Correction officers locked up for compulsory overtime

Correction officers locked up for compulsory overtime

Cacace v. Seniuk, 104 Misc. 2d 560

While somewhat a novel way to have overtime work performed, the Court in Cacace held that correction officers compelled to work overtime were not denied their constitutional rights. Although locked up in the jail, as they were during normal working hours, and denied the ability to leave without permission, such action was held to be within the power of management.

The fact that the employees had received overtime pay or compensatory time off for the overtime, together with a view that such a procedure was a reasonable and necessary limitation on the correction officers, was enough to support for the Court to hold that correction officers were not entitled to injunctive or declaratory relief.

The Court also found that section 161 of the Labor Law was not applicable to correction officers.

Unilateral changes in the work year

Unilateral changes in the work year

Public Employment Relations Board, Case U-4294

The unilateral reduction of the school district’s administrator’s work year from 11 to 10 months (but requiring the performance of essentially the same service) was held to be a violation of the district’s duty to negotiate (the administrators constituted a “negotiating unit”) and back pay and restoration of the 11-month work year was ordered by PERB (Case U-4144, 1980).

In contrast, a PERB hearing officer held that the unilateral change in a district’s work day for teachers from 8 am to 3 pm to 8:30 am to 3:30 pm following good faith bargaining to impasse on the issue was not a violation of the Taylor Law even though the impasse had not been resolved at the time of the change by the district.

The decision in United States v Skilling does not preclude retrial of individual earlier found guilty of certain charges notwithstanding the vacating of the convictions

The decision in United States v Skilling does not preclude retrial of individual earlier found guilty of certain charges notwithstanding the vacating of the convictions 

United States v Bruno, CA 2^nd Circuit, Docket 10-1885

The former Majority Leader of the New York State Senate, Joseph Bruno, appealed his conviction of honest services mail fraud, [18 U.S.C. §§1341 and 1346] arising from his alleged failure to disclose conflicts of interest related to his receipt of substantial payments from individuals seeking to do business with the State. 

A the jury had convicted Bruno of two counts of honest services fraud (Counts Four and Eight), acquitted him of five counts (Counts One, Two, Five, Six, and Seven), and could not reach a verdict on one count (Count Three).

While Bruno’s appeal was pending, the Supreme Court decided United States v. Skilling, 130 S. Ct. 2896, in which it held that 18 U.S.C. 1346, the honest services statute pursuant to which Bruno had been found guilty, criminalized only fraudulent schemes effectuated through bribes or kickbacks and did not criminalize mere failures to disclose conflicts of interest.

The Circuit Court of Appeals said that although Skilling required it to vacate Bruno’s conviction with respect to Count 4 and 8, he could be retried with respect to the allegations set out in Counts 4 and 8. According to the decision, the court’s review of the record convinced it “that the government adduced sufficient evidence under the Skilling standard,” such that double jeopardy* did not bar Bruno’s being retried on those two counts.

In addition, the court said that the Double Jeopardy Clause set out in the Fifth Amendment of the Constitution did not preclude a retrial on a charge that resulted in a hung jury, Count 3.**

The Circuit Court of Appeals remanded the matter to federal district court “for further proceedings.”

* The Fifth Amendment of the Constitution of the United States, in pertinent part, bars an individual being “for the same offence to be twice put in jeopardy of life or limb.”

** Count Three concerned certain checks allegedly mailed to Bruno in 2003 and 2004 pursuant to a series of consulting agreements.

The Bruno decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/18137ae1-7004-4b8c-90a9-b30f4c3579d8/1/doc/10-1885_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/18137ae1-7004-4b8c-90a9-b30f4c3579d8/1/hilite/

Uncertified union denied access to school mailboxes

Uncertified union denied access to school mailboxes

Public Employment Relations Board, Case U-3885

According to PERB, a public employer has not duty under the Taylor Law to give an unrecognized or uncertified union competing with the recognized or certified employee organization equal access to teachers or mailboxes for the purpose of soliciting members except when such contact is timely in connection with the appropriate challenge period. 

Absence deemed a resignation

Absence deemed a resignation

Matter of Johnson, 41 NY2d 106l

In Johnson the Court of Appeals held that the provisions of Section 5.3(d) of the (State) Civil Service Rules were invalid as being in conflict with Section 75 of the Civil Service Law as the rule permitted an unexplained absence of an employee for more than ten days to be deemed a resignation.

In contrast, the Court of Appeals has held that where there is a contract provision negotiated pursuant to the Taylor Law providing that an unauthorized leave constituted a resignation, the employee is bound by that provision. The collective bargaining agreement expressly provided that an unauthorized absence for ten consecutive workdays would be deemed to constitute a resignation.

The Court was unsympathetic with the employee’s claim to relief, pointing out the availability of the contract grievance machinery he failed to use. The Court also indicated that this decision was not in conflict with Johnson as the issue of the parallel provision in a contract was not reached in that case. The effect here is identical to earlier decisions holding that the union and employer can bargain for something that if provided by law, rule or regulation might be struck down as unconstitutional or unlawful. (Port Authority of New York and New Jersey v. Port Authority Police Benevolent Association, Inc.).