Designation of employees as managerial

Designation of employees as managerial

PEF and State of New York, 35 PERB 4047

PERB's Director of Public Employment Practices and Representation Monte Klien ruled that incumbent of the position must participate in the policy making process on a regular basis in contrast to merely serving as a high level supervisor in order for the individual to be designated managerial.*

The Public Employees Federation [PEF] objected to having the incumbent of the position of Forester 4 in the State Department of Environmental Conservation designated managerial and thereby excluded from the State's Professional, Scientific and Technical Unit represented by PEF.

Although the incumbent, Bruce Williamson, performed high-level supervisor duties and made recommendations that were used in formulating policy, this was not found sufficient to justify designating him managerial within the meaning of the Taylor Law. Kline pointed out that PERB has consistently followed the Legislature's caution that "employees be excluded from bargaining units only upon a very clear exercise of managerial responsibilities" and it is the employer's burden to present evidence "which compels such exclusion."

Kline said that "[w]hile an employee need not be the ultimate decision maker to be designated a policy formulator, the employee must participate with regularity in the process by which policy making decisions are made." The Department of Environmental Conservation was unable to demonstrate this factor to Kline's satisfaction and he ruled that the Forester 4 position encumbered by Williamson should be included in the unit represented by PEF.

* Although there it a tendency to refer to “managerial” or “confidential” positions, it is the incumbent of the position, rather than the position itself, that is designated “managerial” or “confidential”. For example, Section 201.7(a) of the Civil Service Law provides, in pertinent part, as follows: “Employees may be designated as managerial only if they are persons ... who ….” See, also, paragraphs (e), (f) and (g) of §201.7 that also define “managerial” in terms of incumbents of certain positions in contrast to designating the positions themselves as “managerial.”

Creating a negotiating unit

Creating a negotiating unit

Teamsters Local 264 and Town of Cheektowaga, 35 PERB 4020

In considering the petition filed by Local 264 seeking represent a proposed collective bargaining unit consisting of part-time court officers employed by the Town of Cheektowaga, PERB Administrative Law Judge [ALJ] Lynn Fitzgerald ruled that the part-time court officers should be included in the bargaining unit represented by the Cheektowaga Employees Association [CEA].

Local 264 had argued that the eight part-time court officers did not share "a community of interest" with the employees in the unit represented by CEA. It contended that “because CEA has no part-time employees, there is an inherent conflict between court officers and CEA employees, who are all full-time employees with benefits," and the part-time court officers who do not receive such benefits.

The ALJ said that PERB "has long held that, in the creation of bargaining units, it is not sufficient that the petitioned for unit is appropriate; instead, the question is whether the unit is the `most appropriate,' and, further, whether it provides for the creation of the largest possible unit which permits for effective negotiations."

What is the "most appropriate" unit? Citing Hewlett-Woodmere Union Free School District, 24 PERB 4043, Judge Fitzgerald said that:

It is well settled that the "most appropriate unit" is the largest one permitting for effective and meaningful negotiations; only diverse employee interests, either actual or potential, warrant the establishment of smaller units.

Significantly, the ALJ noted that the court officers' duties did not entail their being engaged in any law enforcement responsibilities that might otherwise justify their placement in a separate or different negotiating unit.

In County of Erie and Eric County Sheriff, 29 PERB 3031, PERB held that there is a unique community of interest among law enforcement personnel who are engaged in the full range of law enforcement activities such as the prevention and detection of crime and the enforcement of the general criminal law of the State.

Workfare with a public agency not public employment

Workfare with a public agency not public employment

McGhee v City of New York, NYS Supreme Court, Ia Part 5, Justice Stallman, 2002 N.Y. Slip Op. 50332(U), [Not selected for publication in the Official Reports]

According to the ruling by Justice Stallman in the McGhee case, individuals receiving public welfare benefits while working for the City of New York under a Work Experience Program [Workfare] are not employees for the purposes of bringing a lawsuit under the State's Human Rights Law.

McGhee alleged that she had been sexually harassed during a Workfare assignment. The City, contending that Workfare participants are not employees, moved to dismiss McGhee's complaint.*

Justice Stallman dismissed McGhee's complaint. The court decided that under the facts of this case, McGhee's Workfare participation did not create any employment relationship between the participants and the City.

The court noted that "in a different context," the Court of Appeals concluded that Workfare participants were not "employees," citing Brukhman v Giuliani, 94 NY2d 387.

In Brukhman, the Court of Appeals ruled that the prevailing wage provision of the State Constitution -- Article I, Section 17 -- does not apply to Workfare participants because participation in the Workfare program is the statutory "condition of continued receipt of public assistance grants."

Section 330.5 of the Social Services Law specifically list certain limited circumstances under which Workfare participants are deemed "public employees" and categories of "work activities" under which public assistance recipients are to be given the benefits and protections of similarly-situated employees. None applied to McGhee.

However, McGhee did have a possible remedy available to her. Justice Stallman pointed out that she "could have filed a grievance concerning the alleged sexual harassment with the New York City Human Resources Administration, the local service district under the Social Services Law" and if dissatisfied with its ruling, she could have "appealed to the State for a fair hearing."

* A federal court had previously dismissed McGhee's Title VII harassment claim after finding that she was not an employee within the meaning of the Personal Responsibility and Work Opportunity Reconciliation Act. This Act mandated adoption of "Workfare" programs by public entities.

Lack of substantial evidence to support findings of guilt of certain disciplinary charges results in remand to the appointing authority for new findings and reconsideration of the penalty to be imposed

Lack of substantial evidence to support findings of guilt of certain disciplinary charges results in remand to the appointing authority for new findings and reconsideration of the penalty to be imposed

Matter of Licciardi v City of Rochester, 2011 NY Slip Op 06781, Appellate Division, Fourth Department

The Appellate Division modified a portion of decision that found Mark A. Licciardi guilty of a number of act of alleged misconduct and remanded the matter to the City for “new findings” concerning one of the charges and for its reconsideration of penalty initially imposed, termination.

The court agreed with Licciardi contention that “several of the findings of misconduct rendered following a hearing are not supported by substantial evidence.”

In particular, the Appellate Division ruled that four of the charges of misconduct involved Licciardi's part-time outside employment while on sick leave from his employment as a firefighter. However, said the court, there was no relevant proof as a reasonable mind may accept as adequate to support [the] conclusion that working an additional part-time job while employed by respondent's Fire Department was not permitted or that the part-time job itself was improper or illegal.

The Department had alleged that Licciardi's conduct violated certain Department rules. The court ruled that there was no substantial evidence that Licciardi has conducted himself “in a manner unbecoming[] or prejudicial to the good reputation, the order, or discipline of the . . . Department” nor that he failed to conduct himself “at all times … to the credit of the Department.”

Further, the Appellate Division overturned the Department’s finding that Licciardi had violated the Department's rule that a member shall not " knowingly or intentionally make or cause to be made a false report in connection with the . . . Department or other employees thereof'” when he submitted a letter from his treating physician that stated without qualification that he was unable to work during the time that he was out on sick leave. The court noted that at the hearing Licciardi’s physician testified that Licciardi’s disability was causally related to a work incident at the Department and that, although he was prevented from working as a firefighter, the part-time job outside of the Department was therapeutic.

The court’s conclusion regarding this allegation was that it was not supported by substantial evidence.

Also, said the court, it agreed with Licciardi's contention that he had been found guilty of a charge “based on conduct that was not alleged in the single specification supporting the charge” and thus must be annulled “as outside the scope of the charge.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06781.htm

Arbitration awards must conform to “strong public policy”

Arbitration awards must conform to “strong public policy”

New York City Transit Authority v Transport Workers Union of America, Court of Appeals, 99 NY2d 1

Most Taylor Law agreements provide that the final step in a grievance procedure is binding arbitration. Article 75 of the Civil Practice Law and Rules is the vehicle used to challenge, or confirm, such an arbitration award. The statutory basis for vacating an arbitration award, however, is very limited. Article 75 provides that a court may vacate the arbitration award only if the court finds that the rights of the challenging party were prejudiced by:

1. Corruption, fraud or misconduct in the procuring of the award; or

2. The partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

3. The arbitrator award exceeded his or her authority to decide the issue presented or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

4. A failure to follow the procedure of Article 75 unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

In addition to applying these statutory standards, courts have "judicially" vacated arbitration awards based on a finding that the award violates public policy.

In these consolidated appeals filed by the Transport Workers Union of America, the Court of Appeals explores the concept of the judicial vacating of arbitration awards based on a finding that the award violates public policy and explains the very limited basis upon which a court may vacate an arbitration award on public policy grounds.

The Rodriguez Decision

Rodriguez was a New York City Transit Authority [NYCTA] subway train operator for 16 years. During this 16-year period he had been twice disciplined and suspended for safety rule violations. On November 20, 1998, Rodriguez was involved in his third safety-related incident -- this one involving a collision between his train and another that resulted in a derailment because Rodriguez had not set a hand brake. NYCTA terminated Rodriguez from his position.

Some two weeks before this accident Rodriguez attended a refresher training course which taught the need to set the train's hand brake under the same circumstances.

Rodriguez grieved his dismissal. The arbitration panel, by a two-to-one vote, ruled that the penalty of dismissal was excessive given Rodriguez's long NYCTA service with only two prior "operational violations." Considering the record as a whole and "the parties [sic] progressive disciplinary policies," the arbitration panel reduced Rodriguez's penalty to time served without pay and a demotion for up to six months.

NYCTA filed an Article 75 petition seeking to vacate the award; the union cross-petitioned to confirm the award. Although Supreme Court ruled in the union's favor, the Appellate Division reversed that determination, vacating the panel's award reinstating Rodriguez [see 279 AD2d 474]. The Appellate Division's rationale for its ruling:

NYCTA had a statutory duty to operate the transit system for the safety of the public, and "[r]equiring the NYCTA to reinstate an employee who has been found to be a threat to public safety is contrary to public policy."

The Bright Decision

Leroy Bright was employed by the Manhattan and Bronx Surface Transit Operating Authority [MABSTOA], a NYCTA subsidiary, as a bus driver for over 20 years. On June 11, 1999, his bus struck and injured a pedestrian. He was immediately placed on leave without pay in contemplation of dismissal.

The Transport Workers Union filed a grievance pursuant to the contract disciplinary grievance procedure on Bright's behalf.

Although the arbitrator rejected Bright's exculpatory version of the accident and sustained the charge that he caused a preventable accident, the arbitrator declined to impose the "ultimate penalty" of dismissal. The arbitrator, instead, ordered MABSTOA to reinstate Bright without back pay and stated that this penalty was "to serve as a final warning" that a similar violation would put Bright at risk of termination.

Supreme Court vacated the arbitrator's award insofar as it reduced the sanction from dismissal to a suspension without pay, on the ground that the determination was contrary to the public policy embodied in Public Authorities Law Section 1204(15). The Appellate Division affirmed the lower court's determination [see 280 AD2d 677].

The Court of Appeals reversed both Appellate Division rulings, holding that:

Under our modern arbitration jurisprudence, judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships, and the correlative, expansive power of arbitrators to fashion fair determinations of the parties' rights and remedies.

The decision points out that the limited role of the public policy exception applies only in "cases in which public policy considerations, embodied in statute or decisional law prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator." In these two cases, the high court concluded that:

The public policy consideration invoked by the Authorities in the instant cases to vacate the arbitration awards manifestly fails to meet the strict standards for overturning such awards on public policy grounds that have been developed in the case law.

The narrowness of the public policy exception as applied to the arbitration process under collective bargaining agreements, said the court, is designed to ensure that courts will not intervene in this stage of the collective bargaining process in pursuit of their own policy views, or because they simply disagree with the arbitrator's weighing of the policy considerations.

Here, the court noted, the NYCTA and MABSTOA each entered into collective bargaining agreements that required the arbitration of disputes involving employee discipline. Thus statutory powers granted to NYCTA and MABSTOA under the Public Authorities Law may constitute a basis for vacating the awards only if the courts are able to conclude, "without engaging in any extended fact-finding or legal analysis" that the statute "prohibit[s], in an absolute sense, the particular matters to be decided or certain relief being granted."

Clearly the relevant statutes law did not bar NYCTA or MABSTOA from agreeing that the disciplining of employees for safety violations was to be subject to the contract grievance procedure, ultimately to be decided by an arbitrator. Having done so, said the court, an employer could not seek the vacating of an arbitration award by merely relying on a "general statutory authority."

There are some duties or responsibilities so important, however, that the courts will not permit the employer to delegate them or to bargain them away. For example, the courts have held that granting tenure to an educator is a non-delegable responsibility. Arbitrators may not alter duties and responsibilities vested by law in the agency and in such cases arbitration is forbidden, not because there are matters of public interest are involved, but because statutes require that tenure decisions be made by appointing authority.

The Court of Appeals noted that any analysis of whether an arbitration award violates public policy must begin with the actual terms of the award. In both Rodriguez's and Bright's situations, although the arbitration awards directed reinstatement of the employees, neither decision ignored the employer's safety concerns and the seriousness of the breaches of safety rules.

Rather, said the high court, the arbitration awards imposed significant financial sanctions in both cases: in Rodriguez's case, a forfeiture of approximately six weeks' pay and a six-month demotion, while Bright lost over four months' pay and was issued a warning that another offense would place him at risk of termination -- in effect, putting him on probation.

The essence of the ruling by the Court of Appeals appears to be as follows:

As the United States Supreme Court has framed the rationale for upholding the arbitration award when safety was the policy concern in an analogous case, because Public Authorities Law Section 1204(15) would not prohibit the parties to these collective bargaining agreements from having incorporated disciplinary standards providing for severe financial sanctions short of dismissal under the factual circumstances of these cases, the public policy embodied in that section is insufficient to justify overturning arbitration awards achieving the same results.

What could constitute a violation of public policy sufficient to meet the test established by the Court of Appeals? In Ford v CSEA, 94 AD2d 262, the Appellate Division's explanation in vacating an arbitration award on the grounds that it adversely affected a public policy would presumably meet the Court of Appeals' test.

The Ford case involved an employee of the New York State Department of Mental Hygiene who was charged and found guilty of misconduct -- having sexual relations with a patient. The penalty imposed by the arbitrator: a two month suspension without pay based on the arbitrator finding that the patient "consented" to the sexual act and that the physical abuse experienced by the patient was "minimal." In an Article 75 action to vacate the award, the agency head (Ford)asked the court to authorize the agency to dismiss the employee instead.

The Court said that the arbitrator "exceeded his powers and made an irrational award in violation of `a public policy which is beyond waiver' (by the State)." The Court indicated that "Any other result would ... defeat the very purpose for which the Mental Hygiene Law was enacted and the Office of Mental Hygiene created. No collective bargaining agreement to arbitrate can be allowed to destroy the very master it serves."

The Court noted that "mental patients are incapable of `consent' in (this) context ...." Further, the court said that "the determination of `physical abuse' ... cannot be passed off lightly with an adjective such as `minimal.'" It found such a characterization "appalling" and the arbitrator's refusal to impose the penalty of dismissal "plainly irrational".

As to vacating an arbitration award in situations involving the alleged violation of a negotiated agreement on the grounds that the award involved a "non-delegable duty," courts have ruled that the submission of an issue to an arbitrator does not allow the arbitrator to fashion a determination or remedy that violates public policy.

As the Court of Appeals said in Sweet Home CSD v Sweet Home Education Association, 58 NY2d 912, "the transfer or reassignment of teachers under Education Law Section 1711(5)(e) is a nondelegable duty of a school superintendent and a board of education which may not be surrendered through the collective bargaining process." Accordingly, an arbitrator may not provide a remedy involving the transfer or reassignment of educators that impairs that duty.