Added to NYPPL’s sidebar of Lawblogs

Added to NYPPL’s sidebar of Lawblogs

New York City Employment Lawyer has been added to NYPPL's listing of "Links to Other Useful Web Pages".

Focusing on “Employment Law for Attorneys, Employees, and the General Public” and authored by Josh Bernstein, Esq., the Internet address of this LawBlog is: http://jbernsteinpc.com/blog/

Mr. Bernstein's recent posts include the following:

Employee Tip of the Week: Take Your Personal Property With You

Toyota Whistleblower Slammed With $2.6 Million Dollar Arbitration Verdict For Disclosing Confidential Documents

Employee Tip of the Week: Be Direct, and Be Clear

Employee Tip of the Week: Make a Record

The New York City Human Rights Law’s Canon of Liberal Construction

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position
CSEA Orange County Local 836 v PERB, 273 A.D.2d 626

The Local 836 case concerns an employee organization’s right to negotiate the impact of a legislative body’s eliminating a certain position and the duties previously performed by incumbent of the abolished position are to be performed by an employee in another collective bargaining unit.

On December 31, 1994, the Newburgh City Council eliminated positions of animal control officer for budgetary reasons. These positions were in the negotiating unit represented by CSEA Orange County Local 836. The City reassigned the duties being performed by the former incumbents of the abolished positions to uniformed City police officers -- who were in a different collective bargaining unit.

Local 836 filed charges alleging that the City committed an improper employer practice when it assigned the duties previously performed by the animal control officers to non-unit police officers. Ultimately, PERB said that the transfer of the work from the animal control officers to police officers necessarily resulted in a significant change in qualifications and that the propriety of the transfer was therefore to be determined under the balancing test set out in its ruling in Matter of the Niagara Frontier Transportation Authority, 18 PERB 3083.

After applying the Niagara test, PERB held that when weighed against a mere loss of unit work, Newburgh’s managerial concerns clearly prevail and thus the transfer of duties was not a mandatory subject of collective bargaining. Accordingly, Newburgh was not required to negotiate its decision to transfer “unit work” and PERB dismissed the charge. The Appellate Division affirmed PERB’s determination.

The court said that because of the special employment qualifications required of, and possessed by, police officers and firefighters, the substitution of civilian employees for uniformed officers would of itself constitute a substantial change in job qualifications. It necessarily follows that the converse is true and that a substitution of police officers for civilian employees will also involve the requisite significant change.

The Appellate Division ruled that PERB rationally concluded that the transfer of job functions from civilian to uniformed employees effected a significant change in job qualifications without reference to the actual duties performed by the two classes of employees.

As to the balancing test applied by PERB, the court agreed with view expressed by PERB that because the animal control officer positions had been previously eliminated as the result of the City’s legislative action, the loss of those jobs was not a factor that entered into the test.

Accordingly, the loss of the jobs in the unit represented by Local 836 was not a consequence that flowed from the City’s reassignment of the non-emergency animal control duties to the police, it is the action that precipitated the assignment of unit work to non-unit employees.

The court’s conclusion: The loss of jobs under such circumstances cannot be a part of the balancing test to determine whether the City’ s action in transferring the unit work to nonunit employees violated the [Public Employees’ Fair Employment Act (Civil Service Law Article 14) because it did not occur as a result of the transfer of unit duties and thus the impact of this change was not a mandatory subject of collective bargaining.

What is the balancing test scenario used in situations involving the type unilateral transfer of unit work referred to in the Newburgh case?

First there must a determination as to whether the work been performed by unit employees exclusively and, second, a determination as to whether the reassigned tasks substantially similar to those previously performed by unit employees.

If the answer to both of these questions is yes, there has been a violation of Article 14 unless the qualifications for the job have been changed significantly.

If there is no such change in the qualifications for the position, the loss of unit work to the group is sufficient a detriment to support a finding of a violation.

If, however, there has been a significant change in the job qualifications and the change has not been mandated by the appropriate legislative body, then a balancing test is used and the respective interests of the public employer and the unit employees, both individually and collectively, must be weighed against each other.

Unemployment insurance and Section 75 disciplinary finding

Unemployment insurance and Section 75 disciplinary finding
Dimps v NYC Human Resources Administration, 274 A.D.2d 625

Dimps had been found guilty of 12 of 20 specifications of misconduct by an administrative law judge [ALJ] following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.

The ALJ recommended that Dimps be dismissed and HRA adopted the hearing officer’s findings and recommendation regarding the penalty to be imposed. The New York City Civil Service Commission affirmed HRA’s Section 75 determination and the penalty imposed.

Dimps then applied for unemployment insurance benefits, which were denied on the ground that her employment was terminated due to her misconduct. A hearing was scheduled and an Unemployment Insurance Administrative Law Judge allowed Dimps to explain nine of the specifications on which she was found guilty.

HRA objected, contending that the doctrine of collateral estoppel should apply to the findings of fact made at the disciplinary hearing with respect to Dimps’ appeal of her disqualification for unemployment benefits.

Ultimately the ALJ agreed with HRA’s argument and did not consider Dimps’ explanation in making his determination. The ALJ ruled that Dimps was ineligible for unemployment insurance benefits because she had been terminated for misconduct.

The Unemployment Insurance Appeals Board ruled that Shirley Dimps was disqualified for unemployment insurance benefits because she had been terminated for misconduct. Dimps appealed the Board’s decision to the Appellate Division.

Was the application of the doctrine of collateral estoppel appropriate in Dimps’ case before the Unemployment Insurance Appeals Board? The Appellate Division, Third Department, ruled that it was and dismissed Dimps’ appeal.

In the words of the Appellate Division:

... inasmuch as claimant was given a full and fair opportunity to litigate the issue of misconduct at the disciplinary hearing, the ALJ at the unemployment insurance hearing properly accorded collateral estoppel effect to the ensuing factual findings.

The court noted that at the disciplinary hearing, Dimps was represented by counsel, testified on her own behalf, cross-examined the employer’s witnesses and had the opportunity to present and examine relevant evidence.

As an alternative, Dimps argued that the Unemployment Insurance Board’s determination was not supported by substantial evidence. The Appellate Division said that it found to the contrary and that there was substantial evidence supporting the Board’s determination that Dimps committed disqualifying misconduct, i.e., she continuously refused to abide by reasonable directives of her supervisor....

All necessary parties -- i.e. parties that could be affected by the decision -- must be named in an appeal to the Commissioner of Education

All necessary parties -- i.e. parties that could be affected by the decision -- must be named in an appeal to the Commissioner of Education
Appeal of Robert W. Fife, Decisions of the Commissioner of Eduction 15,533

Robert W. Fife held a tenured appointment with the Delaware Valley Central School District. Fife’s tenure area: physical education and health. In 1999 Delaware merged with the Jeffersonville-Youngsville and Narrowsburg School Districts to form the Sullivan West Central School District.

As a result of the merger, a .5 full-time equivalent (“FTE”) position in the physical education tenure area and a .5 FTE position in the health tenure area were eliminated. Fife was told that as he was least senior person in those tenure areas, he would be terminated effective June 30, 2005, and that his name would be placed on a preferred eligible list.

Following this, Fife was appointed to a .4 FTE physical education position.

Fife challenged the district’s determination regarding his seniority, contending that while he mathematically devoted less than 40% of his total time providing health instruction during five of his ten years of employment, this was because he taught more classes than the number of periods that was usual and customary. He also claimed that the percentage of his time spent providing health instruction would increase if the time he spent teaching driver education were viewed as a co-curricular activity.

The Commissioner dismissed Fife’s appeal because of a procedural defect – Fife’s failure to “join” a necessary party in his appeal.* A necessary party is one whose rights would be adversely affected by a determination of an appeal in favor of an appellant and must be joined as such.

Fife argued that he had no way of knowing the party or parties who would be adversely affected by a decision in his favor. However, there was only one other teacher employed by the District who held tenure in the area of health. Since Fife’s request for reinstatement, if successful, could affect the employment status of that teacher, the Commissioner ruled that the other teacher should have been joined as a necessary party to Fife’s appeal.

Notwithstanding this technical defect, the Commissioner commented that Fife’s appeal would have been dismissed on the merits had it not been dismissed on procedural grounds.

The Commissioner explained that seniority means length of service in a designated tenure area, rather than length of service in the district. Further, such service need not have been consecutive but “shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.”

As used in Part 30 of the Commissioner’s regulations, the phrase “substantial portion” means 40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (8 NYCRR §30.1[g]).

As Fife conceded that he devoted less than 40 percent of his total time providing health instruction during five of his ten years of employment he did not meet this standard.

Further, said the Commissioner, although Fife contended that failed to meet the “40 percent” because he taught more classes than the number of periods that was usual and customary, he did not indicated any legal basis for earning seniority credit in health during the years in which health instruction did not constitute a substantial portion of his time.

As to Fife’s attempt to have his duties teaching driver education as an assigned period during his regular work schedule, the Commissioner ruled that this does not support his contention that this instruction should be viewed as a co-curricular activity.

The Commissioner said that the District’s determination the Fife had less seniority than the teacher it had retained was neither arbitrary nor capricious and dismissed Fife’s appeal.

* Joining a necessary party requires that the individual be clearly named as a respondent in the caption of the appeal and served with a copy of the notice of petition and the petition itself in order to inform the individual that he or she should respond to the petition and enter a defense.

One party to a collective bargaining agreement cannot compel arbitration of a dispute unless the agreement explicitly so provides

One party to a collective bargaining agreement cannot compel arbitration of a dispute unless the agreement explicitly so provides
Matter of Onondaga Community Coll. v Onondaga Community Coll. Fedn. of Teachers & Adm'rs Aft, Local 1845, 2010 NY Slip Op 09835, Appellate Division, Fourth Department

It is “black letter law” that "A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal' agreement to arbitrate."

Citing God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, the Appellate Division ruled that Supreme Court was correct when it granted Onondaga Community College’s Article 75 motion to stay the arbitration of a grievance filed by an employee whose employment was terminated during his probationary period.

Here, said the court, the employee, a software systems administrator, was terminated within three months after he was hired, “while he undisputedly was a probationary employee.” As the controlling collective bargaining agreement [CBA], explained the Appellate Division, “explicitly excludes the termination of employment of probationary administrators” from the grievance procedures set out in the CBA, including the right to arbitration, Supreme Court correctly granted the College’s motion to stay the arbitration.*

The Appellate Division rejected the Federations characterization of the grievance as “one challenging [the College’s] failure to evaluate the employee in question after nine months pursuant to Article IV of the CBA….”

In the words of the court, “The heart of this dispute is the termination of employment, and any failure by [Onondaga Community College] to comply with the evaluation procedures … is irrelevant in view of the CBA provision rendering arbitration unavailable to probationary administrators who are terminated.”

* The collective bargaining agreement provided that administrators "serving in a probationary period other than a probationary period attendant to and resulting from promotions shall not have [any] right, relief, or access to contest disciplinary action, including dismissal from employment, under the grievance procedure contained herein."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09835.htm