Threatening workplace violence

Threatening workplace violence

2015 NY Slip Op 01754, Appellate Division, First Department

An employee [Employee] was found guilty of disciplinary charges alleging that he threatened his supervisor with violence. In the administrative disciplinary action the employee’s supervisor had testified that Employee had threatened him as Employee stood near him, holding wood or another object in his hand, and raised the object while getting angrier in his statements to the supervisor.

The disciplinary penalty imposed: suspension without pay for 31 work days,

Employee’s challenge to the administrative disciplinary determination and the penalty imposed, but the Appellate Division sustained both the finding of guilt and the penalty imposed on Employee..

The court explained that the administrative determination that Employee had engaged in an incident of workplace violence was supported by substantial evidence and that was no basis to disturb the credibility determinations of the hearing officer.

As to the penalty imposed, suspension without pay for 31 work days, the Appellate Division said that based on the employer’s “strong concern with promoting a nonviolent workplace, the suspension imposed does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01754.htm

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The top five NYPPL summaries for the week ending March 7, 2015

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NYS Comptroller Thomas P. DiNapoli releases report on 30-day State Budget amendments

NYS Comptroller Thomas P. DiNapoli releases report on 30-day state budget amendments

Source: Office of the State Comptroller

Amendments to the proposed state budget appropriately lower tax collection estimates in the Financial Plan for state fiscal year 2014-15 but increase the Executive’s discretion over spending, including $4.55 billion from financial settlements, and attach major policy issues to time-limited appropriations, according to an analysis released today by New York State Comptroller Thomas P. DiNapoli. [Click on “analysis” to access the Comptroller’s Executive Summary and Overview of the 30-day budget amendments.]

“Several of the amendments give the Executive great latitude in spending,” DiNapoli said. “And while particular substantive proposals may be worthy, attaching them to spending bills that expire within two years or less may not be the best way to consider the merits.”

The 30-day amendments add language directly to appropriation bills for a variety of policy purposes including evaluation of teachers and principals, a proposed education tax credit program, extension of tuition assistance to certain undocumented immigrants, certain personal financial and other disclosures by state legislators, and reimbursement of travel and related expenses by state elected officials. 

Other areas where policy initiatives have been added to appropriations include Medicaid and authorization for the state to use design-build procurements.

The 30-day amendments also eliminate proposed separate appropriations from a new Dedicated Infrastructure Investment Fund (DIIF), advanced by the Executive to allocate certain financial settlement funds, and instead add $4.55 billion to existing appropriations at the Department of Health (DOH), the Metropolitan Transportation Authority (MTA) and the Department of Transportation (DOT), allocating these appropriations through percentage shares.

With the exception of the health care funding, that spending would be subject to approval of the director of the Division of the Budget (DOB) and could be used for costs incurred before April 1, 2015. The money could also be transferred to any state agency or public authority for the purposes described. As a result, oversight measures, checks and balances, and spending reviews could be bypassed,

DiNapoli reports that DOB has also modified projections made in the SFY 2014-15 third quarter financial plan update included with the Executive Budget. These adjustments primarily address a shortfall in tax revenues relative to the most recent projections, reducing General Fund tax receipts by $355 million. The report finds that while overall estimates in the current year have been reduced downward, projections for SFY 2015-16 remain the same, resulting in continued risks associated with the revised estimates. The revenue consensus between the Executive and the Legislature further increased projected revenues by $200 million. The report found that based on certain economic projections and actual tax collection results to date, the revised revenue projections may be optimistic,

For a copy of the report visit: Review of the SFY 2015-16 Executive Budget Amendments and Revenue Consensus.

In the public sector the intent of parties to a collective bargaining agreement to arbitrate a particular issue may not be presumed

In the public sector the intent of parties to a collective bargaining agreement to arbitrate a particular issue may not be presumed

County of Rockland v Corr. Officers Benevolent Assn. of Rockland County, Inc., 2015 NY Slip Op 01798, Appellate Division, Second Department

A correction officer filed a grievance after he was denied a longevity pay increase. After his grievance was denied, the Correction Officers Benevolent Association of Rockland County, Inc. filed a notice of intent to arbitrate the grievance. Contending that the parties had not agreed to arbitrate this type of grievance, Rockland County sought a permanent stay of arbitration. The County's motion to permanently stay arbitration was granted by Supreme Court. 

Supreme Court determined that the parties had only agreed to arbitrate certain limited matters expressly delineated in the collective bargaining agreement [CBA], which did not include the grievance at issue. The Association appealed and the Appellate Division ruled that Supreme Court properly granted the County’s petition to permanently stay arbitration and denied the Association’s cross petition to compel arbitration.

The Appellate Division explained that the determination of whether a dispute between a public sector employer and a public employee organization is arbitrable is subject to a two-prong test, citing Deer Park UFSD v Deer Park Teachers’ Association, 77 AD3d 747, whereby:

1. The court must initially determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance and absent such a finding;

2. Must examine the parties' collective bargaining agreement and determine if they, in fact, agreed to arbitrate the particular dispute at issue.

Observing that here the County did not claim that the arbitration of the subject matter of the dispute was prohibited by law or public policy, the court concluded the only issue to consider was whether the parties agreed to arbitrate the particular dispute.

The Appellate Division said that unlike general labor disputes in the private sector involving arbitration, the intent of parties to a collective bargaining agreement in the field of public employment to arbitrate a particular issue may not be presumed but rather “it must be taken, in the absence of clear, unequivocal agreement to the contrary, that the [parties to the collective bargaining agreement] did not intend to refer differences which might arise to the arbitration forum," citing Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d at 514.

Finding that the relevant collective bargaining agreement did not broadly provide for the arbitration of any grievance that may arise under the CBA, the Appellate Division ruled that Supreme Court correctly concluded that the CBA limited the availability of arbitration to specifically enumerated matters.

The bottom line: As the Association failed to demonstrate that "the parties in fact agreed to arbitrate [this] particular dispute," the Supreme Court properly granted the County's petition to permanently stay arbitration and properly denied the Association's cross petition to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01798.htm

An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee

An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee
2015 NY Slip Op 01746, Appellate Division, First Department

An individual [Trainee] was accepted into a seven-week pre-service training period. When Trainee was terminated in the midst of a seven-week pre-service training period he filed an Article 78 petition seeking a court order annulling the employer’s determination to dismiss him from the traineeship.. Supreme Court granted the employer’s motion to dismiss Trainee’s petition and Trainee appealed.

Sustaining the Supreme Court’s decision, the Appellate Division said that Trainee had no greater rights than those of probationary employees, and a probationary employee "may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."*

The court explained that the record demonstrates that trainee did not have a cause of action as the evidence submitted with the petition and cross motion established that during Trainee’s “pre-service training period, several complaints had been made about [Trainee’s] performance, resulting in the issuance of a performance concern letter.”

The Appellate Division noted that Trainee “had been admonished multiple times for using his cell phone in the classroom and improperly leaving the classroom when students were present” and, in addition, Trainee was also directed by a supervisor to refrain from contacting another teacher who had expressed concerns about how he had previously spoken to her.

Under these circumstances, said the court, where there is evidence of multiple instances of unsatisfactory performance during a short seven-week period, the discharge was made in good faith.

* N. B. Should the appointing authority elected to terminate a probationary employee prior to his or her completing the minimum period of his or her probationary period, the individual is entitled to notice and hearing in accordance with the controlling disciplinary procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01746.htm