Unless the collective bargaining agreement specifically so provides, the contract grievance procedure set out in the agreement is not available to a retiree

Unless the collective bargaining agreement specifically so provides, the contract grievance procedure set out in the agreement is not available to a retiree

2014 NY Slip Op 01845, Appellate Division, Fourth Department

A retired employee [Retiree] of the Village [Village] commenced this breach of contract action seeking to compel Village to pay 80% of his health insurance plan premiums, alleging that Village had paid him that percentage pursuant to the terms of a collective bargaining agreement (CBA) between the Village and the union when he was an active employee.

Village moved to dismiss Retiree’s complaint on the ground that the grievance procedure provided for in the CBA was the exclusive procedure by which Retiree could seek redress and that he was required to bring his claim through the grievance procedure despite his status as a retiree. Retiree opposed Village's motion, arguing that the CBA restricted the class of individuals who could file a grievance to active employees.

Supreme Court ruled that the language of the CBA contained no such restriction and granted Village's motion. The Appellate Division disagreed, concluding that Supreme Court erred in interpreting the CBA, and reinstated Retiree’s complaint.

The Appellate Division explained that except when the CBA provides otherwise, is well settled that an active employee may not invoke a grievance procedure set out in a CBA as an individual but must proceed, through the union, in accordance with the contract."*

Here, however, the complaining party is a retiree rather than an active employee. The court noted that the CBA uses the word "member" is used interchangeably with the word "employee," and several CBA provisions that apply to "members," such as provisions for holiday pay and annual physicals, clearly affect only active employees. Further, said the court, the CBA provides that Village recognizes the union "as the exclusive representative for collective negotiations with respect to salaries, wages, and other terms and conditions of employment of all full-time and part-time employees" (emphasis in the decision).

Giving the word "member" its plain meaning, and interpreting the contract as a whole, the Appellate Division said that it agreed with Retiree that the word "member" means a member of the union. It is undisputed that Retiree ceased to be a member of the union in the collective bargaining unit upon his retirement. According, said the court, the clear and unambiguous terms of the CBA meant that Retiree, who was no longer a "member" of the union when he became aggrieved, could not file a grievance.

Citing Matter of DeRosa v Dyster, 90 AD3d 1470, a case in which the collective bargaining agreement expressly permitted "grievances concerning retirement benefits" and expressly provided for health insurance benefits after retirement, the majority of DeRosa court held that because only an individual "employee" could file a grievance, DeRosa, a retired employee of City of Niagara Falls, could not have filed a grievance before commencing a CPLR Article 78 proceeding. 

The Appellate Division stated that fact that the CBA expressly provides for health insurance benefits after retirement does not necessarily mean that an individual retiree will be permitted to use the grievance procedure to enforce those provisions. In Retiree’s case, as in DeRosa, “the clear and unambiguous terms of the CBA prevented plaintiff from filing a grievance.”

* Other such exception recognized by the courts include: [1] a retiree may initiate a grievance in the event the act or omission complained of arose while he or she was an active employee; and [2] an employee may initiate the contract grievance procedure "when the union fails in its duty of fair representation" but, as a condition precedent to so doing, the employee must allege and prove that the union breached its duty to provide fair representation to the individual.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01845.htm
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Substantial evidence that police officer is able to perform the duties of his or her position precludes granting the individual General Municipal Law §207-c benefits

Substantial evidence that police officer is able to perform the duties of his or her position precludes granting the individual General Municipal Law §207-c benefits

2014 NY Slip Op 01883, Appellate Division, Fourth Department

A municipal police officer was injured while on duty and received General Municipal Law §207-c benefits*for a period of time. Those benefits were discontinued when the officer returned to work in a light-duty capacity. Returning to full duty later in the year, in January 2012, the officer stopped working and sought to resume receiving §207-c benefits.

A hearing was held and the Hearing Officer determined that the police officer could perform the duties of a police officer and denied his application for §207-c benefits.

The appointing authority adopted the Hearing Officer’s findings and determination. The police officer sued, seeking a court order annulling the appointing authority’s determination that he was not entitled to §207-c benefits.

The Appellate Division, finding that the Hearing Officer's determination that the police officer was able to perform his regular duties was supported by substantial evidence, affirmed the employer’s determination and dismissed the officer’s appeal.

* §207-c. of the General Municipal Law provides for the payment of salary, wages, medical and hospital expenses of policemen and others involved in law enforcement suffering an injury or illness incurred in the performance of duties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01883.htm
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The Warren M. Anderson Breakfast Series Seminar’s Infrastructure Funding session is scheduled for April 8, 2014

The Warren M. Anderson Breakfast Series Seminar’s Infrastructure Funding session is scheduled for April 8, 2014

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on April 8 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

The speakers
 

 ●Hon. Félix Ortiz, NYS Assemblymember & Sponsor, The Urban Restoration Bond Act of 2014

●Hon. Kathy Sheehan, Mayor, City of Albany

● Michael J. Elmendorf II, President & CEO, Associated General Contractors of NYS

●Denis Hughes, Senior Advisor, Brown & Weinraub PLLC & Former President, NYS AFL-CIO

 
will discuss Infrastructure Funding required for costly, yet essential repairs to aging roads and bridges, water supply systems and drainage. 

Pending legislation would allow the state to borrow $2 billion for infrastructure improvements.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329.

Some critical procedural elements to be satisfied in order to provide the Commissioner jurisdiction to consider an application to remove a school board member or school district officer

Some critical procedural elements to be satisfied in order to provide the Commissioner jurisdiction to consider an application to remove a school board member or school district officer

Application for removal of the President and Member at Large of a school board. Decisions of the Commissioner of Education, Decision 16,594

The Commissioner never reached the merit of Petitioner's application seeking the removal of the President and member of the school board alleging that the individual was guilty of neglecting her duties, willfully violating the law on various; violating board policies concerning the conduct of board meetings and the supervision, management, and implementation of district business, including staffing, contractual matters, and legal obligations as well violating the Open Meetings Law and breaching her fiduciary duties to the school district. Finding that  Petitioner failed to satisfy certain procedural requirements, the Commissioner dismissed Petitioner's application.

Among the procedural omissions commented on by the Commissioner were the following:

1. An application must be timely filed as an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act [or omission] complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16). The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1)

2. A removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurredmore than 30 days before the application was instituted.*

3. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner, citing 8 NYCRR §276.5. The Commissioner explained that although this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent that are otherwise untimely.

4. The Commissioner will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the application.

5. The late filing of memoranda of law may be permitted by the Commissioner, in his sole discretion, upon written application setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the appeal (see 8 NYCRR §276.4[a]).

6. Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office (8 NYCRR §277.1[b]) and the failure to comply with §277.1(b) is a fatally defective and does not secure jurisdiction over the intended respondent.** The Commissioner noted that the Petitioner used the notice prescribed under §275.11(a) for an appeal brought pursuant to Education Law §310, explaining that the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal of the application. 

7. In the event the petitioner claims that his or her petition is timely because the respondent’s conduct constitutes a continuing wrong, the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful the employment of an unqualified individual or certain ongoing expenditures under an austerity budget that did not comply with the law.

8. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief (8 NYCRR §275.10)

One issue, however, was addressed relevant to this application was considered on the merits -- the Respondent’s request that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1).

The Commissioner, noting that such certification is solely for the purpose of authorizing a school board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member, explained that it is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith.

The Commissioner granted the Respondent's request in view of the fact the application in this instance was denied on procedural grounds and there has been no finding that the Respondent acted in bad faith, indicating that he did so solely because, for the purpose of Education Law §3811(1), respondent “appears to have acted in good faith.”

* Here petitioner asserted that his delay should be excused because he “wanted to give an opportunity for Respondent to resign in light of” his  allegations. However, the petitioner must establish to the satisfaction of the Commissioner that there was “good cause for [the] delay.”

 

** The Commissioner noted that the applicant used the notice prescribed under §275.11(a) for an appeal brought pursuant to Education Law §310.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/D16594.pdf

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Litigating an alleged violation of a term in a collective bargaining agreement following the rejection of a non-binding arbitration award by party to the agreement

Litigating an alleged violation of a term in a collective bargaining agreement following the rejection of a non-binding arbitration award by party to the agreement

Civil Serv. Employees Assn., Inc. v Nassau Health Care Corp., 2014 NY Slip Op 01704, Appellate Division, Second Department

CSEA alleged that Nassau Health Care Corporation [NHCC] had violated the terms of a collective bargaining agreement [CBA] when it deemed certain employees reinstated to their former positions as "new" employees for purposes of determining their eligibility for health benefits, their seniority status, and their rate of leave accruals.*

NHCC and CSEA proceeded to nonbinding arbitration. The arbitrator issued an advisory award sustaining CSEA’s grievances. NHCC rejected the advisory award and CSEA sued, alleging breach of contract and sought declaratory relief and a court order directing NHCC to compensate the employees for expenses incurred by reason of such alleged violations. Supreme Court granted CSEA’s motion for summary judgment and NHCC appealed.

The Appellate Division modified the Supreme Court’s order, finding that NHCC had not violated the CBA with respect to its conduct towards former employees who were reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period.

The court said that the CBA was clear and unambiguous with respect to treatment of those former employees reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period.

In contrast, the Appellate Division held that the CBA was not clear and was ambiguous with respect to those employees reinstated to a full-time position after one year or more after the interruption of their full-time employment with NHCC but less than a full year interrupted full-time service when periods of part-time employment were taken into account. Resolution of the ambiguity, said the court, is for the “trier of the fact,” remanding this issue to Supreme Court for its further consideration.

The court explained that "When a contract, read as a whole to determine its purpose and intent, plainly manifests the intent of the parties, relief may be granted by way of summary judgment.… Where, however, the contractual provision relied upon is ambiguous, the resolution of the ambiguity is for the trier of fact” to resolve.

Here, said the court, the CBA was clear and unambiguous with respect to treatment of former employees who were reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period of their layoff. NHCC demonstrated prima facie that these employees were treated in conformity with those contractual provisions said the Appellate Division.

Thus the Appellate Division ruled that Supreme Court was incorrect in denying NHCC's motion for summary judgment declaring that it did not violate the CBA with respect to its treatment of employee absent from full time employment for one year or longer without having had any intervening part-time employment with NHCC.

The Appellate Division held that the CBA was not so clear and unambiguous with respect to NHCC's treatment of employees reinstated to a full-time position one year or more after being laid-off  but who had been employed by NHCC part-time during their absence following their laid-off.

Accordingly, the Appellate Division held that Supreme Court properly denied NHCC's motion seeking summary judgment in its favor with respect to employee having intervening part-time employment with NHCC but erred in granting CSEA's motion for summary judgment with respect to these employees. The issue was remitted to the Supreme Court for further proceedings with respect to those individuals employed by NHCC on a part-time basis during while absent from full-time employment by NHCC for one year or longer.

* The Appellate Division distinguished between to groups of employee: one group consisted of employees absent from their full time employment for more than one year and a second group of employees consisting of employees absent from their full time employment for more than one year but who had been employed by NHCC on a part-time basis during their absence from full-time employment with NHCC.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01704.htm
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