Individual dismissed after being found guilty of stealing from a fellow employee

Individual dismissed after being found guilty of stealing from a fellow employee

Clinkscales v Kelly, 2012 NY Slip Op 04287, Appellate Division, First Department

New York City Police Commissioner Raymond Kelly dismissed a police officer found guilty of disciplinary charges that alleged that the officer had stolen a money order from a fellow officer and deposited it in her bank account.

Holding that there was substantial evidence to support finding the officer guilty of the charges filed against her, the Appellate Division then addressed the issue of the officer’s request for an adjournment of the hearing pending the disposition of the complaining officers' related disciplinary charges.

The court ruled that the officer was not deprived of due process as her counsel agreed to the scheduled hearing date, knowing that the minutes, but not the decision, in the related matter were available. Indeed, the decision reports that the officer had a copy of the complaining officers' testimony in the related hearing.

Further, said the court, the decision in the related matter was not probative of any issue in the officer’s disciplinary proceeding.

As to the penalty imposed, dismissal, the Appellate Division said that it did not shock its sense of fairness, citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04287.htm

Negotiating under the Taylor Law in joint employment relationship

Negotiating under the Taylor Law in joint employment relationship

Negotiating under the Taylor Law in joint employment relationship

Matter of the County of Erie, 44 PERB ¶3027, U-28856

The Board affirmed, as modified, a decision of a PERB Administrative Law Judge finding that the County of Erie violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it refused to execute memoranda of agreement negotiated and signed by CSEA and the Erie County Medical Center Corporation.

The Board reiterated that Public Authorities Law §§3629 and 3630 demonstrate a clear legislative intent to create a statutory joint employment relationship between the County and ECMCC, but with unique characteristics distinct from those of other joint employers designated under the Act.

The Board held that the County violated §209-a.1(d) of the Act by failing to sign the agreements because the County had previously acquiesced in ECMCC conducting separate direct negotiations with CSEA resulting in memoranda of agreement that the County signed and the County failed to inform ECMCC and CSEA that it would not execute future agreements resulting from the direct ECMCCCSEA negotiations. 

Failure to cooperate defeats allegations the union violated Civil Service Law §209-a [The Taylor Law] when it withdrew from representing the individual in a disciplinary proceeding

Failure to cooperate defeats allegations the union violated Civil Service Law §209-a [The Taylor Law] when it withdrew from representing the individual in a disciplinary proceeding

Ronald Grassel and United Federation Of Teachers, Local 2, PERB Case U-29040

PERB Administrative Law Judge Blassman dismissed the charge which alleged that the United Federation of Teachers [UFT] violated §209-a.2(a) and (c) of the Act when it withdrew as Grassel’s representative in his Education Law §3020-a disciplinary proceeding.

The ALJ found that the UFT did not act arbitrarily, discriminatory or in bad faith when it withdrew as Grassel’s representative, the standard required for such violations.

The record showed that NYSUT, which was representing Grassel on behalf of the UFT, withdrew as Grassel’s representative because Grassel sent a letter to the arbitrator in which he made various motions and requests to the arbitrator and refused to rescind that letter upon NYSUT’s request. The ALJ found that, by making motions and requests normally reserved for the assigned attorney, Grassel had failed to cooperate with NYSUT in his representation and had impinged upon the negotiating representative’s rights under the Act to make litigation and trial decisions.

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.