Jurisdiction to resolve an impasse in collective bargaining under the Taylor Law

Jurisdiction to resolve an impasse in collective bargaining under the Taylor Law

Police Benevolent Association v City of New York, 285 A.D.2d 52

In a unanimous ruling, the Appellate Division, Third Department, held that the New York State Public Employment Relations Board [PERB] has exclusive jurisdiction insofar as resolving Taylor Law impasse situations are concerned.

The New York City Police Benevolent Association [PBA] had objected to the New York City Office of Collective Bargaining [OCB] assuming jurisdiction to resolve an impasse in collective bargaining, contending that the Taylor Law, as amended by Chapter 641 of the Laws of 1998 gave the State's PERB exclusive jurisdiction in such cases.

The Taylor Law permits a political subdivision of the State to set up a “mini-PERB” to oversee Taylor Law matters and the City's OCB was established for this purpose. Chapter 641, however, gave PERB exclusive “impasse jurisdiction” with respect to all fire and police departments across the State. The City's attempt to have the courts declare Chapter 641 inconsistent with “home rule” has thus far proved unsuccessful.

The court's rationale: “Chapter 641 does not violate the home rule provision of the State Constitution” since it creates a law of general applicability serving a “substantial state concern” rather than constituting a “special law.” Section 212.3 provides as follows: Notwithstanding any other provision of law to the contrary, the resolution of disputes in the course of collective negotiations as provided by section two hundred nine of this article shall apply to any organized fire department, police force, or police department of any government subject to either subdivision one or two of this section.

Section 212.3, however, permits a recognized or certified employee organization representing law enforcement personnel or firefighters to “opt out” by electing “to continue dispute resolution procedures which existed on the day prior to the effective date of this subdivision” by notifying the appropriate mini-PERB* of this decision in writing.” The PBA did not elect to “opt out.”

The Appellate Division explained that in 1974 the Legislature amended Section 209 of the Civil Service Law to provide for binding impasse arbitration by PERB, but since OCB's procedures already provided for binding arbitration when an impasse was reached between the City and any of its public employee organizations, the City was specifically exempted from this requirement.

Although in 1996 the Legislature attempted to transfer jurisdiction to resolve impasses between the City and the PBA to PERB [Chapter 13, Law of 1996], the courts held that its action violated the “home rule” provision set out in the State Constitution. The Legislature's response to this ruling was to enact Chapter 641.

Observing that “[a]ll parties acknowledge that if Chapter 641 is constitutional, PERB has exclusive jurisdiction over impasse and negotiation issues and [OCB] has jurisdiction only over improper practice disputes under Civil Service Law Section 205(5)(d) and Section 209-a...,” the Appellate Division affirmed the Supreme Court's hold that Chapter 641 was constitutional.

* At one time there were 35 mini-PERBs; only four remain: New York City's Office of Collective Bargaining, and mini-PERBs for the Town of Hempstead; Suffolk County and Westchester County.

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Including the names of all “necessary parties” in an action is critical

Including the names of all “necessary parties” in an action is critical

Matter of Wheeler, CEd Decision 14,581

This ruling by the Commissioner of Education demonstrates the importance of naming all of the necessary parties in a proceeding before the Commissioner.

An elementary school principal announced that she was going to retire. Adirondack Central School Superintendent Marjorie Kelly transferred the principal then serving at another elementary school, Forestport, to fill the resulting vacancy. Kelly next appointed Ann Bush, a speech teacher, as principal at Forestport. Bush was simultaneously assigned to be the speech teacher, part-time, at Forestport.

Richard Wheeler, President of the Adirondack Central School Administrators' Association, objected to Bush's appointment as a principal with part-time teaching responsibilities rather than as a full-time principal. Wheeler's argument: the district created a new position of “Teaching Principal” at Forestport when it appointed Bush, thereby violating Section 100.2(a) of the Commissioner's regulations [8 NYCRR 100.2(a)].*

The Commissioner said he had to dismiss the appeal because Wheeler failed “to join a necessary party” -- Ann Bush. The Commissioner pointed out that a party whose rights would be adversely affected if the appeal was sustained must be clearly named as a respondent in the caption of the petition and “served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense.”

Significantly, the Commissioner rejected the Association's contention that Bush was a party to the appeal because she was a member of the Association.

Were Wheeler to prevail in his appeal, said the Commissioner, Bush's employment as principal at Forestport would “clearly be affected.” Thus Bush is a necessary party to the proceeding and the failure to name her constituted a fatal procedural error.

* 4 NYCRR 100.2 “requires a board of education to employ and assign a full-time principal to each school under its supervision” unless the Commissioner approves a “variance.” 

Involuntary testing for drugs

Involuntary testing for drugs

DiCicco v Wyandanch Volunteer Fire Dept., 284 A.D.2d 459

The Appellate Division, 2nd Department, upheld the Wyandanch Volunteer Fire Department's [WVF] terminating Thomas DiCicco from membership in the Department because he refused to submit to a drug test within 24 hours of his being notified to undergo such a test pursuant to the WVF's random drug-testing policy.

Applying the Pell doctrine [Pell v Board of Education, 34 NY2d 222], the court said the penalty of dismissal is not so disproportionate to the offense as to be shocking to one's sense of fairness.

The Appellate Division also noted that DiCicco was told that he could reapply for membership in WVF in the future.

Concerning an individual's standing to challenge an appointment to a position in the public service in instances where the individual "is not personally aggrieved"

Concerning an individual's standing to challenge an appointment to a position in the public service in instances where the individual "is not personally aggrieved"

Matter of Seidel v Prendergast, 2011 NY Slip Op 06132, Appellate Division, Second Department

Michael Seidel and others [Seidel] joined in filing a petition pursuant of Article 78 of the Civil Practice Law and Rules challenging the action of the Town Board of the Town of Orangetown appointing Kevin Nulty to the position of the town's Chief of Police. Supreme Court of Orangetown, Rockland County, dismissed the petition on the grounds that Seidel “lacked standing” to pursue the action. Seidel appealed.

Essentially Seidel contended that Nulty’s appointment was unlawful because no competitive examination had been held for appointment to the position of Chief of Police.

The Appellate Division sustained the lower court’s dismissal of Seidel’s petition, explaining that “In general, persons seeking to challenge governmental actions must demonstrate that they are personally aggrieved by those actions in a manner ‘different in kind and degree from the community generally,'"

In this instance Seidel and his co-petitioners made no attempt to demonstrate they was aggrieved by Nulty’s appointment. Rather, said the Appellate Divisiont, they claim that they "have standing to challenge unlawful and unconstitutional civil service appointments regardless of whether they are personally aggrieved."

The Appellate Division rejected this theory, holding that while the doctrine of common-law taxpayer standing would excuse such lack of personal aggrievement, that doctrine requires the petitioner to establish that "the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action."

As Seidel failed to demonstrate that there was an "impenetrable barrier" to judicial scrutiny of the administrative determination resulting in the appointment of Nulty as the Town's Chief of Police, the Appellate Division concluded that the “Supreme Court properly granted the motions to dismiss the petition on the ground that the petitioners lacked standing.”

Out-of-title work

Out-of-title work

Haubert v GOER, 284 A.D.2d 879

In the Haubert case the Appellate Division, Third Department considered the issue of whether or not the assignment of certain additional duties to an individual, or specific changes in an employee's existing duties, constitutes “out-of-title” work. As the decision demonstrates, it all depends on the nature of the changes and the nature of the positions involved.

Section 61.2 of the Civil Service Law prohibits “out-of-title work.” In addition, no credit is given for out-of-title work in order to qualify for a promotion examination.

Ruth A. Haubert appealed the Governor's Office of Employee Relations' [GOER] denial of her out-of-title work grievance. The grievance arose after the State Department of Health changed its procedures with respect to surveying long-term health care facilities to ensure their compliance with State and federal laws and rules.

Initially the surveys were conducted by teams under the supervision of a Consultant Nurse, grade 24. In late 1996 Health revised its procedure and required various employees in grade 19, 20 or 22 specialized clinician positions to serve as the “team facilitator” on a rotating basis in addition to the designated “facilitator” remaining responsible for his or her primary tasks as a team member.

Claiming that the new role of team facilitator required them to perform out-of-title work, Haubert and other employees filed an “out-of-title” work grievance. The grievance was rejected at all steps and an appeal was filed in Supreme Court. Ultimately, the Appellate Division affirmed the Supreme Court's dismissal of Haubert's petition.

The Appellate Division said that not all additional duties assigned to an incumbent constitute out-of-title work. The question is whether the new duties are appropriate to the employee's titles and, or, are they similar in nature to, or a reasonable outgrowth of, the duties listed in the employee's job specifications.

In this instance, the court decided that based upon “the team concept of the survey work, which required coordination and cooperation among all team members, and the high level of expertise required of petitioners in order to qualify for their titles,” GOER rationally concluded that the obligation of a team facilitator to monitor the team's progress to ensure that the team accomplished its mission in a timely fashion “is appropriate to petitioners' titles and, or, constitutes a logical extension of their duties.”