Arbitration award granting relief to both active employees and retired employees confirmed

Arbitration award granting relief to both active employees and retired employees confirmed

Matter of City of Buffalo (Buffalo Professional Firefighters Assn., IAFF Local 282), 2012 NY Slip Op 04527, Appellate Division, Fourth Department

The City of Buffalo modified the health insurance plan provided to members of in several negotiating units. The several unions representing City employees in those units filed a grievance with respect to the modified plan, alleging that the modified plan violated their respective collective bargaining agreements (CBA).

An arbitrator issued an award finding that the City's actions violated the relevant CBAs and awarded relief to both active members and retired former members in the collective bargaining units that brought the grievances. 

Buffalo filed an Article 75 petition seeking to vacate the award to the extent that it granted relief to the retirees.

The Appellate Division ruled that the arbitrator did not exceed his authority in fashioning an award that granted relief to the retired unit employees, explaining that the issue whether the unions had standing to represent retired employees formerly in their respective collective bargaining units was for the arbitrator to determine. 

Significantly, the court noted that the record was devoid of any evidence that the elimination of health insurance options did not affect the retirees such that the relevant unions would lack standing to represent them. Accordingly, the court held that Buffalo “failed to demonstrate that the arbitrator exceeded his authority.”

As to Buffalo’s argument that the arbitration award should be vacated because it was "indefinite" as the arbitrator had granted its request to delay implementation of the award until a related police union case completed the appeal process and thus was finalized, the Appellate Division said that it rejected the City’s theory, holding that "An award is subject to vacatur as indefinite or nonfinal only if it leaves the parties unable to determine their rights or obligations, if it does not resolve the controversy submitted, or if it creates a new controversy."

The Appellate Division then confirmed the arbitration award.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04527.htm

A demand is directly related to compensation when its primary characteristic is a modification in the amount or level of compensation and is thus arbitrable

A demand is directly related to compensation when its primary characteristic is a modification in the amount or level of compensation and is thus arbitrable

County of Orange and Sheriff of Orange County and Orange County Deputy Sheriff’s Police Benevolent Association, Inc., 44 PERB ¶3023, U-28693, U-28738 

The Board reaffirmed that a demand is directly related to compensation, and therefore arbitrable under §209.4(g) of the Public Employees’ Fair Employment Act (Act), when its sole, predominant or primary characteristic is a modification in the amount or level of compensation.

In making such a determination, the Board compares the proposal with the lists of subjects specifically identified by the Legislature in §209.4(g) of the Act. The Board, however, reversed the decision in Putnam County Sheriff’s Dept PBA, Inc., 38 PERB ¶3031 (2005), to the extent it held that a proposal seeking a change in the aggregate amount or level of compensation received by unit members from the nonuse of sick leave is nonarbitrable under §209.4(g) of the Act.

The Board concluded that the primary characteristic of such a demand is the monetization of sick leave, a compensatory benefit ordinarily unavailable to public employees.

In addition, the Board reversed Sullivan County Patrolmen’s Benevolent Association, 39 PERB ¶3034 (2006) to the extent it concluded that a proposal seeking to permit the conversion of overtime compensation into compensatory leave and to permit the subsequent remonetization of that leave back into cash or to be applied to health insurance is nonarbitrable because it relates only to “potential” compensation.

The Board held that union proposals in the present cases seeking to permit the conversion of accumulated unused leave time into cash at the time of separation from service were arbitrable under §209.4(g) of the Act because each seeks a form of deferred compensation. However, the Board found that a proposal to increase the amount of compensatory leave time that can be accumulated is nonarbitrable.

Finally, it found a proposal to require an unpaid leave of absence to run currently with leave under the Family Medical Leave Act was nonarbitrable.

PERB reached the same conclusion concerning a unitary demand involving overtime, flex time and scheduling. 

Practice tip noted by PERB staff:  The practical impact of the distinction drawn in §209.4(g) of the Act between arbitrable and nonarbitrable subjects might lead parties to choose to segregate arbitrable subjects from the nonarbitrable in their initial proposals or to sever them during the course of negotiations. While such an approach is not obligatory under §209.4(g) of the Act, it can help avoid unnecessary delays in the issuance of interest arbitration awards and fact-finding reports following an impasse. In contrast, placing arbitrable and nonarbitable subjects into a single demand creates the high risk that the demand will be treated as a nonarbitrable unitary demand. 

Union’s demand that GML §207-c the individual continue to receive benefits pending a hearing and determination is mandatorily negotiable

Union’s demand that GML §207-c the individual continue to receive benefits pending a hearing and determination is mandatorily negotiable

Baldwinsville Police Benevolent Association and Village of Baldwinsville, 44 PERB ¶3031, U-29453, U-29481 

PERB held that that a General Municipal Law (GML) §207-c proposal that would require a continued receipt of benefits pending a hearing and determination is mandatorily negotiable because the proposal seeks a contractual codification of a unit member’s constitutionally protected property right of continued GML §207-c benefits, which can not be terminated without due process.

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A finding of incompetence in a §75 disciplinary proceeding only requires evidence of some dereliction or neglect of duty

A finding of incompetence in a §75 disciplinary proceeding only requires evidence of some dereliction or neglect of duty

Gibson v Board of Educ. for The City School Dist. of Albany,2012 NY Slip Op 04441, Appellate Division, Third Department

A City School District of Albany account clerk was charged with two specifications of incompetence: unsatisfactory work performance and excessive absenteeism, during the 2009-2010 school year. Following a hearing pursuant to Civil Service Law §75, account clerk was found guilty of both specifications and the Hearing Officer recommended dismissal as a penalty to be imposed.

The appointing authority accepted the Hearing Officer's findings and recommendation and terminated account clerk's employment with the school district. Contending that the evidence did not support the Board's finding that her conduct and deficiencies rose to the level of incompetence, and that dismissal is an inappropriate and excessive penalty, the account clerk appealed.

The Appellate Division ruled that “The determination of the Board must be upheld where, as here, it is supported by substantial evidence,” explaining that "a finding of incompetence only requires evidence of some dereliction or neglect of duty." Further, said the court, testimony by the account clerk’s immediate supervisors, coworkers and two district-level assistant supervisors, and the documentary evidence — including the clerk's employee evaluations in March 2009 and May 2010 and attendance records — “provided overwhelming evidence to substantiate each of the specifications of misconduct.”

As to the penalty imposed, dismissal, the Appellate Division said that “on the record before us, we do not find the penalty of termination shocking to the judicial conscience,” citing Kelly v Safir, 96 NY2d 32, and Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, explaining that the individual was “given numerous warnings over a period of many years and failed to assume responsibility for her shortcomings.”

Accordingly, said the court, “In view of the foregoing, the Board's implicit conclusion that further attempts to rehabilitate and retrain petitioner would be futile is neither unfair, shocking nor an abuse of discretion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04441.htm

Civil Service Commission permitted to rely on appointing authority’s medical expert’s opinion where medical experts differ concerning applicant’s medical condition

Civil Service Commission permitted to rely on appointing authority’s medical expert’s opinion where medical experts differ concerning applicant’s medical condition
Matter of Altieri v City of New York Civ. Serv. Commn. 57 AD3d 248

Anthony Altieri sued the New York City Civil Service Commission after it disqualified him for appoint to the position of sanitation worker because of Altieri’s cardiac condition

The Appellate Division said that the Commission was entitled to rely on the opinion of the Department of Sanitation's medical director that Altieri's appointment as a sanitation worker would put Altieri “at serious risk.”

The fact that Altieri’s treating physician’s opinion disagreed with the Department’s medical director’s opinion does not tend to show that the Commission "acted illegally or capriciously or adopted a professional opinion not founded on a rational basis."

Further, the Appellate Division commented that Altieri’s disqualification for medical reasons “cannot be the predicate of a discrimination claim under Executive Law §296(1)(a).”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09487.htm