A claim that an employee organization has breached its duty of fair representation must be timely raised by the aggrieved individual

A claim that an employee organization has breached its duty of fair representation must be timely raised by the aggrieved individual
2015 NY Slip Op 03810, Appellate Division, Second Department

An employee organization’s duty of fair representation is the legal duty requiring the employee organization to represent every employee in the negotiating unit in good faith,  regardless of whether the employee is a member of the employee organization or not.

In Cox v Subway Surface Supervisors Association, et al., 69 AD3d 438, the Appellate Division noted that [1] the individual must be in the negotiating unit represented by the employee organization’s when the alleged breach of the employee organization’s duty of fair representation is alleged to have occurred;* and [2] the fact that the individual disagrees with the employee organization’s action or negotiating position does not, without more, constitute proof of the employee organization’s failure of its duty of fair representation.

In any event, a claim that the employee organization had breached its duty of fair representation must be timely filed.

In this action an arbitrator confirmed the decision to terminate the plaintiff's [Plaintiff] employment on October 10, 2008. The employee organization allegedly notified the Plaintiff or about on October 10, 2008 that it would not appeal the arbitrator's determination. 

Supreme Court found that the employee organization had demonstrated that the Plaintiff did not commence this action until 2010, significantly more than four months after Plaintiff’s claim for the alleged breach of the duty of fair representation accrued. Accordingly, Supreme Court dismissed Plaintiff’s petition as time-barred.

The Appellate Division affirmed the lower court’s determination, explaining that the employee organization had met its prima facie burden by establishing that the cause of action alleging that it breached its duty of fair representation was untimely and that  Plaintiff had failed to raise a triable issue of fact. 

Citing Guggenheimer v Ginzburg, 43 NY2d 268, the court further ruled that Supreme Court had  also properly granted that branch of the employee organization’s motion to dismiss Plaintiff’s amended complaint seeking to recover damages for discrimination "for failure to state a cause of action pursuant to CPLR 3211(a)(7)."

* To the same end, in Burnham and UFT, 28 PERB 4590, PERB ruled that the union's "duty of fair representation" runs only to employees; there is no such duty with respect to former unit members such as retirees. However, in Baker v Irondequoit CSD, 70 NY2d 314, the Court of Appeals held that a union's duty to process a former employee's grievance, under some circumstances, survives the employee's separation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03810.htm

The Doctrine of Equitable Estoppel will not be applied where the individual had sufficient knowledge to bring a timely action

The Doctrine of Equitable Estoppel will not be applied where the individual had sufficient knowledge to bring a timely action

2015 NY Slip Op 04050, Appellate Division, First Department

Supreme Court dismissed the employee’s petition [Petitioner] seeking to annul the appointing authority’s termination of her employment as untimely.The Appellate Division affirmed the lower court’s ruling explaining that the appointing authority had made its “final determination” on March 7, 2011 and Petitioner had not made her demand for arbitration until after the expiration of the four-month statute of limitations.

The court cited Joseph Francese, Inc. v Enlarged City School Dist. of Troy, 95 NY2d 59. In Francese the Court of Appeals ruled that where the individual served a demand for arbitration within the applicable statute of limitations, the running of the Statute of Limitations is tolled.

The relevant statute, CPLR 204 (b), provides that “Where it shall have been determined that a party is not obligated to submit a claim to arbitration, the time which elapsed between the demand for arbitration and the final determination that there is no obligation to arbitrate is not a part of the time within which an action upon such claim must be commenced.”  

In addition Petitioner had contended that the doctrine of equitable estoppel should be applied to toll the period between Petitioner's termination and her demand for arbitration.

The Appellate Division disagreed, noting that the record indicated that Petitioner “knew or should have known of the proper mechanisms to challenge the appointing authority’s decision before the expiration of the statute of limitations.” As the Court of Appeals held in Zumpano v Quinn, 6 NY3d 666, “equitable estoppel did not apply where the plaintiff had sufficient knowledge to bring a timely action.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04050.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 16, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 16, 2015

Click on text highlighted in color to access the full report

Comptroller Di Napoli releases municipal audit reports for:

Carthage-West Carthage Water Pollution Control Facility

Both the clerk-treasurer and her deputy were able to perform all cash disbursement functions and have full access rights to record financial transactions in the accounting system with no oversight. Facility officials did not review bank reconciliations and bank statements and a comparison of canceled check images and online payments with approved abstracts.

http://www.osc.state.ny.us/localgov/audits/jointacts/2015/carthagewestcarthage.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

City of Long Beach

The significant revenue and expenditure projections in the proposed budget appear reasonable. The proposed budget, however, includes revenue related to the sale of real property and federal aid which may not be realized. In addition, appropriations for overtime may not be sufficient. Finally, metered water sales and sewer rents include a 2 percent rate increase which has not yet been adopted by the city council. The city’s proposed budget complies with the property tax levy limit. 

http://www.osc.state.ny.us/localgov/audits/cities/2015/longbeach_br.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release
 

Oneida Public Library District

The board did not audit each claim before payment or provide oversight of disbursements related to the district’s line of credit, payroll or petty cash. Additionally, no district official reviewed the processed payroll reports before disbursing payroll checks.

http://www.osc.state.ny.us/localgov/audits/libraries/2015/oneida.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

Village of Quogue

The justices did not ensure that court moneys were accounted for. The court did not properly prepare bank reconciliations or prepare an accountability analysis, resulting in excess funds in bail and fee accounts which could not be accounted for.

http://www.osc.state.ny.us/localgov/audits/villages/2015/quoguejc.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

and the

Shelby Volunteer Fire Company

The board does not ensure that all financial activity is properly recorded and reported and that money is properly accounted for. In addition, between April and November 2013, the fire company paid $10,714 to a vendor that was owned by the company president. 

 http://www.osc.state.ny.us/localgov/audits/firedists/2015/shelby.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release 


Comptroller and Attorney General report former Executive Director of a nonprofit organization sentenced
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman jointly announced that David Cohen, former executive director of the Metropolitan Council on Jewish Poverty (Met Council), has been sentenced to one year in jail. Cohen has also paid $650,000 in restitution to the Met Council. The joint investigation revealed that Cohen, together with former Met Council CEO William Rapfogel and other co-conspirators, stole approximately $9 million from the taxpayer-funded nonprofit organization as part of a 20-year grand larceny and kickback scheme. Cohen personally stole approximately $650,000 from the Met Council.

http://www.osc.state.ny.us/press/releases/may15/051115.htm?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051115release 

Audit of Empire State Development Corporation reveals advertising contract produced few “tangible results”
The Empire State Development Corporation (ESDC) spent $211 million on an advertising contract to promote economic development and tourism in New York state with no tangible results, according to an audit released by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/may15/051115a.htm?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051115arelease

Loss of the license or other certification required for the performance of the duties of the position typically results in the termination of the individual’s employment

Loss of the license or other certification required for the performance of the duties of the position typically results in the termination of the individual’s employment
2015 NY Slip Op 04182, Appellate Division, Third Department

Although the loss of the license or the certification required to perform the duties of the position typically results in the termination of the individual’s employment, the courts have held that a termination for inability to produce proof of possession of a required license, permit or certificate is not a dismissal in the nature of discipline.*

However, an individual dismissed because he or she is unable to produce the required credentials to lawfully perform the duties of his or her position may also suffer another consequences following his or her termination - the Unemployment Insurance Appeal Board may determine that the Claimant was disqualified from receiving unemployment insurance benefits because he or she had  voluntarily left his or her employment “without good cause.”

In this instance Claimant had been employed as a full time heavy equipment operator by a municipality's highway department for more than four years . One of the conditions of his employment was that he maintain a valid commercial driver's license (CDL).

In the course of a traffic stop, Claimant “refused to submit to a breathalyzer test” and his CDL was automatically suspended as a result.

Although there was some discussion about Claimant’s continuing to work for the highway department as a laborer on a part-time basis, this did not occur and Claimant was unable to return to his job as a heavy equipment operator as a result of his CDL being suspended.

Claimant then applied for unemployment insurance benefits. Although Claimant’s application for unemployment insurance benefits was initially denied, on appeal an Administrative Law Judge ruled that Claimant was allowed to receive benefits. The Unemployment Insurance Appeal Board [Board], however, subsequently reversed this decision, concluding that Claimant was disqualified from receiving benefits because he had provoked his discharge.

Claimant appealed but the Appellate Division sustained the Board’s ruling. 

Citing Matter of Ramirez [Commissioner of Labor], 84 AD3d 1656 and other decisions, the court explained that applicants for unemployment insurance benefits “who have undertaken voluntary actions that have resulted in the forfeiture of their valid CDLs, a necessary condition of employment,” have been held to have provoked their discharge thereby disqualifying them from receiving unemployment insurance benefits.**

Rejecting Claimant’s argument to the contrary, the Appellate Division said that the appointing authority “was not obligated to offer [Claimant] a part-time position as a laborer,” following his termination from his heavy equipment operator position, citing Matter of Ramirez [Commissioner of Labor], 84 AD3d at 1657.

* See, for example, Matter of Cravatta v New York State Dept. of Transp., 77 AD3d 1399; Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110.

** An applicant for unemployment insurance benefits who has left his or her position “without good cause” is typically held ineligible for such benefits. [See Hawkins v Commissioner of Labor, 71 AD3d 1215}.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04182.htm

The eight factors that a public agency or private employer must consider before rejecting an applicant for employment based on his or her criminal record

The eight factors that a public agency or private employer must consider before rejecting  an applicant for employment based on his or her criminal record

2015 NY Slip Op 04028, Court of Appeals

Distinguishing its decision in Acosta v New York City Board of Education [Board], in this action the Court of Appeals held that the Board’s denial of the application for certification as a school bus driver because of his prior criminal convictions was not arbitrary and capricious.

Here the applicant [Applicant] for certification as a school bus had disclosed that he had been convicted of two drug-related felonies as well as three theft-related misdemeanors, the most recent in 1993, when Applicant was 41 years old. Applicant explained that his criminal history was related to a past drug addiction, which he had overcome in the mid-1990s through a drug treatment program.

DOE withheld its certification as a school bus driver, advising Applicant’s employer that  the reason for the denial was that Applicant had been "convicted of an offense that render[ed] [him] unsuitable to perform duties associated with the transportation of school age children." As a result of petitioner's failure to receive certification, the bus company terminated Applicant's employment.

Applicant and other individuals who had been denied certification by the DOE based on criminal convictions commenced a proceeding pursuant to CPLR Article 78 challenging the denials. Supreme Court dismissed the proceeding. However, the Appellate Division modified Supreme Court's judgment, granted the petition to the extent of annulling the DOE's determinations, and remitted to the DOE, "to give petitioners an opportunity to review the information upon which DOE's determinations were based and to submit statements and documents pursuant to Chancellor's Regulation C-105."

Regulation C-105 provides that "[i]f, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with [DOE's Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."

Although Applicant had submitted various documents to the DOE from a number of prior employers including the bus company, all which described Applicant as a reliable and responsible employee and a certificate of relief from disabilities with respect to his felonies issued by Supreme Court in 2002, DOE again denied his application.

Applicant again challenged DOE’s denial of certification to serve as a school bus driver.

Supreme Court granted Applicant’s petition to the extent of annulling DOE's determination, ordered the DOE to approve petitioner's application, and remanded. Supreme Court concluded that the DOE had "failed to consider all eight factors as set forth in section 753 of the Correction Law. . . . Respondent only considered petitioner's criminal history when reviewing his application and failed to consider his extensive evidence of rehabilitation. Petitioner's last conviction was eighteen years ago and he obtained a certificate of relief from disabilities" (see 2012 NY Slip Op 30552[U] [Sup Ct, NYCounty 2012]).

The Appellate Division reversed Supreme Court's judgment, holding that "[t]he DOE's May 4, 2011 determination that [Applicant’s] prior drug-related convictions as an adult bore on his fitness and/or ability to perform his school bus duties was rationally based, and it shows DOE gave due consideration to the relevant factors under Correction Law § 753 before denying his application. Although [Applicant] avers he has been drug free since 1994, and his crimes were directly related to his drug addiction at the time, the offenses were not youthful indiscretions (he was 41 years old), but were of a serious nature since each involved narcotics."

The Appellate Division granted Applicant leave to appeal to the Court of Appeals, certifying the question whether its order was properly made. The Court of Appeals affirmed the Appellate Division’s decision.

The Court of Appeals noted that the Correction Law sets out eight factors that a public agency or private employer must consider when deciding whether one of the §752 exceptions applies:

"(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his [or her] fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public."

(Correction Law § 753 [1].)

and that "[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive."

Referring to it decision in Acosta, the court explained that there it had reviewed DOE's denial of an application for a security clearance, filed by an individual who had been convicted of first-degree robbery when she was 17 years old. Although DOE contended that issuance of the security clearance would pose "an unreasonable risk to property or to the safety or welfare of specific individuals or the general public,” the Court of Appeals held that the DOE acted arbitrarily because the agency failed to consider each of the factors specified in Correction Law § 753 and, further, did not take into consideration all of the documentation that Acosta submitted in support of her application, and therefore violated Correction Law §753(g). The court said that it concluded that DOE's review amounted to no "more than a pro forma denial of petitioner's application on the basis of her prior criminal conviction,"

In his appeal, Applicant argued that “DOE has, once again, failed to review anything other than an applicant's criminal record.”

The Court of Appeals said that it disagreed with Applicant, holding that in contrast to Acosta, Applicant “adduces no evidence demonstrating that the DOE failed to consider the information he provided concerning his relevant employment history.”  Here, said the court, the record indicates that the DOE may simply have given "greater weight to . . . the fact and circumstances of [Applicant's] conviction[s] than to . . . his subsequent accomplishments," and in these circumstances the DOE's determination cannot be overturned without "engaging in essentially a re-weighing of the factors, which is beyond the power of judicial review.

Considering these elements and the relevant statutes, the Court of Appeals, Chief Judge Lippman dissenting, said that under these circumstances “we cannot conclude that the DOE's determination, declining to grant the certification despite the certificate of relief from disabilities, was arbitrary and capricious.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04028.htm