justice McCaffrey described as “AIDS phobia.”

Justice McCaffrey said that “[I]n order to maintain a cause of action for damages due to the fear of contracting AIDS a rational belief of infection, standing alone, is inadequate. A plaintiff who has not tested seropositive must offer proof of ‘actual exposure’, that is of both a scientifically accepted method of transmission of the virus (in this case a needle puncture) and that the source of the allegedly transmitted blood or fluid was in fact HIV-positive...,” citing Brown v. New York City Health and Hospitals Corporation, 225 AD2d 36.

The court said that summary judgment in favor of the authority was justified because Libasci acknowledged that he “does not know the original owner of the needle or of his or her medical condition” and there was no admissible evidence to demonstrate that the needle was infected.
.
NYPPL

Co-workers guilty of less egregious policy violations are not "similarly situated" to plaintiff

Co-workers guilty of less egregious policy violations are not "similarly situated" to plaintiff
Source: Kelley Drye & Warren LLP, by Michael E. Rigney, Esq.

Katherine Weber had been employed at Universities Research Association (URA) for almost twenty years when she received a negative performance review. She believed the review was unfair and filed a grievance.

The grievance was ultimately resolved in her favor and the negative review was removed from her record. Weber claims that a number of bad things began to happen to her after the grievance, ultimately including the elimination of her position in early 2004.

She accepted another position with the organization under a new supervisor. Weber had difficulty with her new supervisor from the beginning. She complained that she was the victim of retaliation and that her new supervisor treated her differently than other employees. Her supervisor complained that she was not getting her work completed and became suspicious of her computer usage. URA decided to monitor her Internet usage.

The results of its trace showed that Weber spent more than 16 hours in one workweek visiting websites unrelated to her work. Her usage included accessing dog-related sites and her personal e-mail accounts in connection with her dog training business.

URA terminated Weber's employment for violating its policies: a) requiring disclosure and authorization of outside employment and b) prohibiting the use of URA computer equipment in connection with outside employment. Weber brought suit pursuant to Title VII for gender discrimination and retaliation. Judge Andersen (N.D. Ill.) granted summary judgment to URA. Weber appeals.

In their opinion Judges Bauer, Kanne, and Tinder affirmed. The Court first concluded that Weber waived both claims under the direct method of proof by not sufficiently developing them in the district court. Since Weber does not challenge the district court's decision with respect to the retaliation claim under the indirect method, the only other issue before the Court was the discrimination claim under the indirect method. Weber attempted to meet the "similarly situated" element of her prima facie case by identifying a number of male co-workers who had unauthorized outside employment, who accessed the Internet for personal and outside employment use, and who accessed the Internet to view pornography.

The Court concluded that Weber did not meet the "similarly situated" element. To meet that requirement, she must identify employees who engaged in similar conduct in the absence of circumstances that would distinguish their conduct from hers.

The Court acknowledged that she identified multiple instances of policy violations but distinguished those violators. Weber presented no evidence that the violators had trouble finishing their work or that any of them violated a company policy "with the same reckless abandon" as Weber.

Weber v Universities Research Association (September 2, 2010). The full text of this 7th Circuit ruling is posted on the Internet at: http://www.intheiropinion.com/uploads/file/weber.pdf
.

Determining if there is a basis for disciplinary charges

Determining if there is a basis for disciplinary charges
Waters v Fire Commissioners, Supreme Court, [Not selected for publication in the Official Reports]

The Waters case concerned a rather rare issue: whether or not the activities underlying disciplinary action provide any basis for bring disciplinary action against an individual.

As State Supreme Court Justice Lockman saw it, “[t]he issue to be resolved is not whether Captain Michael Waters, a decorated volunteer firefighter, performed the underlying acts alleged, but whether those acts constitute a violation of the by-law of the Massapequa Fire District with which he has been charged.”

On January 18, 1999, Waters telephoned other fire captains concerning a new driving policy that was of concern to the membership of the fire company. Fire Department Chief Michael Gange was very interested in this issue. However, instead of telling Waters that he wanted to be present at any discussion of the driving policy, Gange suspended him for making the calls after the two had “exchanged words.”*

Subsequently Chief Gange advised the Fire Commissioners that Waters “has been” relieved of duty, as he “admitted ... that he attempted to call a meeting of the officers ... without checking with or scheduling it through the Chiefs office.”

Ultimately Waters was served with disciplinary charges alleging that he violated department by-law Section 3.1(a), which, in relevant part, provide that “[t]he Chief shall be chairman of the meetings of the Department....” Found guilty of the charges, Waters was suspended for sixty days.

The court found this determination troubling. In addition to noting a number of significant procedural errors that constituted a denial of due process, Justice Lockman said that there was no evidence of any “meeting of the department”. Commenting that “there was no evidence of any meeting at all, departmental or otherwise, and no allegation that a meeting was ever held,” the court noted that the disciplinary decision itself merely states that “Captain Michael Waters’ acts constituted an attempt to schedule a meeting.”

As the evidence shows that the only act Waters took, and the only act which is supported in the record, was to place telephone calls to the district’s several firehouses to request that the officers present come over and discuss driver policy, Justice Lockman concluded that “there is no evidence, substantial or otherwise, to support the charge that Waters violated the by-law which states that the Chief shall chair department meetings.” The court annulled the disciplinary determination.

In such situations, courts would usually remand the matter back to the agency for a new hearing. Here, however, Justice Lockman said that there were multiple procedural irregularities which, when taken together, present a due process violation, as well as a “record utterly lacking in evidence of a violation of the by-laws.” Accordingly, the court elected to rescind the disciplinary action rather that return it for further proceedings.

* Chief Gange testified “I contacted Captain Waters on Tuesday, January 19. I asked him if he was calling an officers meeting. He said yes, he was. I said ‘Without my knowledge?’ He goes, ‘That’s correct’. I asked him if he was looking for a suspension of time. He said, ‘Do whatever you have to do’ and I said ‘You’re relieved of duty.”

============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.