Extending work-hour assignment

Extending work-hour assignment
Mt. Vernon PBA v City of Mt. Vernon, App. Div., Second Dept., 279 A.D.2d 561

The Appellate Division ruled that Mt. Vernon violated Section 971(a) of the Unconsolidated Laws when it required members of the City of Mount Vernon Police Department to work more than one eight-hour shift in a consecutive 24-hour period when there was no emergency situation within the meaning of the statute to justify such assignments.

Filing a timely administrative appeal

Filing a timely administrative appeal

Matter of Friedman v New York State Div. of Human Rights, 2011 NY Slip Op 32313(U), Supreme Court, New York County, Docket Number: 104301/11, Judge: Donna M. Mills [Not selected for publication in the Official Reports]

In this special proceeding Moshe Friedman challenged the dismissal of his complaint of alleged unlawful discrimination by the New York State Division of Human Rights (DHR). Friedman had charged that his former employer’s decision to terminate his employment was based on age, creed and gender in violation of the New York State Human Rights Law, Executive Law §296. The Division had dismissed the complaint after finding that it had been “untimely filed.”

Executive Law §297 sets out the procedures for the filing and resolution of complaints of unlawful discrimination by the DHR and prescribes the time period within which an aggrieved party must file a verified complaint in writing, e.g., “…within one year after the alleged unlawful discriminatory practice.”

Friedman contended that the “date of filing” should be the date his complaint was notarized or postmarked, which date would have otherwise been timely*. DHR, on the other hand, said that the date on which it received Friedman’s complaint controlled and it did not receive it until four days after the one-year period for filing such complaints ended.

Judge Mills ruled that New York courts construed this one-year limitations period as mandatory and thus Friedman failed to comply with this mandate, citing Bd.of Educ. of Farmingdale Union School Dist.v New York State Div. of Human Rights, 56 NY2d 257 in support of its ruling.** In the words of the court, Friedman did not meet the time limitation set out in Executive Law §297, “which must be strictly construed” as there is nothing in the statute or its implementing regulation indicating that the timely mailing of an application or a hearing is sufficient. Thus “the timeliness of such a filing must be measured by the date it was [received by] DHR rather than the date it was mailed.”

Accordingly, said Judge Mills, Friedman’s complaint which was received four days after the one-year limitations period expired, was untimely.

In McLaughlin v Saga Corporation, 657 NYS2d 784, a case involving an appeal filed with the Workers' Compensation Appeals Board [WCB], the Appellate Division initially took the position that a notice of appeal is untimely if it physically received by the appellate body after the Statute of Limitations had passed.

In Saga's case, although the appeal was mailed within the 30-day period allowed for filing the application, WCB did not physically receive it until eight days after the statute of limitations had expired. When Sega asked for permission to appeal its rule, the Appellate Division elected to reconsider its decision. It then reversed its initial ruling, holding that it is the date of mailing, rather than the date of receipt, that controls in determining the timeliness of an administrative appeal.

The rationale underlying the revised ruling: If a person has a statutory right to make a decision, which may be then filed by mail, this period would necessarily be shortened if the appellate body could insist that it physically receive the mailed notice no later than the last day of the period of limitation. In effect the Court concluded that the method of service of a notice of appeal, mail or personal delivery, should not determine the time period available to the party to decided whether or not to appeal an administrative ruling.

On occasion law, rule and regulation set out the criteria regarding “timely fillings.” For example, Chapter 245 of the Laws of 1992 provided that the timely mailing of an application to qualify for service credit or benefits by the deadline date established is sufficient to meet a deadline, provided mailing is actually received by New York State Teachers' Retirement System. If, however, the System never "actually received" the application, the court would probably have required that the applicant submit "proof of mailing within the limitations period" in order to have the filing declared timely. Accordingly, it would be prudent to send appeals filed using the U.S. Postal Service by certified or registered mail, "return receipt request" notwithstanding the provisions of Chapter 245 type provision to the contrary.

* N.B. In such cases both the execution of the required notarization and the physical mailing must be timely.

** See, also, City of Cortland v White, 114 A.D.2d 64. In Cortland the Appellate Division, 3rd Department, ruled that an appeal from a determination of the Commissioner of Human Rights must have been actually received by the court, in contrast to having merely been mailed on or before the last day on which it may be filed to be timely. Although the Cortland claimed that it had mailed its petition to the court within the 60-day time limit permitted, the Appellate Division ruled that it was the date of receipt, not the date of the mailing, which controlled in determining if an appeal is timely filed. Although the Human Rights Law is silent as to the manner and effective date of commencing an appeal from a determination by the Commissioner of Human Rights (or a DHR regional director), the Appellate Division noted the "considerable body of precedential law" in support of its ruling, citing People v Dimmie, 15 NY2d 578.

Seeking an alternate remedy may not stay the running of Article 78's statute of limitations

Seeking an alternate remedy may not stay the running of Article 78's statute of limitations
Brignoni v Abramson, 278 AD2d 565

Critical to consideration of any grievance or lawsuit is that the complaint be timely filed, typically referred to as satisfying the statute of limitations. The Brignoni case demonstrates the importance of a timely filing of any such actions.

New York State correction officer Obdulio Brignoni, Jr. held a temporary appointment as a correction sergeant. He later learned that it was unlikely that he would ever be given a permanent position of correction sergeant.

The union, Law Enforcement Officers Union, District Council 82, [DC-82] sued the Department of Correctional Services [DOCS] on behalf of Brignoni and other “temporary sergeants,” contending that such temporary appointments were unlawful, unconstitutional and an abuse of discretion.

Initially DOCS offered to settle the action on terms that would have resulted in Brignoni being given a permanent appointment. DC-82, however, rejected the offer. Ultimately, DC-82 and DOCS settled the lawsuit. The terms of the settlement “excluded” Brignoni and he did not receive a permanent appointment as a correction sergeant.

While the settlement discussions were taking place Brignoni filed a grievance challenging his temporary appointment. The Governor's Office of Employee Relations [GOER] determined that Brignoni's complaint was not grievable.

To “protect his employment,” Brignoni applied for and received a voluntary demotion to correction officer.

He later filed an improper practice charge against DC-82 with the Public Employment Relations Board (PERB), alleging that DC-82 had breached its duty of fair representation by settling the class action with DOCS in a manner detrimental to his interests.

In addition to dismissing Brignoni's charge as untimely, PERB also indicated that he “failed to establish that the Union had breached its duty of fair representation.” Brignoni filed a petition pursuant to Article 78 seeking to overturn PERB's decision.

Among the reasons given by a Supreme Court judge for dismissed Brignoni's petition was that it was untimely.

The Appellate Division affirmed the lower court's ruling, indicating that “[a] proceeding which seeks to review the determination of a body or officer must be commenced within four months after the determination becomes final and binding.”

Since Brignoni did not file his petition with in four months of PERB's final determination, he was barred from proceeding.

Brignoni attempted to persuade the court that his Article 78 petition was timely on the basis that the statute of limitations “was tolled during the pendency of his grievance proceeding against DOCS.”

The court decided that there was “no merit to this argument since the pursuit of an unavailable grievance procedure does not operate to toll the Statute of Limitations.” Pointing out that Brignoni's grievance was dismissed by GOER as “not grievable” and he did not challenge that determination within the four months period available to him for such purpose, this was yet another reason for holding Brignoni's Article 78 action untimely.

Equally unsuccessful was Brignoni's argument that his filing of an unfair labor practice charge with PERB tolled the Statute of Limitations. This Appellate Division said that this argument “is equally unavailing” since DOCS was not a party to that proceeding and, in any event, it did not impinge upon [Brignoni's] right to commence a timely Article 78 proceeding against DOCS.

Public policy and arbitration

Public policy and arbitration
NYC Transit Authority v Transport Workers Union, 279 AD2d 474

A New York City Transit Authority [NYCTA] employee was charged with failing to follow the proper procedure in applying the brakes on the subway train he was operating. This resulted in an accident and the derailment of the train. Dismissed from his position, the individual filed a grievance challenging his termination.

A Tripartite Arbitration Board denied the employee's grievance but imposed a lesser penalty -- demotion for not more than six months. NYCTA filed an Article 75 petition seeking to vacate the penalty imposed by the Board on the grounds the modification “was against public policy.”

The Appellate Division reversed a lower court's decision affirming the arbitration award that specifically vacated “so much of the arbitration award as reduced the penalty imposed from dismissal to demotion.”

Clearly an arbitration award may not be vacated unless it is violative of a strong public policy, is irrational, or clearly exceeds a specific limitation on an arbitrator's power. Here, however, the court concluded that the panel's changing the penalty imposed on the employee from dismissal to demotion was contrary to public policy.

The Appellate Division explained that the NYCTA “has an important statutory duty to operate the transit system for the safety of the public.” Requiring NYCTA to reinstate an employee who has been found to be a threat to public safety is both contrary to public policy and to NYCTA's statutory duty to operate the transit system safely. The decision also noted that the employee involved had two prior operational suspensions.

Management prerogatives - nonmandatory subjects of negotiations

Management prerogatives - nonmandatory subjects of negotiations
City of Niagara Falls v Niagara Falls Police Captains and Lieutenants Association, 33 PERB 3058

Niagara Falls filed an unfair labor practice charge with PERB contending that the Niagara Falls Police Captains and Lieutenants Association included two proposals that were nonmandatory subjects of negotiation in its petition for interest arbitration.

One proposal involved “qualifications” for appointment [proposal 1]; the second, proposal 13, concerned retirement benefits. PERB agreed with its Administrative Law Judge that both proposals were nonmandatory or prohibited subjects of collective bargaining and thus constituted excluded subjects for the purposes of compulsory interest arbitration.

The first proposal contained two basic elements.

The first element addressed qualifications for appointment to a position. PERB said that “qualifications for a position are a management prerogative and, thus, a nonmandatory subject of bargaining.”

However, coupled with this demand was a proposal setting out a procedure in which an appointment to a vacant position would be made by selecting the appointee from among the three most senior officers.

PERB said that it had previously held that “procedures to be used to fill a position, e.g., seniority, are a mandatory subject of negotiations.

However, coupling a mandatory demand with a nonmandatory demand results in both being deemed nonmandatory. PERB, citing it ruling in Matter of Police Benevolent Association of the City of White Plains, 33 PERB 3025, said:

“We have held that where a bargaining proposal contains two or more inseparable elements, i.e., a unitary demand, at least one of which is nonmandatory, the entire proposal is deemed nonmandatory.”

As to the second item objected to by Niagara Falls, proposal 13 provided that “[i]n the event the New York State Legislature authorizes the elimination of any restrictions on Tier II employees, the City will eliminate such restrictions.”

The Association argued that the ALJ incorrectly held that its proposal 13 involved additional Retirement and Social Security Law Section 443(f) pension benefits. PERB rejected the Association's characterizing proposal 13 as a non-retirement item.

PERB decided that the demand, in fact, was a retirement matter and that Section 443(f) benefits are not subject to compulsory interest arbitration.