Cheating on examination for disqualifying misconduct for the purposes of claiming unemployment insurance benefits

Cheating on examination for disqualifying misconduct for the purposes of claiming unemployment insurance benefits
Kinch v Sweeney, Appellate Division, 244 AD2d 748

The Kinch case involved the dismissal of an individual found to have cheated on an examination.

Alden R. Kinch, a flight attendant, was discharged on the grounds that he had attempted to cheat on his annual Federal Aviation Authority examination.

The State's Unemployment Insurance Appeal Board ruled that Kinch had been discharged for a disqualifying reason and rejected his application for unemployment insurance benefits. The Appellate Division sustained the board's determination.

The court said that the Board's ruling, holding that Kinch's "apparent dishonesty in cheating ... was sufficient to constitute disqualifying misconduct" and was also potentially detrimental to his employer's interests in that it nullified the examination's accuracy in assessing whether he possessed the knowledge necessary to perform his job.

Probably the courts would adopt the same rationale in cases involving cheating on tests for unlawful drugs.
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Labor organization sues local for non-payment of its membership dues

Labor organization sues local for non-payment of its membership dues
American Federation of School Administrators v Council of Administrators and Supervisors, 266 AD2d 417

The American Federation of School Administrators, AFL-CIO, sued its local affiliate in Nassau and Suffolk counties, the Council of Administrators and Supervisors, claiming it had not paid all of its dues.

Noting that federal law Federal District Courts jurisdiction over suits between labor organizations, a State Supreme Court justice dismissed the Federation’s complaint on the ground that the matter must be adjudicated in a Federal court. The Appellate Division, Second Department, disagreed and reversed the lower court’s ruling.

The Appellate Division said that the federal law did not deprive State courts of their existing jurisdiction. Further, said the Appellate Division “State remedies are not preempted where the activity is of ‘merely peripheral concern’ to the Labor Management Relations Act.”

Deciding that the dispute over the nonpayment of dues is nothing more than an internal union matter, the Appellate Division remanded the case to Supreme Court to determine if the Council’s motion for summary judgment should be granted.
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Modifying a disciplinary penalty

Modifying a disciplinary penalty
CSEA Albany County Local 801 v Albany Housing Authority, 266 AD2d 676

This decision sets out the basic elements to be considered by courts when asked to confirm or vacate a disciplinary arbitrator’s award.

The facts in this case are relatively simple. Frank Turner, an Albany Housing Authority custodian, was found smoking marijuana in a vacant authority apartment in violation of authority rules. Turner was dismissed and Local 801 demanded arbitration in accordance with the collective bargaining agreement between the parties. Local 801 and the authority agreed to submit the following issues to the arbitrator:

1. Was Turner was guilty of violating the authority’s policy and procedures prohibiting entry into vacant apartments and the unlawful possession or use of marijuana; and

2. Was the penalty imposed - termination - for this violation unreasonable or made in bad faith.

The local and the authority, however, could not agree as to whether the arbitrator had the power to fashion a new or different penalty in the event Turner was found guilty of the charges. Accordingly, this issue in the disciplinary arbitration was not certified to the arbitrator.

Ultimately the arbitrator found Turner guilty of the charges. But, said the arbitrator, imposing the penalty of termination was unreasonable. The arbitrator, concluding that “he had the power to modify the penalty,” imposed a different penalty on Turner: a four-week suspension and reinstatement with back pay.

Local 801 brought an Article 75 action to confirm the award; the authority countered with a petition to reinstate the penalty of dismissal on the grounds that the arbitrator had exceeded his authority.

A State Supreme Court justice confirmed the arbitrator’s award insofar as it determined Turner was guilty of the charges filed against him. The court, however, ruled that the arbitrator had exceeded his authority by imposing a new and different penalty and vacated that portion of the award. Local 801 appealed.

The relevant contract provision -- Article 15.3 -- provided that “[t]he arbitrator shall only determine if guilt or misconduct or incompetence has been proven by a preponderance of the evidence and if the penalty was imposed in bad faith or was unreasonable. On the issue of the penalty, the employee’s entire record of employment may be considered.”

In resolving the appeal, the Appellate Division set out the following basic points:

1. Judicial review of an arbitration award is severely limited and will be upheld unless “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”

2. Any limitation upon the remedial power of the arbitrator must be clearly contained, either explicitly or incorporated by reference, in the arbitration clause itself.

3. To infer a limitation from an ambiguous and general clause in the substantive provisions of the agreement would, in effect, require judicial interpretation of the contract and judicial interference with an arbitration award which should be avoided unless that award be violative of strong public policy, totally irrational or in excess of a specifically enumerated limitation upon arbitral authority.

The Appellate Division concluded that Article 15.3 contains a specific limitation of the arbitrator’s authority and restricts the arbitrator to making two decisions: (1) was the employee’s guilt proven by a preponderance of the evidence and, if so, (2) was the penalty imposed in bad faith or unreasonable.

Further, said the court, Section 15.3 of the agreement does not permit the arbitrator to impose a new or different penalty and that the arbitrator acted “in excess of a specifically enumerated limitation upon arbitral authority” when he modified the penalty imposed on Turner.

Finding that “... the arbitrator’s interpretation results in a new and different contract for the parties,” the Appellate Division sustained the lower court’s vacating that portion of the arbitrator’s award that imposed a different penalty.

In other words, although the arbitrator could determine if the penalty imposed was unreasonable, neither Article 15.3 nor the questions submitted to the arbitrator by the parties permitted the arbitrator to determine an alternative penalty.

If the arbitrator determines that the penalty imposed was unreasonable or made in bad faith, presumably Article 15.3 requires the arbitrator to return the matter to the authority for it to set a different penalty.
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HR 5136 proposed to provide “annual leave for family members” in the event a defined relative is called to active duty with the armed forces

HR 5136 proposed to provide “annual leave for family members” in the event a defined relative is called to active duty with the armed forces
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation.

The leave may be taken intermittent or a reduced leave schedule at the discretion of the employee. Paid leave is available at the discretion of the employer. Otherwise, the leave is unpaid. The employee must provide notice of the need for such leave "as is reasonable and practicable." An employer may require that leave be supported by a certification of entitlement to such leave. A copy of the notice, call, or order is considered sufficient certification. An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits.

It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law. It is also illegal to discriminate against someone for opposing unlawful practices. The law would be enforced consistent with USERRA's current structure.

Mr. Bosland Comments: The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision. As such, whether the provision survives the House and Senate Conference Committee is anyone's guess. Stay tuned!
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Michigan teachers may sue if school board fails to comply with statutory duty to expel students guilty of assault

Michigan teachers may sue if school board fails to comply with statutory duty to expel students guilty of assault
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Teachers have standing under Michigan Constitution to sue school board for failure to comply with statutory duty to expel students who have assaulted a teacher

Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ., No. 138401 (Mich. Jul. 31, 2010), is an interesting case. The Michigan Supreme Court ruled 4-3 that teachers who were allegedly physically assaulted by students have standing to bring suit against the school board for failure to comply with its statutory duty to expel those students. The court overruled its previous precedent in Lee v Macomb Co Bd of Comm’rs , 464 Mich 726; 629 NW2d 900 (2001).
The court determined that the plaintiff teachers in this case had standing to sue the school board because they have a significant interest distinct from that of the general public in the enforcement of the statute, as the statute’s purpose is to protect their safety and their ability to effectively teach.

Mitchell H. Rubinstein

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