Assignment of personnel

Assignment of personnel

Westchester Co. v Westchester Co. Correction Officers Benev. Asso., Inc., 269 AD2 528

Sometimes an arbitrator will make an award that sets out terms and conditions with respect to the assignment of personnel. In deciding Westchester, the Appellate Division identified some of the limitations on the authority of an arbitrator to require such placements or assignments.

A hearing was held to determine if Westchester County correction officer Elsie Vallespi should be reinstated from disability leave. Vallespi had been placed on such leave pursuant to Section 207-c of the General Municipal Law.

Vallespi was placed on Section 207-c leave after she alleged that she suffered “psychological ramifications” as a result of a “verbal assault” by a supervisor. She returned to her job a few months later but on the day she returned she “had incidental contact with the same supervisor” and, as a result, again went out on an extended disability leave.

The arbitrator decided that Vallespi could now be reinstated “without restriction”, provided that “she is assigned to (1) the Women’s Unit for the 3-11 pm shift; (2) [the supervisor] is assigned to another shift or to a different unit; and (3) for the first 30 days of [Vallespi’s] return, [the supervisor] is not to be assigned on overtime more than once to the same shift and unit as [Vallespi]”.

The county objected and filed an Article 75 petition seeking to vacate the arbitration award. The Appellate Division affirmed a lower court’s order modifying the arbitration award by striking the assignment limitations directed by the arbitrator.

Agreeing with the Supreme Court, the Appellate Division said that “the arbitrator lacked the authority to direct how and when the County could assign its correction officer personnel.” Imposing such conditions, said the court, violated a strong public policy.

The court held that the terms and conditions set by the arbitrator “usurped the authority of the Westchester Department of Correction to determine where and when to assign its correction officer personnel.”

Considering the need to manage and control of the County’s prison population, “it would be imprudent to allow a third-party such as an arbitrator to determine the placement of correction officers....”

Clearly here the court was influenced by the special and unique duties of correction officers and the responsibility of the county to maintain security of its prison population. In another situation, such as directing the assignment or placement of individuals not having such security responsibilities, the courts probably would confirm an arbitration award providing for the particular assignment of an individual.

The courts may apply the rationale set out in Westchester in cases involving arbitration awards affecting the assignment of teachers and other public employees having specializes duties or for which special qualifications have been established.

.

Employment at will

Employment at will
DiLacio v New York City District Council of United Brotherhood of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department

In this action George DiLacio, Jr. sued the District Council in an effort to recover damages for alleged wrongful termination of employment and defamation.

The Appellate Division ruled that both complaints should have been dismissed.

With respect to DiLacio allegations concerning “wrongful termination,” the court pointed out that he had served as “an employee at will.” Citing Murphy v American Home Prods. Corp., 58 NY2d 293, the Appellate Division ruled that DiLacio’s allegation that the District Council had violated their duty to terminate his employment "only in good faith and with fair dealing" failed to state a recognized cause of action under New York law.

Under New York law, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."

Unless the individual has a statutory or contractual right to a pre-termination hearing he or she may be terminated at any time so long as the termination is not otherwise unlawful under State or federal law.

As to DiLacio’s defamation claim, the court said that although the termination letter containing the phrase "severe dereliction of duty," it had not been published to anyone other than DiLacio himself.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm

Contracting out a negotiating unit's work

Contracting out a negotiating unit's work
Vestal Employees Asso., NEA/NY v Vestal CSD, 94 N.Y.2d 409

Management may attempt to “contract out” work claiming that to do so is more efficient or less expensive or because the tasks are “too technical” for its employees to perform. Unions typically object to contracting out, contending that its unit members can perform the tasks as well or better than “outsiders” and that it is more economical to use unit members than to go outside the organization for this purpose.

Suppose a school district asks a BOCES to enter into a contract to perform services that the school district’s employees are current performing. Is such “contracting out” of services a mandatory subject of collective bargaining within the meaning of the Taylor Law? This was the critical question in the Vestal Employees Association case. The ruling sets out the tests that the Court of Appeals said should be used in deciding such issues.

Typically the contracting out of exclusive unit work is a mandatory subject of collective bargaining. Further, if the work to be contracted out is not “exclusive unit work,” the impact of such action of the collective bargaining unit may constitute a mandatory subject to negotiations under the Taylor Law.

In deciding the Vestal case, the Court of Appeals, following the rationale set out in its ruling in Webster Central School District v PERB, 75 NY2d 6, confirmed an exception this general rule -- where legislative scheme provides for such contracting out, as in the case of a school district-BOCES contract arrangement, the employer may unilaterally decide to “sub-contract” work to a BOCES.

In the Webster case the Court of Appeals held that Education Law Section 1950(4)(bb) allowed a school district to substitute BOCES summer school programs for its own summer school programs without first undertaking collective bargaining with its teachers’ unions.

In Vestal, the high court said that another provision set out in the same section, Section 1950(4)(d), allows a school district to contract with a BOCES to perform printing services then being performed by one of its own employees without first negotiating the change with the union.

The case began in September 1995, when the Vestal Central School District “contracted” for printing services with the Broome-Tioga BOCES. The decision indicates that the single Vestal district employee affected by the printing contract agreed to transfer to the BOCES and currently provides printing services for Vestal and a second school district.

The Vestal Employees Association filed an improper practice charge with the Public Employment Relations Board [PERB]. PERB’s Administrative Law Judge ruled that the district’s action constituted an improper practice and that it could not unilaterally subcontract out printing services performed exclusively by a bargaining unit employee (Matter of Vestal Employees Association, 30 PERB 4514).

On appeal, PERB reversed the ALJ’s ruling (Matter of Vestal Employees Association, 30 PERB 3029), holding that Section 1950(4)(d) allows unilateral changes of shared noninstructional services. PERB relied on the Commissioner of Education’s approval of the contract as evidence that “the printing services in issue in this case fall within the ‘other services’ authorized by the statute.”

Although a state supreme court justice sustained PERB’s ruling, the Appellate Division reversed, holding that “the broad scope of the Commissioner’s authority to approve cooperative services contracts could not overcome the Taylor Law’s mandate for public sector employment collective bargaining [Matter of Vestal Employees Association, 260 AD2d 699]. The Court of Appeals overturned the Appellate Division’s holding, reinstating PERB’s determination.

The high court said that the answer turned on whether or not printing falls within the scope of Section 1950(4)(d)(1). If it does, the statute must be examined to determine if there is any indication of a legislative intent that a school district’s decision to subcontract printing services was to be a mandatory subject of collective bargaining.

The Court of Appeals concluded that “[i]t is evident from the statute that the Legislature did not intend to limit the ‘available shared services’ to those enumerated in the statute” and delegated responsibility to the Commissioner of Education to identify the types of services that can be shared by school districts for the benefit of students. Accordingly, the statute does not limit contracts for “such other services as the commissioner may approve” to those that are “educational” or “nurturing” and therefore allows a school district to enter into a contract with a BOCES for such non-instructional services as printing.

In support of this view, the court noted that in 1996 the Legislature specifically limited the Commissioner’s discretion to approve school district/BOCES contracts in specified areas. Chapter 474 of the Laws of 1996 sets out the activities which “the commissioner shall not be authorized to approve as aidable shared services.”

Since printing does not fall within the list of prohibited “shared services,” and is a type of service that would promote the policy underlying the statute, the Court of Appeals concluded that “that printing falls within ... a service the Commissioner may approve to be offered on a cooperative basis by BOCES.”

The bottom line: the court decided that the statutory scheme embodies a legislative intent that a school district’s decision to subcontract printing services be exempt from collective bargaining.

This ruling has significant implications with respect to a school district’s plans to have a BOCES provide services that the district itself is then providing utilizing its own work force.

However, the court pointed out that Section 1950(4)(bb), which controlled in the Webster case, incorporated the job protection provisions. In contrast, the Court of Appeals noted that Section 1950(4)(d) “does not expressly refer to any job protection provisions for public employees whose jobs are transferred to a BOCES district as a result of a shared services contract.”

Here, however, the Vestal employee, an employee in the classified service, was “afforded certain protections upon the transfer of his functions as provided by Section 70.2 of the Civil Service Law. According, said the court, “[w]e need not explore the exact scope of the employee’s rights under Civil Service Law Section 70(2) because his Civil Service status has not been affected by the transfer and no allegation has been made to the contrary.”

This suggests that the courts might apply a stricter standard in situations where the contract has an adverse impact on the employment situations of the employees affected by the change.

A program takeover by BOCES pursuant to Education Law Section 3014-a involving classified service personnel is considered a transfer pursuant to Section 70 of the Civil Service Law. Accordingly, the Court of Appeals said that “the broad recognition that BOCES program takeovers are to be considered transfers under Section 70 implies that any action taken by BOCES pursuant to Section 1950 of the Education Law will not be subject to collective bargaining.” 

Filing of disciplinary charges against an employee must timely

Filing of disciplinary charges against an employee must timely

Transit Authority v Campbell, OATH Index No. 343/00

As a general rule, a statute of limitations continues to run with respect to the deadline for filing a timely action in the proper forum even if the complaint has been filed in a different, but incorrect, forum or notwithstanding the fact that another action is pending. This point was made clear to the Transit Authority when OATH Administrative Law Judge Ray Fleischhacker vacated Section 75 disciplinary charges it had filed against Colette Campbell as untimely.

In 1996 the New York City Transit Authority reassigned Campbell to a lower grade position. Campbell filed an Article 78 petition claiming the action constituted a disciplinary demotion, in violation of her Section 75 rights to due process. The court agreed, finding the Authority’s action constituted disciplinary action within the meaning of Civil Service Law Section 75.

It was conceded that on August 16, 1996, without a hearing, and as a result of the events which form the basis for the charges in this case, the Authority reassigned the respondent from a Level II supervisor to a Level I supervisor, with a significant cut in pay.

The Appellate Division rejected the Authority’s argument that “its action was a transfer permitted by Personnel Director rules without resort to a hearing” [Campbell v NYC Transit Authority, 253 AD2d 813], holding that Campbell was entitled to a Section 75 disciplinary hearing. The Court of Appeals denied the Authority’s petition to appeal on April 29, 1999 [93 N.Y.2d 805].

In July 1999 the Authority served Campbell with disciplinary charges setting out eight specifications of misconduct alleged to have occurred between May and August 1996. ALJ Fleischhacker, however, ruled that the agency’s delay in serving the charges until appeals related to the 1996 Article 78 action had been exhausted meant that they were filed too late.

Campbell contended that the statute of limitations in Section 75 began to run upon the commission of the alleged misconduct, was never tolled, and expired well before any charges were served. The Authority, on the other hand, argued that it was not until its effort to appeal the Appellate Division determination was denied by the Court of Appeals that it was obliged to serve charges.

Civil Service Law section 75(4) provides that “[n]otwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges . . ., provided, however, that such limitation shall not apply where the incompetency or misconduct complained of and described in the charges, would, if proved in a court of appropriate jurisdiction, constitute a crime.”*

Pointing out that all the Authority had to do “to toll the statute of limitations was to draft and serve the revised charges” in 1996, Judge Fleischhacker found that the Authority was time-barred from proceeding against Campbell.

Judge Fleischhacker said that a number of action could toll the running of the statute of limitations set out in Section 75, including:

1. An employee may be estopped to plead the Statute of Limitations where the employer was induced by fraud, misrepresentations or deception to refrain from filing a timely action;”

2. Where the misconduct constitutes “a continuing violation;” or

3. The parties can agree to extend limitations periods [but a court cannot, although a court order staying the disciplinary action tolls the running of the statute of limitations].

In contrast, the withdrawal of charges filed against an individual does not toll the statute of limitations insofar as “refilling such charges” at a later date is concerned.

* The statute of limitations for State employees designated “managerial or confidential” within the meaning of the Taylor Law is one year except where the charges, if proved in a court of appropriate jurisdiction, constitute a crime, in which case the one-year limitation would not apply.

Injury at the worksite

Injury at the worksite

Crockett v Safir, 269 AD2 227

Donna Crockett, a New York City police officer, was injured while on duty. She was “brushing her teeth in the ladies’ room of a police building.” A mirror dislodged and struck her.

Crockett’s asked that her injury be designated as “line-of-duty,” thereby entitling her reimbursement for her hospital bills. Her request was denied. The Commissioner ruled that Crockett was not “actually employed in discharging the orders of a superior officer at the time of the accident,” as required by the statute.

The Appellate Division affirmed the Commissioner’s decision, holding that his interpreting the statute to exclude personal hygiene not undertaken at the direction of a superior officer was not irrational. If, said the court, benefits were to be provided for any accidental injuries sustained while on duty by police officers, the Administrative Code would have so provided or at least used language similar to the “city-service” language used in Section 13-252 of the city’s Administrative Code concerning accident disability retirement.

.