Telecommunications, Electromagnetic Fields, and Human Health

Recent news items revealed concerns about Electomagnetic Fields [EMFs], most recently from 5G antenna networks that are speeding up internet service in communities.  Below is the Abstract of an article prepared by Dr. Robert Michaels [bam@ramtrac.com], that was published in the Electromagnetic Claims Journal.

Abstract

Telecommunication generates electromagnetic fields (EMFs) at radio and microwave frequencies.  Transmitters have proliferated with siting of wireless communication networks, often co-located among other transmitters.  ‘Cell’ phones also have proliferated, representing small transmitters used in contact with human heads, and stored on human bodies.  Telecommunications equipment is ubiquitous, and EMF exposure prolonged, raising the issue of possible health risks.  Such risks, if any, must be managed.  For example, epidemiology studies reported higher exposure to analog cell phone EMFs among brain cancer patients than among controls, but those risks were ‘managed’ via replacement of analog phones with today’s digital phones, which have not been associated with human cancer.  

Challenges remain, recently from rodent bioassays that show dose-related association of lifetime exposure to cell-phone-type EMFs with heart schwannomas (cancers of schwann cells, which insulate nerve cells) in male rats, though not females.  Human cancer risk, if any, remains to be characterized and quantified, which partly will depend upon whether EMFs indeed are non-ionizing as has been assumed, and whether a threshold or non-threshold (genotoxic) mechanism caused the cancers in the male rats.  Health concerns have motivated further exposure reduction suggestions, and sometimes opposition to siting transmitters.  

Credible, objective explication of technical information to primarily non-technical audiences is necessary to support informed public participation and dispassionate weighing of telecommunications risks and benefits in community decision-making.  

Ultimately, experts and non-experts should adhere to the ‘precautionary principle’, requiring adoption of reasonably (but not excessively) pessimistic exposure and risk assumptions, whether or not they are likely to materialize.

The full text of article can be downloaded at no charge from ResearchGate.net via the following URL:

https://www.researchgate.net/publication/331747414_Telecommunications_Electromagnetic_Fields_and_Human_Health

Authority to modify or vacate an arbitration award may be limited by the terms of a collective bargaining agreement

A collective bargaining agreement between the parties provided that if an employee was found guilty of charges involving an assault, the appointing authority had the power to set and impose a penalty.

An employee was charged with assaulting another worker. Found guilty of the charge, the penalty imposed by the appointing authority was dismissal. The union, on behalf of the employee, appealed the appointing authority's determination to the Tripartite Arbitration Board [Board] in accordance with the controlling contract disciplinary grievance procedure.

When the Board denied the grievance but modified the penalty imposed to a suspension rather than termination, the appointing authority filed an Article 75 petition pursuant to §7511 petition seeking to vacate the Board's action. The appointing authority contended that the Board had exceeded its authority when it modified the penalty the appointing authority had imposed.

Supreme Court agreed and vacated that portion of the award that modified the penalty imposed by the appointing authority. The Appellate Division subsequently rejected the union's appeal challenging the lower court's ruling. The Appellate Division said that a court could vacate an arbitrator's award for a limited numbers of reasons, including:

a. the violation of a strong public policy;

b. finding that the award was irrational; or

c. determining that the award clearly exceeded a specific limitation on the arbitrator's powers.

Here the Appellate Division found the limitation described in (c) above controlled as the collective bargaining agreement specifically provided that where the Board sustained the disciplinary charges, the penalty imposed by the Authority must be sustained as well.

Accordingly, the Court ruled that the Board, having sustained the assault charge, had no authority to modify the penalty fixed by the appointing authority -- termination of the employee.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997660239ad2d4211268

Imposing the penalty of termination on an employee found guilty of misconduct following a disciplinary hearing overturned as "shocking to the conscience of the court"

A police officer was found guilty of misconduct after a disciplinary hearing. The Police Commissioner imposed the penalty of  dismissal. The Appellate Division modified the penalty imposed on the Petitioner by the Commissioner that resulted in the officer's termination and the forfeiture of his retirement benefits "on the law" and remanded the matter to the Commissioner "for determination of a lesser penalty."

Petitioner had admitted to the theft of $20 from an undercover officer illegally parked near a hydrant and acting intoxicated in the course of an integrity test* targeting Petitioner's partner. Evidence supported the finding that Petitioner also made false statements in the course of an official investigation in violation of the Police Department's Patrol Guide.

Although the Appellate Division concluded that there was no basis to disturb the credibility determinations of the Hearing Officer, it found that "under the circumstances presented here," the penalty of termination and forfeiture of [Petitioner's] pension "shocked the court's conscience and sense of fairness" and thus violated the so-called Pell Doctrine.**

The court opined that the question of whether a penalty is so disproportionate to the misconduct as to shock the conscience requires a case by case factual analysis and found mitigating factors that required it to vacate  the penalty of dismissal and the deprivation of Petitioner's right to his accrued pension. The Appellate Division characterized such a disciplinary penalty as an "affront to our sense of fairness" and "shock[s] the conscience" by the Appellate Division.

Considering mitigating factors, the majority of the court,*** conceding that Petitioner's conduct was "troubling," concluded that Petitioner's misconduct "was an aberration from his otherwise exemplary career," noting that Petitioner:

1. Had nearly twenty years of police service with the Police Department, prior to which he served in the United States Army for eight years where he was a sergeant in the military police, receiving an honorable discharge;

2. During his tenure with the Police Department, Petitioner had no formal disciplinary history, and received a total of 38 medals for "Excellent Police Duty" and "Meritorious Police Duty;" and

3. The loss of Petitioner's pension would work a financial hardship on his wife, who is diagnosed with cancer, and their now 10-year-old daughter.

* An integrity test places a police officer in a lifelike scenario to ascertain whether the officer would act in accordance with the law and Police Department policies.

** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

*** Judges Richter and Kern dissented in part in a memorandum by Judge Richter, concluded that in view of Petitioner's "on-duty theft of money and his subsequent false statements, both of which are offenses involving moral turpitude, the penalty of termination is not so disproportionate to the offense as to shock one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06568.htm

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A Reasonable Disciplinary Penalty Under the Circumstances

Applying the terms of a settlement agreement settling a disciplinary action

During the course of Plaintiff's disciplinary hearing Plaintiff, represented by counsel, entered into a settlement agreement with the appointing authority [Employer] acting "on its own behalf and on behalf of its present and former ... employees." The settlement agreement provided that the Employer would discontinue the disciplinary proceeding and remove a letter of disciplinary charges from the Plaintiff's personnel file while Plaintiff agreed to retire from his employment with the Employer and to release the Employer and its employees "from all claims or causes of action he may have or claim to have . . . including any and all claims in any way arising out of, or related to, his employment with the Employer, or his separation from that employment."

Subsequently Plaintiff commenced an action to recover damages for defamation, alleging that the individuals [Defendants] named in his complaint, also employees of the Employer, had falsely accused him of actions that led to the disciplinary charges that were preferred by the Employer against him.

Defendants move to dismiss the complaint, submitting a copy of the settlement agreement that had been executed by the Plaintiff in connection with the discontinuance of the disciplinary proceeding that had been brought against him.

Notwithstanding Plaintiff's argument to the contrary, Supreme Court granted the Defendant's motion "for failure to state a cause of action" and Plaintiff appealed.

The Appellate Division explained that [1] the terms of the release contained in the settlement agreement clearly and unambiguously encompass Plaintiff's action and [2] Plaintiff failed to allege any unlawful or wrongful threat by the Employer that could serve as the basis of a claim of duress, which was the only ground the plaintiff alleged to void the release. Thus, opined the Appellate Division, "the release executed by the [Plaintiff] should be enforced according to its terms."

The Appellate Division noted the following elements with respect to a release that will be enforced by a court:

1. "A release is a contract, and its construction is governed by contract law;"

2.  "A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release";

3 "Where . . . the language of a release is clear and unambiguous, the signing of a release is a jural act 'binding on the parties';"

4.  "Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release"; and

5. "Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden ... to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06588.htm

Criteria for promotion are a managerial prerogative and thus not a mandatory subject of collective bargaining

The New York City Correction Officers' Benevolent Association [Petitioner] filed an  Article 78 petition to challenge a determination by New York City Board of Collective Bargaining [BCB] which concluded that New York City Department of Corrections [DOC] and the City of New York [City] did not commit an improper practice under the City Collective Bargaining Law [CBL] when it altered the procedures pursuant to which correction officers represented by Petitioner secure promotions to the title of correction captain.

Petitioner had filed an improper practice petition with BCB alleging that the City and DOC violated New York City when DOC issued Directive 2230, entitled "Pre-Promotional Assignment Procedures" in accordance with a consent order approved by a federal district court in a case involving allegations of excessive use of force incidents in DOC facilities.*

The relevant provision in Directive 2230 concerns promotions within DOC provided for (1) a review of a correction officer's use of force and disciplinary history during the five years prior to the consideration for promotion; (2) a prohibition of the promotion of candidates who were found guilty or plead guilty on two or more occasions to five categories of discipline for excessive use of force during the prior five year period; and (3) a prohibition of a promotion from correction officer to captain while disciplinary charges related to use of force incidents are pending.

Board of Education, City School District of City of NY. v New York State Public Employment Relations Board, 75 NY2d 660, Supreme Court observed that "[i]n cases involving the issue of mandatory or prohibited bargaining subjects under the Civil Service Law, we have defined our review power as a limited one: [s]o long as [the agency's] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation." Further, opined Supreme Court, "New York courts have deferred to BCB's expertise in applying and interpreting the provisions of the CBL," citing New York City Dept. of Sanitation v MacDonald, 87 NY2d 650.

BCB had found that Directive 2230 does not constitute a unilateral change to a term of condition of employment, thus DOC did not make a unilateral change to a mandatory subject of collective bargaining, noting that in prior cases BCB had held that criteria for promotion are a managerial prerogative and not a mandatory subject of collective bargaining. Here, said the court, BCB concluded "that the contested changes in promotions set forth in Directive 2230 concern criteria for 'promotion"

Noting that BCB had found that DOC "exercised its managerial prerogative" when it took into consideration DOC took into consideration use of force incidents when considering  promotion to captain a correction officer's use of force incidents, finding that these elements "most akin to promotional considerations like aptitude, demeanor, and judgment, or to awarding greater points for those candidates with a less extensive disciplinary history."

Supreme Court held that these conclusions by BCB were rational and consistent with its  decisions in other cases and thus were "legally permissible" and there was "no breach of constitutional rights [or] protections" in its determination.  Accordingly, said Supreme Court, it had "no power to substitute another interpretation" in considering the arguments advanced by Petitioner.

Addressing Petitioner arguments that the Directive 2230 criteria regarding whether a corrections officer should be recommended for promotion to captain is analogous to imposing mandatory penalties for disciplinary violations, a mandatory subject of collective bargaining, Supreme Court opined that "New York courts, like BCB in the instant proceeding, have held that discipline is not the same as failure to promote."

The court then granted the motions advanced by BCB, the City and DOC to dismiss the Petitioner's Article 78 action.

* See Nunez v City of New York, 11 Civ 5845 (SDNY 2015),

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/pdfs/2019/2019_32628.pdf