Complying with probationary evaluation procedures set out in the collective bargaining agreement

Complying with probationary evaluation procedures set out in the collective bargaining agreement
2014 NY Slip Op 01236, Appellate Division, Third Department

The relevant collective bargaining agreement (CBA) containing a broad arbitration clause and a grievance procedure providing that any unresolved grievance is subject to arbitration.

After a probationer received a series of negative evaluations, probationer's administrators recommended that the probationer be denied tenure. The union filed a grievance on the probationer's behalf challenging, among other things, whether the employer had complied with the probationary evaluation procedures provided for in the CBA.

The employer denied the grievance and terminated the probationer's employment. The union filed a demand for arbitration. In response, the employer initiated an action in Supreme Court seeking a stay of arbitration pursuant to CPLR §7503(b).

Supreme Court granted the employer's petition, concluding that the subject matter of the grievance was not arbitrable because it actually challenged the employer’s tenure decision — over which the parties agree that employer had sole discretion — and not the alleged failure to comply with the agreed-upon evaluation procedures.*

This, said the Appellate Division, was incorrect and the employer’s petition should have been denied.

The Appellate Division explained that the court's role in determining applications to stay arbitration is limited and, as relevant in this action, requires a determination of whether the parties have agreed to arbitrate the dispute at issue.

As the union asserted a violation of the evaluation procedures agreed to by the parties and included as part of the CBA, the Appellate Division concluded that there was a rational relationship between the subject of the grievance and the CBA. Thus, said the court, “The question of whether the employer violated these procedures "goes to the merits of the grievance, not to its arbitrability."  

In the words of the Appellate Division, "[T]he fact that the substantive clauses of the contract might not support the grievances . . . is irrelevant on the threshold question of arbitrability. It is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the parties."

* In Cohoes City School District v Cohoes Teachers Association, 40 NY2d 774, the Court of Appeals ruled that "contractual provisions between a teachers association and a school district can provide procedural safeguards concerning the tenure decision without offending public policy [see, also, Matter of Clarkstown Central School District, 163 AD2d 670].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01236.htm

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An individual’s inconsistent statements to different parties can be deemed a willful false statement or misrepresentation

An individual’s inconsistent statements to different parties can be deemed a willful false statement or misrepresentation
2014 NY Slip Op 01805, Appellate Division, Third Department

A civilian employee, [Claimant] working at a state correctional facility was dismissed from his employment after he was arrested for attempting to smuggle contraband, hidden in his lunch pail, into the facility.

The Unemployment Insurance Appeal Board found, among other things, Claimant “engaged in disqualifying misconduct and made willful false statements to obtain benefits” and reduced his right to receive future benefits and assessed a recoverable overpayment of benefits.

The Claimant appealed the Board’s determination.

The Appellate Division affirmed the Board’s decision, explaining that "A 'willful' false statement or misrepresentation is one which was made knowingly, intentionally or deliberately, and criminal intent . . . need not be shown."

As to whether a willful false statement was made is a question of fact for the Board to resolve. The record showed that when Claimant was arrested, he told the police that he knew that items found in his lunch pail were considered contraband and he was aware of the employer's policy prohibited bringing contraband into the facility.

In contrast, Claimant told the Department of Labor's representative when questioned about his loss of employment that he was unaware of any wrongdoing on his part and had done nothing wrong.

Such inconsistent statements, said the Appellate Division, provide substantial evidence to support the Board's finding that claimant made willful false statements in an effort to obtain unemployment insurance benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01805.htm
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Providing health insurance benefits to employee upon retirement

Providing health insurance benefits to employee upon retirement

2014 NY Slip Op 01496, Appellate Division, Third Department

A series of collective bargaining agreement (CBA) in effect from July 1996 to June 2002 provided that employees who retire with fifteen or more years of service to the District shall be entitled to District provided individual or family health insurance coverage, as applicable, at no cost to the retiree. The two successive CBAs contained that same provision with regard to retiree health insurance coverage, as well as a separate provision expressly addressing Medicare reimbursement that stated, "as of July 1, 2003, those who retire from Northeastern Clinton [Central School District] with 25 years of consecutive service in the [D]istrict shall be entitled to Medicare reimbursement for themselves and their spouse[s], while the retired employee is still living."

In 2010, after plaintiffs had retired, a successor CBA was executed between the District and the relevant collective bargaining unit which, among other things, provided that employees retiring on or after July 1, 2010 shall not be provided with Medicare reimbursement upon retirement. Shortly thereafter, defendant Board of Education, Northeastern Clinton Central School District adopted a resolution which, among other things, eliminated Medicare reimbursements for District retirees who were not already in receipt of such reimbursements as of July 1, 2010.

After receiving notice of the resolution, plaintiffs sued for breach of contract and for a declaratory judgment, claiming that they are entitled to Medicare Part B reimbursement under the CBAs in effect at the time of the employees' retirement.

One of the arguments advanced by the school district contended that, regardless of any contractual right to Medicare Part B reimbursements, the Insurance Moratorium Law (Chapter 594, Laws of 2009, Part B, §14) authorizes the school District to modify the retirees' coverage because a corresponding modification was made for active employees in the 2010-2014 CBA. 

The Appellate Division noted that this contention was rejected by the Court of Appeals in Kolbe v Tibbets, 22 NY3d 344.

In Kolbe the Court of Appeals said that “This case calls on us to decide whether certain collective bargaining agreements* conferred upon plaintiff-retirees a vested right to the same health insurance coverage they had when they retired and, if so, whether unilateral modifications to that coverage are nonetheless permissible under either the contract terms or the New York Insurance Moratorium Law.”

The court held that the contracts establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees' vested contractual rights.

In the words of the Court of Appeals, “we reject the District's argument that, regardless of plaintiffs' contractual right to the "same coverage," the 2009 Insurance Moratorium Law allows the District to modify plaintiffs' coverage because a corresponding modification was made in the 2007-2012 CBA for active employees.

“The statute provides, in relevant part, that, "From on and after June 30, 1994 a school district board of cooperative educational services, vocational education and extension board or a school district . . . shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such board or district makes for such health insurance coverage below the level of such benefits or contributions made on behalf of such retirees and their dependents by such district or board unless a corresponding diminution of benefits or contributions is effected [sic] from the present level during this period by such district or board from the corresponding group of active employees for such retirees" (L 1994, ch 729, as extended by L 2009, ch 30).

“The District's interpretation of the statute relies on the erroneous conclusion that the Legislature's silence regarding contracted-for health coverage should be read as an intention to abrogate contractual rights. However, the Insurance Moratorium Law's primary purpose was to prevent school districts from eliminating or reducing retiree health insurance benefits that were voluntarily conferred as a matter of school district policy, not rights negotiated in the collective bargaining context (see New York State Assembly Memorandum in Support of L 1996, ch 83). The 1994 final report of the Temporary Task Force on Health Insurance for Retired Educational Employees, which originally recommended the legislation, proposed amending the then-temporary law to apply to contractually vested rights. Specifically, the Task Force proposed that the Legislature "mak[e] it clear that any negotiated health insurance benefits for present employees upon retirement can be affected in the same manner as any retiree's health benefits can be under the present temporary legislation; i.e., once retired a retiree's health insurance benefits may be diminished in a similar manner as negotiated for active employees without violation of the negotiated provision covering future retirees" (Final Report of the Temporary Task Force on Health Insurance for Retired Educational Employees, December 1, 1994, at 6 [emphasis supplied]). Significantly, the Legislature never adopted this proposal, or any of the Task Force's proposed amendments to the temporary statute then in effect, but instead enacted it into permanent law unchanged.

“In light of this legislative history, as well as the statute's plain language, Supreme Court correctly concluded that the statute only prescribed "a bottom floor, beneath which school districts and certain boards were forbidden to go in diminishing benefits. It was not meant to eviscerate contractual obligations and decades of contract law."

* The Court of Appeals commented that “despite the fact that the successor CBA was retroactively effective to 2007, it is undisputed that even those plaintiffs who retired in 2007 and 2008 effectively retired under the 2003-2007 CBA, since the subsequent CBA was not executed until 2010. This stipulation accords with the reality that these plaintiffs were not represented by the CSEA in the portion of the negotiations that took place after their retirement, and that the bargains struck in the 2007-2012 agreement would thus not be enforceable by them.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01496.htm
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Posted on the Blogs:

Posted on the Blogs:

The Digital Journal has posted an article prepared by White, Ricotta & Marks, P.C. [www.queensemploymentattorney.com] highlighting some of the recent changes to the disciplinary hearing procedures set out in Education Law §3020-a. The article is posted on the Internet at: http://www.digitaljournal.com/pr/1811847#ixzz2xJbx7vyV

James Beyer, Esq., writing in NYMUNIBLOB, has posted an article entitled Will Sex in School Decision Impact Teacher Discipline Process? in which he addresses a number of implications flowing from these ruling. Mr. Beyer's article is posted on the Internet at: http://nymuniblog.com/will-sex-in-school-decision-impact-teacher-discipline-process/

FindLaw has posted an article about a California case challenging teacher job protection laws in which it was alleged that "incompetent teachers in California are holding back poor and minority children." The decision could affect the way public school teachers are currently hired and terminated in the most populous state in the United States. The item is posted on the Internet at:

http://legalnews.findlaw.com/article/ecd85440c5b18ed47f23012934eb1340?DCMP=NWL-pro_top

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Individual declared ineligible for unemployment insurance benefits after failing to obtain a required license

Individual declared ineligible for unemployment insurance benefits after failing to obtain a required license

2014 NY Slip Op 01802, Appellate Division, Third Department

A former school teacher [Claimant] was found ineligible for unemployment insurance benefits. The Unemployment Insurance Appeals Board determined that Claimant voluntarily left his employment without good cause.

Claimant had been informed by his employer that he was required to obtain a Master's degree in education in order to be properly certified and be continued in his employment.

Although Claimant had been given three extensions of the deadline to meet this requirement, he failed to complete the degree at an accredited school before the expiration of the time allotted. Accordingly, Claimant’s employer terminated the employment due to lack of a valid teaching certificate.

Claimant challenged the Unemployment Insurance Appeals Board’s determination that he had voluntarily left his employment without good cause and he was charged with a “recoverable overpayment” based on the unemployment insurance benefits he had earlier been given.

The Appellate Division sustained the Board’s ruling, finding that the record established that Claimant had sufficient time to obtain the Master's degree from an accredited school prior to the deadline set by the employer. Finding that Claimant failed to take reasonable steps to protect his continuation in employment, the court ruled that substantial evidence supported the decision of the Unemployment Insurance Appeal Board that Claimant had voluntarily separated from his employment without good cause.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01802.htm
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