Removing a member of a school board

Removing a member of a school board

Matter of Lilker, CEd 14,588

Claiming that there were discrepancies between the published board minutes and audio recordings he made of the same board meeting, Stewart S. Lilker asked the Commissioner of Education to remove members of the Freeport Union Free School District Board of Education and the District Clerk from their respective positions.

As a starting point, the Commissioner noted that Lilker's appeal alleged violations of the Open Meetings Law [Public Officers Law Section 107]. Explaining that the State Supreme Court has “exclusive jurisdiction” over such complaints, the Commissioner said any alleged OML violations could not be adjudicated via an appeal pursuant to the Regulations of the Commissioner, 8 NYCRR 275.

However, said the Commissioner, even if he had jurisdiction, he would dismiss Lilker's appeal on the merits because Lilker “failed to establish facts sufficient to warrant the removal of respondents pursuant to the Education Law Section 306.”

A member of the board of education may be removed from office pursuant to Section 306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty within the meaning of the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education.

Lilker, said the Commissioner, failed to meet his burden of demonstrating that he had “a clear legal right to the relief requested” as well as his burden of demonstrating that board members and the district clerk engaged in willful or intentional misconduct warranting removal from office.

The Commissioner said that the alleged inaccuracies and discrepancies between the published minutes and Lilker's audio recordings are of an administrative nature and do not demonstrate any intentional misrepresentation or attempt to falsify board records.

Authority of the arbitrator to fashion a remedy affecting a party found to have violated the terms of the collective bargaining agreement

Authority of the arbitrator to fashion a remedy affecting a party found to have violated the terms of the collective bargaining agreement
Matter of Merrick Union Free School Dist. v Merrick Faculty Assn., Inc., 2011 NY Slip Op 06128, Appellate Division, Second Department

In this CPLR Article 75 action the Merrick Faculty Association, Inc. appealed an order of the Supreme Court, Nassau County that granted the school district’s petition seeking to vacate the arbitrator’s award and denied the Association’s cross motion to confirm the award. 

The Appellate Division modified the lower court’s order addressing the arbitrator’s award with respect to (1) providing health insurance to individuals in the negotiating unit whose spouses are afforded New York State Health Insurance Program [NYSHIP] coverage where those spouses are employed by a participating agency other than the Merrick Union Free School District, and (2) directed the parties to negotiate a remedy for affected bargaining unit members for the relevant period.

The collective bargaining agreement provided that the district “would provide employees with single or family health insurance coverage under NYSHIP except that the district would not provide NYSHIP dual family coverage to spouses of School District employees who were afforded NYSHIP coverage through the School District or another public employer. 

The New York State Department of Civil Service, which administers NYSHIP, subsequently issued a Policy Memo 133 indicating that participating employers could not enter into collective bargaining agreements that denied dependent health insurance coverage to an otherwise eligible employee based on the fact that the employee's spouse was eligible for NYSHIP coverage through a different employer. 

The Association filed a grievance based on the Memo seeking to obviate the provision in the collective bargaining agreement limiting dual family coverage and “that all employees affected by the Memo be offered the option to obtain NYSHIP dual family coverage or a buyout.”

The grievance was ultimately submitted to arbitration and the arbitrator sustained the grievance, invalidating the health insurance provisions in the CBA to the extent that they denied NYSHIP dual family coverage to employees whose spouses were afforded NYSHIP coverage through public employers other than the School District. 

The Appellate Division said that “An arbitration award may be vacated on one of three grounds: 1. that it violates a strong public policy; 2. is irrational; or 3. clearly exceeds a specifically enumerated limitation of the arbitrator's power.”

Noting that in determining whether an arbitration award should be vacated on the ground that the arbitrator clearly exceeded a specifically enumerated limitation of his or her authority, the court said "[i]t is not for the courts to interpret the substantive conditions of the contract or to determine the merits of the dispute." Rather, an award may be set aside upon this ground only where the arbitrator exceeded the express limitations of his or her powers, as set forth in the agreement itself.

In this instance the court found that the CBA provided that "[i]n the event any provision or provisions hereof are held to be unlawful, the remaining provisions of this [CBA] shall remain in effect and the parties thereto shall meet forth with [for] the purposes of modifying the same to conform with the law and/or negotiating provisions in lieu thereof." 

The Appellate Division ruled that Supreme Court erred in vacating the award on the ground that the arbitrator exceeded his authority in invalidating Article XI (D) of the CBA to the extent it violated Article II (B), explaining that “ Even if the arbitrator misconstrued or misapplied substantive rules of law, his determination did not exceed his authority and is not subject to judicial review.” 

As to the remedy directed by the arbitrator -- "grant health insurance or appropriate buyout compensation to bargaining unit members whose spouses are afforded coverage under the Empire Plan from a participating agency other than the Merrick Union Free School District" and directed the parties to negotiate, for the period from February 1, 2008, to April 30, 2009, a retroactive remedy to affected bargaining unit members”, the court concluded that this remedy was consistent with the broad power given to the arbitrator by the issues the parties agreed to submit to arbitration: (1) "[d]id the District violate Article II, Section B; Article XI, Section D and Article XXIII of the Collective Bargaining Agreement when it denied [NYSHIP] Health Insurance to bargaining unit members whose spouses are afforded [NYSHIP] coverage" and (2) "[I]f so, what shall be the remedy." 

However, said the court, while the parties' stipulation purported to grant the arbitrator unfettered authority to fashion a remedy, the arbitrator's remedial powers are specifically limited by Article XXIII of the CBA, which provides, "[i]n the event any provision or provisions hereof are held to be unlawful, the remaining provisions of this Agreement shall remain in effect and the parties thereto shall meet [forthwith for] the purposes of modifying the same to conform with the law and/or negotiating provisions in lieu thereof." 

The bottom line: the Appellate Division ruled that “The award was proper to the extent it directed the parties to negotiate a retroactive remedy for the period February 1, 2008, to April 1, 2009, as such relief is within the terms of Article XXIII of the CBA.” 

However, in contrast, the court said that the prospective relief in the arbitration award, which directed the district, as of May 1, 2009, to provide dual NYSHIP coverage or appropriate buyout compensation to bargaining unit members whose spouses are afforded NYSHIP coverage from a participating agency other than the School District, “exceeded the specifically enumerated limitation on the arbitrator's powers set forth in Article XXIII of the CBA,” concluding that Supreme Court properly vacated that portion of the award. 

The Appellate Division remitted the matter to the Supreme Court for an order directing the arbitrator to fashion a prospective remedy consistent with the determination in the arbitration award that (a) the Department of Civil Service’s Policy Memorandum 133 has the force and effect of law and (b) is in accordance with Article XXIII of the CBA.

Decisions concerning Article 75 motions seeking a stay of arbitration

Decisions concerning Article 75 motions seeking a stay of arbitration

Schenectady v Schenectady PBA, 285 AD2d 725

NYC Transit Authority v Amalgamated Transit Union Local 1056, 284 AD2d 466 

The PBA Case

The Schenectady Police Department unilaterally placed police officer Cheryl Flory on medical leave, effective April 10, 2000 to July 3, 2000, pursuant to the Family Medical Leave Act [FMLA].

Flory had been absent on unlimited paid sick leave for more than a year. Flory's union, the Schenectady PBA, grieved and demanded arbitration, contending that the department had violated the collective bargaining agreement. It alleged that the agreement provided “members with unlimited sick leave that guarantee that there will be no reduction in employee benefits or any unilateral changes in past practices.”

The department attempted to obtain a stay of arbitration on the ground that the grievance was not arbitrable because implementation of FMLA, a Federal statute, could not be considered a violation of the terms of the Agreement.*

A State Supreme Court justice denied the stay, finding that the grievance was arbitrable because it did not hinge on an interpretation of Federal law.

Instead, said the court, it simply raised the issue of whether the Agreement's provisions for employee leave time had been violated by department's unilateral imposition of one of the terms of the FMLA -- a mandatory minimum of a 12-week leave without pay -- on Flory's sick leave.

In considering the department's appeal of the denial of its petition for a stay of arbitration the Appellate Division said that, in general, grievances arising under public sector collective bargaining agreements are subject to arbitration where:

1. The Taylor Law authorizes arbitration of the dispute; and

2. The parties have agreed in their collective bargaining agreement to submit such disputes to arbitration.

The Appellate Division found that “[b]oth of these prerequisites for arbitrability are satisfied in the instant matter” since:

1. There is no dispute that the issue of employee leave time is a term or condition of employment; and

2. Although the parties did not agree to arbitrate matters pertaining to FMLA, the Agreement reflects that both parties did express their consent to arbitrate grievances regarding leave time, with “unresolved grievances * * * [to] be submitted to arbitration by either party”.

Accordingly, the court affirmed the Supreme Court's order denying the department's motion for a stay of arbitration.

FMLA entitles eligible employees to a total of 12 workweeks of leave without pay during any 12-month period for “qualifying” personal and family medical reasons. There is nothing in the FMLA barring an employer from deeming an employee to be on FMLA leave while simultaneously retaining the individual in sick leave at full pay status provided it advises the individual of this fact in writing. However, placing an individual on FMLA status does not automatically deprive the individual of other his or her rights under law, rule, or regulation or set out in a collective bargaining agreement.

The Local 1056 Case

The New York City Transit Authority [NYCTA] obtained a stay of arbitration from a State Supreme Court justice. Local 1056 appealed.

The case arose when the NYCTA received a notice from the New York State Department of Motor Vehicles [DMV] that the license of one of its bus drivers, Marvin Moses, would be suspended effective August 3, 1999, because he had allowed his automobile insurance to lapse. DMV subsequently confirmed that Moses's license had been suspended as of August 3, 1999.

Learning that Moses had continued to drive a bus during his suspension, NYCTA, citing Vehicle and Traffic Law Article 19-A, the NYCTA suspended Moses's employment for 64 days, a period equal to that during which he drove with a suspended license.

Local 1056, contending that the suspension of Moses's license was made in error, in that Moses had automobile insurance in effect during the entire period of the suspension, and that Moses was unaware of the suspension because the DMV failed to notify him, grieved the suspension.

NYCTA obtained a stay of arbitration of the denial of Moses's grievance on the theory that “the grievance was not arbitrable because it was merely performing its statutory obligation to enforce the Vehicle and Traffic Law, and that the performance of such a statutory duty was not subject to arbitration pursuant to the parties' arbitration agreement.”

The Appellate Division said that a court may stay arbitration on the ground that the particular claim sought to be arbitrated does not fall within the scope of the parties' arbitration agreement.

In making such a determination, the courts do not to engage in a penetrating analysis of the scope of the substantive provisions of a collective bargaining agreement but merely determine “whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [collective bargaining agreement].”

Here, said the Appellate Division, the arbitration provision is broad and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement.

The collective bargaining agreement bars the arbitrator from rendering a determination or opinion “limiting or interfering in any way with the statutory powers, duties, and responsibilities of the Authority in operating, controlling, and directing the maintenance and operation of the transit facilities, or with the Authority's managerial responsibility to run the transit lines safely, efficiently, and economically”.

However, “[c]ontrary to the contention of the NYCTA, whether the resolution of the grievance by the arbitrator would violate that prohibition is not a matter for the courts.” Rather, such an inquiry requires the type of exacting interpretation of the precise scope of the substantive provisions of the CBA that is for the arbitrator” to resolve.

Vacating the stay that the NYCTA had obtained from Supreme Court, the Appellate Division commented that fact that submitting the grievance to arbitration “may require the arbitrator to interpret or apply statutes such as Vehicle and Traffic Law Article 19-A does not compel a different result.”

* FMLA entitles eligible employees to a total of 12 workweeks of leave without pay during any 12-month period for “qualifying” personal and family medical reasons. There is nothing in the FMLA barring an employer from deeming an employee to be on FMLA leave while simultaneously retaining the individual in sick leave at full pay status provided it advises the individual of this fact in writing. However, placing an individual on FMLA status does not automatically deprive the individual of other his or her rights under law, rule, or regulation or set out in a collective bargaining agreement.

Unpaid student workers: are they volunteers or employees?

Unpaid student workers: are they volunteers or employees?

Onondaga-Cortland-Madison BOCES v McGowan, 285 AD2d 36

The Onondaga-Cortland-Madison County BOCES attempted to augment the workforce training programs available to public high school students by involving its construction technology students in the actual construction of an office building being built for the West Genesee Central School District.

Under the immediate supervision of their instructors, BOCES student workers erected exterior and interior walls, installed sheet rock and placed insulation. The commercial contractors, using skilled union workers, performed the majority of the construction work, including all plumbing, electrical, foundation, truss and roofing work.

Following a union officer's complaint, the State Labor Department held that the students could not be classified as volunteers in connection with the project and, therefore, they would be considered employees subject to the prevailing wage provisions of Labor Law Section 220.

The Department's conclusion: BOCES had failed to pay the participating students “prevailing wages and supplements.” The amount to be paid to the students was determined to be $44,012. BOCES appealed.

The Appellate Division said that the basic questions are whether the BOCES students should be considered employees of a contractor on the project. Its answer: the students should not be considered employees of the project's contractors for the following reasons:

1. Education Law Section 4606(6) provides that students participating in school-to-employment programs are not employees within the purview of the Labor Law.

2. There is a public policy to exempt unpaid student workers from classification as employees under circumstances where the primary purpose of the work is instructional training for future employment.

3. The BOCES students were not hired, were not paid or otherwise compensated for their work, did not work a regular workday, and performed no work without the direct and constant supervision of their instructors.

4. The students were assigned tasks in order to fulfill the requirements of their technology class and receive credit from their home school districts.

The Appellate Division then annulled the Labor Commissioner's determination.
 

New York State's Human Rights Law bars discrimination against heterosexual individuals

New York State's Human Rights Law bars discrimination against heterosexual individuals

Brennan v Metropolitan Opera Association, Inc, 284 AD2d 66

Martha Ellen Brennan claimed that “on the basis of her [heterosexual] sexual orientation, her former employer, the Metropolitan Opera Association (Met), her former supervisor at the Met, David Kneuss, and the Met's general manager, Joseph Volpe, refused to renew her contract and subjected her to a hostile work environment, in violation of New York City law.”

The essential elements of Brennan's multiple allegations: the Met refused to renew her employment contract and subjected her to a hostile work environment because of her age, her sex and her heterosexual orientation, thereby discriminating against her in violation of:

1. 42 USC 2000e-2[a][1], prohibiting discrimination “because of ... sex”;

2. 29 USC 623[a][1], prohibiting discrimination “because of ... age”;

3. New York's Executive Law Section 296[1][a], prohibiting discrimination “because of ... sex”; and

4. New York City's Administrative Code Section 8-107, prohibiting discrimination because of “actual or perceived ... sexual orientation”.

Following the dismissal of her federal age and sex discrimination claims by the U.S. Court of Appeals, Second Circuit, (Brennan v Metropolitan Opera Association, 192 F.3d 310), Brennan commenced an action in New York State Supreme Court action on her sexual orientation discrimination claims.

The Supreme Court justice, noting that this issue was one “of first impression,” ruled that Brennan “is protected, as a heterosexual female, under the New York City law against employment discrimination based on sexual orientation.” The court explained: The fact that discrimination against heterosexuals is not as pervasive as that found against homosexuals does not change the clear wording of the municipal law nor does it lessen the impact of such prejudices on the individuals involved.

After making this finding, the Supreme Court justice granted the Mets' motion for summary judgment on the grounds that Brennan failed to show that her sexual orientation created a hostile work environment or was the reason for non-renewal of her contract. The Appellate Division affirmed the lower court's determination.

The Appellate Division said that for Brennan to prevail on her claim of a hostile work environment she must show that she was subjected to harassment based on her sexual orientation and that the harassment was so severe or pervasive as to “alter the conditions of [her] employment and create an abusive working environment,” citing Meritor Savings Bank v Vinson, 477 US 57, 67.

The Appellate Division pointed out that “first and foremost is the evidence” and Brennan “simply did not adduce sufficient evidence to sustain her claim that [the Met] created an environment hostile to heterosexuals.”

Brennan's case involved the lack of evidence sufficient to state a prima facie case of discrimination.

In contrast, “unrebutted evidence” of the complainant's prima facie case precludes administrative dismissal of unlawful discrimination charges. In Sauer v NYS Division of Human Rights Appellate Division, 285 AD2d 372, the Appellate Division annulled the New York State's Divisions of Human Rights dismissal of Vincent A. Sauer's age discrimination complaint and remanded it to the Division for an administrative hearing.

The Appellate Division said that Sauer's allegations that he was not hired because of his age and that younger Pan American Airways mechanics with less seniority, whom he specifically identified, were hired by Delta Airlines in his stead, are unrebutted by any evidence in the record.

According to the ruling, “Delta's unsigned and unsworn position statement, submitted in an attempt to settle [Sauer's] complaint,” in which Delta said that Sauer was not hired because he lacked sufficient seniority to be considered, was inadequate for that purpose.