Disciplinary arbitrator’s treating one individual differently or less favorably than another similarly situated individual is not a reason to vacate the arbitration award.

Disciplinary arbitrator’s treating one individual differently or less favorably than another similarly situated individual is not a reason to vacate the arbitration award.

2014 NY Slip Op 03265, Appellate Division, Second Department

MTA Bus Co. had a policy banning cell-phone use while operating a bus. After the bus driver allegedly violated the MTA’s cell-phone policy three separate occasions and, in accordance with that policy, he had been suspended from employment for a period of 10 days.

Following the bus driver's fourth violation MTA terminated his employment. 

The bus driver’s union filed a grievance challenging the termination, and an arbitration hearing was conducted. After the hearing, the arbitrator concluded that the bus driver had committed a "cell phone violation," and that MTA's decision to terminate his employment was proper. The bus driver filed and Article 75 petition seeking a court order vacating the arbitration award.

Supreme Court denied the petition, in effect confirming the award and the bus driver appealed, contending that the arbitration award was irrational.

The Appellate Division, noting that "Judicial review of an arbitrator's award is extremely limited" said a court may vacate an arbitration award pursuant to CPLR 7511(b)(1)(iii) "only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further said the court, "Courts are bound by an arbitrator's . . . judgment concerning remedies [and] cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one." In addition the court commented that the fact “That the arbitrator may have treated the petitioner differently or less favorably than another similarly situated bus driver is not a ground to vacate the arbitration award.”

The Appellate Division held that the arbitrator's award was justified and, hence, rational as the record showed that the bus driver was aware of MTA’s cell-phone policy and had been previously suspended for 10 days for violating that policy. The court explained that violation of the MTA's cell-phone policy, which also violates New York law, constitutes appropriate grounds for termination of employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03265.htm
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On the Blogs: REAL-NY

On the Blogs: REAL-NY

On the Internet at: http://realny.org/

Powered by the legal information website, LawHelpNY, REAL-NY is a is a public-interest news blog that focuses on stories and organizations that matter to the lives of low-income New Yorkers in general and to access to justice in particular.

The Blog stories and resources that may help people solve problems and bring attention to issues that need more attention.  Built around a community service media model, this blog targets low-income New Yorkers and the community groups, nonprofits, and government agencies that assist them.

Using the power of design, multi-media, discussion forums, online polls, and short and informative plain- it posts articles to help New Yorkers learn about their legal rights as they apply to current events and community resources.

REAL-NY provides general information only. To find a lawyer in your area please visit http://www.lawhelpny.org/ and select a topic which best covers your legal problem.

For more information, contact the Technology Innovations Manager at LawHelpNY, Wilneida Negron at wnegron@nylawhelp.org.
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A collective bargaining agreement may obligate the employer to paying certain legal expenses incurred by an employee in the negotiating unit

A collective bargaining agreement may obligate the employer to paying certain legal expenses incurred by an employee in the negotiating unit

Local 342, Long Is. Pub. Serv. Employees v Huntington, 2014 NY Slip Op 03271, Appellate Division, Second Department

Public Officers Law §18*permits a political or civil subdivision of the State whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation to “confer the benefits of the section” upon its employees, and (ii) to be held liable for the costs incurred under these provisions including the defense and indemnification its officers and employees, other than the sheriff of any county or an independent contractor.

This provision may be triggered in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the officer or employee was acting within the scope of his or her public employment or duties.

However, this duty to provide for a defense does not arise where such civil action or proceeding is brought by or on behalf of the public entity employing such employee.

As the Local 342 decision demonstrates, a political or subdivision of the State may also obligate itself to be liable for such costs by including such an obligation in a collective bargaining agreement.

An arbitrator determined that the Town of Huntington had breached a provision in a collective bargaining agreement by failing to pay certain legal fees on behalf of an employee in the collective bargaining unit.

The Appellate Division said that Supreme Court properly concluded that the arbitrator's determination did not clearly violate a strong public policy, was not totally or completely irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power.

The court explained that although the payment of a public employee's legal fees "would constitute an impermissible donation from the public purse in instances where there is no prior legal obligation on the part of the State or a municipality to provide reimbursement, the reimbursement is proper and considered additional remuneration where there is a prior legal obligation" to do so.

In this instance, said the Appellate Division, the relevant collective bargaining agreement expressly created a prior legal obligation on the part of the Town to pay the subject legal fees incurred by the individual.**

* Public Officers Law §17, provides for the defense and indemnification of officers and employees of the State as the employer by the State. .

** See Civil Service Law Section 204-a

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03271.htm
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A public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large

A public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large

Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 2014 NY Slip Op 03189, Court of Appeals

Members of a teachers' union picketing on a public street in front of a district school) displayed picketing signs from their cars parked where parents were dropping their children off at school district’s Woodland School. East Meadow Union Free School District brought disciplinary charges for misconduct against certain teachers, alleging that the teachers had created a health and safety risk by parking their cars so that students had to be dropped off in the middle of the street instead of at curbside.

After their respective hearings, the arbitrators found the teachers guilty of the misconduct charge and imposed a fine as the penalty. The arbitrators, acknowledging that the parking demonstration was conducted on public property while teachers were off-duty, and that their cars were legally parked, nonetheless concluded that teachers "intended to (and did) disrupt the student drop off and that the parked cars created a health and safety risk to children who had to be dropped off in the middle of a busy street in the rain." The Court of Appeals noted that although it was "fortunate" that no child was injured, the arbitrators determined that fact was irrelevant to their findings that teachers’ intentional conduct posed a potential threat to student safety.

The teachers than sued, seeking to vacate the arbitration awards in which they were found guilty of misconduct, contending that the disciplinary proceedings commenced against them, and the discipline ultimately imposed them, a fine, violated their right to free speech under the First Amendment to the United States Constitution.

Supreme Court denied the petitions but the Appellate Division reversed in each case. Applying the two-part balancing test from Pickering v Board of Educ. of Township High School Dist. 205, Will County Ill, 391 US 563,* the. Appellate Division decided that the teachers’ speech addressed a matter of public concern and, second, that the District failed to meet its burden of demonstrating that teachers' exercise of their free speech rights "so threatened the school's effective operation as to justify the imposition of discipline."

Although the Court of Appeals said it agreed with the Appellate Division with respect to the picketing demonstration, a form of "speech" protected by the First Amendment, addressed a matter of public concern, it disagreed with the Appellate Division’s conclusions with respect to the second step of the Pickering test and reversed the lower courts’ rulings.

The Court of Appeals said that viewing the record evidence in light of established federal precedent, it concluded that “the teachers' interests in engaging in constitutionally protected speech in the particular manner that was employed on the day in question were outweighed by the District's interests in safeguarding students and maintaining effective operations at Woodland.”

The school district, said the court, also satisfied its burden of proving that the discipline imposed here was justified because the teachers created a potential yet substantial risk to student safety and an actual disruption to school operations.

Addressing the Free Speech argument advanced by the teachers, the Court of Appeals said that “It is well settled that a public employer may not discharge or retaliate against an employee based on that employee's exercise of the right of free speech” but “Equally well settled, however, is that ‘the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general,’" citing Pickering,

Accordingly, said the court, public employers "may impose restraints on the First Amendment activities of its employees that are job-related even when such restraints would be unconstitutional if applied to the public at large." Thus, although "public employees like . . . teacher[s] do not leave their First Amendment rights at the schoolhouse door, . . . it is plain that those rights are somewhat diminished in public employment." Accordingly, the Court of Appeals, holding that the teachers’ demonstration constituted "speech" subject to First Amendment strictures, considered “that speech” in the context of the Pickeringbalancing test.

On the record, said the court, the teachers’ speech was on a matter of public concern and entitled to First Amendment protection. It then moved on the the “second test,” weighing the employee's First Amendment rights against the public employee's interest " in promoting the efficiency of the public services it performs through its employees'.

The interests the District asserted: “ensuring the safety of its students and maintaining orderly operations at Woodland” are legitimate said the court. As the evidence at the hearings showed that the parking demonstration created dangerous traffic conditions in front of the school that could have injured a student and that caused actual disruption to the school's operations, the school district contented that this was sufficient to justify its discipline of the teachers and that it was not required to prove that a student was actually injured for the Pickering balance to tip in the District's favor.

The majority of the Court of Appeals agreed and reversed the Appellate Division’s ruling, with costs and confirmed the arbitration award.

N.B. Justice Smith concurred but “only in the result, because [he did] not agree with the majority's view that the conduct of these teachers was speech or expression protected by the First Amendment,”  stating that he was “troubled by the implication that intentionally disruptive and dangerous conduct can, if it is designed for the purpose of calling attention to the actor's message, qualify for First Amendment protection.” In contrast, Justice Rivera dissented, stating that “I dissent from the majority's decision because I can find no legal or factual error in the Appellate Division's application of the Pickering balancing test to the facts of these cases. I would affirm the Appellate Division's orders and its conclusion that the District violated the teachers' free speech rights.”

* A summary of Pickering, “Essentials of the "Pickering Balancing Test” was posted earlier on NYPPL at http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03189.htm
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The State’s reduction of its employer contribution for health insurance premiums for judges was an unconstitutional diminution of judicial compensation

The State’s reduction of its employer contribution for health insurance premiums for judges was an unconstitutional diminution of judicial compensation
Bransten v State of New York, 2014 NY Slip Op 03214, Appellate Division, First Department

Sitting and retired members of the New York State Judiciary challenged the State’s recent decrease in its employer contribution to the cost of the judges' health insurance premiums, contending that it violated the Compensation Clause of the New York State Constitution which provides "compensation [of a judge] shall be established by law and shall not be diminished during the term of office for which he or she was elected or appointed."*

The Appellate Division agreed, finding that the reduced contribution, which in turn increased the amounts withheld from judicial salaries as employee contribution towards health insurance premiums, constitutes an unconstitutional diminution of judicial compensation.

The court explained that the reduction in the State’s employer contribution for health insurance premiums occurred in 2011 when the State, faced with a serious budget shortfall, threatened to lay off thousands of workers unless employees in State's several collective bargaining units made wage and benefit concessions that included bearing more of the cost of their health insurance premium.

The State Legislature in August 2011 amended Civil Service Law §167.8 to provide that “The president [of the Civil Service Commission], with the approval of the director of the budget, may extend the modified state cost of premium or subscription charges for employees or retirees** not subject to an agreement referenced above and shall promulgate the necessary rules or regulations to implement this provision.”

The President, with the State Budget Director's approval, then adopted a Regulation that reduced the State's contribution for health insurance premiums not only for employees in State’s several negotiating units that had agreed to the reductions through collective bargaining, but also for some “nonunionized employees” and retirees of the State as the employer.

In accordance with these new Regulations, in September 2011 the State notified judges that it would reduce its contribution to sitting judges' health insurance premiums by 6% and reduce its contributions to retired judges' health insurance premiums by 2%.

The State argued that the Compensation Clause does not prohibit the State from decreasing its contributions to the health insurance premiums because any reduction to judicial compensation was "indirect" and nondiscriminatory.

Supreme Court, however, found that the State's reduced contribution amounted to a direct diminution of judicial compensation because it increased the amount withheld from judicial salaries.

On appeal, the State did not contend that reducing its contribution for health insurance premiums did not directly diminish judges' compensation but rather that its contribution to judges' health insurance premiums is not "compensation" within the meaning of the Compensation Clause.

The Appellate Division rejected that argument, explaining “it is settled law that employees' compensation includes all things of value received from their employers, including wages, bonuses, and benefits” and the Appellate Division, Second Department has expressly found that “health insurance benefits are a component of a judge's compensation,” citing Roe v Board of Trustees of the Village of Bellport, 65 AD3d 1211.

In contrast to State employees who either consented to the State's reduced contribution in exchange for immunity from layoffs or were otherwise compensated by the State's promise of job security, the decision points out that judges were forced to make increased contributions to their health care insurance premiums without receiving any benefits in exchange. The Appellate Division noted that the judiciary “had no power to negotiate with the State with respect to the decrease in compensation,” and they “received no benefit from the no-layoffs promise because their terms of office were either statutorily or constitutionally mandated.” 

Thus, said the court, “§167.8 uniquely discriminates against judges because it imposes a financial burden on them for which they received no compensatory benefit.”***

Accordingly, said the Appellate Division, the State’s motion to dismiss was properly denied by Supreme Court.

* New York State Constitution, Article VI, §25[a]. 

** With respect to retirees, prior to the 2011 amendment to Civil Service Law §167.8 it provided that employer contribution for health insurance premiums may be increased pursuant to the terms of a collective bargaining agreement but that such increase “shall not be applied during retirement.”

*** Much the same argument would apply to retirees of the State as the employer, including retired judges,  who retired prior to the effective date of the President’s Regulation as such retirees are not employees within the meaning of the Taylor Law nor did they receive any benefit with respect to job security as, like sitting judges, retirees cannot be “laid off.”

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03214.htm

The Supreme Court's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_23175.htm
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