Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA
2013 NY Slip Op 04411, Appellate Division, Third Department

A member of the college's faculty [MF] contended that various members of the faculty and the administration failed to follow the procedures set forth in the collective bargaining agreement [CBA] in considering him for promotion to his professional and economic detriment.

The Faculty Association filed a grievance on MF’s behalf but shortly thereafter decided withdraw its grievance. MR sued, alleging a breach of the CBA. Ultimately Supreme Court dismissed his petition, finding that MF “lacked standing” to bring the action and MF appealed that ruling to the Appellate Division.

MF argued that although he does not contend that the Faculty Association breached its duty of fair representation, he should have standing to pursue a common-law breach of contract action against his employer regarding the alleged violations of the promotion procedures.

The Appellate Division disagreed, holding that "As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract."

Although the court noted “Exceptions [to the general proposition] [1] include where the collective bargaining agreement grants an employee a right to sue directly or [2] where the union fails in its duty of fair representation,” it pointed out that MF acknowledged that he is not alleging that Faculty Association breached its duty of representation but that argued that under the CBA decisions related to promotions are excepted from the grievance procedure and, thus, he contends that he can pursue an action directly against college defendants.

Rejecting MF’s theory, the Appellate Division said that the ultimate decision granting a promotion is not subject to a grievance under the CBA in contrast to the “lengthy procedures” faculty members must follow over several years to become eligible for consideration of a promotion. Such procedures, said the court, “are set forth in the CBA and are not explicitly excepted from the grievance process.”

It is the purported failure to follow these promotion procedures that MF challenged and the CBA, said the court, “does not carve out a separate right regarding these procedures that can be enforced by an employee directly against defendants.”

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04411.htm

Disqualifying an individual for employment in the public service

Disqualifying an individual for employment in the public service

Ferrine v Bahou, 75 AD2d 669

§50.4 of the Civil Service Law requires notice of the reasons for the disqualification of a person for employment in the public service by the New York State Department of Civil Service, or the municipal commission or personnel officer having jurisdiction, be given to the individual, together with an opportunity to submit an explanation challenging such disqualification.

As the employee in this case, Ferrine, was not provided with an opportunity to submit facts in opposition to his disqualification, the Appellate Division sustained the Supreme Court’s ruling holding that his dismissal was unlawful and the appointing authority was required to reinstate the employee to the position with back salary.

Judge Casey, however, dissented, noting that the basis for Ferrine’s disqualification was that he was unable to meet the age requirements for appointment to the position and thus “The [municipal]  commission had not only a right but a duty to remove him.”

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member

Price v New York State & Local Employees' Retirement Sys., 2013 NY Slip Op 04405, Appellate Division, Third Department

An individual [Member] was employed in various positions by New York State public employers in 1968 until 1975 when he left public service. At no time during such period did Member join the New York State and Local Employees’ Retirement System [ERS] nor, according to the decision, was he advised that he was a “mandatory Tier 1 member” of ERS.

Member reentered New York State public employment in 1980 and joined ERS as a contributory Tier 3 member. In 1997, without notice to Member, ERS administratively granted him Tier 1 membership with service credit for the initial years he had worked (1968-1975). However, upon further review, ERS deemed that Member’s Tier 1 membership automatically terminated in 1975 for inactivity in accordance with the provisions of the Retirement and Social Security Law then in effect, thereby continuing him as a Tier III member of ERS.

Member subsequently applied for, and was approved for, reinstatement to Tier 1 pursuant to Retirement and Social Security Law §645.* He then requested a refund of the contributions he had made since 1980 as a Tier 3 member.

ERS denied his request indicating that “[Member] did not qualify for a refund under the … statute pursuant to which he was reinstated,” (see Retirement and Social Security Law §645[2]). Member then commenced an Article 78 proceeding challenging the Retirement System’s determination denying his request for a refund of the contributions he had made as a Tier 3 member prior to his reinstatement to Tier 1, a noncontributory tier, pursuant to Retirement and Social Security Law §645.

The Appellate Division sustained ERS’s determination, explaining that  “Under the unambiguous terms of [Retirement and Social Security Law §645(2)], ‘[a]ny contribution made to [ERS] pursuant to Article [14] or [15] of this Chapter by a member who rejoined his or her current system on or after [July 27, 1976] shall not be refunded.”" [Emphasis supplied by the Appellate Division.]

Where, as here, said the court, "the Comptroller's application and interpretation of the relevant statutes are not 'irrational, unreasonable or contrary to the statutory language,' the determination will be upheld.”

As to “procedural difficulties” experienced by Member, the court said that “erroneous advice by [Member’s] employer, misplacement [of him] by [ERS] in a contributory tier or [his] delayed reinstatement to a noncontributory tier ‘cannot estop the Comptroller from performing his duties and denying any reinstatement [or refund of contributions] that is contrary to the statutes.’"

The Appellate Division also addressed the various provisions set out in the Retirement and Social Security Law addressing “vesting” of a member's ERS benefits under certain conditions, none of which “conditions,” said the court, were applicable in Member’s situation.

* Retirement and Social Security Law §645, which was adopted in 1998, allows current members of ERS who had reentered public service to apply for reinstatement to their original Tier membership status under certain circumstances.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04405.htm

Correction officers locked up for compulsory overtime

Correction officers locked up for compulsory overtime

Cacace v Seniuk, 104 Misc.2d 560

While a somewhat novel way to have overtime work performed, Supreme Court, Nassau County, held that correction officers compelled to work overtime were not denied their constitutional rights.

Although locked up in the jail, as they were during normal working hours, and denied the ability to leave without permission, Supreme Court ruled that such action was within the power of management.

The fact that the employees had received overtime pay or compensatory time off, together with a view that such a procedure was a reasonable and necessary limitation on the correction officers, was enough to support for the Court to hold that correction officers were not entitled to injunctive or declaratory relief.

Indeed, said the court, “In the last analysis, it is doubtful whether it is within the competence of the judiciary to grant the injunctive relief requested in any event. The question of manpower and its deployment is essentially one of management prerogative solely within the discretion of the public employer.”

The Court also found that §161 of the Labor Law was not applicable to correction officers, explaining that a corrections officer is a “peace officer” and “clearly not an employee within the statutory definition, i.e., a “mechanic, workingman or laborer working for another for hire,” set out in §161.

A change in the professional obligation of employees in a collective bargaining unit negotiable

A change in the professional obligation of employees in a collective bargaining unit negotiable

PERB (Case U-4144)

The unilateral reduction of the school district’s administrators’ work year [professional obligation] from 11 to 10 months -- but requiring the performance of essentially the same service -- was held to be a violation of the school district’s duty to negotiate the change with the employee organization representing the administrators’ “negotiating unit”.

The school district was directed to reinstate the administrators’ 11-month professional obligation and pay any back salary due them.

In contrast, a PERB hearing officer held that the unilateral change in a district’s work day for teachers from 8 am to 3 pm to 8:30 am to 3:30 pm following good faith bargaining to impasse on the issue was not a violation of the Taylor Law even though the impasse had not been resolved at the time of the change by the district. (Case U-4294).