Employment Law News from WK WorkDay

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted in WK Workday distributed July 26, 2017

Click on text highlighted in color  to access the full report

Senate bill would effectively take down the NLRB

Jury to say if physical presence on-site was essential to program director job

HR director may be individually liable for FMLA and Pennsylvania wage violations

Motivating factor, not ‘but for’ causation, governs fired employee’s FMLA retaliation claim

Officer ‘targeted’ for association with mayor’s ‘political enemy’ did not voluntarily resign

Individual has no property interest in his or her former employment once he or she is discharged

Individual has no property interest in his or her former employment once he or she is discharged

Milwaukee Police Association v Flynn, USCA,7th Circuit

Opinion Summary posted by Justia

"Vidmar, Manney, and Gomez were discharged from the Milwaukee Police Department, for cause, by Police Chief Flynn. Their benefits and pay stopped immediately. They appealed their terminations to the Board of Fire and Police Commissioners, which rejected their appeals. They were permanently discharged. The former officers claimed that their employment did not end when they were discharged by the chief because they were entitled to employment until the conclusion of their appeals. They alleged that they were denied constitutional due process and wages.

"The district court rejected their claims and granted judgment on the pleadings. The Seventh Circuit affirmed.

"Under Wisconsin law, the former officers had no property interest in employment once they were discharged for cause by Chief Flynn. They were provided a full and adequate appellate process, and their discharges were upheld in accordance with Wisconsin law. They were not entitled to wages for the period of time between their discharge and the conclusion of their appeal under Wisconsin law as they were not employed during that time."

Justia has posted a PDF of this decision than may be downloaded on the Internet at:

http://law.justia.com/cases/federal/appellate-courts/ca7/16-3743/16-3743-2017-07-12.html?utm_source=summary-newsletters&utm_medium=email&utm_campaign=2017-07-14-labor-employment-law-cf0f45d344&utm_content=text-case-title-8

The collective bargaining representative's duty of fair representation

One of the issues in Winston Henvill's Article 75 petition seeking to vacate the arbitration award that terminated his employment with the Metropolitan Transportation Authority [MTA] was his allegation that his collective bargaining representative, the Metropolitan Transportation Authority Police Benevolent Association [PBA], breached its duty of fair representation. 

Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable

Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable

City of Watertown (Watertown Professional Firefighters' Assn. Local 191), 2017 NY Slip Op 05553, Appellate Division, Fourth Department

The City of Watertown [City] filed a petition pursuant to CPLR Article 75 seeking a court order permanently staying the arbitration of a grievance filed by the Watertown Professional Firefighters' Association Local 191 [Local 191].

Local 191 alleged that the City had violated, among other things, provisions in the parties' collective bargaining agreement [CBA] by failing to maintain required staffing levels of captains within the City's Fire Department and by requiring certain members of the Fire Department to perform out-of-title work as a result of Watertown's failure to maintain the required staffing levels.

Supreme Court denied the City's petition with respect to Local 191's grievance alleging a failure to maintain minimum staffing levels but granted the City petition with respect to dismissing that part of Local 191's grievance alleging the assigning its members to perform out-of-title work constituted a violation of the CBA.

Both the City and Local 191, respectively, appealed these ruling by Supreme Court. The Appellate Division unanimously modified the Supreme Court's decision "on the law" by denying the City's petition in its entirety.

The court then addressed arbitrability of each of the issues set out in Local 191's demand for arbitration.*

1. Failure to maintain minimum staffing levels.

The Appellate Division rejected the City's contention that arbitration of minimum staffing levels "is prohibited by law." In City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, the Court of Appeals held that "the subject matter of the dispute controls the analysis" and "a pending administrative proceeding concerning [a] respondent's alleged improper practices does not preclude arbitration inasmuch as there is no indication that the 'particular subject matter of the dispute' is not authorized,' i.e., not "lawfully fit for arbitration."

2. Agreement to arbitrate.

The Appellate Division also rejected the City's argument that the parties did not agree to arbitrate  Local 191's grievance, indicating that a court's review of that question "is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom." Here, said the court, the CBA contains a broad arbitration clause. Thus its determination of the arbitrability of the matter is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Finding that such a reasonable relationship existed, the Appellate Division said it was "the role of the arbitrator, and not the court, to make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

3. Staffing levels.

Local 191 contended that the City demoted eight fire captains and thus violated the CBA by failing to maintain the requisite staffing levels, and by concomitantly forcing other members of the Fire Department to perform out-of-title work, i.e., fire captain's work, without the appropriate compensation. As the CBA included provisions governing both minimum staffing levels and compensation for out-of-title work, the Appellate Division concluded that the dispute is reasonably related to the general subject matter of the CBA.

That said, the court reject the City's argument to the contrary, holding that issue presented by Local 191 involves an interpretation of that provision and the merits of Local 191's grievance and thus is a question to be resolved by the arbitrator, "who is tasked with making 'a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them.'"

4. Grievance procedural matters.

The Appellate Division ruled strict compliance with the step-by-step grievance procedure set forth in the CBA, which procedures the City's maintained Local 191 failed to honor, was a question for the arbitrator to resolve.

In the words of the court, "Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

5. Out of title work.

The Appellate Division said that with respect to Local 191's cross-appeal with concerning alleged out-of-title work, Supreme Court was incorrect in dismissing it and modified the lower court's order accordingly.

Rejecting the City's contention that arbitration should be stayed with respect to the issue of out-of-title work because compensation for such work falls within the meaning of "salary," which is expressly excluded from the CBA's definition of "grievance," the Appellate Division ruled that as "there is a reasonable relationship between the dispute over out-of-title work and the subject matter of the CBA ... it is for the arbitrator to determine whether the [compensation for out-of-title work] falls within the scope of the arbitration provisions of the [CBA]."

The Appellate Division ruled "that the [Supreme Court's] order so appealed from is unanimously modified on the law by denying the [City's] petition in its entirety, and as modified the order is affirmed without costs."

* The Appellate Division noted the so-called "two-part test" used by New York courts to determine if a grievance is subject to arbitration, stating "Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If there is a prohibition, our inquiry ends and an arbitrator cannot act. "If no prohibition exists, ' the courts then ask "whether the parties in fact agreed to arbitrate the particular dispute by examining their [CBA]."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05553.htm

Leaving employment without good cause disqualifies a claimant for unemployment insurance benefits

Leaving employment without good cause disqualifies a claimant for unemployment insurance benefits

Matter of Walters (Commissioner of Labor), 2017 NY Slip Op 05497, Appellate Division, Third Department

The Unemployment Insurance Appeal Board [Board] found that an applicant for unemployment insurance benefits [Claimant] was ineligible for such benefits because she had "voluntarily left her employment without good cause."

Claimant appealed but the Appellate Division sustained the Board's ruling finding that its decision was supported by substantial evidence. Claimant had advanced three arguments in pressing her claim for benefits.

Claimant first contended that on her last day of employment she would be late reporting for duty because of a "doctor's appointment" and, after she learned that her supervisor had to cover for her, she quit because she was afraid she was going to be reprimanded or terminated.

Citing Welsh [Commissioner of Labor], 138 AD3d 1328, the Appellate Division noted that "resignation in anticipation of being discharged does not constitute good cause for leaving one's employment."

Claimant had also testified that she also quit her job "because the employer made it difficult for her to schedule medical appointments when the employer was short-staffed."

However Claimant admitted that she was never informed that her job was in jeopardy due to being absent from or late to work.

The Appellate Division, citing McCarthy [Commissioner of Labor], 120 AD3d 876, explained that dissatisfaction with one's work schedule "... does not constitute good cause for leaving one's employment."

As to Claimant's final justification for quitting her job, she testified she had quit "due to stress involving a coworker." Claimant admitted, however, that her supervisor had taken certain actions as a result of her report and had changed her schedule so she did not have to work with the individual in question.

The Appellate Division said that it its view, the Board's decision that Claimant left her employment for personal and non-compelling reasons, was supported by substantial evidence and declined to disturbed it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05497.htm