Arbitrators may make an award reflecting the spirit of the agreement

Arbitrators may make an award reflecting the spirit of the agreement

Matter of Arbitration Between Civ. Serv. Employees Assn. Inc. Local 1000 AFSCME AFL-CIO Niagara Falls Bridge Commn. Unit Niagara County Local 832, 32 AD3d 1186

The Appellate Division, Fourth Department ruled that a Supreme Court Justice properly granted CSEA’s petition to confirm an arbitration award and denied the Niagara Falls Bridge Commission’s cross motion to vacate the award.

The Court held that the arbitrator did not exceed the collective bargaining agreement’s [CBA] limitations on her power.

The CBA provided that the arbitrator "shall not have the power to add or subtract from or to modify in any way the terms of [the CBA]." In this instance, however, the court found that the record established that the arbitrator merely interpreted conflicting provisions of the CBA in order to effectuate the intent of the parties.

According to the decision "Parties who agree to refer contract disputes to arbitration must recognize that arbitrators may do justice and the award may well reflect the spirit rather than the letter of the agreement." The court decided that the arbitrator's interpretation of the CBA was appropriate under the circumstances and, contrary to Niagara Falls Bridge Commission’s argument, it was not "totally irrational."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_06663.htm
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Diminution of employment benefits may constitute disciplinary action within the meaning of Civil Service Law §75

Diminution of employment benefits may constitute disciplinary action within the meaning of Civil Service Law §75 

Lynch v Board of Education of the Hewlett-Woodmere Union Free School District, 13 Misc 3d 1217(A)

The School District changed the work schedule of a school bus driver and part time security aide. The change prevented him from working as a security aide.

The employee sued, contending that he lost benefits because of the change in his work schedule. This change in his work schedule, he argued, was a "de facto termination" from his security aide position in violation of Civil Service Law Section 75.

The court agreed, holding that “A ‘diminution in benefits’ occasioned by a reassignment is sufficient to qualify as a disciplinary action so as to require compliance with CSL §75.”

The collective bargaining agreement, however, provided that complaints concerning work assignments and working hours were to be processed through the agreement’s “contract grievance procedure”.

The court said that this provision did not control as the collective bargaining agreement also provided that the term "grievance" did not include any complaint that was otherwise reviewable pursuant to law or any rule or regulation having the force or effect of law.

The court ruled that “Given the exemption from grievance procedure for those matters otherwise reviewable pursuant to law” Lynch could sue “to vindicate a statutory right under Civil Service Law §75” without first utilizing the collective bargaining agreement's contract grievance procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_51881.htm

N.B. An earlier decision posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2006/2006_51734.htm

vacated by the court and republished a modified the opinion to correct a mis-stated date.

A counseling memoranda that includes more than “job related feedback” may constitute disciplinary action

12 Misc 3d 1197(A)

An employee was given a written “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.

The counseling memorandum, in part, issued by the appointing authority stated:

This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future.

A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to the employee did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA]. 

While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA.

Accordingly, the employee was entitled to administrative due process in the form of a notice of discipline and a hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_51605.htm

Contracting out the recruitment and appointment of substitute teachers

Contracting out the recruitment and appointment of substitute teachers

Appeal of Kim E. Woodarek, Comm. Of Education Decision No. 15,422

The Commissioner of Education ruled that a school district does not have the authority to enter into a contract with a private party to recruit, interview, select, hire and assign employees to render per diem substitute teaching.

The Commissioner applied the rationale set out in the Sweeney decision [(44 Ed Dept Rep 176, Decision No. 15,139)]. In Sweeney it was held that a BOCESdoes not have the authority to contract with a private party for instructional services.

Other appeals in which the Commissioner determined that a board of education lacks authority to provide instructional services through an independent contractor include Appeal of McKenna, 42 Ed Dept Rep 54, Decision No. 14,774; Matter of Friedman, 19 Ed Dept Rep 522, and Decision No. 10,236. [See, also, Education Law §1950(4)].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume46/d15422.htm

Termination and reinstatement to a lower grade position prior to completion of the required probationary period

Termination and reinstatement to a lower grade position prior to completion of the required probationary period

31 AD3d 456

The Appellate Division, Second Department affirmed the termination on an employee prior to the end of his probationary period in a higher level position and his reinstatement to his former, lower grade position.

In response to the employee’s challenging his termination during his probationary period the Appellate Division said that "A probationary employee may be discharged without a hearing and without a statement of reason in the absence of any demonstration that the dismissal was for a constitutionally-impermissible purpose or in violation of statutory or decisional law" citing such decisions as Walsh v New York State Thruway Auth., 24 AD3d 755; Matter of York v McGuire, 63 NY2d 760; and Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., 1 AD3d 367.

Accordingly, the Appellate Division rejected the employee’s contention that he was entitled to the procedural protections of Civil Service Law §75 as he was removed from his appointed position prior to his satisfactory completion of a one-year probationary period.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05375.htm