Authority of an arbitrator to modify the disciplinary penalty proposed by the employer

Authority of an arbitrator to modify the disciplinary penalty proposed by the employer

Matter of Communication Workers of Am., Local 1170 v Town of Greece, 2011 NY Slip Op 05308, Appellate Division, Fourth Department

The arbitrator sustained various disciplinary charges against a Town of Greece police sergeant and determined that "[t]he Town had just and sufficient cause to demote" the Sergeant. The arbitrator further determined, however, that a permanent demotion was unreasonable and arbitrary, and converted the proposed penalty to a demotion for a term of one year.

The CWA asked Supreme Court to confirm the arbitration award while the Town asked the court to vacate the award in part on the ground that the award exceeded the scope of the arbitrator's authority. 

Supreme Court sustained Greece’s motion to vacate the award and remanded the matter to the Town for its imposition of a new penalty.

In response to CWA’s appeal, the Appellate Division held that Supreme Court erred in vacating that part of the arbitration award reducing the penalty to a demotion for a term of one year and remitted the matter "to the Town for reconsideration of the penalty to be imposed upon" the Sergeant and confirmed the arbitration award.

The Appellate Division said that an arbitrator’s award may be vacated on the ground that an arbitrator exceeded his or her power "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."* 

The Court explained that “It is well established that "an arbitrator has broad discretion to determine a dispute and fix a remedy[] and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself'," citing Matter of State of New York [Dept. of Correctional Servs.] [Council 82, AFSCME], 176 AD2d 1009, lv denied 79 NY2d 756. Further, the Appellate Division pointed out that "To exclude a substantive issue from arbitration, therefore, generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator's reach."

Specifically the court decided that the underlying collective bargaining agreement [CBA] authorized the arbitrator to determine that the imposed punishment is "unreasonable, arbitrary or capricious" and if so found, the CBA specifically provides that, "where the penalty imposed is found to be unreasonable, arbitrary or capricious," the arbitrator may make a determination "with respect to the penalty imposed upon the grievant . . . ."

The Appellate Division pointed out that while the CBA does not explicitly authorize an arbitrator to substitute an appropriate penalty upon determining that the penalty imposed by the Town is unreasonable, arbitrary or capricious, there is likewise no such "specifically enumerated limitation on the arbitrator's power."

Accordingly, the court conclude that the arbitrator did not exceed his authority in modifying the grievant's penalty from a permanent demotion to a demotion for a term of one year.

* Courts have also vacated an arbitration award where it is determined that the award “violated strong public policy.” See Ford v CSEA, 94 AD2d 262, in which the court addresses the critical question of the power of an arbitrator to render a decision which impacts on or affects a public policy.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05308.htm

Protected speech in public employment

Protected speech in public employment

Green v Board of County Commissioners, USCA, 10th Circuit, Docket 05-6297

The general rule applied in cases where a public employee’s allegation that his or her right to free speech has been violated is that while an employee's freedom of speech regarding matters of “public concern” may not be restricted by a public employer, the employer may prohibit an employee from speaking “in an official capacity.” The Green case involved the analysis and application of this general rule.

Jennifer Green was employed at Canadian County, Oklahoma's Juvenile Justice Center as a drug-lab technician and detention officer. As part of her job, she performed drug-screening tests. She was concerned that some of the samples tested produced “false-positive” results. As the Center did not have a confirmation testing policy, she raised the issue of “false positive” test results with her immediate supervisor, William Alexander. Alexander was not responsive.

Without Alexander’s knowledge, Green contacted the manufacturer of the drug-testing equipment used at the Center and asked questions about confirmation testing. In addition, she spoke with representatives of the Department of Human Services about the need for a confirmation test. Ultimately, Green arranged for a caseworker to transport a sample that had tested positive for drugs to a hospital for confirmation testing. The confirmation test indicated that the Center's initial test of the sample produced a false-positive result. Green communicated this information to Mr. Alexander. Soon thereafter, the Center adopted a formal confirmation testing policy.

Green complained following this episode her employer treated her less fairly and she was subsequently dismissed from her position. She sued, contending that her employer’s actions violated the federal Civil Rights Act, 42 U.S.C. 1983 [Civil action for deprivation of rights], and state-law. A federal district court judge dismissed her petition and Green appealed to the Circuit Court of Appeals.

One element of Green’s complaint alleged that the County’s actions violated her Constitutional right to free speech.

Addressing the “free speech” aspect of her appeal, the Circuit Court concluded that Green’s First Amendment rights had not been violated because Green’s “free speech” allegations did not involve communicating with newspapers or her legislators or performing some similar activity.

Green disagreed with her supervisors' evaluation of the need for a formal testing policy and her unauthorized obtaining of the confirmation test to prove her point. However, the Circuit Court, citing Garcetti v. Ceballos, 126 S. Ct. 195 [at 1960], said that a government employee’s First Amendment rights do “not invest them with a right to perform their jobs however they see fit.” Accordingly, there is no “judicial oversight of communications between and among government employees and their superiors in the course of official business” and “displacement of managerial discretion by judicial supervision.”

Here, said the court, Green's communications with third parties about confirmation testing are the types of communications that would be attributable to the Center and thus the Center has an interest in controlling them. Accordingly, in the eyes of the Circuit Court, Green’s speech was not “protected speech.”

Sustaining the lower court’s dismissal of Green’s petition, the Circuit ruled that with respect to the unauthorized confirmation test arranged for by Green and her related communications to third parties, Green did not speak or act in her capacity as a citizen, but rather was acting as a government employee and thus did not exercise protected free speech.

Free speech issues raised by public employees have been considered by the U.S. Supreme Court in a number of instances. Essentially public officers and employees enjoy “protected speech” in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreement concerning internal operations of the department or agency which do not rise to the level of a “public interest,” are not protected by the Constitution.

Typically, the resolution of such “free speech” cases turns on the court’s view as to whether the employee’s comments address a matter of “public concern” or a matter of “personal interest.”

Equal pay for equal work and “red lined” positions

Equal pay for equal work and “red lined” positions

Fenton v St. Lawrence County, 36 AD3d 1102

Deanna Fenton and C. Kevin McDonough both served as personnel technicians with St. Lawrence County. Fenton’s annual salary, however, was significantly less than McDonough’s annual salary.

Fenton’s salary was based on a grade-step salary schedule contained in a Taylor Law contract while McDonough's salary reflected the salary he was receiving of his previous higher salaried position – Personnel Director – when he was “downgraded” to a lower grade position. When McDonough was downgraded, his salary was “red lined.”

In response to Fenton’s complaining about this salary discrepancy, her supervisors had a “desk audit” of her position performed. As a result, Fenton’s position was allocated to a higher salary grade but this did not resolve the underlying salary discrepancy between Fenton and McDonough.

Fenton filed a complaint with the Equal Employment Opportunity Commission [EEOC] alleging the difference between her salary and McDonough’s constituted a violation of the Equal Pay Act of 1963 (29 USC § 206 [d]. Fenton also complained that after filing her complaint with EEOC she had been subjected to retaliation.

Eventually EEOC issued a right to sue letter and Fenton brought and action in State Supreme Court seeking compensation for gender discrimination. Supreme Court issued an order summarily dismissing Fenton’s petition. The Appellate Division affirmed the lower court’s action.

The Appellate Division said that in order to maintain a cause of action under the Equal Pay Act, the plaintiff must “establish a prima facie case of wage discrimination by demonstrating that:

(1) The employer pays different wages to employees of the opposite sex:

(2) The employees perform equal work on jobs requiring equal skill, effort, and responsibility; [and]

(3) The jobs are performed under similar working conditions” citing, Aldrich v Randolph Cent. School Dist., 963 F.2d 520, 524, cert denied 506 US 965.

St. Lawrence County conceded that Fenton had established a prima facie case of unlawful discrimination, Accordingly, the burden of going forward shifted to it to demonstrate that the pay disparity was justified – i.e. the differences in the wages paid to Fenton and to McDonough was due to a factor “other than sex”

The County contended that it had met its burden by establishing that Fenton’s salary was lower than McDonough's because McDonough’s salary reflected the compensation he had been receiving in his former, higher grade position, and his salary rate had been “red lined” or “red circled” for legitimate business reasons.

The Appellate Division said that it agreed and dismissed Fenton’s appeal.

The court explained that:

“The term 'red circle' rate is used to describe certain unusual, higher than normal, wage rates which are maintained for reasons unrelated to sex” such as reclassification or reallocation of position as a result of reorganization or for other legitimate administrative purposes. Where a position is red circled for legitimate business reasons, it may result in the maintenance of an employee's salary at a higher rate despite a decrease in the employee's responsibilities or duties.” This constitutes a “factor other than sex” and thus qualifies as an affirmative defense under the Equal Pay Act.”

In this instance St. Lawrence County “red circled” an incumbent’s salary to avoid financially injuring the downgraded employee. The court noted that the County had red circled the salaries of both male and female employees affected by its reorganization.

This evidence established the requisite affirmative defense, shifting the burden to Fenton to raise a triable issue of fact regarding whether County’s' red circling of these position was a pretext for gender discrimination.

In the court’s view, Fenton “failed to meet” her burden of rebutting the County’s affirmative defense by proving that its reason was “mere pretext” for unlawful discrimination.

Administrative adjudications

Administrative adjudications

Brzostek v Syracuse Fire Dept., 238 AD2d 947; Leave to appeal denied, 92 NY2d 102

In the Brzostek case, the Appellate Division, Fourth Department, was asked to review an administrative adjudication. In an earlier appeal concerning the parties, the court ruled that Brzostek was entitled to a determination on the merits of his request for General Municipal Law Section 207-a (2) benefits [Brzostek v City of Syracuse, 238 AD2d 947; Leave to appeal denied, 92 NY2d 1026].*

Instead of holding a hearing, thereby creating “an administrative record for judicial review,” the City and Brzostek agreed upon a “set of stipulated facts” which were submitted to Supreme Court. Supreme Court then reviewed the matter “de novo.”

The Appellate Division ruled that such a procedure was incorrect. It said that an administrative determination must be made by the appropriate agency in the first instance, and Brzostek had the burden of proving that he was eligible for Section 207-a benefits.

The court said that the department had to determine the merits of Brzostek's application and remanded the matter to it for this purpose. Once the administrative agency makes its determination, if the individual objects, he or she may appeal the decision.

An administrative agency's administrative determination is subject to judicial review in a CPLR article 78 proceeding. The traditional test applied by the courts is such instances: is the administrative determination supported by substantial evidence in the record.

* General Municipal Law Section 207-a provides significant benefits to firefighters who are disabled as the result on an injury sustained in the line of duty.

Bill targeting pension abuse passed by State Legislature

Bill targeting pension abuse passed by State Legislature

The New York State Legislature passed legislation* on June 20, 2011 to enhance State Comptroller Thomas P. DiNapoli’s ability to catch those who abuse the state pension system.

The bill grants the Comptroller’s office access to State Department of Taxation and Finance's wage reporting system to identify New York State and Local Retirement System retirees working for local governments in order to determine if any exceed the retirement earnings limitation set out in the Retirement and Social Security Law. If a state or local government employee earns more than those limits, the Comptroller has the authority to suspend and recoup any excess payments made with respect to the pension portion of the individual’s retirement allowance.

The Retirement and Social Security Law (RSSL) places limits on the amount that may be earned by a retiree who returns to public employment with the State as an employer, or with a political subdivision of the State, without it affecting his or her retirement allowance.** Most retirees are covered by Section 212 of the RSSL, which allows retirees under age 65 to earn up to $30,000 per calendar year without any penalty with respect to the pension portion of his or her retirement allowance.

Currently, the Retirement System annually compares retiree information with payroll data for state employees.  However, no similar mechanism existed to check payroll information of the thousands of local public employers statewide.

* Assembly 7911; Senate 5460

** See §210 et. seq. of the Retirement and Social Security Law..