Duty of fair representation
Runfola and Local 2028, 32 PERB 3028
Peter Runfola filed charges claiming that the Local 2028, International Longshoreman’s Association breached its duty of fair representation when it negotiated a contract layoff provision that “was a material change in the then existing contractual language, and that the recently elected [union officers] negotiated the clause to reward their supporters and punish their opponents, who included Runfola.”
PERB dismissed Runfola’s complaint as untimely, commenting that such a complaint had to be filed within four months of the date on which Runfola knew of the amendment to the collective bargaining agreement.
The contract had been amended in July 1998; Runfola filed his complaint in January 1999, more than six months after the contract had been amended.
PERB rejected Runfola’s argument that the Statute of Limitations to file his charge began to run in October 1998, when he was “actually harmed” because of the application of the amended provision to him and “caused him to lose a position ... he would have retained under the provisions of the prior agreement.”
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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
Oct 26, 2010
Conforming of the arbitration award
Conforming of the arbitration award
Patry v Vill. of Tupper Lake, 262 AD2d 757, Motion for leave to appeal denied, 94 NY2d 753
The Patry decision by the Appellate Division provides an example of a rather rare event: a court providing relief that the award itself neglected to include.
In this instance, the arbitration panel decided that the employer had acted improperly in discharging Patry, but did not provide him with any remedy such as directing his reinstatement. The court corrected this omission.
The case began after Tupper Lake heavy equipment operator Jacques Patry was terminated from his position because he tested positive for marijuana in a random drug test. Patry filed a grievance under the collective bargaining agreement. Ultimately the “board of arbitrators” ruled that the village had discharged him “without proper reason”. The decision, however, did not indicate what remedial action was to be taken. When the village failed to restore him to his former position, Patry filed an Article 75 action to confirm the award together with an Article 78 action to compel the village to reinstate him. The village objected, citing paragraph 7.09 of the contract, which read as follows:
No Board of Arbitrators shall have power or jurisdiction to modify the Board of Trustees’ action. The Board of Arbitrators shall either find that the Board of Trustee’s action was not without proper reason in which event the suspension, demotion or discharge shall be sustained in full; or that the suspension, demotion or discharge was without proper reason.
A Supreme Court judge dismissed the action “because the arbitrators did not direct that petitioner be reinstated to his former position or awarded back pay and the labor contract did not grant them the authority to do so, there was no “award” to confirm”.
The Appellate Division reversed the lower court’s ruling. It pointed out that in the context of the contract, which established a “hierarchy of penalties that may be imposed under varying circumstances,” paragraph 7.09 merely precluded the arbitrators’ modification of a penalty, e.g., reduction of a penalty of discharge to one of suspension, that has been permissibly imposed by the Board.
In other words, if the arbitrators found that the individual was guilty of the disciplinary charges that were brought, they could not change the penalty imposed by the village.
The construction urged by the village “leads to an irreconcilable and absurd result, with the arbitrators granted the authority to declare that a grievant had been wrongfully suspended, demoted or discharged but denied the power to annul the impermissible penalty ....”
The Appellate Division’s conclusion: the arbitrators were authorized to annul the discharge and restore Patry to his former position. Although there was no indication of the reason why the arbitration board failed to do this, the court said the fact that the arbitrators failed to make a complete award does not mean that it could or should not recognize and confirm the award that they did make.
The Appellate Division apparently found it significant that the village did not contest the arbitrators’ finding that petitioner’s discharge was “without proper reason” nor did it provide any legal basis for vacating or modifying the arbitrators’ award (see, CPLR 7511).
The Appellate Division ruled that “on the merits, given our construction of paragraph 7.09 of the labor contract and the arbitrators’ determination that petitioner’s discharge was without proper reason, we conclude that the Board was required to retroactively restore petitioner to his employment, “less any amounts he received from employment or unemployment insurance benefits.”
NYPPL
Patry v Vill. of Tupper Lake, 262 AD2d 757, Motion for leave to appeal denied, 94 NY2d 753
The Patry decision by the Appellate Division provides an example of a rather rare event: a court providing relief that the award itself neglected to include.
In this instance, the arbitration panel decided that the employer had acted improperly in discharging Patry, but did not provide him with any remedy such as directing his reinstatement. The court corrected this omission.
The case began after Tupper Lake heavy equipment operator Jacques Patry was terminated from his position because he tested positive for marijuana in a random drug test. Patry filed a grievance under the collective bargaining agreement. Ultimately the “board of arbitrators” ruled that the village had discharged him “without proper reason”. The decision, however, did not indicate what remedial action was to be taken. When the village failed to restore him to his former position, Patry filed an Article 75 action to confirm the award together with an Article 78 action to compel the village to reinstate him. The village objected, citing paragraph 7.09 of the contract, which read as follows:
No Board of Arbitrators shall have power or jurisdiction to modify the Board of Trustees’ action. The Board of Arbitrators shall either find that the Board of Trustee’s action was not without proper reason in which event the suspension, demotion or discharge shall be sustained in full; or that the suspension, demotion or discharge was without proper reason.
A Supreme Court judge dismissed the action “because the arbitrators did not direct that petitioner be reinstated to his former position or awarded back pay and the labor contract did not grant them the authority to do so, there was no “award” to confirm”.
The Appellate Division reversed the lower court’s ruling. It pointed out that in the context of the contract, which established a “hierarchy of penalties that may be imposed under varying circumstances,” paragraph 7.09 merely precluded the arbitrators’ modification of a penalty, e.g., reduction of a penalty of discharge to one of suspension, that has been permissibly imposed by the Board.
In other words, if the arbitrators found that the individual was guilty of the disciplinary charges that were brought, they could not change the penalty imposed by the village.
The construction urged by the village “leads to an irreconcilable and absurd result, with the arbitrators granted the authority to declare that a grievant had been wrongfully suspended, demoted or discharged but denied the power to annul the impermissible penalty ....”
The Appellate Division’s conclusion: the arbitrators were authorized to annul the discharge and restore Patry to his former position. Although there was no indication of the reason why the arbitration board failed to do this, the court said the fact that the arbitrators failed to make a complete award does not mean that it could or should not recognize and confirm the award that they did make.
The Appellate Division apparently found it significant that the village did not contest the arbitrators’ finding that petitioner’s discharge was “without proper reason” nor did it provide any legal basis for vacating or modifying the arbitrators’ award (see, CPLR 7511).
The Appellate Division ruled that “on the merits, given our construction of paragraph 7.09 of the labor contract and the arbitrators’ determination that petitioner’s discharge was without proper reason, we conclude that the Board was required to retroactively restore petitioner to his employment, “less any amounts he received from employment or unemployment insurance benefits.”
NYPPL
Challenging an administrative determination while a related grievance is pending
Challenging an administrative determination while a related grievance is pending
Sokol v Granville CSD, 260 AD2d 692
The fact that a contract grievance is pending will not always bar an individual from suing. Nor must a complaint by a teacher necessarily be considered by the Commissioner of Education before it is ripe for adjudication by the courts. These points are illustrated in the Sokol case.
The Granville Central School District appointed David Sokol as a “noninstructional substitute teaching assistant/monitor” effective October 6, 1997. In January 1998, the district discontinued Sokol’s employment. The district viewed him as a temporary employee hired as a true substitute, while Sokol claimed he had been appointed to a vacant tenured position, and that his dismissal violated his due process rights.
Sokol served a “notice of claim” on the district and initiated an Article 78 action seeking a court order annulling his termination and directing the district to appoint him as a probationary teaching assistant retroactive to October 6, 1997.
The district did not file an answer to Sokol’s petition. It instead moved to dismiss Sokol’s Article 78 action on the grounds that:
1. A grievance was pending when Sokol filed his Article 78 action. This was a step three grievance [of a four step grievance procedure] challenging the district’s appointment of substitute teaching assistants filed by the Granville Central School Support Staff Association; and
2. Sokol had failed to exhaust his administrative remedy because he had not appealed his claims to the Commissioner of Education pursuant to Education Law Section 310.
Although these arguments proved persuasive to a state Supreme Court judge, the Appellate Division reversed the lower court’s action, holding that the existence of a grievance alleging violations of the collective bargaining agreement did not constitute an absolute bar to Sokol’s filing an Article 78 action. Nor was Sokol required to file an appeal with the Commissioner of Education before proceeding with his action at law.
The key element to this conclusion was that there was nothing in the record to indicate that Sokol was participating in the grievance brought by the Association.
The court cited the grievance itself, which said that Sokol was not a member of the Teachers Association and that he had not participated in the filing of the grievance, requested that it be filed on his behalf or actively participated in its prosecution.” Nor was the Association representing his interests in filing the grievance.
The Appellate Division commented that Sokol made a persuasive argument “that even if the Association is ultimately successful, there is no guarantee that he personally would benefit from the victory.”
Sokol was not required to exhaust his administrative remedy by appealing to the Commissioner of Education pursuant to Education Law Section 310 because he had alleged violations of his statutory rights. This, the Appellate Division ruled, allowed him a “direct resort to the courts,” citing a number of cases including Cohn v Board of Educ. of Hammondsport Central School, 58 AD2d 977.
Sokol was asserting violations of the Education Law and corresponding regulations -- not provisions of the collective bargaining agreement -- as the basis for his Article 78 petition.
The Appellate Division said that “the grounds urged for relief” and remedies sought in each forum are separate and distinct.
Reversing the lower court’s dismissal of Sokol’s complaint, the district was directed to file an answer within 20 days of the date of the decision.
NYPPL
Sokol v Granville CSD, 260 AD2d 692
The fact that a contract grievance is pending will not always bar an individual from suing. Nor must a complaint by a teacher necessarily be considered by the Commissioner of Education before it is ripe for adjudication by the courts. These points are illustrated in the Sokol case.
The Granville Central School District appointed David Sokol as a “noninstructional substitute teaching assistant/monitor” effective October 6, 1997. In January 1998, the district discontinued Sokol’s employment. The district viewed him as a temporary employee hired as a true substitute, while Sokol claimed he had been appointed to a vacant tenured position, and that his dismissal violated his due process rights.
Sokol served a “notice of claim” on the district and initiated an Article 78 action seeking a court order annulling his termination and directing the district to appoint him as a probationary teaching assistant retroactive to October 6, 1997.
The district did not file an answer to Sokol’s petition. It instead moved to dismiss Sokol’s Article 78 action on the grounds that:
1. A grievance was pending when Sokol filed his Article 78 action. This was a step three grievance [of a four step grievance procedure] challenging the district’s appointment of substitute teaching assistants filed by the Granville Central School Support Staff Association; and
2. Sokol had failed to exhaust his administrative remedy because he had not appealed his claims to the Commissioner of Education pursuant to Education Law Section 310.
Although these arguments proved persuasive to a state Supreme Court judge, the Appellate Division reversed the lower court’s action, holding that the existence of a grievance alleging violations of the collective bargaining agreement did not constitute an absolute bar to Sokol’s filing an Article 78 action. Nor was Sokol required to file an appeal with the Commissioner of Education before proceeding with his action at law.
The key element to this conclusion was that there was nothing in the record to indicate that Sokol was participating in the grievance brought by the Association.
The court cited the grievance itself, which said that Sokol was not a member of the Teachers Association and that he had not participated in the filing of the grievance, requested that it be filed on his behalf or actively participated in its prosecution.” Nor was the Association representing his interests in filing the grievance.
The Appellate Division commented that Sokol made a persuasive argument “that even if the Association is ultimately successful, there is no guarantee that he personally would benefit from the victory.”
Sokol was not required to exhaust his administrative remedy by appealing to the Commissioner of Education pursuant to Education Law Section 310 because he had alleged violations of his statutory rights. This, the Appellate Division ruled, allowed him a “direct resort to the courts,” citing a number of cases including Cohn v Board of Educ. of Hammondsport Central School, 58 AD2d 977.
Sokol was asserting violations of the Education Law and corresponding regulations -- not provisions of the collective bargaining agreement -- as the basis for his Article 78 petition.
The Appellate Division said that “the grounds urged for relief” and remedies sought in each forum are separate and distinct.
Reversing the lower court’s dismissal of Sokol’s complaint, the district was directed to file an answer within 20 days of the date of the decision.
NYPPL
Reviewing body must have jurisdiction to consider disciplinary appeals
Reviewing body must have jurisdiction to consider disciplinary appeals
Montella v Bratton, Court of Appeals, 93 NY2d 424
Although Section 75 of the Civil Service Law sets out what is probably the best-known statutory procedure for initiating disciplinary action against employees in the classified service, other statutory procedures are available for this purpose.* The Montella decision by the Court of Appeals points out the fact that one must consider the basis for the underlying disciplinary action in order to determine the body having jurisdiction to consider appeals.
Peter Montella, a New York City police officer, was served disciplinary charges pursuant to Section 14-115 of New York City’s Administrative Code following his testing positive for drugs. Found guilty, Montella was dismissed from the force.
As a result of litigation challenging the disciplinary action, Montella obtained a second hearing, only to again be found guilty and dismissed. This time, however, Montella filed his appeal with the New York City Civil Service Commission rather than challenge the determination in court by filing an Article 78.
The Commission reversed Montella’s dismissal and ordered his reinstatement.
Although the department had participated in Montella’s appeal before the Commission, it subsequently refused to reinstate Montella and asked the Commission to “withdraw its determination because [the Commission] lacked subject matter jurisdiction to hear appeals from discipline imposed pursuant to the Administrative Code.”
The Commission rejected the department’s application, taking the position that “the Legislature intended Section 76 to provide alternative appeal routes for disciplined civil service employees, regardless of their position ... [and that] in the absence of explicit language precluding appeal by Police Officers” it had authority to review departmental discipline taken against officers pursuant to Section 14-115 of the City Code.
Montella sued to compel the department to comply with the Commission’s directive while the department filed a petition to have the Commission’s determination annulled on the ground that the Civil Service Commission lacked subject matter jurisdiction to entertain Montella’s appeal.
Did the Commission have jurisdiction to hear and decide appeals by uniformed police officers disciplined pursuant to section 14-115 of the Administrative Code of the City of New York?
The Court of Appeals ruled that because the Civil Service Law explicitly limits the Commission’s jurisdiction to appeals from discipline imposed pursuant to Civil Service Law Section 75, and because punishment imposed by the New York City Police Commissioner pursuant to Section 14-115 is not the same as disciplinary action pursuant to Section 75, the New York City Civil Service Commission did not have jurisdiction to hear Montella’s appeal.
The decision points out that “the Civil Service Law further evidences the Legislature’s intention that New York City police officers be disciplined pursuant to the Administrative Code,” rather than pursuant to Section 75 when it amended Section 75 by adding subdivision 3-a which provides that if “such officer is found guilty of the charges, the police commissioner of such department may punish the police officer pursuant to the provisions of sections 14-115 and 14-123 of the administrative code of the city of New York.” This, the Court of Appeals concluded, acknowledges that New York City police officers are disciplined pursuant to a statutory scheme separate and distinct from Civil Service Law Section 75.
Civil Service Law Section 76(4) provides that nothing “contained in Section 75 or 76 “shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division.”
The court concluded that the Commission was not authorized to hear Montella’s appeal and its determination was void.
* In some instances an alternative to Section 75 disciplinary action has been negotiated in accordance with Section 76 of the Civil Service Law. In such cases the “contract disciplinary procedure” will typically set out the appeal procedure to be followed.
NYPPL
Montella v Bratton, Court of Appeals, 93 NY2d 424
Although Section 75 of the Civil Service Law sets out what is probably the best-known statutory procedure for initiating disciplinary action against employees in the classified service, other statutory procedures are available for this purpose.* The Montella decision by the Court of Appeals points out the fact that one must consider the basis for the underlying disciplinary action in order to determine the body having jurisdiction to consider appeals.
Peter Montella, a New York City police officer, was served disciplinary charges pursuant to Section 14-115 of New York City’s Administrative Code following his testing positive for drugs. Found guilty, Montella was dismissed from the force.
As a result of litigation challenging the disciplinary action, Montella obtained a second hearing, only to again be found guilty and dismissed. This time, however, Montella filed his appeal with the New York City Civil Service Commission rather than challenge the determination in court by filing an Article 78.
The Commission reversed Montella’s dismissal and ordered his reinstatement.
Although the department had participated in Montella’s appeal before the Commission, it subsequently refused to reinstate Montella and asked the Commission to “withdraw its determination because [the Commission] lacked subject matter jurisdiction to hear appeals from discipline imposed pursuant to the Administrative Code.”
The Commission rejected the department’s application, taking the position that “the Legislature intended Section 76 to provide alternative appeal routes for disciplined civil service employees, regardless of their position ... [and that] in the absence of explicit language precluding appeal by Police Officers” it had authority to review departmental discipline taken against officers pursuant to Section 14-115 of the City Code.
Montella sued to compel the department to comply with the Commission’s directive while the department filed a petition to have the Commission’s determination annulled on the ground that the Civil Service Commission lacked subject matter jurisdiction to entertain Montella’s appeal.
Did the Commission have jurisdiction to hear and decide appeals by uniformed police officers disciplined pursuant to section 14-115 of the Administrative Code of the City of New York?
The Court of Appeals ruled that because the Civil Service Law explicitly limits the Commission’s jurisdiction to appeals from discipline imposed pursuant to Civil Service Law Section 75, and because punishment imposed by the New York City Police Commissioner pursuant to Section 14-115 is not the same as disciplinary action pursuant to Section 75, the New York City Civil Service Commission did not have jurisdiction to hear Montella’s appeal.
The decision points out that “the Civil Service Law further evidences the Legislature’s intention that New York City police officers be disciplined pursuant to the Administrative Code,” rather than pursuant to Section 75 when it amended Section 75 by adding subdivision 3-a which provides that if “such officer is found guilty of the charges, the police commissioner of such department may punish the police officer pursuant to the provisions of sections 14-115 and 14-123 of the administrative code of the city of New York.” This, the Court of Appeals concluded, acknowledges that New York City police officers are disciplined pursuant to a statutory scheme separate and distinct from Civil Service Law Section 75.
Civil Service Law Section 76(4) provides that nothing “contained in Section 75 or 76 “shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division.”
The court concluded that the Commission was not authorized to hear Montella’s appeal and its determination was void.
* In some instances an alternative to Section 75 disciplinary action has been negotiated in accordance with Section 76 of the Civil Service Law. In such cases the “contract disciplinary procedure” will typically set out the appeal procedure to be followed.
NYPPL
Timely filing of a grievance
Timely filing of a grievance
Hill v NYC Board of Ed., 258 AD2d 462
A collective bargaining agreement provided that an employee must file a grievance “within a reasonable period not to exceed 75 days following the action complained of.” The agreement also provided that an arbitration panel “shall be without power or authority to make any decision ... contrary to, or inconsistent with, or modifying or varying in any way, the terms of this agreement....”
Stanley W. Hill filed a grievance that involved various events, some of which were less than 75 days old and some of which were more than 75 days old. The arbitration panel assumed jurisdiction, ruling that the 75-day period of limitations ran from “when the grievant ‘discovered’ the infraction.” It then upheld Hill’s grievance.
The Board of Education filed an Article 75 petition [Article 75, Civil Practice Law and Rules] seeking to have the award vacated on the grounds that the arbitration panel “exceeded an express limitation of its powers.” This is one of the few grounds set out in Article 75 that would allow a court to vacate an arbitration award.
The Appellate Division sustained the board’s determination. However, the court noted that part of the award covered a portion of the grievance that was filed within the Statute of Limitations. It confirmed that portion of the award. However, the court vacated the rest -- all redress based on events occurring more than 75 days prior to his filing of his grievance.
NYPPL
Hill v NYC Board of Ed., 258 AD2d 462
A collective bargaining agreement provided that an employee must file a grievance “within a reasonable period not to exceed 75 days following the action complained of.” The agreement also provided that an arbitration panel “shall be without power or authority to make any decision ... contrary to, or inconsistent with, or modifying or varying in any way, the terms of this agreement....”
Stanley W. Hill filed a grievance that involved various events, some of which were less than 75 days old and some of which were more than 75 days old. The arbitration panel assumed jurisdiction, ruling that the 75-day period of limitations ran from “when the grievant ‘discovered’ the infraction.” It then upheld Hill’s grievance.
The Board of Education filed an Article 75 petition [Article 75, Civil Practice Law and Rules] seeking to have the award vacated on the grounds that the arbitration panel “exceeded an express limitation of its powers.” This is one of the few grounds set out in Article 75 that would allow a court to vacate an arbitration award.
The Appellate Division sustained the board’s determination. However, the court noted that part of the award covered a portion of the grievance that was filed within the Statute of Limitations. It confirmed that portion of the award. However, the court vacated the rest -- all redress based on events occurring more than 75 days prior to his filing of his grievance.
NYPPL
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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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