A statutory general power of appointment implies a power to terminate the services of the appointee

A statutory general power of appointment implies a power to terminate the services of the appointee
Matter of City Council of City of Mount Vernon v Batra, 2011 NY Slip Op 02664, Appellate Division, Second Department

Ravi Batra, former counsel to the Office of the Mayor of the City of Mount Vernon, contended that he was unlawfully terminated from his position, arguing that his appointment pursuant to Section 66 of the Mount Vernon City Charter was irrevocable and not at the pleasure of the mayor.

The Appellate Division, sustaining Supreme Court’s dismissal of Barta’s petition, held that “Where, as here, the power of appointment is conferred in general terms and without restriction, the right to remove the appointee is within the discretion or at the pleasure of the appointing power.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02664.htm
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Arbitrating an alleged breach of a collective bargaining agreement

Arbitrating an alleged breach of a collective bargaining agreement

Albala v Nassau County, 270 AD2d 482

The Albala case illustrates the general rule that the employee organization, rather than an individual unit member, is the party that must prosecute any alleged violation of a collective bargaining agreement negotiated under the Taylor Law to arbitration.

The Appellate Division affirmed the dismissal of Albala’s petition, pointing out that a union member has no individual rights under a collective bargaining agreement, which he or she can enforce against his or her employer. In other words, the agreement is the property of the union.

Another factor mentioned in the court’s ruling: CSEA did not avail itself of the remedy provided by the collective bargaining agreement to press Albala’s complaint. This, said the Appellate Division, meant that the basic rule requiring that a party exhaust the administrative remedies otherwise available was not honored, thus precluding any judicial review of the matter.

The court also commented that determination of the Nassau County Office of Labor Relations was not arbitrary or capricious since it was rationally based on the facts before it.

One exception to the general rule that the union “owns the contract” for the purpose of enforcing the terms of the agreement: an individual may bring an action on his or her own behalf if he or she can demonstrate that the union had violated its duty of fair representation with respect to the rights of the unit member in the matter.

However, a claim that an employee organization violated its duty of fair representation cannot be argued in an Article 75 action to vacate the arbitration award.

Two rulings by state courts illustrate this point, Croman v City University of New York, 277 AD2d 185, and Parisi v NYC Housing Authority, Appellate Division, First Department, 269 AD2d 210.


Croman involved a disciplinary action. Croman, a member of the faculty at Borough of Manhattan Community College [BMCC], had been found guilty of taking a paid sabbatical leave of absence based on misrepresentations. The penalty imposed by the arbitrator: an unpaid suspension for one-half year, to reimburse the employer for the expenses it incurred during her sabbatical leave. BMCC had asked the arbitrator to terminate Croman.

Croman’s Article 75 petition asked the court to vacate the arbitration award because, among other things, her union representative did not fairly and adequately represent her in the disciplinary action. Justice York’s response:

Fair representation claims should be asserted in plenary [full and unlimited] actions in which the court is asked to determine [1] whether the union breached its duty was and [2] whether or not the collective bargaining agreement was violated.

Justice York’s conclusion: even assuming that Croman ha[s] a viable fair representation claim under New York State law ... a proceeding to vacate the arbitration award [is] not the proper forum for asserting it. Justice York cited Obot v NYS Department of Correctional Services, 89 NY2d 883 in support of his decision.

In sustaining Justice York’s determination, the Appellate Division said:

Absent clear language in Education Law §6212 (9) prohibiting arbitration of disciplinary matters involving tenured faculty, we reject petitioner's argument that, since that section vests the power to remove tenured faculty solely in respondent's Board of Trustees, public policy is violated by a collective bargaining agreement delegating the authority to discipline to an arbitrator at the employee's option. “It is well settled that a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees.” (Dye v New York City Tr. Auth., 88 AD2d 899, affd 57 NY2d 917.) Here, the collective bargaining agreement that governed petitioner's employment gave her the option to either accept the penalty recommended by respondent's designee or take the matter to arbitration. Petitioner elected arbitration. Public policy does not nullify the choice she made (cf., Matter of Abramovich v Board of Educ., 46 NY2d 450, cert denied 444 US 845).

In the Parisi case, the Appellate Division ruled that Katherine Parisi, a former employee of the New York City Housing Authority had no right to sue the Authority under the collective bargaining agreement.

Here, said the court, her remedies for challenging alleged breaches of the agreement were limited to filing a complaint under the grievance procedure set forth in the contract.

 Parisi had claimed that she was entitled to certain payments under the terms of the agreement. The court said that Parisi did not gain a right to sue by reason of her union’s refusal to take up her grievance, unless such refusal amounted to a breach by the union of its duty of fair representation. Dismissing Parisi’s petition, the court said that she had not shown that the union had breach this duty.

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Liquidation of sick leave benefits upon retirement

Liquidation of sick leave benefits upon retirement

O’Brien v Deer Park UFSD, 127 F. Supp.2d 342

Federal District Court Judge Denis R. Hurley ruled that paying teachers who retire after age 55 less for their unused sick leave than that paid to teachers who retire before attaining age 56 as provided by the terms of an agreement negotiated pursuant to the Taylor Law violated the federal Age Discrimination in Employment Act [ADEA] and the Older Workers’ Benefit Protection Act [OWBPA].

The collective bargaining agreement provided that teachers who retired during the first year after reaching age 55 would be paid in full for all of their accumulated sick leave; those who retired later, i.e. at age 56 or older, would per paid a decreasing percentage of the full value of their sick leave credits.

The court said that under ADEA and Older Workers Benefit Protection Act, employment benefits must be equally available regardless of age.

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A party seeking a writ of prohibition barring a judicial or quasi-judicial tribunal from acting on a matter before it has the burden of persuasion

A party seeking a writ of prohibition barring a judicial or quasi-judicial tribunal from acting on a matter before it has the burden of persuasion
Matter of North Syracuse Cent. School Dist. v New York State Div. of Human Rights, 2011 NY Slip Op 02604, Appellate Division, Fourth Department

The significant issue in this action: Should Supreme Court have granted North Syracuse Central School District’s petition seeking a “writ of prohibition” barring the New York State Division of Human Rights from taking further action on a complaint alleging unlawful discrimination filed with it.*

The Appellate Division decided that Supreme Court should not have issued such a writ, explaining that "[t]he Court of Appeals has held that a writ of prohibition is not an appropriate vehicle to be used to bar [respondent] from conducting an investigation because the [r]emedy for asserted error of law in the exercise of [respondent's] jurisdiction or authority lies first in administrative review' " [Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789].

As the Division "has jurisdiction to investigate complaints of discrimination and any error of law in the exercise of that jurisdiction must first be challenged by administrative review before judicial review pursuant to §298 of the Executive Law is available . . . The extraordinary writ of prohibition does not lie to challenge [respondent's] initial acceptance of jurisdiction over a complaint of discrimination.”

Finding that North Syracuse had not established the "futility of the administrative remedy; irreparable harm in the absence of prompt judicial intervention; or a claim of unconstitutional action," the Appellate Division ruled that Supreme Court “erred in prohibiting [the Division] from taking further action on the complaint.

* The writ of prohibition is one of number of the ancient “common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."  Other such ancients writs include a writ a writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send it record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.


The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02604.htm
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A party seeking a writ of prohibition barring a judicial or quasi-judicial tribunal from acting on a matter before it has the burden of persuasion

A party seeking a writ of prohibition barring a judicial or quasi-judicial tribunal from acting on a matter before it has the burden of persuasion
Matter of North Syracuse Cent. School Dist. v New York State Div. of Human Rights, 2011 NY Slip Op 02604, Appellate Division, Fourth Department

The significant issue in this action: Should Supreme Court have granted North Syracuse Central School District’s petition seeking a “writ of prohibition” barring the New York State Division of Human Rights from taking further action on a complaint alleging unlawful discrimination filed with it.*

The Appellate Division decided that Supreme Court should not have issued such a writ, explaining that "[t]he Court of Appeals has held that a writ of prohibition is not an appropriate vehicle to be used to bar [respondent] from conducting an investigation because the [r]emedy for asserted error of law in the exercise of [respondent's] jurisdiction or authority lies first in administrative review' " [Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789].

As the Division "has jurisdiction to investigate complaints of discrimination and any error of law in the exercise of that jurisdiction must first be challenged by administrative review before judicial review pursuant to §298 of the Executive Law is available . . . The extraordinary writ of prohibition does not lie to challenge [respondent's] initial acceptance of jurisdiction over a complaint of discrimination.”

Finding that North Syracuse had not established the "futility of the administrative remedy; irreparable harm in the absence of prompt judicial intervention; or a claim of unconstitutional action," the Appellate Division ruled that Supreme Court “erred in prohibiting [the Division] from taking further action on the complaint.

* The writ of prohibition is one of number of the ancient “common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."  Other such ancients writs include a writ a writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.


The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02604.htm
.