Union takes disciplinary action against union member

Union takes disciplinary action against union member
Perez v Local 39, IUOE, USDC EDNY

Can a union member slander his or her union leadership and avoid internal union discipline? Yes, as the Perez case shows.

The membership of Local 39, International Union of Operating Engineers, disciplined Richard Perez for “willfully slandering and libeling another member of the Union.” The penalty imposed: a fine of $4,177 and an order directing Perez to write letters of apology.

The General Executive Board of the International upheld the decision, but reduced the fine to $2,088.50 on the condition that the Perez “apologize.” Perez refused to apologize, and was barred from attending the meetings of Local 30.

Perez sued, contending that his “free speech” rights, guaranteed by Section 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 USC. Section 411(a)(2), were violated.

A federal district court judge agreed, noting that the Second Circuit U.S. Court of Appeals, which has jurisdiction in New York, Connecticut and Vermont, has interpreted LMRDA “liberally.”

The U.S. District Court for the Eastern District of New York ruled that the LMRDA protects union members’ rights to freely express their opinions about union matters, even where that expression amounts to libel or slander,” citing DeCarlo v. Salamone, 977 F. Supp 617.

Section 101(a) (2) of the LMRDA, 29 USC. Section 411(a) (2), provides, in relevant part, that “Every member of any labor organization shall have the right to ... express any views, arguments, or opinions ... provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations” [29 USC. Section 411(a) (2)].

The Local’s membership took disciplinary action against Perez because he wrote “a scathing letter” to Frank Hanley, the General President of the International Union of Operating Engineers, complaining about alleged retaliation he suffered after a 1995 union election. The court said that “whether or not [the Local] may have been justified in disciplining [Perez] for some other reason, their inclusion of the charge of libel ran afoul of [his] rights under the LMRDA.”
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Appeal of an administrative disciplinary action must be presented to the proper forum

Appeal of an administrative disciplinary action must be presented to the proper forum
Westhampton Beach UFSD v Ziparo, 275 A.D.2d 411

School districts can pursue disciplinary charges against school employees in three different ways: (1) under Section 75 of the Civil Service Law (for employees in the classified service); (2) under Section 3020-a of Education Law (for teachers and others in the unclassified service); or, in some cases, (3) under an arbitration provision set out in of collective bargaining agreement. Appeal procedures, depend on the nature of the disciplinary action involved.

Typically disciplinary action taken pursuant to Section 75 may be appealed to either the courts as provided by Article 78 of the Civil Practice Law and Rules [CPLR] or the responsible civil service commission.

Disciplinary action taken pursuant to a “disciplinary arbitration procedure” (such as the one provided by Section 3020-a or by an arbitration provision of a collective bargaining agreement) is subject to review pursuant to Article 75 of the CPLR.*

The Westhampton Beach UFSD case involved the appeal of a disciplinary determination by hearing officer who heard charges filed under Education Law Section 3020-a. Westhampton Beach challenged the hearing officer’s Section 3020-a determination by bringing an Article 78 action rather than pursuant to CPLR Article 75. In other words, the district tried to appeal a Section 3020-a disciplinary procedure under the appeals procedure ordinarily available in appealing Section 75 disciplinary decisions.

The case involved a teacher named Ziparo who was found guilty by a Section 3020-a hearing officer of inflicting corporal punishment on several students by striking them with a belt. [On one occasion, the teacher allegedly “pushed a student and issued vulgarities.”]

In light of the teacher’s “otherwise 23 year unblemished teaching record” with the district, the hearing officer recommended that the teacher “be suspended without pay for one year, from February 1, 1999 until January 31, 2000, subject to being certified to return to his teaching duties by a mutually agreed upon psychiatrist.”

In an effort to have the teacher terminated from his employment, the district filed a petition pursuant to Article 78. It contended that the hearing officer’s recommendation was irrational and violative of public policy. It argued that the hearing officer’s decision was subject to review under Article 78 because the award was arbitrary, capricious and an abuse of discretion.

The Court dismissed the appeal, saying that any judicial review of a Section 3020-a determination is controlled by CPLR Article 75 rather than CPLR Article 78. It cited Section 3020-a(5) of the Education Law, which provides that “...the employee or the employing board may make an application to the New York State Supreme Court to vacate or modify the decision of the hearing officer pursuant to Section 7511 of the Civil Practice Law and Rules.”

Accordingly, the standard of review to be applied was the standard set out in Section 7511 of the CPLR and not the standard used in resolving an Article 78 action.

CPLR 7511(b)(1) allows a court to vacate or modify an award if it finds [a] Corruption, fraud or misconduct in procuring the award; or [b] Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or [c] An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or [d] Failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.

In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a “strong public policy.”

Supreme Court Judge Floyd said that applying the criteria set out in Section 7511, there was nothing in the record before the court that justified the modification or vacating of the hearing officer’s recommendation to impose a one-year suspension without pay rather than termination as the penalty. The Appellate Division agreed.

The decision noted that Section 3020-a permits a hearing officer to impose a variety of penalties including a written reprimand, a fine, a suspension for a fixed time without pay, or dismissal. Further, in lieu of imposing any of these penalties, “the hearing officer is also empowered to impose remedial action upon the employee including directing the employee to seek counseling or medical treatment.”

Confirming the arbitration award, the court said that the hearing officer was well within his authority to direct Ziparo’s suspension for one year and that his return to his teaching duties was to be conditioned upon his being certified as fit for duty by a psychiatrist.

Given the charges and Ziparo’s otherwise unblemished record, the court decided that a one year suspension without pay was “a significant financial penalty, reflecting the seriousness of the charges preferred and proven by the district and cannot be construed as irrational.”

The decision also states that the hearing officer was within his authority to condition Ziparo’s return to his teaching duties upon a certification by a mutually agreed upon psychiatrist. The court indicated that “such [a] condition is remedial in nature, does not violate Section 913 of the Education Law and insures that the District’s, the hearing officer’s, and the teacher’s concerns regarding his fitness to continue [in] his profession are judged by an impartial objective evaluation.” [Section 913 provides for the medical examination of teachers and other school district or BOCES employees “by a physician of his choice” or a physician selected by the district.]

* Before Section 3020-a was modified by the state Legislature in 1994, individuals would appeal a 3020-a disciplinary decisions to the Commissioner of Education. For this reason, one occasionally finds references to disciplinary appeal decisions by the Commissioner.

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Retirement benefits and divorce

Retirement benefits and divorce
Rogovin v Rogovin, NYS Supreme Court (Justice Flug), [Not selected for publication in the Official Reports]

One of the elements in a divorce settlement is the right of a former spouse to a share of the retirement benefits paid to his or her former spouse. As Judge Flug noted, the leading case in New York regarding pension rights in a divorce situation is Olivo v. Olivo, 82 NY2d 202.

In Olivo the Court of Appeals held that “a pension right jointly owned as marital property is subject to modification by future actions of the employee” and that the former spouse of an employee who earned a promotion after the divorce, which was not in ‘the “pipeline” at the time of the divorce “... is not entitled to keep the ‘excess’ earned beyond what would have accrued at the time of expected retirement.” Here Judge Flug concluded that the parties to a divorce may, by a specific agreement, provide for a different result.

When the Rogovins divorced, the wife agreed, “as part and parcel of the settlement of this action...” to assign husband “a sum equal to ten percent of the monthly [retirement] benefits from her employment ....” Following the divorce, the wife sought and attained a promotion, which resulted in her receiving higher compensation, which will eventually provide her with a higher retirement allowance.

The former Mrs. Rogovin attempted to have the terms of the divorce settlement revised. She contended that since her pension benefits will be substantially enhanced as the result of her promotion and her former husband, “having not contributed to such enhanced benefits,” does not deserve any pension benefit attributable to her promotion. She asked to court to direct that her former spouse’s “participation in the pension” be limited to an amount equal to ten per cent of what she would have received had she remained a teacher.

Judge Flug said no, holding that “the parties entered into a written stipulation.” Such agreement, said Judge Flug, has the force and effect of a contract. The Court refused “to interpret and redraft the parties’ agreement” as this would be a clear derogation of the sanctity of contracts.

The court said that “it is clearly and unequivocally established that the stipulation called for the [husband] to receive ten per cent of the pension whenever his former wife retired and whatever the amount.
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Eligibility to serve as a school board member

Eligibility to serve as a school board member
Jackson and City of Long Beach CSD, Decisions of the Commissioner of Education, #14,131

Norman B. Alpren, a member of the Long Beach City School District since 1989, was appointed Commissioner of the Long Beach Auxiliary Police [CAP] in 1994. This was a volunteer position.

Mark Jackson and Scott Abramson challenged Alpren’s continuing to serve as a member of the school board while simultaneously serving as CAP. They asked the Commissioner of Education to declare Alpren ineligible for the board, citing Section 2502(7) of the Education Law, which forbids holders of city offices , with some exceptions, from being members of school boards. According to their petition, the position of CAP is a “city office.” Although police officers are exempt and can serve on school boards, the petitioners claimed that the CAP role “does not fall within the statutory exception of ‘policeman’ because it does not ‘endow police officer status.’”

The Commissioner ruled that Alpren could simultaneously serve in both positions, noting that the CAP position was established by the bylaws of the Long Beach Police Department rather than by statute or ordinance and thus Alpren did not hold “public office” within the meaning of Section 2502(7).
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Testing for illegal drugs

Testing for illegal drugs
Davis v Safir, App. Div., 262 AD2d 107

New York City police officer Freida Davis tested positive for cocaine after being given EMIT and GC/MS tests. This ultimately resulted in the Police Commissioner dismissing her from the force.

Davis sued, contending that GC/MS tests were unreliable and could give “false positive” results. The Appellate Division dismissed her appeal, holding that the positive test results “constitute substantial evidence of petitioner’s possession and use of cocaine.” The court rejected Davis’ argument that the GC/MS testing procedures were unreliable and likely to produce a false positive.

The decision points out that “even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which [Davis] does not challenge, would alone constitute substantial evidence of the use of cocaine, citing Lahey v Kelly, 71 NY2d 135.

As to the penalty imposed, the court said that “the penalty of dismissal does not shock our sense of fairness” and sustained the Commissioner’s determination.
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