Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation

Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation

Calkins v Police Benevolent Assn. of N.Y. State Troopers, Inc., 55 AD3d 1328

Thomas E. Calkins and five other retired State Troopers were among some 72 retirees rehired as "Special Troopers" on a temporary basis in 2001. They commenced this lawsuit in an effort to recover wage and benefit increases negotiated by the Police Benevolent Association of New York State Troopers [PBA] pursuant to a collective bargaining agreement (CBA) between it and the State of New York

Calkins charged the PBA violated its duty of fair representation as the exclusive bargaining agent for the Special Troopers as a result of the PBA excluding the Special Troopers from expanded duty pay and increases in longevity pay in an effort to obtain a substantial increase in longevity pay for the other State Troopers in the unit represented by the PBA. The Special Troopers’ exclusion was reflected in Memorandum of Agreement signed by the PBA and the State and subsequently ratified by PBA’s membership.

Supreme Court granted the PBA’s motion for summary judgment dismissing the Calkins' action and Calkins appealed.

The Appellate Division commence its review of the appeal by noting that in order “To establish that a bargaining agent breached its duty of fair representation, a plaintiff must show that the bargaining agent's conduct was arbitrary, discriminatory, or in bad faith,” citing Civil Service Bar Assn., Local 237 v City of New York, 64 NY2d 188. To do so, said the court, the complaining party must provide substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate objectives of the collective bargaining representative.

Here, however, the fact that the PBA treated the Special Troopers differently from other State Troopers represented by it in its negotiations for a new collective bargaining agreement does not amount to a violation of the duty of fair representation. The court found that the PBA “met its initial burden on the motion by establishing that it undertook ‘a good-faith balancing of the divergent interests of its membership and [chose] to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees.’"

Further, said the Appellate Division, the record demonstrates that the PBA did not misrepresent its negotiating position. A "Contract Update" memorandum sent to its members expressly stated that the Special Troopers were excluded from "all new monetary aspects of the contract."

As the record before it did not demonstrate that the PBA’s conduct was arbitrary, discriminatory or in bad faith, the Appellate Division sustained the lower court’s granting the PBA’s motion for summary judgment.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07368.htm

Simple majority vote required for most personnel actions taken by a Board

Simple majority vote required for most personnel actions taken by a Board

Inquiry from a NYPPL reader

From time to time a reader will submit a question concerning a personnel matter that may be of general interest to the readers of New York Public Personnel Law. In this instance the reader submitted an inquiry regarding the termination and reinstatement of police officers or firefighters by a Town or Village Board. The question: "Does a Town Board or a Village Board need a 'super majority' to either terminate or reinstate a police officer or firefighter?"

In your editor's opinion, unless there is a law, rule, regulation or a provision in a collective bargaining agreement providing otherwise, generally all that is required to appoint, suspend, terminate or reinstate an individual to a position is a simple majority of a board when a board is the “appointing authority.”

For example, Education Law Section 2573(1)(a) permits the termination of a probationary teacher "at any time during [the individual's] probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education" while Education Law Section 2509(2) states that a majority vote of a school board for tenure is required to grant a probationary teacher tenure.

With respect to the granting of tenure by a board of education, the Commissioner of Education rejected the theory that a majority voting against tenure was required to deny a teacher tenure in the district [Decisions of the Commissioner of Education Decision No. 14,337]. In other words, unless there is an affirmative vote by a majority of the members of the school board to grant the individual tenure, he or she cannot claim tenure except in those relatively rare situations where the individual attains tenure by acquiescence or estoppel by operation of law.

As to a “super-majority” vote requirement, in some instances this is provided for by statute.

In Headriver, LLC v. Town Bd. of Town of Riverhead, 2 N.Y.3d 766, the Court of Appeals pointed out that where a planning commission recommends that the application for a special use permit be denied, General Municipal Law §239-m requires a “super-majority” vote by the town board in order to overturn the commission’s recommendation.

In Headriver, following a public hearing, the Board voted 3-2 to grant the special use permit. As the statutory super-majority requirement [i.e., a 4-1 vote], the commission's recommendation had not been overturned by the Board as the statute required “a vote of a majority plus one of all the members thereof.”

In another case, the court ruled that the Brookhaven Town Board violated its own procedures when it considered a resolution less than 90 days after earlier rejecting it. The Board’s procedure mandated that "A Resolution, Local Law or Ordinance that receives less than a majority of votes shall not be reintroduced for ninety days (90) or unless this rule is waived by a super-majority vote of the Town Board." [East End Property Co. No. 1 LLC v. Town Bd. of Town of Brookhaven, 15 Misc.3d 1138(A)].

Additionally, General Construction Law §41 requires a majority of the entire board to take any official action. Relying on this provision, the Commissioner of Education ruled that a school board may not adopt a policy requiring affirmative votes by more than a majority of the whole number of the board to take official action because neither the Education Law nor the General Construction Law authorizes a board to adopt requirements in excess of those already provided by statute (Miller, 17 Ed Dept Rep 275).

In contrast, Education Law §3016(2) requires a two-thirds vote of the board to appoint a relative of a board member to a teaching position, rather than the simple majority to appoint a non-relative, thus requiring a "super-majority" to appoint a board member's relative to a teaching position.

As earlier noted, a “super-majority” may be “a majority of all voting members of a body, plus one;" a specified number such as a two-third or three-quarter vote; or in rare cases, a unanimous vote by the body.

On a related issue, "Determining if a quorum required to conduct official business is present," see Formal Opinions of the Attorney General 2008-F1.

Destruction or loss of evidence

Destruction or loss of evidence

Dep't of Correction v. Archibald, OATH Index Nos. 2214/08, 2215/08 & 2216/08

OATH Administrative Law Judge John Spooner rejected a correction officer's motion to dismiss disciplinary charges filed againsthim based upon the spoliation of certain logbooks sought as evidence. Explaining that under New York law, sanctions for spoliation of evidence are appropriate where a litigant intentionally or negligently disposes of crucial evidence before the adversary has an opportunity to inspect them, the ALJ concluded that the officer failed to establish how the logbooks disappeared or how their disappearance would prejudice his defense.

 

Courts will defer to an administrative decision made by an agency pursuant to its authority if it acted rationally within its area of expertise

Courts will defer to an administrative decision made by an agency pursuant to its authority if it acted rationally within its area of expertise

Roberts v Gavin, 2012 NY Slip Op 05239, Appellate Division, First Department

Lillian Roberts, Executive Director of District Council 37, AFSCME, AFL-CIO [DC 37], petitioned Supreme Court seeking an order annulling the Personnel Review Board of the New York City Health and Hospitals Corporation [PRB] determination the Health and Hospitals Corporation [HHC] decision to restructure its layoff units in response to a recent financial crisis.

Supreme Court dismissed DC 37’s petition; the Appellate Division affirmed the lower court’s ruling.

HHC, which initially had a single corporation-wide layoff unit that included all of its facilities throughout New York City, subsequently created smaller layoff units based on individual hospitals and health care facilities within HHC. In 2009, in response to financial pressures faced by the City, HHC again restructured its layoff units by creating eighteen additional, smaller, layoff units within the existing hospital and medical centers that had previously been designated as the layoff units. HHC then announced plans to either close or reduce staff at the clinics and programs designated as the new layoff unit, which would affect about 87 HHC employees.

After noting that Supreme Court “should not have dismissed the proceeding as time-barred,” the Appellate Division considered the merits of DC 37’s petition.

DC 37’s contended that PRB’s action was arbitrary and capricious. 

The Appellate Division said that an administrative body’s act or omission is arbitrary if it "is without sound basis in reason and is generally taken without regard to the facts," citing Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222. In contrast, said the court, “Where a rational basis exists for an agency's action, a court may not substitute its judgment for that of the agency, and the agency's determination, acting pursuant to legal authority and within its area of expertise, is entitled to deference.”

The Appellate Division said that DC 37 failed to show that PRB's upholding HHC's creation of additional layoff units was arbitrary or capricious, or affected by an error of law, pointing out that HHC acted consistent with its past practice of designating hospital programs as layoff units.

Citing the relevant HHC Rules, which, in pertinent part, sets out HHC’s the authority to amend its own rules and regulations and which, in particular, provides that HHC "may by rule designate an individual facility or division of any facility of [HHC] as separate units for layoff or demotion under this rule," the court concluded that the HHC Rules explicitly grant HHC the discretion to designate programs and clinics of HHC facilities as layoff units. 

At the hearing, HHC explained that the closing of the clinic and hospital-based programs was necessary to provide continuity of patient care in light of the budget deficit crisis facing the City. And in its decision, PRB found that HHC's actions were predicated on budgetary deficits that required closure and/or consolidation of programs and clinics in order to minimize the impact on patient care. PRB's decision was consistent with its previous precedent that "a presumption of regularity exists in the establishment of separate layoff units, until it is demonstrated that the layoffs were not done in accordance with a rational plan" (PRB Decision No. 682 [May 27, 1992] [emphasis in original]).

Noting that "A public employer may abolish civil service positions for the purpose of economy or efficiency," the court rejected DC 37’s claim that the creation of the new layoff units violated the seniority and displacement rights of certain employees, commenting  “although some longtime employees may lose their jobs, and newer employees may not,” in the absence of any nonconclusory showing of bad faith, it declined to disturb HHC's determination establishing the additional layoff unit.

Recognizing that there may have been a different way for HHC to structure its layoff plan, the Appellate Division said that it could not say that the agency acted in an arbitrary or capricious manner as "a court's opinion that a particular outcome is not fair or is not in the interests of justice is not sufficient to overcome the deference to be afforded an agency acting rationally within its area of expertise" and declined to substitute its judgment as to how HHC “should implement personnel decisions when determining how best to provide health care to the people of New York City” as to do so “would be an unwarranted intrusion into the managerial prerogative of HHC, which acted within its rule-making authority.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05239.htm

Disqualifying an individual who has intentionally made a false statement of any material fact in his or her application for public employment

Disqualifying an individual who has intentionally made a false statement of any material fact in his or her application for public employment

United States v. Xavier Alvarez, USSC, Docket #11-310

Civil Service Law §50.4, in pertinent part, provides that “The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible …

“(f) who has intentionally made a false statement of any material fact in his [or her] application; or

“(g) who has practiced, or attempted to practice, any deception or fraud in his [or her] application, in his examination, or in securing his [or her] eligibility or appointment….”

Are these provisions still valid in view of the Supreme Court's ruling in United States v Alverez concerning false speech that is protected by the First Amendment?

In a word, yes! 

In holding the Stolen Valor Act, 18 U.S.C. §704(b) “facially invalid under the Free Speech Clause of the First Amendment,” Justice Kennedy, writing for the majority, explained: “Permitting the government to decree [Alvarez's false claim that he had been awarded the Congressional Medal of Honor] to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern­ment authority to compile a list of subjects about which false statements are punishable. *

That governmental power, said the majority, "has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. [See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003)]. Were this law to be sus­tained, there could be an endless list of subjects the Na­tional Government or the States could single out."

In contrast, Justice Kennedy pointed out that “Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment,” citing Virginia Bd. of Pharmacy, 425 U. S., at 771** [emphasis supplied].

Thus it seems clear that the State Civil Service Department or a municipal civil service commission may lawfully disqualify an individual for public employment pursuant to Civil Service Law §50.4(f) and, or, §50.4(g), consistent with the due process provisions available to the applicant or employee.***.

* Justice Kennedy noted that “The statements [made by Alvarez] do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.”

** In Virginia the Supreme Court held that “fraudulent speech generally falls outside the protections of the First Amendment.”

*** §50.4 provides that “ No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.

The Alvarez decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf