Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 23, 2017

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No absolute right to presence of union representative in investigatory hearing
 
OK to deny union representation in peer review meeting, but denying union info about peer review unlawful  

No work from home for pregnant employee who taught, met with patients, supervised staff

Abolishing a position for economic reasons

Abolishing a position for economic reasons

Decision of the Commissioner of Education, Decision No. 17,142

The Director of Athletics and Physical Education [Petitioner] was granted tenure in this tenure area in 2008. In May 2013 the superintendent of schools advised the Petitioner that his position was to be abolished for economic reasons and at its meeting held on June 20, 2013, the School Board approved the superintendent’s recommendation to abolish the Petitioner position effective June 21, 2013.  

Petitioner appealed the School Board's action to the Commissioner of Education contending that [1] his position was improperly excessed in violation of §135.4 of the Commissioner’s regulations, which regulation requires all public school districts with a high school to employ a director of physical education and [2] he was terminated in bad faith because the district created several new positions after he was terminated. He asked the Commissioner of Education to direct that the School Board reinstate him to his former position, with back pay and benefits. 

In response, the School Board alleged that it had the statutory authority to abolish Petitioner’s position for sound economic and budgetary reasons and that it acted in good faith in its decision to abolish Petitioner’s position.  In addition, the School Board asserted that no new employee has been hired to replace Petitioner and that, instead, the his duties had been distributed "among three long-standing employees; none of who are performing more than 50% of Petitioner’s former duties."*

The Commissioner ruled that Petitioner request that he be reinstated to this prior position was moot as he had earlier been reinstated to his former position.**

However, the Commissioner declined to dismiss Petitioner's claim that the School Board acted arbitrarily and “without a rational basis” in abolishing his position. With respect to the merits of this claim, the Commissioner noted that it was "well-settled that the authority to create and/or abolish positions rests with the board of education, which may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith."

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

Here the superintendent said that the decision to abolish Petitioner’s position was driven by budgetary constraints and her affidavit explained that "the district paid three current administrators a small stipend to carry out a portion of Petitioner’s former duties, instead of paying Petitioner’s high salary, which resulted in a cost savings to the district of approximately $144,975." The School Board contended that it is permissible for a board of education, acting in good faith, to abolish a position for economic reasons and fractionalize its duties among multiple other existing positions.

The Commissioner ruled that Petitioner [1] failed to refute respondent’s assertion that his position was abolished in order to realize cost savings from fractionalization of his duties and [2] failed to demonstrate that by abolishing the Director of Athletics and Physical Education position, the School Board violated 8 NYCRR §135.4(c)(4)(iii).

The Commissioner said that the record indicated that the school district continued to employ a Director of Physical Education [40%] following the abolition of Petitioner’s position, ruling that this complied with this regulation.  The Commissioner commented that "even if more than 50% of the duties of Petitioner's former position involved his responsibilities as Director of Athletics and Physical Education, the regulation does not prescribe a particular percentage of duties that must be dedicated to the responsibilities of a Director of Physical Education."

Petitioner also alleged that the School Board acted in bad faith as evidenced by its creating new positions, including a Director of Social Studies, Director of Science, Technology and Engineering, Director of Science and an Assistant Superintendent for Special Education position.  

The Commissioner said that the burden of proving bad faith is on the party asserting it, and indicated that the fact that other new positions unrelated to Petitioner’s former position were created at the same time or after the abolition of a position for economic reasons does not in and of itself support finding that the School Board acted in bad faith. The Commissioner ruled that "[o]n the record before me, Petitioner has not met his burden of proving that his position was abolished in bad faith."

In addition, Petitioner did not establish that the duties of the new positions he cited were similar to those of his former position.  Rather the duties of Petitioner’s former position "were fractionalized and re-distributed among three current employees."  As Petitioner’s position was abolished for fiscal reasons and none of "the current three employees" were assigned more than 50% of the duties of his former position, the Commissioner found that the School Board had properly abolished his position, which action resulted in his being excessed and his name being placed on a preferred list.

* In Currier v Tompkins-Seneca-Tioga BOCES, 80 AD2d 979, the Appellate Division ruled that the reassignment of the work of the incumbent of an abolished position among five other (retained) employees, none being assigned more than 50% of the duties of the abolished position, was lawful.

** Petitioner was reinstated as Director of Athletics, Physical Education, Health and Chairperson District-wide Health and Safety Team from the relevant preferred eligible list effective August 31, 2015 

 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17142

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The Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award

The Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award

In Re: The Arbitration Between Hawai'i State Teachers Association and the State of Hawai'i, Department of Education, Hawai'i Supreme Court, SCWC-11-0000065

In the United States the Doctrine of Sovereign Immunity stands for the proposition that the Federal government or a State government cannot be sued without its permission.* This doctrine was tested in a case decided by Hawai'i's highest court ... In Re: Arbitration Between Hawai'i State Teachers Association and the State Of Hawai'i, Department Of Education [DOE].

The genesis of this case was the termination of a public school teacher for allegedly smoking marijuana and possessing alcohol while in her classroom.  The Hawai'i State Teachers Association [HSTA] filed a grievance on behalf of the teacher pursuant to the relevant collective bargaining agreement [CBA]. Article V.G.2.f of the agreement provided that the arbitrator could enter an award in favor of the grievant if he or she determined that Employer's actions were improper. Here the arbitrator sustained the grievance, ruling that the State lacked just cause to terminate the teacher and awarded the teacher back pay and benefits.

The arbitrator ordered that Morita be restored to her position with back wages “with interest at the rate of ten (10) percent per annum on any unpaid amounts that are due and owing.” Ultimately HSTA sued DOE seeking the award of 10% interest on the back pay in the arbitration award and its fees.

The Supreme Court said that the "State was a party to the collective bargaining agreement, which explicitly provided for disputes to go to arbitration and stated that '[t]he arbitrator may award back pay to compensate the teacher wholly or partially for any salary lost' [and] [t]his court has recognized that 'arbitrators have the authority to make an award of interest as part of the determination of the total amount of compensation to which the prevailing party is entitle'” and that prejudgment interest is 'an element of complete compensation.'”

Among the issues raised by DOE's was its contention that the doctrine of sovereign immunity protected it from an arbitrator's award of prejudgment interest, the Supreme Court affirmed the Intermediate Court of Appeals [ICA] conclusion that the State waived its sovereign immunity in the arbitration proceedings.

In the words of the Supreme Court, "We hold that, under the facts of this case, it does not. Because judicial review of an arbitration award is confined to the strictest possible limits, and because the arbitrator in this case reasonably interpreted the arbitration agreement in fashioning the award, we hold that the arbitrator did not exceed his authority in awarding prejudgment interest against the [DOE]. We also hold that the award of attorneys' fees and costs on appeal was proper."

* The Doctrine is reflected in the Eleventh Amendment to the United States Constitution which provides that "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Thus a State cannot be sued in federal court without its consent or an expressed waiver of its immunity. Such immunity, however, is not viewed as being available to a political subdivision of a State.

The decision is posted on the Internet at:

http://caselaw.findlaw.com/hi-supreme-court/1870779.html

Determining if a grievance alleging a violation of a provision in a collective bargaining agreement may be submitted to arbitration

Determining if a grievance alleging a violation of a provision in a collective bargaining agreement may be submitted to arbitration

City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2017 NY Slip Op 06073, Appellate Division, Second Department

Yonkers Fire Fighters Local 628, IAFF, AFL-CIO [Local 628] filed a grievance alleging that the City of Yonkers [Yonkers] engaged in a continuing practice of delaying and denying medical care and treatment claimed by its members pursuant to General Municipal Law §207-a after suffering an alleged line of duty injury. Yonkers denied the grievance and the Local demanded arbitration of its grievance.* 

Yonkers filed a petition pursuant to CPLR Article 75 seeking a court order permanently staying arbitration while the Local 628 cross-moved seeking an order compelling that the grievance be submitted to arbitration. Supreme Court denied Yonkers' petition and granted the Local 628's cross-motion. The Appellate Division affirmed the Supreme Court's actions.

The Appellate Division explained that public policy in New York favors arbitral resolution of public sector labor disputes if the demand for arbitration meets a two-prong test. The first test: the court must determine if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If it finds no such barrier, the court then must determine whether the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

Noting that Yonkers did not claim any statutory, constitutional, or public policy prohibition to arbitration of this grievance, the Appellate Division said that the second test may be satisfied if the court finds that "there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [collective bargaining agreement (CBA)]."

Finding that the relevant arbitration provisions set out in the CBA provide for arbitration of any grievance "involving the interpretation or application of any provision of this Agreement," and there was a reasonable relationship between the subject matter of the dispute, which involves the processing of General Municipal Law §207-a benefits to firefighters injured in the line of duty, the Appellate Division concluded that the grievance was arbitrable.

Addressing Yonkers' claim that the Local's grievance was untimely, the Appellate Division pointed out that the "threshold determination of whether a condition precedent to arbitration exists and whether it has been complied with, is for the court to determine."

In contrast, said the court, "[q]uestions 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."

Here the CBA did not specify that "timely commencement of the grievance is a condition precedent to arbitration." Accordingly, the Appellate Division ruled that the question of whether the Local timely initiated its grievance ... must be resolved by the arbitrator, not the court.

* A third-party administrator, Pomco, Inc., processed GML §207-a claims filed by Yonkers firefighters on behalf of Yonkers.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06073.htm

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New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending August 19, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending August 19, 2017

Source: Office of the State Comptroller

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Municipal Audits released

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the 

Village of Painted Post – Board Oversight (Steuben County)
The board did not adopt policies and procedures for cash receipts and disbursements, processing of user charges, payroll and information technology. The board also did not make budget transfers on a timely basis to control spending during the year. 

Town of Schaghticoke – Water Operations (Rensselaer County)
Duties related to billings, collections, deposits and recordkeeping were not adequately segregated. The board also did not approve water billings and customer account adjustments, and did not perform an annual audit of the clerk’s records and reports. 

City of Yonkers – Information Technology (Westchester County)
The IT department’s acceptable computer use policy was not signed or acknowledged by all employees and city officials have also not classified personal, private and sensitive information based on its level of sensitivity and the potential impact should that data be disclosed, altered or destroyed without authorization. In addition, city officials have not ensured that employees received adequate cyber security training and have not adopted a breach notification policy or a disaster recovery plan. 

Unregistered Auto Repair Shops 

The Department of Motor Vehicles has not done enough to prevent automotive repair shops and inspection stations from operating without valid registrations, putting consumers at an increased risk to be scammed by dishonest businesses, according to an auditby New York State Comptroller Thomas P. DiNapoli.