Determining if a dispute between a public employer and an employee organization is arbitrable

Determining if a dispute between a public employer and an employee organization  is arbitrable
Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Appellate Division, Second Department

The City of Long Beach [Long Beach] filed a petition pursuant to CPLR Article 75 seeking a permanent stay of a demand for arbitration submitted by the Long Beach Professional Fire Fighters Assn., Local 287 [Local 287].

Local 287 sought arbitration alleging that Long Beach had violated provisions set out in a collective bargaining agreement* negotiated by the parties addressing [1] the layoff of certain Long Beach firefighters and [2] the terms and conditions of employment with respect to certain paramedics when Long Beach "unilaterally set the terms of employment" for certain paramedics when they were hired.

Initially the Appellate Division observed that a public employer has wide latitude to negotiate the terms of the agreements, and can agree to submit disputes to arbitration in "the absence of plain and clear prohibitions in statute or controlling decisional law, or restrictive public policy" and, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 noted that although the Taylor Law reflects New York's " strong'" policy favoring arbitration, this principle is not without limits.

New York courts use a two-part test to determine if a dispute is arbitrable, first asking if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." In the absence of any such prohibition, the court then inquires as to whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

A court must stay arbitration where it can conclude, upon the examination of the parties' contract and any implicated statute on their face, "that the granting of any relief would violate public policy."

Turning to Local 287's claim that Long Beach's decision regarding layoffs of the firefighters was subject to arbitration the Appellate Division said that Civil Service Law §80(1), Suspension or demotion upon the abolition or reduction of positions, provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others — what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public. Accordingly, and in the absence of bad faith, fraud, or collusion, that discretion "is an undisputed management prerogative" for the public's benefit, and cannot be altered or modified by agreement or otherwise.

Thus, said the Appellate Division, arbitration of the claim regarding the layoffs of the firefighters would violate public policy.

Turning to Local 287's claims relating to the terms and conditions of employment of the paramedics, the court opined that "no public policy precludes arbitration of those claims." Further, the court noted that the arbitration provision in the CBA "permits arbitration of such claims."

* Civil Service Law Article 14, typically referred to as the "Taylor Law."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03356.htm

Admitting evidence of prior disciplinary action taken against the charged party

Admitting evidence of prior disciplinary action taken against the charged party

OATH Index No. 2310/17

Although the New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls ruled that evidence of prior discipline is not admissible to prove an employee engaged in the charged misconduct, she said that prior disciplinary events may be used to rebut employee’s testimony that he was unaware of work rules.

Judge McGeachy-Kuls then admitted evidence of prior discipline for failure to complete forms in accordance with procedure to rebut employee’s testimony that he lacked notice of the procedure. This evidence was admitted solely for that purpose and not to prove that the employee had committed the charged misconduct.

In contrast, if an employee's personnel history will be considered by the hearing officer to determine the penalty to be imposed if the individual is found guilty of some, or all, of the disciplinary charges and specifications filed against the individual, he or she must be advised of such action.

In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that an employee's personnel records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2310.pdf

Reemployment of individuals receiving a retirement allowance from a public retirement system of New York State

Reemployment of individuals receiving a retirement allowance from a public retirement system of New York State

Police Benevolent Assn. of N.Y., Inc. v State of New York, 2018 NY Slip Op 03586, Appellate Division, Third Department

This decision provides an opportunity to consider the relevant provisions of law applicable with respect to the reemployment of individuals receiving a retirement allowance from a public retirement system of New York State.*

§150 of the Civil Service Law requires the suspension of the pension and annuity [retirement allowance] of a retired state or municipal employee in the event such an individuals is employed in a public service position of the State or a political subdivision of the State and making a certain salary while continuing to receive his or her pension during the public employment** except as otherwise permitted by §§100, 211, 212, 213, 214 of the Retirement and Social Security Law, §503 of the Education Law and "as now provided by any local law or charter."

§211 further requires that a retired state or municipal employee to be employed in a public service position making in excess of a certain salary while continuing to receive his or her pension obtain the approval of certain commissions or public officers, to be requested by the appointing authority, and, where required, a "waiver" in order to avoid any diminution of his or her retirement allowance.

The position of Chief of University Police at the State University of New York, College at Brockport became vacant and two individuals applied for the position and met all of the required qualifications. Edward Giblin, who was retired from public service and receiving a retirement allowance, was offered and accepted the position.

The Police Benevolent Association of New York, Inc., [Petitioners] commenced this CPLR Article 78 proceeding alleging that the State University violated Retirement and Social Security Law §211 by hiring Giblin and granting him a waiver despite the availability of qualified, nonretired applicants. Petitioners sought an order compelling State University to rescind the waiver issued to Giblin. Supreme Court granted State University's motion to dismiss the petition based on lack of standing and Petitioners appealed.

The Appellate Division dismissed the appeal as moot, explaining "an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment."

According to the decision, "Giblin retired from the position in 2017, and the waiver is therefore no longer in effect." Accordingly, said the court, "Petitioners cannot receive the relief requested in the petition, rendering the matter moot."

However, noted the court, there is an exception to the mootness doctrine permitting judicial review. In the event the issues are substantial or novel, likely to recur either between the parties or between other members of the public, and involve "a phenomenon typically evading review," such judicial review is warranted. Here, however, the Appellate Division did not find that the exception applies in this instance.

* New York State's Optional Retirement Programs authorized by Article 3, Part 5, Article 8-B and Article 125-A of the Education Law are not public retirement systems as neither the State nor a political subdivision of the State are liable for payment of benefits nor a party to any contract purchased in whole or in part with employer contributions made under the optional retirement program established and administered pursuant to these articles and any benefits shall be paid to "electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts."

** This limitation does not apply to individuals receiving a retirement allowance serving on jury duty or employed by the office of inspector of election as a poll clerk or ballot clerk pursuant to the Election Law, or as a notary public or commissioner of deeds, or to a retiree who has been elected to public office nor does it apply to individuals after the calendar year in which any such retired person attains age 65.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03586.htm

Processing an application for unemployment insurance benefits

Processing an application for unemployment insurance benefits

Matter of Weinstein (City of New York Dept. of Citywide Admin. Servs.--Commr. of Labor), 2018 NY Slip Op 03576, Appellate Division, Third Department

Guidelines applied by the NYS Department of Labor in determining if a claimant was entitled to receive unemployment insurance benefits include:

1. The determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve.

2. There must be substantial evidence in the record to support the Board's decision.

3. A false representation on an employment application regarding whether a claimant has ever been convicted of a crime can constitute disqualifying misconduct on a claim for unemployment insurance benefits.

Fred Weinstein [Claimant] filed a claim for unemployment insurance benefits. Claimant had commenced his employment as a sanitation worker for the City of New York on September 15, 2014. His employment was terminated in September 2015 after it was discovered that he had provided false information on his employment application. Claimant's application for unemployment insurance benefits was initially denied by the Department of Labor on the ground that his employment was terminated for misconduct, but an Administrative Law Judge [ALJ] overturned the denial following a hearing and awarded the Claimant benefits.

The Unemployment Insurance Appeal Board [Board] had adopted the finding of the ALJ that Claimant had falsified his job application by answering no when asked if he had ever been convicted of a felony or misdemeanor when, in fact, he had been previously convicted of two felonies and six misdemeanors.

The Board concluded, however, that Claimant's false representation did not disqualify him from receiving unemployment insurance benefits due to the length of time that the employer took in taking action against him and the City's Department of Citywide Administrative Services [Employer] appealed.

The Appellate Division noted that the record was "not entirely clear" with respect to when the Employer first learned of Claimant's criminal history found that the Employer was aware no later than March 2015 that Claimant had falsely represented that history, and Claimant was terminated in September 2015.

The individual who investigated Claimant's application for employment for Employer testified that the length of time between the filing of the application and the termination was not excessive because of the large amount of applications for employment for the City of New York that must be investigated and the Employer's policy to provide an opportunity for the employee/applicant to respond to any adverse information uncovered by the investigation before taking action.

The Appellate Division held that the length of time taken by the Employer prior to its taking action to terminate Claimant, under these circumstances, should not have been a factor in determining whether Claimant's false representations constituted disqualifying misconduct for the purposes awarding Claimant unemployment insurance benefits.

Finding that Board's decision lacked substantial evidence to support its  determination that Claimant was entitled to receive unemployment insurance benefits, the Appellate Division ruled that the Board's determination "must be reversed."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03576.htm

Lawsuit to recover damages for wrongful death of a student dismissed

Lawsuit to recover damages for wrongful death of a student dismissed

Juerss v Millbrook Cent. Sch. Dist., 2018 NY Slip Op 03518, Appellate Division, Second Department

A student suspended from Millbrook Middle School after the school's principal concluded that the she had engaged in an act of student misconduct committed suicide later that day.

Plaintiffs, as administrators of the student's estate sued the Middle School's principal, Millbrook Central School District, and the Board of Education of Millbrook Central School District [Defendants] alleging the student's suicide was caused by the Defendants' negligent investigation into the allegation of student misconduct and their negligent training of school staff in investigative procedures.

In this action to recover damages for wrongful death, Supreme Court granted the Millbrook Central School District's motion to dismiss the Plaintiffs' complaint. The Appellate Division the lower court's determination.

With respect to the Defendants' motion to dismiss the complaint for failure to state a cause of action, the Appellate Division said that "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Citing Michaan v Gazebo Hort., Inc., 117 AD3d 692, the court said that in so doing, said the court, "the pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference."

Applying these principles, the Appellate Division explained that (a) New York does not recognize a cause of action sounding in negligent investigation and (b) "a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York."

The decision if posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03518.htm