Duty of fair representation

Duty of fair representation

Ponticello v County of Suffolk, 225 A.D.2d 751

Joseph Ponticello filed a grievance. When the grievance was denied by Suffolk County, Ponticello asked his union, the Association of Deputy Sheriffs and Correction Officers, to demand arbitration. The union refused to demand arbitration and Ponticello sued the County, seeking a judgment confirming his right to arbitration under the collective bargaining agreement.

In reversing a State Supreme Court judge's ruling in Ponticello's favor, the Appellate Division addressed an number of issues concerning a union's duty of fair representation and the right of a member of the bargaining unit to pursue "self-help" should the union decline to proceed with the arbitration of a grievance.

The Appellate Division ruled that in order for Ponticello to prevail, he had to prove that the union's action constituted discrimination, arbitrariness or invidious or hostile treatment. The decision makes the following points regarding an employee's right to demand arbitration if the union elects not to do so:

1. If an employer and an union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract.

2. A union is not required to pursue arbitration in every grievance filed by a member of the negotiating unit and its failure to demand arbitration is not, standing alone, a breach of its duty of fair representation.

3. An employee may demand arbitration or sue the employer directly only if the collective bargaining agreement allows an employee to bring such an action or if the union breaches it duty of fair representation.

The Appellate Division found that the collective bargaining agreement gave the Association full control of which grievances may be submitted to arbitration. As Ponticello failed to establish that the Association had breached its duty of fair representation, he had no standing to sue the County.

Editor's Note: In Alston v Transport Workers Union of Greater New York, the Appellate Division pointed out that an amendment to the Civil Practice Law and Rules [Chapter 467, Laws of 1990], reduced the statute of limitations for bring an action against a union for breach of its duty of fair representation from six years to four months [§217(2)(a), CPLR]. The four months period commences to run from the date on which the employee knew or should have known that the breach had occurred or the date the employee suffers actual harm, whichever is later.

Drug tests for elected office

Drug tests for elected office

Chandler v Miller, Governor of Georgia, US Supreme Court, 520 U.S. 305

A Georgia statute requires candidates for designated state offices to certify that they have taken a urinalysis drug test within 30 days prior to qualifying for nomination or election and that the test result was negative. Libertarian Party candidates sued, arguing that the law violated their Fourth Amendment protection against unreasonable search.

The U.S. Supreme Court, in an opinion by Justice Ginsburg, decided that the Georgia law was unconstitutional because it failed to overcome the general principle that a search is justifiable only in the event of individualized suspicion. The Court said that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.

While there are a number of "particularized exceptions" to this main rule based on "special needs, beyond the normal need for law enforcement," the Supreme Court said that  "when such "special needs" - concerns other than crime detection - are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties," referring to its ruling in Von Raab, 489 U S at 665-666.

Georgia, the Court decided, failed to show a special need sufficient to override an individual's privacy interest or sufficiently vital to its interests to justify suppressing the Fourth Amendment's normal requirement of individualized suspicion for requiring an individual submit to testing for illegal drugs.

Holding that Georgia's requirement that candidates for state office pass a drug test does not fit within the closely guarded category of constitutionally permissible suspicionless searches, the high court reversed the Eleventh Circuit's ruling upholding the statute. The ruling is consistent with decisions by New York State courts that, except where a negotiated agreement or statute authorizes or requires random drug testing, a public employer must have reasonable cause or justified suspicion to require an employee to take an involuntary drug test.

Appealing disciplinary decisions

Appealing disciplinary decisions

Wood v Cosgrove, 237 A.D.2d 616

Marilyn Wood appealed her demotion from her position as head clerk after being found guilty of two counts of incompetence to the Suffolk County Civil Service Commission pursuant to §76.3 of the Civil Service Law. When the Commission rejected her appeal as untimely, Wood challenged its ruling by filing an Article 78 petition.

§76.1 provides that appeals to the commission having jurisdiction shall be made within 20 days of the receipt of written notice of the determination to be reviewed. In the alternative, §76.1 allows the employee to appeal by filing an Article 78 petition with the court. The Statute of Limitations for filing an Article 78 petition is four months.

The Appellate Division affirmed a New York State Supreme Court ruling dismissing her Article 78 appeal on the grounds that the proceeding was barred by §76.3 of the Civil Service Law because she had elected to pursue an "administrative appeal." In addition, the Court said that Wood failed to demonstrate that the Commission's denial of her appeal as untimely was "in violation of State law, or that the Commission acted illegally, unconstitutionally or in excess of its jurisdiction."

In another case, also captioned Wood v Cosgrove, Wood unsuccessfully challenged her termination from her position with the Suffolk County Police Department after being found guilty of five specifications of misconduct. Wood claimed that she had been prejudiced by the hearing officer's refusal to "recuse herself" from the proceeding, which action demonstrated bias. 

The Appellate Division said that Wood had failed to rebut the presumption of the integrity of those serving as adjudicators.  The Court also said that the determination of the hearing officer was supported by substantial evidence in the record.

Sick leave abuse

Sick leave abuse

People v Robert Patino, Nassau County Court, affirmed, 259 A.D.2d 503

Robert Patino, a Nassau County police officer, was convicted of "disability fraud" after a jury found that he had collected sick leave payments for more than three years while he was able to work. Patino was charged with sick leave abuse and falsifying his application for Retirement and Social Security Law §207-c disability benefits.

Although Patino claimed that his back injury prevented him from performing even light duty work, it was reported that he was video taped doing a number of physical activities including bending and diving.

Charges filed against Patino: (1) Offering a False Instrument for Filing in the First Degree (Penal Law §175.35); (2) Attempted Grand Larceny in the Third Degree (§110/155.35); (3) Grand Larceny in the Third Degree (§155.35) and (4) Defrauding the Government (§195.20).

Among his defenses, Patino argued that because he was the first police officer to be prosecuted on such charges, this constituted his being "selectively and vindictively prosecuted in violation of his Fourteenth Amendment Rights." This, he contended, required that the indictment be dismissed "in the furtherance of justice." He did not prevail. The penalty imposed: 5 years probation plus a $5,000 fine. In addition, the Court ordered Patino to reimbursing Nassau County the $17,500 it incurred while investigating the matter as restitution.

On the issue of selective prosecution, the parties agreed that Patino was the first Nassau County police officer to be prosecuted for filing allegedly fraudulent disability applications or for the alleged fraudulent use of sick leave.

This, said the Court, "while meaningful, is not controlling." There exists no per se ban on one or another type of new prosecution. In other words, the fact that no one had been prosecuted for similar offenses in the past did not preclude the County from prosecuting Patino.

The decision comments that in order to sustain a claim of selective prosecution, it must be proven that a law has been (a) "applied and administered by a public authority with an evil eye and (b) an unequal hand," a standard set out by the U.S. Supreme Court in Yick Wo v Hopkins [118 US 356].

In other words, said the Court, "(T)here must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some arbitrary classification," citing 303 West 42nd Street Corp. v. Kelly, 46 NY2d 684.

The Court further noted that the Nassau County District Attorney, not the Nassau County Police Department, was prosecuting the case. Although the Police Department did the initial investigation and fact-gathering concerning Patino, it was the District Attorney's Office that subsequently reviewed and evaluated the information and decided to prosecute.

Another argument made by Patino was that criminal action could not be taken against him until he had been given a General Municipal Law "§207-c hearing."  The Court said that there is nothing to indicate that utilization of such a civil, administrative procedure in any way precludes the District Attorney from proceeding criminally against Patino.

The Court refused to dismiss the action against Patino, holding that "[a] dismissal in furtherance of justice would have a significant impact upon the public's confidence in our justice system. When a police officer, sworn to enforce the law, is charged with a crime, the public's confidence in the system is eroded. An outright dismissal of the charges prior to trial would damage this confidence still further."

Proper service of an arbitration award starts the running of the statute of limitations for perfecting an appeal

Case v Monroe Comm. College, 224 A.D.2d 952, affirmed, 89 N.Y.2d 438, Motion to amend opinion denied, 89 N.Y.2d 1081

In order to challenge an arbitration award, the aggrieved party must commence a timely Article 75 action [Article 75, Civil Practice Law and Rules]. Case v Monroe County Community College considers this issue in the context of an employee personally filing an action to vacate or modify an arbitration award pursuant to Article 75 should his or her union decline to do so.

Significantly, the Court of Appeals ruled that service of an arbitration award upon the union representing an aggrieved member constitutes service upon that individual member, for purposes of measuring the timeliness of an appeal from the award.

This, said the Court, is true regardless of whether the union elects to pursue an appeal on behalf of its member. The operative date is the date the arbitrator served the individual's agent, here Case's  union, with a copy of the award.

Further, the high court said that it did not make any difference if the party upon whom the award was served was not an attorney.

The case arose after a student charged Robert W. Case, Monroe Community College's Director of Athletics, with sexual harassment. When the  College's attempts to resolve the matter to the satisfaction of both parties proved fruitless, Case was notified that his term appointment would not be renewed for the subsequent academic year.

Case filed a grievance under the collective bargaining agreement between the College and the faculty union alleging that the College's non-renewal of his appointment violated certain procedural steps set out in the agreement.

Eventually Case's grievance was submitted to arbitration. The arbitrator decided that because Case held a non-tenured term appointment, there was no basis under the terms of the collective bargaining agreement for arbitration of the non-renewal of his employment and denied his grievance. The arbitrator mailed copies of the award to the union and the College -- each acknowledged receipt of the award the following day.

Case told the union that he was dissatisfied with the award. The union, however, decided not to attempt to vacate it. When Case brought an Article 75 action to vacate or modify the award, the College moved to dismiss his petition, citing two reasons in support of its motion:

(1) Case lacked standing to bring a proceeding on the award because he was not a party to the arbitration; and

(2) his petition was untimely under CPLR 7511(a) since it was filed after the 90-day statutory period for commencing the action had passed.

Although the Appellate Division concluded that CPLR 7511(a) requires that an application to vacate or modify an arbitration award "be made by a party within ninety days after its delivery to him" this meant that when the individual was not represented by an attorney  "... nothing less than personal service upon the aggrieved individual ... triggers the 90-day appeal period".

Accordingly, the Appellate Division ruled that Case's application to vacate or modify the award, even though filed approximately six months after the award was served on his union, was timely because the 90-day statute of limitations first began to run "when the award was delivered to petitioner."

The Court of Appeals said it disagreed with this analysis, commenting that it had previously recognized that "basic procedural dictates" and "fundamental policy considerations" contemplate that "once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed."

The Court said that the Appellate Division's holding that this principle applies in cases where a party is represented by an attorney and not where a lay union representative "unschooled in the law" was the grievant's agent was incorrect.

Rather, when an individual has designated an agent to represent him, service on the agent, whether an attorney or not, starts the running of the statute of limitations. In such a situation, once a grievant is represented by a designated agent, that entity or individual becomes the agent for service of awards, orders or documents relevant to the proceeding.

Once service is effected on the individual's agent in accordance with the prescribed rules, the aggrieved individual is deemed to have been served with the award or order.

Note: As to the issue of Case having standing to bring the Article 7f5 action, the Court of Appeals said that he could do so that even though he was not individually named as a party in the caption of the arbitration proceeding and was initially represented by a union attorney, citing Diaz v Pilgrim State Psychiatric Center, 62 NY2d 693. 

In Diaz the Court of Appeals said that where the provisions of the collective bargaining agreement specifically provide that an aggrieved employee is entitled to "representation at each step of the disciplinary procedure by the union or any attorney selected by an employee or to represent himself or herself," nothing bars the aggrieved employee's self-representation subsequent to the designated representative's declination to proceed further.

What does this decision mean? Simply put, it means that an individual will be deemed to have been served with an arbitration award on  the same day his or her attorney, union or other representative is served even if he or she does not personally receive a copy until some later date. 

As Case learned, if an individual fails to file his or her Article 75 motion to vacate or modify an arbitration award within 90 days after service of the award on his or her agent, or after personally receiving a copy, which ever is the earlier date, the petition will be dismissed as untimely.