Union's duty of fair representation

Union's duty of fair representation

Matter of Robert Hickey, 34 PERB 4530

Hempstead school teacher Robert Hickey alleged that the Hempstead School Administrators Association violated its duty of fair representation when if failed to press the school district to pay him at the same rate of compensation for extra-curricular activities as the district paid to its other administrators for similar work. Hickey said he was paid about $33 per hour for his work while the others were paid $65 per hour.

According to Hickey, although he was advised that “the District refused to budge during negotiations with respect to his compensation ... he was not sure how serious an attempt was made by the Association to increase his compensation to the level of other administrators.”

PERB's Administrative Law Judge Elena Cacavas said that “absent bad faith, the duty of fair representation does not preclude an employee organization from reaching agreements that are more favorable to some unit employees than to others.”

Finding that Hickey failed to show that the Association “acted irresponsibly, grossly negligently or with improper motive,” Cacavas dismissed his charge in its entirety.

Establishing a right to General Municipal Law Section 207-c benefits

Establishing a right to General Municipal Law Section 207-c benefits

White v County of Cortland, 283 AD2d 826, affirmed, 97 NY2d 336

In the White case the Appellate Division, Third Department, set out a basic principal it follows in determining if an individual is eligible for disability benefits under General Municipal Law Section 207-c as follows: Section 207-c is a remedial statute and thus is to be liberally construed in favor of the claimant.

The facts underlying this disability claim case are relatively straightforward.

Herbert I. White suffered a heart attack prior to his being hired as a full-time correction officer by Cortland County in 1989. He performed his duties without incident until June 18, 1995, when he suffered a work-related heart attack. He was disabled from performing his job duties until October 21, 1995. White returned to work but on June 13, 1996, he experienced chest pains and shortness of breath. His request for medical leave was approved. Unable to work, he has been continued on such leave through the present time.

The Section 207-a Hearing Officer determined that “although [White's] condition is work related, it is not causally related [to his employment] 'to a substantial degree'” Cortland adopted the hearing officer's findings and refused to pay White Section 207-c benefits with respect to his absence after June 13, 1996.

A State Supreme Court determined that Cortland decision was “an error of law” and annulled it insofar as it denied White's application for Section 207-c benefits since June 13, 1996.

The Appellate Division affirmed the lower courts ruling, holding that “Section 207-c is a remedial statute intended to benefit law enforcement personnel disabled by a work-related illness or injury and, as such, should be liberally construed in their favor.”

The court said that “[t]he language of the statute and precedent from this Court require only that the claimant prove disability and a causal relationship between the disability and the claimant's job duties.”

Membership on a negotiating team

Membership on a negotiating team

Town of Wallkill and Wallkill PBA, 34 PERB 4543

One of the elements in the improper practice charge considered by PERB Administrative Law Judge Susan A. Comenzo in the Wallkill case concerned the Wallkill PBA's threat to declare impasse if the Town did not alter the membership of its negotiating team.

PBA specifically objected to the town attorney serving as the Town's “spokesperson for the negotiating team.”

Although the PBA conceded that the Town was entitled to have its attorney present at negotiations, it took the position that the Town should use its attorney as a consultant and “not as a spokesperson.”

ALJ Comenzo held that the PBA violated Section 209-a.2 (b) of the Public Employees' Fair Employment Act by threatening, in a memorandum to the town supervisor, that it would declare impasse “if the Town did not alter the make-up of its negotiating team ... and by by-passing the Town's chief negotiator in delivering the declaration of impasse ... and in listing therein a non-negotiator as the Town representative for the purposes of the impasse.”

An Education Law §3813(1) “Notice of Claim” is required only in the event money damages are sought

An Education Law §3813(1) “Notice of Claim” is required only in the event money damages are sought

Civil Serv. Employees Assn., Inc. v Board of Educ. of City of Yonkers, 2011 NY Slip Op 06211, Appellate Division, Second Department

The Civil Service Employees Association filed an Article 78 petition seeking a court order directing “specific performance” of a collective bargaining agreement.

The Appellate Division sustained Supreme Court’s disposition of CSEA’s petition, explaining that as CSEA was only seeking equitable relief, and not money damages, it was not required to serve a notice of claim under Education Law §3813(1).*

As to Supreme Court’s rejection of CSEA’s motion to convert the action to a declaratory judgment action, the Appellate Division ruled that there is only one form of civil action so there is no need to convert this action in order for CSEA to seek declaratory relief.

* Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of an action against a school district (Matter of Surdo v Levittown Pub. School Dist., 41 AD3d 486, Education Law §3813; General Municipal Law §50-e[1][a]). 

Selection for appointment to part-time positions

Selection for appointment to part-time positions

PBA v Town of Ramapo, 283 AD2d 650, Motion for leave to appeal denied, 95 NY2d 957

The basic rule is that every position in the classified service is in the competitive class unless placed in a different jurisdictional classification by law or by a rule promulgated by a municipal civil service commission approved by the New York State Civil Service Commission.

The Rockland County Patrolmen's Benevolent Association [PBA] challenged the appointment of part-time police officers to positions that had been jurisdictionally classified as noncompetitive class positions.

As to the merits of the jurisdictional classification of these positions in the non-competitive class, Rockland County argued that placing part-time police officer positions in the noncompetitive class was appropriate because the “appointment of part-time officers through an examination is impractical.”

The Appellate Division said that the controlling law, the Rockland County Police Act, [Laws of 1936, Chapter 52] provides “in relevant part, that '[n]o person shall be appointed a member of such police force unless he [or she] shall have passed an examination, held by the state civil service department, and unless at the time of his [or her] appointment his [or her] name shall be on the eligible list of the state civil service department.” The Rockland County Police Act rather than the Civil Service Law controlled because, said the court, “the Act was intended to supersede any general statute with regard to the establishment, organization, and operation of police departments in Rockland County.”*

The court apparently viewed the County’s argument as intending to convey the idea that a “competitive examination for part-time police personnel was impractical” since candidates for a position in the non-competitive class must qualify for appointment by means of a “noncompetitive examination” as it returned the case to the Supreme Court, Rockland County, for a hearing and determination on the merits of the petition and the County's assertion that appointment of part-time police officers through a competitive examination is impractical.** 

* Section 10 of the Rockland County Police Act sets out essentially the same requirements with respect to the appointment of “special police” officers.

** Civil Service Law §42, in pertinent part, provides that “Appointments to positions in the non-competitive class shall be made after such non-competitive examination as is prescribed by the state civil service department or municipal commission having jurisdiction”