Determining if the alleged violation of a provision in a collective bargaining agreement is arbitrable

In New York State the court's apply the tests applied to determine if an alleged violation of a term set out in a collective bargaining agreement [CBA] entered in by a public entity and a recognized or certified employee organization may be submitted to arbitration are as follows:

1. Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance; and

2. If there is no prohibition against arbitrating the issue, the court then considers the parties' CBA and determines if the parties, in fact, agreed to arbitrate the particular dispute.

In examining the CBA courts merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. Further, in the event the court rules the matter arbitrable and that the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, it may not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.

In this action the Employer  and an Employee Organization [EO1] were parties to a CBA that provided that Employer was to pay members of EO1 in the collective bargaining unit a certain percentage more than the rate of pay of certain employees in a different collective bargaining unit.

Subsequently a different union representing the employees in a different collective bargaining unit [EO2] entered into an agreement with  Employer to increase the salaries of its members in that collective bargaining unit, including salary increases for years past, 2016 and 2017. However, the EO2 CBA also provided for a waiver of the receipt of retroactive pay for those years. 

The EO1 filed a grievance on behalf of its members seeking payment for retroactive salary increases for the years 2016 and 2017 for its members in EO1.

Employer denied the grievance, finding that the CBA did not contain a provision requiring it to pay EO1 members a retroactive salary based on the retroactive pay increases Employer had negotiated with EO2 for the employees in the collective bargaining unit EO2 represented. When EO1 demanded Employer's decision be submitted arbitration Employer commenced a CPLR Article 75 seeking to stay the arbitration. EO1 cross-moved to compel arbitration.

When Supreme Court denied Employer's petition and granted EO1's cross motion, Employer appealed the Supreme Court' ruling to the Appellate Division. 

As Employer did not contend that arbitration of the grievance was prohibited by law or public policy, the Appellate Division ruled that only issue before it was whether the parties agreed to arbitrate this particular grievance. 

The Appellate Division concluded that the arbitration provision of the CBA at issue was broad and that there was a reasonable relationship between the subject matter of the dispute, which involves the EO1's claim that its members are entitled to certain payments for retroactive salary increases, and the general subject matter of the CBA.

Noting that some uncertainty existed as to whether the subject matter of the dispute is encompassed within the salary provisions of EO1's CBA or whether the parties contemplated that a separate agreement would be required for wage increases to be paid retroactively, the Appellate Division, citing Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, explained that any alleged ambiguity in the EO1 CBA "regarding the coverage of any applicable provision is ... a matter of contract interpretation for the arbitrator to resolve."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_08845.htm

Constitutional Grounds for Presidential Impeachment

The report by the majority staff of the House Committee on the Judiciary dated December, 2019, is posted on the Internet at:

https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/HCM%20FINAL%20v.3.pdf

Seeking a preliminary injunction to prevent compliance with a Congressional subpoenas issued to a party

This appeal raises an important issue concerning the investigative authority of two committees of the United States House of Representatives and the protection of privacy due the President of the United States suing in his individual, not official, capacity with respect to financial records.

The specific issue is the lawfulness of three subpoenas issued by the House Committee on Financial Services and the House Permanent Select Committee on Intelligence (collectively, “Committees” or “Intervenors”) to two banks, Deutsche Bank AG and Capital One Financial Corporation (“Capital One”) (collectively, “Banks”).

The issue of the lawfulness of the three subpoenas arises on an expedited interlocutory appeal from the May 22, 2019, Order of the District Court for the Southern District of New York denying Plaintiffs’ motion for a preliminary injunction to prevent the Banks’ compliance with the subpoenas and denying Plaintiffs’ motion for a stay pending appeal.

The Circuit Court affirmed the Order in substantial part to the extent that it denied a preliminary injunction and order prompt compliance with the subpoenas, except that the case is remanded to a limited extent for implementation of the procedure set forth in this opinion concerning the nondisclosure of sensitive personal information and a limited opportunity for Appellants to object to disclosure of other specific documents within the coverage of those paragraphs of the Deutsche Bank Subpoenas listed in this opinion.

The court noted that the Committees agreed not to require compliance with the subpoenas pending the appeal, once the appeal was expedited.

In her partial dissent, Judge Livingston stated that she preferred a total remand of the case for “creation of a record that is sufficient more closely to examine the serious questions that the Plaintiffs have raised” and to “afford the parties an opportunity to negotiate.”

The majority opined that such a remand would run counter to the instruction the Supreme Court has given to courts considering attempts to have the Judicial Branch interfere with a lawful exercise of the congressional authority of the Legislative Branch. 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/12ac7ad1-cdf8-401a-9cc7-6bbff1917c9c/2/doc/19-1540_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/12ac7ad1-cdf8-401a-9cc7-6bbff1917c9c/2/hilite/

Audits released on December 3, 2019 by the New York State's State Comptroller

On December 3, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits had been issued:


Click on the text in blue to access the text of the full report.


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Department of Health (DOH): Oversight of Public Water Systems (Follow-Up) (2019-F-34)


An audit issued in September 2018 found DOH has taken various actions to safeguard the quality of drinking water delivered to public water system customers. However, auditors identified opportunities for improved oversight. In a follow-up, auditors found DOH implemented both recommendations contained in the original report.






Department of Health: Oversight of Resident Care-Related Medical Equipment in Nursing Homes (Follow-Up) (2019-F-35)


An audit issued in September 2018 found DOH completed inspections in a timely manner and reported deficient practices to the public, as required. However, auditors identified gaps in DOH’s procedures that weaken its ability to effectively monitor nursing homes’ equipment inspection, testing and maintenance programs. In a follow-up, auditors found DOH officials made progress in addressing the problems identified in the initial audit.






Metropolitan Transportation Authority: Long Island Rail Road (LIRR): Fare Collection (2018-S-53)


LIRR employees did not always follow the required fare collection procedures. Between December 2018 and May 2019, auditors noted that train service personnel did not collect non-commutation fares 26 percent of the time (78 of 301 rides). Auditors also found that employees often collected incorrect fare amounts (for example, when no onboard surcharge was collected).






Metropolitan Transportation Authority: New York City Transit: Selected Safety and Security Equipment at Subway Stations (Follow-Up) (2016-F-17)


An audit released in March 2018 found that the transit unit was not in compliance with the requirements of the training curriculum established for its train crews, and that train operators and conductors did not always meet or complete refresher training requirements. In a follow-up, auditors determined that MTA officials made some progress in addressing the problems identified in the initial audit report. However, improvements are still needed.






New York City Department for the Aging (DFTA): Congregate Meal Services for the Elderly (Follow-Up) (2019-F-3)


An audit issued in January 2018 found that the DFTA needed to improve its oversight of senior centers. For example, officials could not demonstrate that they contracted with optimally located senior centers to maximize the number of eligible senior citizens who had access to congregate meals. In a follow-up, auditors determined DFTA officials have made some progress in addressing the issues identified in the initial report.






New York State Health Insurance Program: UnitedHealthcare: Overpayments for Out-of-Network Anesthesia Services Provided at In-Network Ambulatory Surgery Centers (Follow-Up) (2019-F-38)


An audit issued in August 2018 identified $991,357 in overpayments that occurred because United paid for out-of-network anesthesia services that should have been done by in-network anesthesia providers. In a follow-up, auditors found United officials recovered $780,478 of the $991,357 in overpayments.






Office for People With Developmental Disabilities (OPWDD): Oversight of Young Adult Institute (YAI) Inc.'s Family Support Services Contracts (Follow-Up) (2019-F-42)


An audit issued in September 2018 found that OPWDD needed to improve its fiscal oversight of the YAI Network. For example, OPWDD had not established controls to ensure the expenses claimed by the YAI Network were reasonable, necessary, allowable, supported, and consistent with requirements. In a follow-up, auditors found OPWDD officials made significant progress in addressing the problems identified in the initial audit.

New York City Office of Administrative Trials and Hearings' administrate law judge finds Appointing Authority failed to prove the disciplinary charges filed against an employee

An employee of the New York Department of Correction [Employee] was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging Employee was guilty of insubordination and inefficient work performance as the result of his leaving his assigned work tasks before their completion on two occasions.

With respect his leaving work on one of the two occasions charged Employee testified that he had asked his supervisor to reassign him to a different work assignment when he felt unsafe working in an inmate area without another employee present.

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Joycelyn McGeachy-Kuls credited the  Employee’s testimony that he was reassigned to another task that day over the supervisor’s testimony that Employee "did nothing for the rest of the day."

With respect to the second occasion, Employee told his supervisor that he objected to his assignment which required him to work in an inmate area. His supervisor then offered Employee two options:

[a] Employee could request a transfer; or

[b] Employee could return to work.

Employee elected to request a transfer.

Judge McGeachy-Kuls found that the appointing authority had failed to prove any of the §75  disciplinary charges filed against Employee. Accordingly the ALJ  recommended that the Appointing Authority dismiss all disciplinary charges filed against Employee

ALJ McGeachy-Kuls explaining that in this disciplinary proceeding the Appointing Authority had the burden of proving its case by a fair preponderance of the credible evidence and that preponderance has been defined as “the burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence.”

Citing Rinaldi & Sons, Inc. v Wells Fargo Alarm Service, Inc., 39 N.Y.2d 191, Judge McGeachy-Kuls observed that in earlier OATH proceedings the presiding ALJ had ruled that "where the evidence is equally balanced, the charges must be dismissed."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1861.pdf