Employee may not demand union proceed to arbitration as a matter of right

Employee may not demand union proceed to arbitration as a matter of right

Matter of Hoffman; Board of Education of the City of New York, 84 A.D.2d 840

 

Although it is generally held that only the Union or the Employer have the power to go to arbitration in connection with a contract grievance procedure, employees unhappy with their unions decision not to go to arbitration are now frequently turning to the courts for an order to permit their proceeding against the employer directly.

In Hoffman the Appellate Division ruled that the Union (in this instance the United Federation of Teachers) was not required to seek arbitration after having processed the employee’s grievance through the initial stages of the grievance procedure and received unfavorable results.

The court also said that if an employee wished to proceed directly against an employer when the Union refused to arbitrate, the employee would first have to show that the Union breached its duty of fair representation (i.e.: bad faith, arbitrariness or discriminatory conduct).

Here the employee had sought a benefit from an earlier arbitration award which gave relief for an “interrupted” sabbatical leave.  The employer refused to apply the arbitration award decision claiming that the employee’s application for the benefit was untimely. The Union had refused to arbitrate the question of timeliness after losing at all previous steps of the grievance procedure.

Union official’s advice to employee protected act

Union official’s advice to employee protected act

PERB Case U-5775

The union’s representative advised a co-worker not to answer questions concerning alleged violations of provisions of the “faculty handbook.”

The representative then received a letter, a copy of which was placed into his personnel file, indicating that the “instruction to the employee not to answer (the) question” was considered “insubordination ... and any recurrence ... would result in (a) recommendation ... that disciplinary action be taken.”

PERB ruled that the representative was engaged in a protected activity under the Taylor Law and directed the letter to be withdrawn and not considered for any purpose.

N.B. Although the Union’s representative’s right to give advice is protected, should the advice be incorrect, the employee who follows such advice may expose himself or herself to the risk of charges of misconduct or insubordination.

Retirement membership credit available only to employees

Retirement membership credit available only to employees

Sitrin v. Regan, 90 AD2d 583

Holding that she was an independent contractor and not an employee, the Appellate Division upheld the Employees’ Retirement System’s denial of certain (retroactive) membership service credit claimed by a member.

Citing a number of cases including Erwin v. Regan, 89 A.D.2d 753 [Affd. 58 N.Y.2d 722], the Court rejected Sitrin’s arguments noting that during the period for which membership was claimed she was paid by “voucher,” had no payroll deductions for retirement or social security, did not accrue vacation or sick leave credits and had conceded that the decisions she made were not subject to review.

This is another example of the strict standards applied by ERS in these cases, which standards have survived court tests.

         

Former employee's alleged constructive discharge and continuing violation claims rejected as untimely

Former employee's alleged constructive discharge and continuing violation claims rejected as untimely

Thomas v City of Oneonta, 2011 NY Slip Op 08711, Appellate Division, Third Department

Andrew Thomas, while serving as a City of Oneonta police officer, reported various acts of alleged on-duty misconduct allegedly committed by certain of his fellow officers to his supervisor and then repeated these allegations to the Chief of Police. As a result of an investigation of the officer’s allegations three officers were placed on suspension.

Shortly after Thomas had reported the alleged misconduct he was assigned “to the 4:00 P.M. to midnight shift (instead of his usual day shift), his days off would switch from weekends to midweek and he would be assigned certain additional duties previously performed by one of the suspended officers”

Thomas subsequently told his superior officers that he was being harassed by the suspended officers, contended that he was being punished for reporting the alleged misconduct.

Thomas then resigned from this position with the City of Oneonta Police Department and some time later served a notice of claim on the City [see General Municipal Law §50-e] and then commenced a lawsuit against City pursuant to Civil Service Law §75-b alleging, among other things, that he was the victim of retaliatory personnel actions. The City’s answer contended that Thomas’ action was filed after the Statute of Limitations had expired.

The Appellate Division said that in order to maintain such an action as this, a plaintiff is required to serve a notice of claim upon defendant within 90 days after his or her underlying claims arose and, further, must commence his or her action "within one year after the alleged retaliatory personnel action[s]" took place.

Here, said the court, Thomas’ claim arose when his work schedule and the assignment of additional duties became effective on or about October 6, 2009, but he had not served his notice of claim until February 5, 2010 — well beyond the 90-day statute of limitations period. In addition, the Appellate Division noted that the action was not commenced until November 3, 2010, clearly beyond the controlling one-year statute of limitations.

As to Thomas’ “constructive discharge claim,” the Appellate Division, citing Clark v State of New York, 302 AD2d 942, ruled that that claim “is equally untimely, as such claim arose when he tendered his resignation on November 2, 2009  — the date upon which Thomas "severed his relationship with his former employer" rather that not the date upon which he deemed his resignation to be effective.”

Addressing Thomas’ claim of a “continuous violation,” the court held that the continuing violation doctrine does not operate to toll either of these statute of limitations periods. The Appellate Division explained that, the doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08711.htm

Denial of tenure alleged to have been based on the educator’s exercising her First Amendment rights to free speech

Denial of tenure alleged to have been based on the educator’s exercising her First Amendment rights to free speech

Nagle v Mamaroneck Union Free School District, et al, USCA, Second Circuit, Docket #10-1420-cv

Nancy L. Nagle sued the Mamaroneck Union Free School District and a number school district officials alleging that she had been denied tenure and subjected to retaliation because she had exercised her First Amendment rights to free speech.

Nagle complaint alleged that the decision not to recommend her for tenure was made in retaliation for two acts that, she argued, were protected by the First Amendment.

One act on which Nagle based her claim involved her reporting alleged acts of child abuse by another teacher to her principal, including her claim that she witnessed the teacher striking a child while she was employed as a special education teacher by a public school in the State of Virginia.*

The second act alleged by Nagle was that she had received a copy of a teaching observation report of her class written and signed an assistant principal but that she declined to sign the report. However, she alleged, she received a copy that “appeared to bear her signature.” Reporting the “seemingly false signature” to school officials and the president of the teacher’s union, the matter was referred to police. Although the police “determined that no crime had been committed, a separate handwriting experts were employed by Nagle and by the District. Both experts concluded that the assistant principal had signed Nagle’s name to the document.**

Essentially the federal district court ruled that [1] Nagle’s speech was not protected within the meaning of the First Amendment because it was “personal” and it was not a matter of public concern and [2] ruled that the school officials had a “qualified immunity” in that, as a general rule, unless the individual is able to demonstrate "publication" and prove "malice," courts usually dispose of such cases involving a public employer by applying the doctrine of "qualified immunity."***

The Court of Appeals for the Second Circuit disagreed.

The court concluded that Nagle has made a prima facie showing that retaliation in violation of the First Amendment caused her to be denied tenure.

The Circuit Court said that although the School District’s rebuttal to Nagle’s prima facie case is subject to credibility, the issue of credibility cannot be resolved as a matter of law. Further, said the court, certain of the school administrators are not, “at this stage of the proceedings, entitled to qualified immunity.”

Accordingly, the Circuit Court vacated the district court’s order granting summary judgment and remanded the matter for further proceedings.

* According to the Circuit Court’s decision, the teacher alleged to have abused the students resigned, citing family reasons. . Nagle then reported what she had told school administrators to Virginia’s Department of Child Protective Services and to the Virginia state police. After a police investigation, the teacher was charged with several counts of felony child abuse; she eventually pled guilty to assault.

** The district “declined to renew” the assistant principal’s contract for the following year, and the assistant principal resigned

*** The Doctrine of Qualified Immunity protects public officials from being sued for damages unless it can be shown that they violated “clearly established” law of which a reasonable official in his position would have known. In contrast, the Doctrine of Absolute Immunity bars lawsuits against public officials based on their official acts or omissions without regard to motive. For example, a judge has complete protection from personal liability for exercising judicial functions.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/38102ca1-147a-4e75-85f4-f92e3c0f13f6/9/doc/10-1420_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/38102ca1-147a-4e75-85f4-f92e3c0f13f6/9/hilite/