PERB determinations

PERB determinations

Use of automobiles

The Public Employment Relations Board has ruled that the use of automobiles is an item subject to mandatory negotiations. In a case involving the City of Buffalo (Case U-4473). PERB held that the City could not unilaterally restrict employees from using their automobiles in connection with their work as such action was a “unilateral discontinuation of a past practice.” Buffalo had stopped permitting certain employees to charge for the use of their car in connection with travel on the job and offered “bus fare” instead. In another case, PERB held that Nassau County could not stop its “past practice” of assigning certain workers County owned vehicles on a 24 hour basis without first negotiating the matter with the Union.

No smoking areas

The Steuben-Alleganay BOCES had designated certain areas as smoking areas for its employees, prohibiting smoking in other parts of the building. When the Union challenged the work rule, PERB affirmed a hearing officer’s ruling that the employer could not unilaterally restrict employees to smoking in specific areas of a building, as employee smoking is a mandatory item of negotiations under the Taylor Law (Case U-4259)

Two different complaints; two different forums

Two different complaints; two different forums

Gondola v. Center Moriches Union Free School District, 80 A.D.2d 600

When an employee attempted to maintain a complaint before the Division of Human Rights based on alleged discrimination and at the same time sue the employer for alleged breach of contract, the Supreme Court held that Section 297.9 of the Executive Law prohibited the employee from seeking relief on a single discriminatory grievance in two forums.

The Appellate Division reversed, pointing out that Section 296.9 “cannot be employed to bar an aggrieved person from maintaining a proceeding before the State Division of Human Rights based upon a discrimination complaint, while contemporaneously maintaining an action in the courts based on the alleged breach of an employment contract”, citing Matter of Richardson Employment Agency, 40 AD2d 585.

Pre-employment physical examination not employment

Pre-employment physical examination not employment

Rastaetter v. Charles S. Wilson Memorial Hospital, 436 N.Y.S.2d 47

An individual undergoing a required pre-employment physical examination is not to be considered an employee within the meaning of the Workers’ Compensation Law in the event the person is injured during the physical examination.

In Rastaetter the Appellate Division held that the principal factors to be considered in determining whether an employer-employee relationship exists under such law are the right to control, the method of payment, who furnishes the equipment, the right to discharge and the relative nature of the work.

The court then said “Clearly, these factors demonstrate that a pre-employment physical examination would not be covered by the Workers’ Compensation Law.”

The court also held that this was not a “try-out” situation, as the individual was not “trying out” for employment by working in any manner citing Matter of Smith, 4 AD2d 12 and Matter of Bode, 9 AD2d 969.

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence

In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757

When the Commissioner of Administration rejected a hearing officer’s recommendation that an employee be reinstated to her position, the Union sued on behalf of the employee.

The case arose following the finding by the Commissioner that Ziehm (who was now living in Lackawanna) had forfeited her position by failing to maintain a permanent residence in the City of Buffalo (Buffalo City Ordinance, Chapter 1, Section 4,).

The question before the hearing officer was whether Ziehm came within the provisions of a Taylor Law contact which excused “any employees presently living outside the City” (adopted effective January 1, 1977) from the requirements of the Ordinance.

Although the hearing officer found that she was living outside the City on January 1, the Commissioner held that she was a resident of the City on that date. This determination made the contact provision inapplicable to her.

The Appellate Division concluded that the record contained substantial evidence affording a rational basis for the Commissioner’s finding that Ziehm was a City resident from 1973 until June 1979 and that she did not qualify for the exemption contained in the collective bargaining agreement and upheld his determination.

Do it now grieve it later rule applied in a challenge to an administrative decision

Do it now grieve it later rule applied in a challenge to an administrative decision

Hurwitz v. Regan , 90 A.D.2d 659, Motion for leave to appeal denied, 58 N.Y.2d 609

As a general rule in labor relations, when there is a supervisor/employee difference of opinion concerning an assignment, unless a dangerous situation exists, the employee should “do it now; grieve it later.”

Apparently the same rule will apply in connection with some administrative decisions as well.

When a former member of the New York State Employees’ Retirement System [ERS] was re-employed by a public employer, he sought to reinstate his former Tier I ERS membership.

ERS said no, explaining that he had cease to be a member of ERS in 1970 and had to rejoin as a Tier II member. He finally joined the System as a Tier II member in late 1975.

When the Retirement and Social Security Law was amended in 1977 (C. 973; L. 1977) to allow Tier II members who had been Tier I members who “rejoined within five years” to get back into Tier I, the employee again attempted to regain his Tier I membership. He, again, was refused by ERS and sued.

The Appellate Division noted that the employee had not rejoined ERS until more than five years had passed.

Had he filed a Tier II application in 1974 while contesting the ERS determination concerning the denial of his application for Tier I status, presumably he would have met the requirement of the 1977 amendment.

Probably it is best to do something “under protest” and argue about it later, especially when the consequences of inaction may cause even greater problems.