Employees of a state or a political subdivision of a state may not be required to pay an agency-shop fee to a union unless the employee affirmatively consents to pay such a fee

Employees of a state or a political subdivision of a state may not be required to pay an agency-shop fee to a union unless the employee affirmatively consents to pay such a fee

Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 85 U. S. ____ (2018).

Petitioner Mark Janus, an Illinois state employee whose collective bargaining unit is represented by a public-sector union [Union], refused to join the Union because he opposes many of its positions, including those taken by the Union in the course of collective bargaining. Janus, however, was required to pay an "agency shop fee" in lieu of paying "regular dues" to Union. The Governor of Illinois also opposed to many of the Union's positions and attempted to join in the litigation as a plaintiff but was held to "lack standing."

Janus, contending that the state law authorizing agency fees to be paid to a union representing state employees in collective bargaining was unconstitutional, sued the State of Illinois.

The United States Supreme Court held that the State’s extraction of agency fees from nonconsenting public-sector employees violated the First Amendment, overruling its earlier decision in Abood v Detroit Board of Education, 431 U. S. 209.

In Abood the high court ruled that an agency shop fee may cover a union's expenditures attributable to those activities “germane” to the union’s collective-bargaining activities, referred to as chargeable expenditures, but may not cover the union’s political and ideological projects, i.e., nonchargeable expenditures.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts  and Justices Kennedy, Thomas, and, Gorsuch joined. Justice Sotomayor filed a dissenting opinion and Justice Kagan filed a dissenting opinion in which Justices Ginsburg and Breyer and Sotomayor joined.

In the words of the majority, "... States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay."

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Matter of Terry v County of Schoharie, 2018 NY Slip Op 04612, Appellate Division, Third Department

Petitioner in this CPLR Article 78 action alleged that Schoharie County [Schoharie] had abolished her position in violated Civil Service Law §80 as it was done in bad faith and, with respect her federal claims, violated her constitutional rights to due process, equal protection and political affiliation.

Schoharie removed the proceeding to Federal District Court and that court ultimately dismissed all of Plaintiff's federal claims on the merits. The District Court, however, declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and remanded them back to Supreme Court. Supreme Court then granted Schoharie's motion for summary judgment dismissed Plaintiff's petition and Plaintiff appealed.

The Appellate Division, indicating that "A public employer may, in the absence of bad faith, collusion or fraud, abolish positions for the purposes of economy or efficiency",  noted that Schoharie had argued that Petitioner's position was abolished as part of a cost-saving measure due to fiscal restraints resulting from flooding caused by Hurricane Irene and was experiencing a loss of population as well as a shrinking tax base and had eliminated positions and restructured several County departments by consolidation or separation of functions. To rebut such proof the Appellate Division said that Petitioner was required to prove "that the abolition of [her] position was brought on by bad faith or in an effort to circumvent the Civil Service Law."

Addressing the issue of Schoharie's alleged bad faith, the Appellate Division said "hat issue was squarely addressed and decided by the District Court in its resolution of Petitioner's federal claims." In dismissing the federal claims, grounded upon the same allegations as those underlying the claimed Civil Service Law violations, the District Court "expressly held that the evidence submitted by [Schoharie] established that Petitioner's position was abolished as a cost-saving measure and that there was no evidence to support Petitioner's "self-serving testimony that [Schoharie] acted in bad faith" or in retaliation for Petitioner's change of political party enrollment.

Noting that the doctrine of collateral estoppel "precludes a party from relitigating an issue which has previously been decided against [him or] her in a proceeding in which [he or] she had a fair opportunity to fully litigate the point," regardless of whether the tribunals or causes of action are the same, the Appellate Division observed that the factual issue of bad faith "was raised, necessarily decided and material in the [District Court], and [Petitioner] had a full and fair opportunity to litigate the issue." Thus, said the court, Petitioner is barred by the principles of collateral estoppel from relitigating that issue in the course of her Article 78 action.

In the absence of bad faith, Schoharie's showing of an economic justification for the elimination of Petitioner's position could only be countered by proof that "no savings were accomplished or that someone was hired to replace [Petitioner]." Petitioner, however, did not dispute that the reorganization of her department and the concomitant elimination of her position, resulted in fiscal savings to the County or that Schoharie did not replace her.

Although Petitioner contended that many of her duties that Petitioner had been assumed by another Senior Planner and that Schoharie violated the prohibition in Civil Service Law §61(2) against assigning civil servants to out-of-title work by assigning supervisory responsibilities to that Senior Planner, the Appellate Division found that such work "either falls within the official duties set forth in the Senior Planner job classification or is a reasonable and logical outgrowth of those duties."

Accordingly, the Appellate Division concluded that Petitioner failed to raise an issue of fact in response to Schoharie's showing that its actions "were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency," her petition was properly dismissed by Supreme Court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04612.htm

Considering the employee's personnel history is setting a disciplinary penalty

Considering the employee's personnel history is setting a disciplinary penalty

Brizel v City of New York, 2018 NY Slip Op 03755, Appellate Division, First Department

Educator was served with disciplinary charges pursuant to Education Law §3020-a. The Arbitrator found the teacher, who had a 27-year career with the New York City Department of Education, guilty of misconduct and terminating his employment.

The Appellate Division confirmed the arbitration award, noting that the Educator's career, "was not without incident, as evidenced by his 2008 settlement of disciplinary charges." The court then observed that the Arbitrator "properly considered" an earlier settlement of those charges in setting the disiplinary penalty in this instance. In addition the Appellate Division noted that the Educator failed to acknowledge the gravity of his misconduct, continues to deny wrongdoing, and attempted to shift blame to his students.

Considering an employee's personnel history in setting a disciplinary penalty is permitted provided, as the Court of Appeals held in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470 and Doyle v Ten Broeck, 52 NY2d 625, the individual is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file.

Further, as the court noted in Shafer v Board of Fire Commr., Selkirk Fire Dist., 107 AD3d 1229, a series of petty offenses by a single individual may have a cumulative impact in the setting of a penalty. In fact, courts have approved the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.

In determining the appropriate penalty to be imposed, relevant issues include considering if this is the employee’s first offense of this nature, or is there a pattern of such offenses and had the employee been disciplined or served with disciplinary notice in the past.

In sustaining the Arbitrator's determination as to the penalty to be imposed in this instance, the Appellate Division said that "Under the circumstances presented, the penalty of termination does not shock our sense of fairness," citing Bolt v New York City Department of Education, 30 NY3d 1065.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03755.htm

Arbitration award found "imperfectly executed" vacated

Arbitration award found "imperfectly executed" vacated

Matter of The Professional, Clerical, Tech. Empls. Assn. (Board of Educ. for Buffalo City Sch. Dist.), 2018 NY Slip Op 04128, Appellate Division, Fourth Department

Supreme Court granted the petition submitted by The Professional, Clerical, Technical Employees Association [Association] seeking to confirm an arbitration award and denied the Board of Education for Buffalo City School District's [Board] cross petition seeking a court order vacating the arbitration award.

The Appellate Division unanimously reversed the Supreme Court's ruling, on the law, and vacated the arbitration award, explaining:

1. The arbitration proceeding arose from Board's plan to transfer* certain employees previously assigned to work at a single location to new positions requiring them to alternate between two different work locations.

2. The arbitrator's opinion and award, among other things, found that Board had  involuntarily transferred the Association's grievants "to new positions" in violation of the collective bargaining agreement between the parties, and directed the Board to compensate the grievants "for work performed at more than one location from November 30, 2013 until the end of the 2016 Budget Year."

3. Vacatur of the arbitration award is appropriate where the award failed to set forth the manner of computing monetary damages as CPLR Article 75 provides, in pertinent part, that an arbitration award "shall be vacated" where the arbitrator "so imperfectly executed [the award] that a final and definite award upon the subject matter submitted was not made."**

The court noted that the Board's affidavit in support of the cross petition contained a statement that "none of the affected employees was terminated or had his or her compensation reduced as a result of the allegedly wrongful transfers."

However, said the Appellate Division, the arbitration award does not explain the basis for the arbitrator's directing the Board provide compensation allegedly owed to the grievants, nor does the award detail how that compensation should be calculated. Rather, said the court, "[i]t appears that the arbitrator merely copied verbatim the remedy requested by [the Association] rather than making findings of his own."

Accordingly, the Appellate Division reverse the Supreme Court's order, denied the Associations petition, granted the Association's cross petition, vacated the arbitration award, and remitted the matter to Supreme Court.

In addition, Supreme Court was instructed to then remit the matter to the arbitrator to determine whether any compensation is due the Association's grievants, and, if so, "to determine the amount of such compensation or how it can be calculated with reasonable precision."

* Although the term "transfer" is used to describe the personnel change that resulted in the submission of this grievance, the term "reassignment" would be a more accurate of the personnel change in this instance. A movement of an individual from one position to a second position subject to the jurisdiction of the same appointing authority is typically described as a "reassignment." In contrast, the movement of an employee from one position to a second position under the jurisdiction of a different appointing authority would constitute a "transfer" [see Rules for the Classified Civil Service of the County of Erie, Rule XVI].

** An award is indefinite or nonfinal within the meaning of the statute only if it leaves the parties unable to determine their rights and obligations; if it does not resolve the controversy submitted; or if it creates a new controversy.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04128.htm

Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor

Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor

Matter of Kinach v de Blasio, 2018 NY Slip Op 04425, Appellate Division, First Department

The New York City Mayor's Personnel Order No. 2016/1 established certain paid leave benefits and modified a planned salary increase and reduced the amount of annual leave for managers with 15 or more years of experience. In addition, the order provided that, effective December 22, 2015, such New York City personnel subject to the order would be entitled to 30 days paid parental leave (PPL) every 12-month period for the birth of a child, adoption, or foster care.

MPO 2016/1 modified MPO 2015/1 and MPO 2015/2 by eliminating a 0.47% wage increase scheduled to go into effect on July 1, 2017 and modified the annual leave schedule for covered titles by eliminating the accrual of the 26th and 27th annual leave days, capping the accrual of annual leave days at 25 days, in order to fund these benefits.

Petitioners, five managers all over the age of forty (40) and not in a collective bargaining unit within the meaning to Article 14 of the Civil Service Law, advanced a number of challenges MPO No. 2016/1 with respect to the modification of the benefits set out in MPO 2015/1 and MPO 2015/2.

Addressing Petitioners' claims of unlawful discrimination based on age, the Appellate Division held that Petitioners "failed to state a claim of age discrimination" as defined in the Administrative Code of City of NY §8-107, the New York City Human Rights Law or Executive Law §296[1][a] the New York State Human Rights Law and the adverse action alleged by Petitioners did not occur under circumstances giving rise to an inference of discrimination.

The court explained that the Petitioners' claim [a] was based upon the false premise that women over 40 years of age cannot bear children, [b] ignored the fact that PPL benefits were available to biological fathers, regardless of age, who becomes a parent through adoption or by fostering, and [c] was undercut by Petitioners' submission of data reflecting that members of their age group received PPL benefits.

In the words of the Appellate Division, "MPO No. 2016/1 is facially neutral and applies equally to all covered employees, regardless of age ... and no disparate impact has been shown" by Petitioners.

Addressing Petitioners equal protection argument, the court said Petitioners failed to demonstrate any violation of Article 1, §11 of the New York State Constitution as "MPO No. 2016/1 treats all similarly situated employees alike." Further, the Appellate Division found that the State's "non-impairment clause" set out in Article V, §7, of the State Constitution was "not implicated as the challenged action does not involve a change directly related to retirement benefits.

Considering the Petitioners' arguments challenging the "cost-cutting" measures the City elected to use "to pay for the PPL benefit," the Appellate Division held that the method selected by the City was not arbitrary and capricious and, notwithstanding Petitioners' claim that less extreme cost-cutting measures should have been taken, the court explained that such a belief "does not render [the City's] determination irrational."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04425.htm