As a general rule, where there is a reasonable relationship of a grievance and the general subject matter of the collective bargaining agreement the dispute is arbitrable

This litigation involved a dispute between the City of Yonkers [City], and Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO [Local 628], concerning a paramedic training course funded by a federal Assistance to Firefighters grant the City had offered its firefighters.

After the City denied Local 628's requests for documents related to the paramedic training course, Local 628 filed a grievance asserting that the City violated, among other provisions, Article 33 of the parties' collective bargaining agreement [CBA]. Exhausting its internal grievance remedies, Local 628 demanded arbitration of the dispute.

The City then initiated a proceeding pursuant to Article 75 of the CPLR seeking a court order permanently staying arbitration. Supreme Court granted City's the petition, ruling that the dispute between the parties was not arbitrable because there was no reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Local 628 appeal and the Appellate Division reversed the Supreme Court's ruling "on the law."

Citing Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.-Long Beach Unit, 8 NY3d 465, the court explained that "[a]s a general rule, public policy in this State favors arbitral resolution of public sector labor disputes."

The Appellate Division, however, cautioned that "[a] grievance may be submitted to arbitration only where the parties agree to arbitrate that kind of dispute, and where it is lawful for them to do so," citing Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273]. Further, said the court, in determining whether a grievance is arbitrable, a court must "first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance," and if there is no such prohibition against arbitration, the court must "then examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue."

As it was undisputed that there is no statutory, constitutional, or public policy prohibition to the arbitration of Local 628's grievance, the only issue to be addressed by the Appellate Division was whether the City and Local 628 had agreed to arbitrate this particular dispute. Finding that the relevant arbitration provision in the CBA was "broad," providing for arbitration of any grievance "involving the interpretation or application of any provision of this Agreement," the Appellate Division opined that a court "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Absent a finding that there is no reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA, the Appellate Division said the court should rule the matter arbitrable, whereafter "the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

Local 628 had contended that the City, by offering a paramedic training course to its firefighters, violated Article 33 of the CBA, which contains various provisions concerning the EMS Program, including a provision stating that the "EMS Program shall mean the level of services provided as of the date of this Agreement."

Finding that a reasonable relationship exists between Local 628's grievance and the general subject matter of the CBA, the Appellate Division concluded that resolving "the question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator."

Accordingly, the Appellate Division held that the Supreme Court should have denied the City's petition to permanently stay arbitration and dismissed the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07776.htm

Courts should not "second guess" the format or the methods used in designing and using civil service examinations where the method chosen meets the mandates of the Constitution and statutes

The New York City Department of Citywide Administrative Services [DCAS]  included 20 "research questions" in an examination for Associate Fraud Investigator. The candidates' answers to these question were not rated for the purposes of establishing their "test score" but were included in an effort to allow DCAS to develop alternate forms of an examination "for a given title that would yield measurably equivalent outcomes" and to provide a means for testing "the validity of examination questions, ensuring that these questions were valid across differing groups of test-takers, regardless of their racial or ethnic background." In addition, the time for taking the examination was extended to provide adequate time to answer all questions.

The Social Services Employees Union Local 371 [Local 371] filed a petition pursuant to CPLR Article 78 seeking a declaration that results of a civil service examination administered by the New York City Department of Citywide Administrative Services [DCAS] were null and void. Supreme Court dismissed Local 371's petition which action was unanimously affirmed by the Appellate Division.

The Appellate Division explained that Local 371 "failed to establish" that DCAS's inclusion of 20 ungraded research questions in an examination administered for the position of Associate Fraud Investigator violated the merit and fitness mandate set out in Article V, §6 of the New York State Constitution or §50(1) of the New York State Civil Service Law* or that DCAS action in including the research questions in the examination was otherwise arbitrary and capricious.

In the words of the Appellate Division, DCAS is "afforded considerable discretion in preparing and administering civil service examinations" and as long as the examination is "reasonable in testing for the skills identified for the position" and " competitive' in the constitutional context," courts should not "second guess the format or the methods of the examination."

Further, said the court, Local 371 failed to "sufficiently allege that the inclusion of these ungraded questions was arbitrary or capricious" as all candidates were scored the same way on the graded questions, and the test did not inherently disadvantage any one candidate. The decision also notes that the candidates were evaluated only on the basis of questions that had already been validated as providing an accurate measure of merit and fitness for the role.

Unanimously affirming the lower court's ruling, the Appellate Division opined that DCAS is not required to adopt Local 371's preferred method of testing proposed examination questions, particularly where the method chosen meets the constitutional and statutory mandates.

* §50.1 of the Civil Service Law provides as follows: "Positions subject to competitive examinations. The merit and fitness of applicants for positions which are classified in the competitive class shall be ascertained by such examinations as may be prescribed by the state civil service department or the municipal commission having jurisdiction."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07993.htm

The Restoration of Honor Act gives certain military veterans denied an honorable discharge from military service the right to apply for New York State veterans' benefits

On November 12, 2019, Governor Andrew M. Cuomo signed legislation enacting The Restoration of Honor Act,* giving LGBTQ veterans who were denied an honorable discharge because of their sexual orientation or gender identity the right to apply to have their New York State veterans' benefits restored. 

Under Don't Ask Don't Tell and similar policies hundreds of thousands of veterans** received less than honorable discharges. As a result of that those individuals are ineligible for veterans' benefits. Although discharge from federal military service decisions can only be formally changed by the federal government, The Restoration of Honor Act allows certain veterans to apply to claim their New York State benefits.

The Restoration of Honor Act also restores benefits eligibility for veterans who received less than honorable discharges as a result of military sexual trauma, traumatic brain injury, or post-traumatic stress disorder.  

The Restoration of Honor Act amends relevant provisions of the Executive Law, the Civil Service Law, the County Law, the Economic Development Law, the Education Law, the Election Law, the General Construction Law, the General Municipal Law, the Military Law, the Correction Law, the Environmental Conservation Law, the General Business Law, the Highway Law, the Insurance Law, the Judiciary Law, the Private Housing Finance Law, the Public Health Law, the Public Housing Law, the Public Officers Law, the Real Property Tax Law, the Social Services Law, the Tax Law, the Town Law, the Vehicle And Traffic Law, and the Workers' Compensation Law.

New York is the first state in the nation to restore the benefits of veterans who received less than honorable discharges from military service either because of these traumas or because of their LGBTQ identity.

* Chapter 490 of the Law of 2019

** §350.3 of the Executive Law defines the term "veteran" as "a person, male or female, resident of this state, who has served in the active military or naval service of the United States during a war in which the United States engaged and who has been released from such service otherwise than by dishonorable discharge, or who has been furloughed to the reserve."

Supreme Court's granting Defendant's pre-answer, pre-discovery motion dismissing Plaintiff's CPLR Article 78 action alleging unlawful discrimination reversed "on the law"

An educator [Plaintiff] filed a CPLR Article 78 petition alleging that he had suffered various act of unlawful discrimination as the result of actions taken against him by the school principal [Principal], a Caucasian woman, because of his Haitian origin and her belief that he is a voodoo priest,* including the Principal's falsely accusing him of misconduct that subjected him to an Office of Special Investigations investigation, during which Principal falsely accused Plaintiff of being a voodoo priest.

Plaintiff also asserted that Principal assigned him to an unsanitary basement office upon his return from a temporary administrative office assignment, contending this was done maliciously in disregard of his seniority even though there were other available offices and that, ultimately, Principal demoted Plaintiff to the position of temporary substitute, assigned on a weekly basis to different schools.

The defendant in the action, the New York City Department of Education [DOE] submitted a pre-answer, pre-discovery motion seeking a court order dismissing Plaintiff's complaint. Supreme Court granted DOE's motion and denied Plaintiff's cross motion for leave to file a second amended complaint. 

The Appellate Division unanimously reversed the Supreme Court's ruling "on the law," denying DOE's motion to dismiss Plaintiffs complaint and granting Plaintiff's cross motion to amend his complaint.

The Appellate Division explained:

1. Plaintiff's  complaint "states a causes of action for unlawful discrimination, retaliation and hostile work environment in violation of the New York State and New York City Human Rights laws;" and

2. Plaintiff's allegations were sufficient to give DOE "fair notice" of the nature of Plaintiff's claims and their grounds, which is all that is required "to survive at the pleading stage."

As to DOE's contention that Plaintiff's alleged certain acts by Principal occurred more than one year before he commenced this action and it is thus untimely, the Appellate Division, citing Education Law §3813[2-b], opined that the court could not state that, as a matter of law, "that these acts, if proven, were not part of a single continuing pattern of unlawful conduct extending into the one-year period immediately preceding the filing of the complaint" and that, in any event, Plaintiff "is not precluded from using the prior acts as background evidence in support of a timely claim."

DOE, in support of its motion to dismiss Plaintiff's complaint, also contended that "there were legitimate, nondiscriminatory reasons for the actions taken against Plaintiff." The Appellate Division, however, said that this argument advanced by DOE merely stated a potential rebuttal argument to a prima facie case of unlawful employment discrimination, "which is misplaced at this early procedural juncture." 

Under the circumstances, said the court, Plaintiff's cross motion for leave to amend his complaint should have been granted by Supreme Court.

* Plaintiff alleged that he studied voodoo but does not practice voodoo.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07990.htm

Fungal risk vectors in the context of climate change

Below an abstract of an article by Dr. Robert Michaels [bam@ramtrac.com] recently published in the Environmental Claims Journal addressing emerging health problems in the context of climate change.  

ABSTRACT

The trend toward increasing frequency and intensity of storms has exacerbated mold and other moisture-related health problems, and can be extrapolated to the future. Mold growth therefore exhibits increasing significance in the context of changing climate. The decades-old hypothesis of mold causation and/or exacerbation of asthma previously has been deemed unproven, though not rejected. The present investigation assesses the status of this hypothesis within the industrial, regulatory, scientific, medical, and legal communities. To assure accuracy, statements from these communities are quoted. Recent high-level reviews, such as by the National Academy of Sciences Institute of Medicine and the United Nations World Health Organization, have failed to consider literature that was available, and studies postdating NAS IOM and UN WHO reviews have confirmed and augmented available literature. As a result, all nine of the Hill criteria of causation in epidemiology now are satisfied. I conclude that, with exposure of sufficient intensity and duration, some molds can cause asthma and/or exacerbate preexisting asthma, and that the hypothesis indeed has been accorded broad acceptance in the communities considered.

The full text of the article can be downloaded from ResearchGate at no charge, via the following URL: https://doi.org/10.1080/10406026.2017.1345521