Availability of direct action in the event the employee organizations refuses to process unit member’s grievance to arbitration

Availability of direct action in the event the employee organizations refuses to process unit member’s grievance to arbitration
Burning v Niagara Frontier Transit Metro System and Local 1342, 273 AD2d 830, Motion for leave to appeal denied, 95 NY2d 765

Few collective bargaining agreements allow a unit member to file a demand to arbitrate a grievance. In the absence of such authority, the general rule is that only the employee organization can demand that a grievance be submitted to arbitration.

Suppose the employee organization decides not to appeal a disciplinary or other grievance to arbitration. What, if any, action -- usually referred to as direct action -- can the unit member take in an attempt to challenge or go around the union’s decision?

The Burning case considers the major exception to the general rule barring direct action by a unit member -- the unit member may initiate direct action against the employer if he or she can establish that he or she was denied fair representation by employee organization.

Kenneth L. Burning was terminated from his position with the Niagara Frontier Transportation Authority.

Burning sued in an effort to overturn his dismissal, contending that his union, Local 1342, Amalgamated Transit Union, breached its duty of fair representation when it decided not to demand arbitration challenging his termination by the Authority.

The Appellate Division, however, noted that the mere failure of a union to proceed to arbitration does not establish a breach of the duty of fair representation.

If an employee organization declines to arbitrate a grievance over the objections of its member the individual may take direct action only if he or she can demonstrate that the Union’s conduct was arbitrary, discriminatory or in bad faith.

As Burning did not show that the union’s decision was arbitrary, discriminatory or made in bad faith, the Fourth Department ruled that Supreme Court properly dismissed Burning’s petition challenging his dismissal.

Disciplinary penalty ruled too severe remanded to appointing authority for imposition of a lesser penalty

Disciplinary penalty ruled too severe remanded to appointing authority for imposition of a lesser penalty
Rapkiewicz v Middle Country School District; 273 AD2d 392, Motion for leave to appeal denied, 95 NY2d 765
Tiano v Middle Country School District, App. Div., Second Dept., 273 AD2d 396, Motion for leave to appeal denied, 95 NY2d 766

The Pell doctrine, typically used to test the reasonableness of a disciplinary penalty, basically states that a disciplinary penalty imposed by a public employer will be sustained unless it is found to be disproportionate to the offense [Pell v Board of Education, 34 NY2d, 222].

In the Rapkiewicz and Tiano appeals, the application of the Pell doctrine resulted in the Appellate Division remanding both cases to the Middle Country School District for the imposition of a less severe penalty. The penalty that had been earlier imposed by the district: dismissal.

In 1998 Adam Rapkiewicz and Frank Tiano, then employed as custodians by the district, were found guilty of disciplinary charges that the court described as misconduct, while serious, was an isolated event.... The Appellate Division concluded that mitigating circumstances required it to vacate their respective terminations.

The mitigating factors: Rapkiewicz had received outstanding ratings during his seven years of service with the district, while Tiano had over 10 years of satisfactory service with the district -- and both were found guilty of an isolated event of misconduct.

Although the court held that the findings that both were guilty of misconduct was supported by substantial evidence in the record, it ruled that under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one’s sense of fairness.

However, the Appellate Division only annulled the penalty imposed by the district and directed it to impose a less harsh penalty -- its order provided no other relief such as the awarding of back pay and benefits.

Typically, back pay and benefits are awarded when the court finds that the underlying disciplinary action was in some way defective such as the hearing officer lacking jurisdiction or a failure of administrative due process.

Here, however, the decision indicates that the disciplinary procedure was conducted properly; the only objection voiced by the court was the severity of the penalty imposed.

The fact that Appellate Division decided against directing the district to reinstate Rapkiewicz and Tiano to their former positions suggests that the court would not require the district to provide for an award of back salary in fashioning a penalty less severe than termination.

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Statute of limitations to serve Civil Service Law Section 75 disciplinary charges extended where charges would constitute a crime

Statute of limitations to serve Civil Service Law Section 75 disciplinary charges extended where charges would constitute a crime
Mieles v Safir, 272 AD2d 199

The Mieles case provides an example of the application of the exception to statute of limitations set out in Section 75.4 of the Civil Service Law. Section 75.4 provides that the relevant statute of limitations for bringing disciplinary action does not apply where the incompetency or misconduct alleged would, if proved in a court of appropriate jurisdiction, constitute a crime.

Manuel Mieles, a New York City police officer, was dismissed from his position after being found guilty of having used false pretenses to trick the owner of a broken-down vehicle into giving him the title to the vehicle. Mieles then moved the vehicle from the street and sold it to a salvage company.

The department charge Mieles with unauthorized exercise of his official functions, in violation of Section 104-01, page 3, paragraph 4 of the Police Department Patrol Guide’s prohibition against conduct prejudicial to good order, efficiency or discipline of the department.

Mieles appealed his termination. One of the grounds he contended supported vacating the disciplinary action was that the charges filed against him were untimely as they were barred by the 18-month Statute of Limitations in Civil Service Law Section 75(4). The Appellate Division, First Department dismissed Mieles’ appeal.

The court said that [t]here is no merit to [Mieles’] argument that the charges filed against him were barred by Section 75.4’s 18-month Statute of Limitations. As the court explained, “the misconduct charged also constituted the crime of official misconduct under Section 195.00[1] of the Penal Law. Accordingly, Mieles was charged with, and found guilty of, acts of misconduct that were expressly excluded from the time bar of Section 75(4)....”

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If the WCB determines the individual involuntarily withdraw from the workforce, it cannot require a claimant to seek work within medical limitations

If the WCB determines the individual involuntarily withdraw from the workforce, it cannot require a claimant to seek work within medical limitations
Matter of Funke v Eastern Suffolk BOCES, 2011 NY Slip Op 00144, Appellate Division, Third Department

Sandra R. Funke, a former teacher's assistant for special needs students, sustained a work-related injury to her neck, back and shoulder. She was awarded workers' compensation benefits and returned to work. Subsequently she amended her claim to include consequential posttraumatic stress disorder and was awarded appropriate benefits.

She retired March 2009, but continued to work sporadically for the employer as a substitute teacher's assistant. The Workers' Compensation Board ultimately denied her application for postretirement benefits. While the Board said that Funke’s retirement was involuntary — that is, causally related to her disability — it then concluded that her subsequent loss of earnings was due to unrelated factors not caused by her disability.

The Appellate Division disagreed with the Board’s action.

First the court said that it has "long held that a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."

As the Board credited Funke’s testimony that she retired due to pain caused by her disability, that testimony provides substantial evidence to support the Board's initial finding that "claimant's retirement was causally related as she was not able to continue working in the same capacity for the employer" — i.e., that her retirement was involuntary.”

That being the case, said the Appellate Division, "an inference arises that . . . earning capacity is reduced by the disability and claimant is [therefore] entitled to compensation until the inference is removed from the case." Further, noted the court, once "the withdrawal [is] found to be involuntary, . . . it become[s] inherently inconsistent to hold that a claimant is obligated to search for work within medical limitations."

However, notes the decision, the failure to seek additional work does not defeat the inference that arises upon a finding of involuntary retirement or constitute proof that something other than the disability is the cause of a claimant's reduced earnings, referring to Burns v Town of Colonie, 66 AD3d at 1070, among other decisions.

Reversing the Board’s ruling, the Appellate Division remitted the matter to the Workers’ Compensation Board “for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00144.htm

Dismissal for excessive absence found an appropriate disciplinary penalty

Dismissal for excessive absence found an appropriate disciplinary penalty
McKinnon v North Bellmore UFSD, 273 AD2d 240

According the Appellate Division, Second Department, dismissing an employee who is guilty of excessive absence is consistent with the Pell standard (Pell v Board of Education, 34 NY2d 222).

The North Bellmore Union Free School district dismissed Hugh McKinnon, a teacher, after he had been found guilty of charges of (1) failing to comply with the district has established call-in procedure to report his absences and (2) incompetence based on his excessive absences.

Finding that there was substantial evidence in the record to support the findings that McKinnon was guilty of the charges filed against him, the court said that it did not find that imposing a penalty of dismissal so disproportionate to McKinnon’s misconduct as to be shocking to one’s sense of fairness and dismissed his appeal.

Significantly, the court held that the charge of incompetence based on McKinnon’s excessive absences was supported by substantial evidence in the record notwithstanding the fact that the validity of the reasons for his absences was not contested by the district.

Apparently the court decided that the district’s failure to challenge the reasons tendered by McKinnon to excuse his excessive absences did not have any adverse impact on the probative value of such evidence for the purposes of finding him guilty of such charges nor did this form any basis for mitigating the penalty imposed by the district.

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

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