Legislative approval of a grievance settlement that does not change the terms and conditions of controlling Taylor Law contract is not required

Legislative approval of a grievance settlement that does not change the terms and conditions of controlling Taylor Law contract is not required
Patrolmen's Benevolent Assn. of City of Long Beach, Inc. v City of Long Beach, 57 AD3d 499

This litigation involved efforts by the Patrolmen's Benevolent Association [PBA] to enforce three stipulations executed by the parties in settlement of three grievances initiated by the PBA pursuant to the terms of its collective bargaining agreement with the City of Long Beach. The three grievances initiated by the PBA on behalf of its members concerned sick leave retirement computations, night differential pay calculations, and a disciplinary action that had been brought against 17 of its members.

In response to the PBA’s inquiry concerning the City's compliance with the terms of one of the settlement agreements, the City indicated that it regarded all three underlying grievances as still pending. The reason offered by the City in support of its views: The City Council had never approved the settlements and thus they were not binding on the parties.

The PBA, seeking to enforce the terms of the stipulations and agreements, sued and won a decision by Supreme Court holding the stipulations and agreements were legally binding and enforceable as between the parties. The City was directed by Supreme Court to abide by the terms of the settlement agreements. Long Beach appealed, only to have the Appellate Division affirm the Supreme Court’s ruling.

As to the City’s claim that approval by the City Council was required to bind the parties, the Appellate Division said that the Court of Appeals in Board of Education for City School District of City of Buffalo v Buffalo Teachers Federation, 89 NY2d 370, made it clear that “the Taylor Law does not by its terms 'vary or extend the instances in which legislative approval is necessary and does not create a necessity for action by a legislative body where it does not otherwise exist.'" Here, said the court, Long Beach "has not identified any further legislative action that it must perform under the pertinent statutes" as a condition to the approval of the three stipulations settling the PBA’s grievances.

The Appellate Division also noted the past practice of the parties of executing similar stipulations resolving PBA grievances by the City Manager and the President of the PBA without any need for City Council ratification.

Further, the decision notes, the stipulations and agreements involved do not alter or amend the language of the controlling collective bargaining agreement so as to trigger the need for legislative approval. Rather, said the court, “they represented agreements between the parties on how they would interpret certain CBA provisions.” Therefore, “no City Council approval was needed in order for the stipulations and agreements to bind the parties.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09573.htm

Public employees and the First Amendment right to free speech

Public employees and the First Amendment right to free speech
Thomas v City of Blanchard, 548 F.3d 1317

In considering a public employee’s claim that his or her First Amendment right to free speech has been compromised by his or her public employer, courts distinguish between the employee’s speech in terms of the vindication of a personal interest and the vindication of a public interest.

Another arena in which an employee may contend that his or her employer’s actions are violative of the employee’s free speech are tested in terms of whether the speech concerned the employee’s official duties or a public interest.

The latter was the issue in the Thomas case: Was Thomas’s report to the Oklahoma State Bureau of Investigation (OSBI) made pursuant to his professional duties and therefore outside the scope of First Amendment protections within the meaning of Garcetti v Ceballos, 547 U.S. 410, or was his speech a matter of public interest and thus protected by the First Amendment?

Ira Thomas was fired from his job as building code inspector for the City of Blanchard, Oklahoma, after he discovered a signed and completed certificate of occupancy for a home constructed by a local builder — who was also the mayor — in the City Clerk’s office although Thomas had neither made the final inspection of the home nor approved issuance of the certificate.

In the words of the Tenth Circuit, “Suspecting illegality, Mr. Thomas responded forcefully (and maybe even inappropriately; that is a disputed issue) by storming into a meeting to denounce the certificate, shouting at the City Clerk, threatening to report the matter to the OSBI and eventually following through on the threat.”

Subsequently terminated from his position, Thomas sued the City and various city officials, including the mayor, claiming his discharge was in retaliation for his exercising his right to free speech — primarily, his reporting the matter to the OSBI — and therefore in violation of the Free Speech Clause of the First Amendment.

The Circuit Court decided that Thomas’s search was not made pursuant to his professional duties and thus was constitutionally protected. Citing its decision in Casey v. West Las Vegas Independent School District, 473 F.3d 1323, the court concluded that ala Casey, "Thomas was not satisfied that the city’s officials would report the fraud to the authorities, so he 'took his grievance elsewhere' — that is, to the OSBI.”

The court then considered a number of additional relevant issues including (1) whether the government’s interest outweighed the employee’s free speech rights and (2) whether the speech was a motivating factor in the discharge.

As to whether Thomas’s speech was a matter of public concern, the Circuit Court of Appeals concluded that although this issue was raised for the first time in this appeal, speech about possible illegality or pressure by the mayor would count as a matter of public concern.

Addressing whether city’s interest as employer in promoting the efficiency of the services it performs outweighs the employee’s interest in his speech, the court said that for the purposes of this test, the question is not whether the plaintiff’s speech was accompanied by disruptive behavior or made in a disruptive manner, but whether the government’s legitimate interests provide a sufficient justification for controlling Thomas’s message.

The decision also addresses other significant issues concerning the rights and limitations concerning the exercise of “free speech” by a public employee.

The full text of the decision is posted on the Internet at:
http://www.ca10.uscourts.gov/opinions/07/07-6197.pdf

Designating a beneficiary typically will result a reduction of the individual’s retirement allowance otherwise payable before such a designation

Designating a beneficiary typically will result a reduction of the individual’s retirement allowance otherwise payable before such a designation

A retired Chief of Department is entitled to a retirement allowance, consisting of both an annuity and a pension. In this instance the retired Chief of Department of the New York City Police Department, challenged Board of Trustees' interpretation of Administrative Code §13-249, claiming that the plain language of the statute entitled him to receive a pension equal to two-thirds of his salary unreduced by any optional modification.  

Although Supreme Court granting the retiree’s petition holding that that New York City Police Department’s failure to apply the plain language of Administrative Code of City of New York §13-249 to the calculation of retiree's retirement allowance was arbitrary, capricious and contrary to law, the Appellate Division unanimously reversed the ruling “on the law” and dismissed proceeding brought pursuant to CPLR Article 78.

Administrative Code §13-249 provides that a retired Chief of Department is entitled to a retirement allowance consisting of both an annuity and a pension that will effectively make the retirement allowance equal to two-thirds of the retiree's salary.*

The Appellate Division said that the plain language of §13-249, states that a retiring Chief of Department's "accumulated deductions," are not subject to "any decrease resulting from withdrawals, loans, optional modifications . . .." The statute, however, is silent with respect to computations of the "pension" portion of the retirement allowance.

Accordingly, said the court, a retiring Chief's receiving the full two-thirds retirement allowance may be affected by his or her choice of options under Administrative Code §13-261 whereby “if any retiree exercises an option to designate a beneficiary to receive a portion of his retirement allowance, then his retirement allowance will be reduced accordingly.”

The Appellate Division then held that “no fair reading of Administrative Code §13-249 … leads to the conclusion that the ‘pension’ portion of [retiring Chief’s] retirement allowance would not be subject to a reduction based on the selection of an option in which a beneficiary is designated under Administrative Code §13-261.”

* Section 13-249 also provides instruction as to the computation of the "annuity portion" of the retirement allowance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03723.htm

Court’s role in reviewing an arbitration award limited when the parties have agreed to submit the matter to arbitration

Court’s role in reviewing an arbitration award limited when the parties have agreed to submit the matter to arbitration

Arbitration between Albany Police Supervisor's Assn. and the City of Albany, 2012 NY Slip Op 03704, Appellate Division, Third Department

The Appellate Division affirmed a ruling by Supreme Court denying the Albany Police Supervisor’s Association’s CPLR Article 75 application to vacate an arbitration award and confirmed the award.

A member of the negotiating unit represented by the Association was served with disciplinary charges that eventually resulted in the termination of the member’s employment with the Albany Police Department.

Essentially the member was charged with allegedly failing to inform and misled superior officers about what had transpired with respect to an incident involving another Albany Police Department police officer. The arbitrator found the member guilty of nine of the 14 charges filed against him and concluded that his termination was the appropriate penalty.

In affirming the arbitration award the Appellate Division noted that "In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 wherein the Court of Appeals said that "[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice."*

Here, said the court, the arbitrator's findings that member was untruthful when questioned by a superior officer concerning the event is supported by the record and did not result from the arbitrator grossly expanding the charges or other arbitral misconduct.

As to the penalty imposed, dismissal, the Appellate Division rejected the Association’s argument that the penalty was so disproportionate as to constitute arbitral misconduct as "unpersuasive.”

* A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03704.htm

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 03700, Appellate Division, Third Department

The Chenango Forks Central School District distributed a memorandum to its faculty and staff represented by the Chenango Forks Teachers Association announcing that it would discontinue its longstanding practice of reimbursing retirees' Medicare Part B premiums.

While the relevant collective bargaining agreement (CBA) between the parties did not explicitly obligate the school district to make such reimbursements, it had done so since at least 1980 when such reimbursement was required by the Empire Plan, the health insurance plan provided to employees up until 1990.

In 1990 the parties entered into a new CBA, and health insurance coverage was changed to Blue Cross/Blue Shield, which did not require the reimbursement of Medicare Part B premiums. Chenango Forks, however, continued to make such reimbursements.

The Association filed a grievance alleging a violation of the CBA.* At the same time, the Association filed an improper practice charge with the Public Employment Relations Board (PERB) alleging that Chenango Forks had violated Civil Service Law §209-a(1)(d) when it failed to negotiate the discontinuance of reimbursement of Medicare Part B premiums.**

PERB’s Administrative Law Judge (ALJ) found that school district's practice of reimbursement had "giv[en] rise to a reasonable expectation by current employees that they proceed under a promise of post-retirement [reimbursement]" and, thus, Chenango Forks’ unilateral decision to discontinue reimbursement violated its collective bargaining obligations under Civil Service Law §209-a(1)(d).

Ultimately PERB affirmed the ALJ's  conclusions regarding the school district's obligations under Civil Service Law §209-a(1)(d). The district filed an Article 78 challenging PERB's determination.

Rejecting the school district’s argument that reimbursement of Medicare Part B premiums is not a "term and condition of employment" subject to mandatory negotiation, the Appellate Division said that health benefits for current employees are a form of compensation, and thus a term of employment that is a mandatory subject of negotiation.

Although Civil Service Law §201(4) prohibits negotiation of certain retirement benefits, the Appellate Division pointed out that the continuation of health insurance payments to current employees after their retirement is not a retirement benefit within the meaning of that provision, citing Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398, 404 [1979]; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d 801, 802 [1995], lv denied 87 NY2d 812 [1996].

The court explained that such health insurance benefits, although paid after retirement, constitute a form of compensation earned by the employee while employed. Thus, noted the Appellate Division, as the Court of Appeals has held, and PERB rationally concluded, here that Chenango Forks "ha[d] a duty to negotiate with the bargaining representative of current employees regarding any change in a past practice affecting their own retirement health benefits," citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d at 332 [emphasis omitted]; see Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d at 404; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d at 802; Matter of Corinth Cent. School Dist. [Corinth Teachers Assn.], 77 AD2d 366, 367 [1980], lv denied 53 NY2d 602 [1981].

As to the question of whether a binding past practice was established, the Appellate Division said that the issue before PERB was whether, irrespective of any contractual obligation in the parties' CBA, a past practice of reimbursing retirees for Medicare Part B premiums was established such that Chenango Forks was barred from discontinuing that practice without prior negotiation with the Association.***

As to the merits of its past practice determination, the Appellate Division found that PERB had determined that there was a reasonable expectation by unit employees that they would receive reimbursement of Medicare Part B premiums upon their retirement, which finding was “supported by the stipulated facts that [the school district had] reimbursed Medicare Part B premiums to active employees and retirees since at least 1980 and that, despite the fact that the health insurance coverage provided under the CBAs subsequent to 1990 did not require such reimbursement, [the school district had] continued to do so until July 2003.”

Significantly, the Appellate Division said that it could not conclude that, by entering into a new CBA for the 2004-2007 period, which is silent regarding the reimbursement of Medicare Part B premiums, the Association waived its right to negotiate a change in [school district’s] practice of providing Medicare Part B reimbursement, explaining that. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it . . . Such a waiver must be clear, unmistakable and without ambiguity."

As a final point, the Appellate Division stated that the “reimbursing active employees for Medicare Part B premiums does not constitute an improper gift of public funds (see NY Const, art VIII, § 1), as the reimbursements represent compensation earned by employees while employed and in consideration for a benefit furnished to [the school district].”

* A group of school district retirees also commenced a CPLR Article 78 proceeding to annul the district's decision to discontinue Medicare Part B premium reimbursements (Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134 [2005]). This action wast remitted to Supreme Court for further record development to determine whether there had been a "corresponding diminution of benefits or contributions" effected by petitioner from active employees (Chapter 48 of the Laws of 2003; see Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1137-1138). The instant proceeding before the Appellate Division, in contrast, involved current, active employees of school district.

** PERB conditionally dismissed the charge subject to a motion to reopen the matter after the conclusion of the grievance procedure. When the grievance proceeded to arbitration, an arbitrator determined that petitioner was under no contractual obligation to continue the payments.

*** In contrast, the specific issue before the arbitrator was whether school district was under a contractual obligation to make Medicare Part B reimbursement payments to retirees.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03700.htm