New York court apply a “two-step test" when determining if a grievance alleging a violation of the collective bargaining agreement may be submitted to arbitration

New York courts apply a “two-step test" when determining if a grievance alleging a violation of the collective bargaining agreement may be submitted to arbitration

Matter of Kenmore-Town of Tonawanda Union Free Sch. Dist. (Ken-Ton School. Employees. Assn.), 2013 NY Slip Op 06490, Appellate Division, Fourth Department

The Kenmore-Town of Tonawanda UFSD [District] filed a petition pursuant to Article 75 of the CPLR seeing a permanent stay of arbitration with respect to a grievance filed challenging the District’s terminating an employee. Supreme Court dismissed the District’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that in determining if a grievance is subject to arbitration under the relevant collective bargaining agreement (CBA), the court applies the “two-step analysis set forth in Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn), 42 NY2d 509”

Step 1 – The court must determine whether there is any statutory, constitutional or public policy prohibition against arbitrating the grievance.

Step 2 – In the event the court determines that there is no such bar to proceeding to arbitration, it then considers whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration.

The CBA in this instance, said the Appellate Division, set out a broad arbitration clause and thus the court’s inquiry is limited to determining “whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA"

The grievance filed with the District questioned whether the District had followed "the procedures mandated by the CBA in terminating the employee in question.” The Appellate Division concluded that Supreme Court “properly determined that the parties had the authority to agree to arbitrate this grievance, and that they in fact agreed to do so.”

As to the District’s argument that the provisions of the CBA “violate public policy and the Civil Service Law,” an issue raised for the first time on appeal, the Appellate Division elected to consider the claim. It ruled that that Civil Service Law §75 "may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter," citing Civil Service Law §76[4].

§76[4], in pertinent part, provides: “… section seventy-five or seventy-six of this … may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter …”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06490.htm

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Employee terminated for use of vulgar language and conduct detrimental to the employer's interests

Employee terminated for use of vulgar language and conduct detrimental to the employer's interests

2013 NY Slip Op 06061, Appellate Division, Third Department

An employee [A] called the office to check on the attendance of a particular staff member [B] with whom she had been having difficulties. A, believing that she was speaking to another staff member, when in fact, B had answered the phone, made a statement about B that contained obscenities and a racial epithet. The employer, finding that the A’s statement had caused a disruption in the operation of the workplace, terminated her.

A’s application for unemployment insurance was rejected by the Unemployment Insurance Appeal Board after the Board ruled that A was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

A appealed the Board’s determination but the Appellate Division sustained the Board’s ruling, explaining that  “An employee's use of vulgar language and conduct that is detrimental to the employer's interests have been found to constitute disqualifying misconduct,” citing Matter of Cheeseboro, 84 AD3d 1635.

Given the undisputed facts of this case, said the court, substantial evidence supports the Board's determination that A's statement and its effect on the workplace environment constituted disqualifying misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06061.htm

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First group of Master Teachers in mathematics and science recognized by Governor Cuomo

First group of Master Teachers in mathematics and science recognized by Governor Cuomo

Source: Office of the Governor

Governor Andrew M. Cuomo recently announced the selection of 105 educators from four regions as the first group of New York State Master Teachers.* All ten regions will accept applications between November 1st and January 3rd with final selections being made in the spring.**

The New York State Master Teacher Program was established by Governor Cuomo to identify, reward, and support master math and science teachers throughout New York State. The role of master teachers as professional mentors and content experts is key to developing the current cadre of outstanding educators as well as developing skilled future teachers.

Each regional program is paired with a SUNY campus to give participants additional content exposure. The number of teachers from each region in this first selection and the respective partner SUNY campus are:

· Central New York: 36 (SUNY Cortland)
· Mid-Hudson: 19 (SUNY New Paltz)
· North Country: 21 (SUNY Plattsburgh)
· Western New York: 29 (SUNY Buffalo State)

Additionally, the SUNY pairing for the remaining regions are:

· Long Island: Stony Brook University
· Southern Tier: Binghamton University
· Capital Region: University at Albany
· Finger Lakes: SUNY Geneseo
· Mohawk Valley: SUNY Oneonta
· New York City: in partnership with Math for America

Master Teacher Fellows will:

· Receive a $15,000 stipend per year over 4 years for participation in the program (total compensation of $60,000 per Fellow).

· Engage in peer mentoring and intensive content-oriented professional development opportunities throughout the academic year.

· Work closely with pre-service and early career teachers to foster a supportive environment for the next generation of STEM teachers.

· Attend required regular cohort meetings, participate in and lead several professional development sessions each year, and participate in the training of pre-service and early career educators as part of the Master Teacher program.

*  A full list of Master Teachers and their school districts is available here.

** Applications can be submitted online at http://www.suny.edu/MasterTeacher/.

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A NYC police officer “not in service” on the effective date of his or her retirement or vesting of retirement benefits forfeits the pension portion of his or her retirement allowance

A NYC police officer “not in service” on the effective date of his or her retirement or vesting of retirement benefits forfeits the pension portion of his or her retirement allowance

2013 NY Slip Op 51252(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

The Administrative Code of the City of New York requires a member of the NYC Police Retirement System to "be in service" on the effective date of his or her retirement or vesting of retirement benefits in order to be eligible for a retirement allowance. If the employee is not "in service" on that date, he or she forfeits the pension portion his or her retirement allowance.*

In this Article 78 proceeding a New York City police officer [Officer] asked the court to annul the termination of his employment as a New York City Police Department [NYPD] Police Officer following a disciplinary hearing. Officer's disciplinary termination was effective prior to a final determination regarding his application for disability retirement by the NYC Police Pension System's Board of Trustees .

In 2009 NYPD filed disciplinary charges and specifications against Officer for allegedly receiving a bribe, a violation of Penal Law §200.10, in that in 2007 Officer had accepted $400 from an acquaintance in exchange for helping him recover a car which was in NYPD custody. In 2010, NYPD filed additional disciplinary charges against Officer for allegedly failing an integrity test conducted by the Internal Affairs Bureau [IAB] involving Officer’s alleged not having properly invoiced property and allegedly not having notified IAB of the possible misconduct of other police officers.

In October 2010, Officer, who had suffered a stroke and heart attack earlier that year, applied for disability retirement under the so-called Heart Bill.** NYPD's Medical Board approved Officer’s application. However, in February 2011, Officer agreed to defer the application and final determination by the NYC Police Retirement System's Board of Trustees until the resolution of the disciplinary charges then pending, or upon "the Police Commissioner's approval of either a Negotiated Settlement or the disposition pursuant to trial."

The disciplinary hearing was conducted in July 2011 and Officer was found guilty of soliciting and accepting a bribe, and based on petitioner's plea of guilty to failing the integrity test by failing to voucher property, failing to safeguard that property and other misconduct such as transmitting a radio signal with the intent to conceal from the NYPD the existence of the property, failing to report misconduct related to the taking of the property, attempting to cover up the improper handling of the property, and trying to cover up the incident by initially failing to provide accurate information about it at an official NYPD interview.

The hearing officer recommended that Officer be terminated from his position. The Commissioner of Police accepted the hearing officer’s findings and recommendation and terminated Officer from his position.

As Officer’s termination was prior to the effective date of his retirement, he became ineligible to receive pension portion of his retirement benefits. In ruling on Officer’s CPLR Article 78 petition, Supreme Court Judge Barbara Jaffee sustained the forfeiture of the pension portion of Officer's retirement allowance, commenting that this was “a risk he took by engaging in the misconduct at issue.”

In reviewing an administrative agency's determination as to whether it is arbitrary and capricious under CPLR Article 78, said the court, the test is whether the determination "is without sound basis in reason and . . . without regard to the facts.” Further, the determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record."

Here, given the charges and findings, which rest on the credibility determinations of the hearing officer, it cannot be said, as a matter of law, that respondents' decision to terminate petitioner's employment was arbitrary and capricious.

As to the penalty imposed, Judge Jaffeet, citing Matter of Pell, 34 NY2d at 222, said that the standard for reviewing a penalty imposed after a hearing is whether the punishment imposed "is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." 

Judge Jaffee noted that “NYPD may not terminate employee in order to prevent employee from collecting [a] disability pension, [the] pension may be denied as unintended consequence of [the] termination if [the] termination [was] made in good faith." However, the fact that Officer was terminated "after his application for disability retirement had been provisionally approved” by Medical Board did not show bad faith as Officer's disciplinary investigation was not completed until after Medical Board's determination and prior to any action being taken by the Retirement System's Board of Trustees.

Accordingly, Judge Jaffee denied Officer’s petition and dismissed the action.

* §13-240 of the New York City Administrative Code, which concerns the New York City Police Pension Fund, address the termination of membership or discontinuance of service. It provides, in pertinent part,  “Should a member discontinue city-service except by death or retirement, he or she shall be paid such part of the amount of the accumulated deductions standing to the credit of his or her individual account in the annuity savings fund as he or she shall demand.” Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804 [181 A.D.2d 412] decided with Barbaro v NYC Employees' Retirement System, [181 A.D.2d 437] addresses a similar situation involving members of the NYC Sanitation Workers' Retirement System.

** See General Municipal Law §207-k

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_51252.htm
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Service as an independent contractor does not count in qualifying for unemployment insurance benefits

Service as an independent contractor does not count in qualifying for unemployment insurance benefits

Matter of Tkachyshyn (Commissioner of Labor), 2013 NY Slip Op 06057, Appellate Division, Third Department

Volodymyr I. Tkachyshyn, a substitute teacher and math tutor, filed three claims for unemployment insurance benefits.

Although initially deemed eligible for benefits in each instance, following Appellate Division’s decision in Leazard v TestQuest, Inc., 74 AD3d 1414, the Department of Labor issued revised decisions finding that earnings in connection with tutoring services through TestQuest, Inc. was not covered employment for the purposes of qualifying for unemployment insurance benefits “given that tutors such as [Tkachyshyn] were independent contractors.”

The Appellate Division commented that in “TestQuest, Inc. tutors such as claimant were deemed by this Court to be independent contractors … which decision is conclusive and binding upon all such persons employed by TestQuest, Inc.,” citing Labor Law §620[1][b].*Thus, said the court, those earnings cannot qualify for inclusion as remuneration in the base periods to determine eligibility for unemployment insurance benefits.**

As the record establishes that Tkachyshyn did not have sufficient covered earnings to file a valid original claim pursuant to Labor Law §527 in either his base period or alternate base period for any of the three claims, the Appellate Division found that substantial evidence supports the Board's decision and dismissed his appeal.

* §620[1][b] of the Labor Law, in pertinent part, provides that the hearing officer’s “decision shall not be deemed limited in its effect to the immediate claimant making the claim for benefits but shall be deemed a general determination of such questions with respect to all those employed by such person or employer for all the purposes of this article, and such decision shall be conclusive and binding upon the claimant and such person or employer…”.

** The Appellate Division noted that “notwithstanding the absence of any fault on the part of Tkachyshyn, he was charged with a recoverable overpayment of federal emergency unemployment compensation funds. Whether Tkachyshyn was eligible for a waiver of recoverability of those benefits was referred back to the Department of Labor and was not at issue on this appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06057.htm
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