Court’s role in reviewing an arbitration award limited when the parties have agreed to submit the matter to arbitration

Court’s role in reviewing an arbitration award limited when the parties have agreed to submit the matter to arbitration

Arbitration between Albany Police Supervisor's Assn. and the City of Albany, 2012 NY Slip Op 03704, Appellate Division, Third Department

The Appellate Division affirmed a ruling by Supreme Court denying the Albany Police Supervisor’s Association’s CPLR Article 75 application to vacate an arbitration award and confirmed the award.

A member of the negotiating unit represented by the Association was served with disciplinary charges that eventually resulted in the termination of the member’s employment with the Albany Police Department.

Essentially the member was charged with allegedly failing to inform and misled superior officers about what had transpired with respect to an incident involving another Albany Police Department police officer. The arbitrator found the member guilty of nine of the 14 charges filed against him and concluded that his termination was the appropriate penalty.

In affirming the arbitration award the Appellate Division noted that "In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 wherein the Court of Appeals said that "[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice."*

Here, said the court, the arbitrator's findings that member was untruthful when questioned by a superior officer concerning the event is supported by the record and did not result from the arbitrator grossly expanding the charges or other arbitral misconduct.

As to the penalty imposed, dismissal, the Appellate Division rejected the Association’s argument that the penalty was so disproportionate as to constitute arbitral misconduct as "unpersuasive.”

* A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03704.htm

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 03700, Appellate Division, Third Department

The Chenango Forks Central School District distributed a memorandum to its faculty and staff represented by the Chenango Forks Teachers Association announcing that it would discontinue its longstanding practice of reimbursing retirees' Medicare Part B premiums.

While the relevant collective bargaining agreement (CBA) between the parties did not explicitly obligate the school district to make such reimbursements, it had done so since at least 1980 when such reimbursement was required by the Empire Plan, the health insurance plan provided to employees up until 1990.

In 1990 the parties entered into a new CBA, and health insurance coverage was changed to Blue Cross/Blue Shield, which did not require the reimbursement of Medicare Part B premiums. Chenango Forks, however, continued to make such reimbursements.

The Association filed a grievance alleging a violation of the CBA.* At the same time, the Association filed an improper practice charge with the Public Employment Relations Board (PERB) alleging that Chenango Forks had violated Civil Service Law §209-a(1)(d) when it failed to negotiate the discontinuance of reimbursement of Medicare Part B premiums.**

PERB’s Administrative Law Judge (ALJ) found that school district's practice of reimbursement had "giv[en] rise to a reasonable expectation by current employees that they proceed under a promise of post-retirement [reimbursement]" and, thus, Chenango Forks’ unilateral decision to discontinue reimbursement violated its collective bargaining obligations under Civil Service Law §209-a(1)(d).

Ultimately PERB affirmed the ALJ's  conclusions regarding the school district's obligations under Civil Service Law §209-a(1)(d). The district filed an Article 78 challenging PERB's determination.

Rejecting the school district’s argument that reimbursement of Medicare Part B premiums is not a "term and condition of employment" subject to mandatory negotiation, the Appellate Division said that health benefits for current employees are a form of compensation, and thus a term of employment that is a mandatory subject of negotiation.

Although Civil Service Law §201(4) prohibits negotiation of certain retirement benefits, the Appellate Division pointed out that the continuation of health insurance payments to current employees after their retirement is not a retirement benefit within the meaning of that provision, citing Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398, 404 [1979]; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d 801, 802 [1995], lv denied 87 NY2d 812 [1996].

The court explained that such health insurance benefits, although paid after retirement, constitute a form of compensation earned by the employee while employed. Thus, noted the Appellate Division, as the Court of Appeals has held, and PERB rationally concluded, here that Chenango Forks "ha[d] a duty to negotiate with the bargaining representative of current employees regarding any change in a past practice affecting their own retirement health benefits," citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d at 332 [emphasis omitted]; see Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d at 404; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d at 802; Matter of Corinth Cent. School Dist. [Corinth Teachers Assn.], 77 AD2d 366, 367 [1980], lv denied 53 NY2d 602 [1981].

As to the question of whether a binding past practice was established, the Appellate Division said that the issue before PERB was whether, irrespective of any contractual obligation in the parties' CBA, a past practice of reimbursing retirees for Medicare Part B premiums was established such that Chenango Forks was barred from discontinuing that practice without prior negotiation with the Association.***

As to the merits of its past practice determination, the Appellate Division found that PERB had determined that there was a reasonable expectation by unit employees that they would receive reimbursement of Medicare Part B premiums upon their retirement, which finding was “supported by the stipulated facts that [the school district had] reimbursed Medicare Part B premiums to active employees and retirees since at least 1980 and that, despite the fact that the health insurance coverage provided under the CBAs subsequent to 1990 did not require such reimbursement, [the school district had] continued to do so until July 2003.”

Significantly, the Appellate Division said that it could not conclude that, by entering into a new CBA for the 2004-2007 period, which is silent regarding the reimbursement of Medicare Part B premiums, the Association waived its right to negotiate a change in [school district’s] practice of providing Medicare Part B reimbursement, explaining that. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it . . . Such a waiver must be clear, unmistakable and without ambiguity."

As a final point, the Appellate Division stated that the “reimbursing active employees for Medicare Part B premiums does not constitute an improper gift of public funds (see NY Const, art VIII, § 1), as the reimbursements represent compensation earned by employees while employed and in consideration for a benefit furnished to [the school district].”

* A group of school district retirees also commenced a CPLR Article 78 proceeding to annul the district's decision to discontinue Medicare Part B premium reimbursements (Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134 [2005]). This action wast remitted to Supreme Court for further record development to determine whether there had been a "corresponding diminution of benefits or contributions" effected by petitioner from active employees (Chapter 48 of the Laws of 2003; see Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1137-1138). The instant proceeding before the Appellate Division, in contrast, involved current, active employees of school district.

** PERB conditionally dismissed the charge subject to a motion to reopen the matter after the conclusion of the grievance procedure. When the grievance proceeded to arbitration, an arbitrator determined that petitioner was under no contractual obligation to continue the payments.

*** In contrast, the specific issue before the arbitrator was whether school district was under a contractual obligation to make Medicare Part B reimbursement payments to retirees.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03700.htm

Student Intern Program announced by the NYS Department of Civil Service

Student Intern Program announced by the NYS Department of Civil Service

Acting NYS Civil Service Commission President Patricia A. Hite has distributed the following "General Information Bulletin #12-01" to State Departments and Agencies describing a new Student Intern Program that is to be made available to qualified college and graduate school students interested in a career in public service and inviting their respective Department and Agency participation.

GENERAL INFORMATION BULLETIN No. 12-01

TO: Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers
FROM: Patricia A. Hite
SUBJECT: New New York Leaders: Student Intern Program
DATE: May 10, 2012

On February 15, Governor Cuomo launched the New New York Leaders: Student Intern Program, the first ever centralized Student Intern Program for state government. The Program will provide talented undergraduate or graduate students who are New York State residents or who attend a New York State college, university or graduate program and are interested in exploring a career in public service with a single location to apply and be considered for internship opportunities. Students will be exposed to the work of governing and the increasingly complex policy challenges facing New York State. This group of diverse and talented students is the future of state government.

A memorandum from Howard Glaser dated May 9, 2012, advised agency heads of this important initiative, the success of which depends upon agency participation. The Department of Civil Service is hosting the portal for the Student Intern Program which will function as the primary location where agency internship opportunities will be posted and applications will be accepted. Based on the preferred candidate profile submitted by the agency for each internship opportunity, the Department will provide agencies with a list of qualified candidates. It is expected that by fall 2012, all New York State internship opportunities will be included on the New New York Leaders: Student Intern Program portal.

This Program is not intended to replace established agency relationships with colleges and universities; rather, the portal is to serve as a comprehensive recruitment tool for agencies and a single resource to which schools may direct students. The Department will notify New York State colleges and universities of the Program and develop a recruitment plan to actively recruit students from schools with diverse populations. Agencies are encouraged to continue their recruitment efforts. Communication with college and university internship coordinators should continue to ensure the inclusion of candidates with agencies' preferred qualifications; however, students should be directed to the portal to apply for and select specific agency opportunities. Appointments must be made through the centralized process.

We are making every effort to meet agencies' needs while providing schools and students a centralized portal for the Student Intern Program. This fall we will ask for your feedback on the portal and, based upon that input, will seek to expand the visibility of the Program and increase efficiency and transparency in the process of hiring interns.

Student Intern Program Overview

The internship opportunities offered by the New New York Leaders: Student Intern Program may be paid or unpaid, and for graduate or undergraduate students. Applications will be accepted three times a year for internships to be filled in the fall, spring and summer. The internship portal will allow candidates to submit applications, upload resumes and review and identify preferences for internships. Agencies will use the internship portal to post internship opportunities, set hiring criteria, and receive a list of qualified candidates.

Between June 1 and June 27, 2012, agencies will post their Fall 2012 internship opportunities on the internship portal. An agency guide and further directions will be made available to assist you with this process. Agencies will also have the opportunity to attend a Student Intern Program briefing on May 30, 2012 in Room 354 in the Alfred E. Smith Office Building in Albany. Agency staff in locations outside of Albany will have the ability connect to the briefing via webinar. During the briefing, Student Intern Program staff will provide programmatic details of the Program, a demonstration of the internship portal, and guidelines for submitting internships.

Student Intern Program Liaisons

We request that all agencies designate an agency liaison to serve as a point of contact for future communication related to the Student Intern Program. The Student Intern Program Liaison will be responsible for:

• communicating all relevant Student Intern Program information and deadlines to agency staff; and,

• coordinating your agency's input and maintenance of internship posting information in the internship portal.

• May 15, 2012
 - Agencies designate Student Intern Program Liaison

• May 23, 2012
 - DCS provides agencies a guide and template for posting internships

• May 30, 2012
 - Student Internship Program Briefing for Liaisons

• June 1, 2012
 - Access to Internship Portal for Agencies

• June 27, 2012
 - Deadline for Posting Internships

• July 23, 2012
 - Deadline for Students to Apply and Identify Internship Preferences

• July 24 - 31, 2012
 - Agencies Establish Criteria and Receive List of Qualified Candidates

• July 24, 2012 - August 31, 2012
 - Agencies Contact Candidates for Interviews

• September 2012
 - Internships Begin

The Student Intern Program Liaison should be, whenever possible, a professional member of your human resource team. All human resource or personnel staff with access to NYSTEP will have permissions to access the Internship Portal using their Department of Civil Service Web Applications Log In information. Please contact Lynne Harting via email atnysinternships@cs.state.ny.us by Tuesday, May 15, 2012, with the name and contact information for your agency liaison. Please also indicate if the Student Intern Program Liaison will be attending the Student Internship Program briefing in person or connecting via the webinar.

Timeline

To assist you in your planning efforts, the timeline for the New New York Leaders: Student Intern Program for Fall 2012 internships is as follows:

We look forward to your participation in the New New York Leaders: Student Intern Program. For more information on the program, visit our website http://www.nysinternships.com beginning the week of May 14. If you have any questions, please contact Lynne Harting at (518) 473-9721 or contact us at nysinternships@cs.state.ny.us.

The school board rather than the Commissioner of Education in the party that may initiate disciplinary action against a school officer

The school board rather than the Commissioner of Education in the party that may initiate disciplinary action against a school officer

Decisions of the Commissioner of Education, Decision No. 16,350

An individual challenged the actions of the school board and various officers of the school district by filing an appeal with the Commissioner of Education in which he include a request that the Commissioner remove certain school officials from their respective positions.

The Commissioner dismissed the appeal and denied the removal application.

Addressing the denial of the individual’s “removal application” with respect to the superintendent and the assistant superintendent, the Commissioner explained that the individual must seek disciplinary action from the [superintendent’s and the assistant superintendent’s] employer, the board of education, in the first instance. 

Disciplinary action against a superintendent or assistant superintendent, said the Commissioner, is within “the discretion of the employing board of education.”

Accordingly, the individual should have brought his complaint to the board of education, whose decision may then be reviewed in an appeal to the Commissioner of Education.

The decision of the Commissioner is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16350.html

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

A correction officer employed by the New York State Department of Corrections and Community Supervision filed an action in the Court of Claims alleging that he had been subjected to retaliation and a hostile work environment in violation of Executive Law §296.

The officer had claimed that he was disciplined after engaging in an on-duty physical confrontation with another correction officer, contending that the other correction officer involved in the confrontation was not disciplined at all and that a different correction officer involved in a similar but unrelated incident received a lesser punishment. He contended that the disciplinary action taken against him was in retaliation of his having previously filed complaints against his supervisors alleging racism.

The Appellate Division affirmed the Court of Claims’ ruling that the correction officer had failed to establish either claim.

Citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, the court explained that to establish a claim for retaliation, a claimant was required to prove the following four elements:

[1] he or she had engaged in protected activity;

[2] his or her employer was aware that he or she had engaged in such activity;

[3] he or she suffered an adverse employment action based upon his or her activity;

[4] there is a causal connection between the protected activity and the adverse action.

The Appellate Division noted although the first three elements of a retaliation claim were not disputed here, the Court of Claims concluded that there was no evidence of a causal connection between the protected activity and the discipline imposed on claimant.

The Court of Claims had [1] credited the version of events reported by the witnesses to the confrontation and determined that claimant was the aggressor and [2] the confrontation in which the officer had been involved “was more serious than the unrelated incident.”

As to the officer’s “retaliatory hostile work environment claim,” the Appellate Division said that the actions giving rise to such a claim “must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus.”

The Appellate Division held that in determining if such a hostile work environment existed “All of the circumstances must be considered, including ‘the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"  Further, said the court, "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the [claimant], and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so."

Noting that the record supported the conclusion of the Court of Claims that the supervisor's conduct did not pervade claimant's work environment or rise to an actionable level, the court dismissed the correction officer’s appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03487.htm