Questions concerning the prosecution of grievances and whether the compliant is grievable is for the arbitrator to resolve

Questions concerning the prosecution of grievances and whether the compliant is grievable is for the arbitrator to resolve
Hartsdale Fire Dist. v Greenburgh Uniform Firefighters Assn., Inc., Local 1586, IAFF, AFL-CIO, 55 AD3d 731

The collective bargaining agreement between the Hartsdale Fire District and the Greenburgh Uniform Firefighters Association contained a broad arbitration clause providing for the arbitration of disputes "concerning the meaning, application or interpretation of this Agreement, which remains unresolved after presentation to, and processing through the grievance procedure."

Hartsdale resisted the Association’s demand for arbitration, contending that (a) the underlying grievance was not subject to arbitration; that the Association had not satisfied the procedural steps with respect to the grievance procedure; and (3) that only a unit member, rather than the Association, could file a grievance and demand arbitration.

Supreme Court dismissed Hartsdale’s petition seeking a permanent stay of arbitration and the Appellate Division affirmed the lower court’s holding.

The Appellate Division said that there was “a reasonable relationship between the subject the disputes, which involves the [Association’s] grievances over the [Hartdale’s] directives that the [Association’s] union members work and train in a fire-damaged firehouse before the firehouse was fully repaired, and the general subject the collective bargaining agreement.” Further, said the court, the CBA does not specifically exclude from arbitration the subject the grievances that concern public health and the safety of public employees. Accordingly, said the court, the question of the scope of the substantive provisions of the CBA is a contract interpretation and application reserved for the arbitrator.

As to Hartsdale’s claim that the Association failed to comply with a condition precedent before demanding arbitration, the Appellate Division pointed out that, in general, “disputes over the parties' adherence to the grievance procedure set forth in the parties' CBA is for the arbitrator to determine, not for the courts.”

Finally, said the Appellate Division, Hartdale’s claim that “grievances must be pursued only by individual employees, rather than by the [Association], especially in light of the [Association’s] contention that [Hartsdale] has a past practice of hearing grievances pursued solely by the [Association], is a matter for the arbitrator to resolve.”

As to Hartsdale’s representation that only the aggrieved employee could file a grievance, in general, making a decision to file a grievance typically is viewed as vested in the employee organization and not an individual member of the negotiating unit. Further, the Association argued that it “owned the right to go to arbitration” which is the traditional view in such situations.

In Hickey v Hempstead Union Free School District, 36 A.D.3d 760, the Appellate Division said that a union member generally has no individual rights under a collective bargaining agreement that he or she can enforce against an employer. In the absence of a contract provision stating otherwise, an employee may proceed directly against the employer only when the union fails in its duty of fair representation and "In order to establish a breach of the duty of fair representation, it is necessary to show that the union's refusal to demand that the grievance go to arbitration was arbitrary, discriminatory, or in bad faith."

As to the alleged “past practice” whereby only individuals filed grievances, it is unlikely that such a practice would be viewed as a union’s abandoning or forfeiting its right to file grievances and demand arbitration with respect to alleged violations of the collective bargaining agreement.

The full text of the Hartsdale decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07903.htm

The full text of the Hickey decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_00493.htm

Individual terminated after making false statements to a department investigator  
Foster v Kelly, 55 AD3d 403

New York City Police Department Commissioner Raymond Kelly dismissed a New York City police officer from his position after the officer was found guilty of making false and misleading statements to Department investigators and attempted to influence the testimony of a witness in an official investigation.

The Appellate Division sustained the Commissioner’s decision, holding that substantial evidence supported the finding that officer was guilty of the charges filed against him. Further, said the court, “the penalty of dismissal from employment does not shock the judicial conscience,” citing Kelly v Safir, 96 NY2d 32.

The full text of the decisions is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07960.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of June 18 - 24, 2012 [Click on the caption to access the full report]


DiNapoli: State Lost An Estimated $1.7 Million By Not Claiming Cash Discounts

New York state agencies failed to obtain cash discounts on contracts, wasting up to $1.7 million, according to three reports released Monday by State Comptroller Thomas P. DiNapoli.

DiNapoli Statement on Pew Pension Fund Report

On Tuesday, New York State Comptroller Thomas P. DiNapoli said, “The Pew Report has again recognized the New York State and Local Retirement System as one of the best public pension systems in the country. Our commitment to responsibly manage the system and make required annual contributions has kept us on firm ground. The Pew Report has again recognized the New York State and Local Retirement System as one of the best public pension systems in the country. Our commitment to responsibly manage the system and make required annual contributions has kept us on firm ground. Our diversified portfolio and funding status has permitted us to capitalize on market opportunities and rebound from the financial crisis of 2008–09. More than one million New Yorkers rely on the system for retirement security and I will make sure we continue to make prudent choices to keep our promise to them.”

DiNapoli: State Pension Fund Investing In New York Businesses

New York State Comptroller Thomas P. DiNapoli Tuesday toured the corporate headquarters of 5LINX Enterprises in Rochester to highlight investments made in New York businesses by the New York Common Retirement Fund (Fund). Since 2001, the Fund has invested nearly $60 million in companies in Monroe, Ontario and Genesee Counties through its In–State Private Equity Program.

DiNapoli: Leadership Event To Assist Local Governments 


New York State Comptroller Thomas P. DiNapoli’s Local Government Leadership Institute Wednesday brought together officials from all levels of local government to discuss key regional issues and examine potential solutions to the current challenges in government.

Comptroller DiNapoli Releases Municipal Audit


New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed the audit of the Town of Orchard Park.

Comptroller DiNapoli Releases School Audit 


New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed an audit of the COMMUNITY Charter School.

Section 3020-a Disciplinary Charge Transmittal Form issued by the NYS Department of Education

Section 3020-a Disciplinary Charge Transmittal Form issued by the NYS Department of Education

Source: NYS Department of Education

The New York State Department of Education Teacher Tenure Hearing Unit has promulgated a new form, dated June 2012, that is to be used to transmit disciplinary charges filed against an individual pursuant to §3020-a of the Education Law.

The form states: “The District Clerk or the Secretary of the Board of Education must file this form via fax or mail with the Education Department when the Board of Education has found that there is probable cause to bring charges against a tenured educator.  A copy of the Notice of Probable Cause and the Charges voted on by the Board must be transmitted with this form.”

The form states that the form and disciplinary charges may be FAXed to (518) 402-5940 or they may be mailed to:

The State Education Department

Teacher Tenure Hearing Unit

EBA Room 981

Albany, New York 12234

The form is posted on the Internet at:

http://www.highered.nysed.gov/tcert/pdf/3020achargetransmittal.pdf

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Action by the Commission on Judicial Conduct to remove a judge from office

Action by the Commission on Judicial Conduct to remove a judge from office
Matter of LaBombard, 11 NY3d 294

The New York State Commission on Judicial Conduct is the state agency responsible for investigating complaints of misconduct against judges of the state unified court system and, where appropriate, determining the penalty to be imposed. The penalty could be "admonishment," censure or remove from office judges found to have engaged in unethical behavior. All determinations by the Commission are subject to review by the Court of Appeals.

The types of complaints that may be investigated by the Commission include allegations of improper demeanor, conflicts of interest, intoxication, bias, prejudice, favoritism, corruption, prohibited business or political activity, serious financial and records mismanagement, assertion of the influence of judicial office for the private benefit of the judge or others, and other misconduct on or off the bench. Allegations of physical or mental disability may also be investigated.

The Commission on Judicial Conduct found that the Honorable Dennis LaBombard, Justice of the Ellenburg Town Court, had engaged in serious judicial misconduct and recommended that he be removed from office. Judge LaBombard asked the Court of Appeals to review the Commission’s determination.

After plenary review of the record in this case, the Court of Appeals said that it agreed with the Commission's recommendation, holding that “the determined sanction of removal should be accepted.”

The Court’s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07990.htm

The Commission’s decision is posted on the Internet at:
http://www.scjc.state.ny.us/Determinations/L/labombard.htm