A $12,500 fine imposed as the disciplinary penalty held shocking to one's sense of fairness and reduced to $1,250

A $12,500 fine imposed as the disciplinary penalty held shocking to one's sense of fairness and reduced to $1,250

2013 NY Slip Op 04278, Appellate Division, First Department

An arbitrator found a New York City Department of Education teacher guilty certain charges filed against her pursuant to Education Law §3020-a and imposed a fine of $12,500.

Supreme Court denied the teacher’s CPLR Article 75 petition* seeking to vacate the award and confirmed the arbitrator’s decision and penalty imposed. The teacher appealed.

The Appellate Division modified the Supreme Court’s ruling “on the law” only as to the fine imposed, reducing the fine to $1,250. 

The court said that the arbitrator found that the teacher was negligent in dealing with a stray kitten in her backyard rather than guilty of “intentional misconduct” as charged by the Department. Further, the arbitrator found that the teacher had “a 15 year unblemished record” and the conduct for which she was charged was completely unrelated to her professional work.

The Appellate Division found that the fine imposed, $12,500, was so “disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness” and reduce it accordingly.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04278.htm

Federal regulation did not preempt employer’s obligation to collectively bargain a new employer policy in this instance

Federal regulation did not preempt employer’s obligation to collectively bargain a new employer policy in this instance

City of New York v Board of Collective Bargaining of the City of N.Y., 2013 NY Slip Op 04887, Appellate Division, First Department

The City of New York filed a petition pursuant to CPLR Article 78 in an effort to annul a decision by the Board of Collective Bargaining of the City of New York granting the union’s improper practice petition.

Supreme Court denied the City’s petition and granted the Board’s motion to dismiss the action. The Appellate Division affirmed the lower court’s rulings.

The City had claimed that “federal regulations” permitted its Department of Transportation [DOT] to unilaterally require an employee to submit a doctor's "fit for duty" statement following his or her absence from work for three or more days. The Appellate Division concluded that the City’s reliance on federal regulation in this instance was misplaced and did not preempt its obligation to collectively bargain requiring those employees absent from work for three or more days to produce a physician’s statement of “fitness.”

The court also rejected the City’s argument that it was “absolved from bargaining on ‘public policy’ grounds based on DOT’s mission of providing safety in the ferry system.”

The Appellate Division explained that there was nothing in the record to establish that the rule unilaterally imposed by DOT would substantially further its core mission of “safety in the ferry system.” In addition, said the court, there was nothing in the record that demonstrated any need for the new requirement unilaterally imposed by DOT sufficient to outweigh its adverse impact on the collectively-bargained rights of the employees to whom it would apply.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04887.htm

The top ten “employment law” LawBlogs for the month of June 2013 as reported by Justia

The top ten “employment law” LawBlogs for the month of June 2013 as reported by Justia

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Defero Law [Feed]

Community of UK legal bloggers.

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Focuses on issues of interest to adjunct law professors, including labor law, employment law, employee benefits law and education law issues. By Adjunct Law Professor Mitchell H. Rubinstein.

Last Updated: June 30, 2013 

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Provides summary and commentary on selected court and administrative decisions and related matters affecting public employers and employees in New York State. By Harvey Randall Esq.

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Last Updated: July 1, 2013 

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Covers employment law, personal injury and family law issues related to Texas and federal law.

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Covers employment law issues in the restaurant industry. By Berke-Weiss & Pechman LLP.

Last Updated: June 27, 2013 

http://waiterpay.com/blog/

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Covers employeee benefits, ERISA, and employment law. By Stanley D. Baum.

Last Updated: July 2, 2013 

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The Doctrine of Legislative Equivalency controls when abolishing positions in a layoff situation

The Doctrine of Legislative Equivalency controls when abolishing positions in a layoff situation

Civil Serv. Empls. Assn., Inc. v County of Orange, 2013 NY Slip Op 04798, Appellate Division, Second Department

In this action a number of employees challenged their termination from their respective positions with the County of Orange.

The Appellate Division, reversed a Supreme Court ruling dismissing the Article 78 petition filed by these individuals “on the law” and the County’s decision to terminate the employees was remitted to the Supreme Court, Orange County, for a determination of all the benefits those individuals “would have been entitled to had they remained employed for the period from October 29, 2010, to December 31, 2010, and for a calculation of the principal sum of back pay to be awarded to those [these individuals] in accordance herewith and thereafter for the entry of an appropriate amended judgment.”

The genesis of this case was a direction of the County Executive of Orange County to send letters “to 39 civil service employees notifying them that they were being laid off effective October 29, 2010, for economic reasons” and, indeed, on December 2, 2010, the Orange County Legislature passed a budget for the 2011 fiscal year*that did not provide funding for the positions held by these 39 “laid off” employees.

The employees were advised that their names would be placed on a preferred eligible list pursuant to a provision in their collective bargaining agreement, which pertained to "abolished" positions. Subsequently the employees were advised that their names had been placed on the preferred eligible list "[i]n accordance with §81 of Civil Service Law."

Citing Torre v County of Nassau, 86 NY2d 421, the Appellate Division explained that the doctrine of "[l]egislative equivalency requires that a position created by a legislative act can only be abolished by correlative legislative act."**

The court explained, the Orange County Charter and Orange County Administrative Code vests in the Orange County Legislature sole authority to "establish or abolish positions of employment and titles thereof." However, the County Legislature had not taken any action to abolish the relevant positions at the time the County Executive terminated the subject employees' employment.

Although the Orange County Charter and Orange County Administrative Code give the County Executive the authority to "supervise, direct and control and administer all departments," they do not give the County Executive the authority to terminate the employment of civil service employees without a proper abolition of the positions by the County Legislature in accordance with the doctrine of legislative equivalency.

Further, said the court, the County Charter does not authorize the County Executive to undertake any "remedial action" constituting unilateral modification to the budget and, or, abolition of legislatively created positions.

The bottom line: The County Executive did not have the authority to terminate the subject employees' employment for economic reasons, effective October 29, 2010. Thus, the court concluded, those individuals that were “laid off” effective October 29, 2010, are entitled to back pay, and presumably benefits, to which they would have been entitled had they remained County employees for the period from October 29, 2010, to December 31, 2010.

* Presumably the budget was to take effect January 1, 2011 and by not providing for the funding of the relevant positions, the Legislature was deemed to have “abolished them.”

** The Attorney General has opined that there must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 and 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04798.htm

_____________________________

The Layoff, Preferred List and Reinstatement Manual - a 645-page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on  http://nylayoff.blogspot.com/

_____________________________

National Labor Relations Board to determine if the National Labor Relations Act preempts the Taylor Law in certain situations involving employees of charter schools

National Labor Relations Board to determine if the National Labor Relations Act preempts the Taylor Law in certain situations involving employees of charter schools
Buffalo United Charter Sch. v New York State Pub. Empl. Relations Bd., Council of Sch. Supervisors & Adm'rs, Local 1, AFSA, 2013 NY Slip Op 04163, Appellate Division, Fourth Department

The issue presented in this appeal: Did PERB properly exercised jurisdiction over two collective bargaining matters at issue involving “charter schools?”

Supreme Court had determined that PERB properly exercised jurisdiction over the two collective bargaining matters. The Appellate Division, however, disagreed with the lower court’s ruling.

The Appellate Division decided that as the two collective bargaining matters at issue "arguably" fall within the scope of the National Labor Relations Act (NLRA). Accordingly, the National Labor Relations Board (NLRB) has primary jurisdiction "to determine in the first instance" whether its jurisdiction preempts PERB's jurisdiction.

Thus, “under the circumstances of this case, and in the interest of judicial economy,” the Appellate Division decided to defer consideration of the case pending a determination by the NLRB as to whether the NLRA applies to the collective bargaining matters herein at issue and thus preempts PERB's jurisdiction.

N.B. Subdivision 3 of §2854 of the State Education Law, in pertinent part, addresses the impact of Article 14 of the Civil Service Law [the Taylor Law] with respect to employees of charter schools.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04163.htm