Using hearsay evidence in a disciplinary hearing

Using hearsay evidence in a disciplinary hearing
Saunders v City of New York, App. Div., First Dept., 273 A.D.2d 103, motion for leave to appeal denied, 95 N.Y.2d 766

A New York City police officer was terminated from his position after being found guilty of having "assaulted and caused physical injuries” to two individuals.

The officer appealed, contending that the Commissioner's determination was not supported by substantial evidence because it was based on hearsay. The Appellate Division disagreed, holding that "[t]he hearsay statements of the complainants were sufficiently probative to constitute substantial evidence."

According to the decision "[h]earsay may constitute substantial evidence where, as here, it is sufficiently reliable and probative on the issues to be determined."

This, in turn, depends on the credibility of the witnesses. The issue of the credibility of the witnesses at the officer's departmental disciplinary hearing, said the court, "was a matter to be assessed by the Deputy Commissioner who presided at the trial.”

Accordingly, said the court, determinations concerning the credibility of witnesses "is largely beyond our power of review."

Barring a former employee from property

Barring a former employee from property
Toussaint v Local 100, TWU, CA2, U.S. App. LEXIS 16257

May an employer prohibit an individual it has dismissed from entering its property? The Second Circuit Court of Appeals ruled the employer may prohibit such an individual from entering its non-public areas.

A Transportation Workers Union representative had been dismissed from his position with the New York City Transit Authority [NYCTA]. NYCTA then banned the representative from the non-public areas of its property. The representative sued, contending that this action by NYCTA violated his First Amendment rights.

The Circuit Court affirmed a federal district court's dismissal of the Union representative’s petition. The lower court had determined that he "failed to show a likelihood of success on the merits" because:

1. He did not demonstrate that he was excluded from non-public areas because the Transit Authority's motivation was to impair the exercise of his First Amendment freedoms or;

2. The Transit Authority's rule barring discharged employees from non-public areas lacked a reasonable basis.

The representative also attempted to obtain a stay of arbitration, claiming that NYCTA and Local 100 went forward with his arbitration "without allowing him to participate in selecting a neutral arbitrator to chair the arbitration panel." The Circuit Court of Appeals rejected this representation as moot "because the arbitration [had] proceeded to conclusion."

Employee exonerated of alleged off-duty misconduct

Employee exonerated of alleged off-duty misconduct

NYC Department of Corrections v Gayle, OATH Index #105/12

OATH Administrative Law Judge John B. Spooner recommended dismissal of a charge that a correction officer had caused more than $250 worth of damage to her former landlord’s property.

The landlord’s testimony that he saw the correction officer hitting the bathroom walls with a sledgehammer was uncorroborated and contradicted in part by evidence that the landlord himself had damaged the apartment.

The correction officer’s testimony that she had moved out of the apartment one month before the damage was incurred following alleged “improper actions by the landlord,” was corroborated by her sister’s testimony, date-stamped photographs showing the apartment in disarray, and the landlord’s admission that he had piled bolts of fabric inside the correction officer’s apartment and removed light bulbs because he was frustrated by her failure to pay rent and abrupt departure from the apartment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1051.pdf

Payroll deductions

Payroll deductions
Westchester County Correction Officers Benevolent Association, 33 PERB 3025

Although a "letter ruling" by the Internal Revenue Service advised the employer that it had the discretion to withhold income tax from the wages of individuals on workers' compensation leave or receiving benefit pursuant to Section 207-c of the General Municipal Law bi-weekly and reimburse the employee for such deductions annually or elect not to make such deductions, PERB ruled that it was an improper practice for the employer to change its procedure from not making such deductions to making bi-weekly deductions without first negotiating the change with the employee organization even where the claim for such benefits was controverted by the employer since the exercise of discretion is generally subject to a duty to bargain.

An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolve

An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolve

Board of Educ. of Yorktown Cent. Sch. Dist. v Yorktown Congress of Teachers, 2012 NY Slip Op 06023, Appellate Division, Second Department

Yorktown Central School District filed an Article 75 petition seeking a permanent stay arbitration of a claim by a teacher for approval of certain graduate credits for compensation pursuant to a collective bargaining agreement. Supreme Court granted the school districts petition and the Yorktown Congress of Teachers appealed.

The Appellate Division reversed the lower court’s ruling “on the law” and directed that the parties proceed to arbitration.

The court noted that the relevant collective bargaining agreement included [1] an annex to the salary schedule providing for payments for approved graduate credits and [2] a “four-step grievance* procedure culminating in binding arbitration.”

The Appellate Division explained that in determining whether a dispute between a public sector employer and employee organization on behalf of an employee is arbitrable,** a court must first determine whether there is a statutory, constitutional or public policy prohibition against arbitration of the grievance. If it finds no such prohibition against arbitration, the court must examine the parties' collective bargaining agreement to determine "whether the parties in fact agreed to arbitrate the particular dispute."

Finding that arbitration of the instant dispute was not prohibited by public policy or statute, including those provisions of the Education Law permitting any party aggrieved by a determination of a board of education to appeal to the Commissioner of Education nor by the power of a school board to manage the educational affairs of the school district, the Appellate Division found that there was a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA – i.e., a claim for approval of graduate credits for compensation and the general subject matter of the CBA.

Noting that “some uncertainty exists as to whether the subject matter of the dispute is encompassed within the provision governing payments for approved graduate credits or the exclusion from arbitration of matters involving the Board's discretion,” the Appellate Division said that any alleged ambiguity in the CBA "regarding the coverage of any applicable provision is . . . a matter of contract interpretation for the arbitrator to resolve."

Accordingly, the Appellate Division granted the Youngstown Congress of Teacher’s cross petition to compel arbitration.

* In this instance the CBA defined a "grievance" as "any dispute or claim by either party . . . arising out of or in connection with this Agreement" other than matters that involved [a] the School Board's exercising its discretion, [b] a nonapproval of tenure decision; and [c] matters where a review was prescribed by law.

** Subject limited exceptions, as a general rule only the certified or recognized employee organization may demand arbitration of a grievance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06023.htm