Public Sector union did not breach its duty of fair representation

Public Sector union did not breach its duty of fair representation
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.

Delsante v. CSEA, ____Misc. 3d____(Richmond Co. June 15, 2010), illustrates how the duty of fair representation in the public sector is similar, though not identical to the private sector. The two differences are the statute of limitations in the public sector (in New York) is 4 months as opposed to 6 months in the private sector. Additionally, the standard is a bit more favorable to unions in the public sector. As the court explained:

“With respect to claims based upon the alleged breach of a duty of fair representation, the plaintiff must establish that the defendants acted "deliberately invidious, arbitrary and founded in bad faith" (Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]; Gordon v. City of New York, 167 AD2d 509, 509-510 [2d Dept., 1990]; Garvin v. NYS Pub. Emply Relations Bd., 168 AD2d 446, 446 [2d Dept., 1990]). Here, the defendants have established that they pursued the avenues available to assist the plaintiff in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement § 33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment". Defendants established that Mrs. Zarvos, the Labor Relations Specialist with CSEA, met with the plaintiff; spoke with Mr. Lescinski in an effort to negotiate reinstating the plaintiff and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited. As is well established, "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation" (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 446-447 [2d Dept., 1990]; Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]).

"In opposition, the plaintiff failed to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The plaintiff has failed to present any evidence that the defendants acted in any way deliberately, arbitrary or in bad faith in not pursuing the grievance further and in fact, the plaintiff's failed to present any evidence or dispute the fact that the plaintiff was on probationary status (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 447 [2d Dept., 1990][dismissing the petition as no evidence of bad faith, arbitrariness or discriminatory conduct was presented]).”

Mitchell H. Rubinstein
NYPPL

Applying for disability retirement

Applying for disability retirement
Bowns v McCall, 263 AD2d 668
Vecchi v NY State and Local Employees’ Retirement System, 263 AD2d 669

In order to qualify for accidental disability retirement benefits, a member of the New York State Employees’ Retirement System [ERS] must prove:

1. That he or she was injured while at work; and

2. The injury was the result of an accident within the meaning of the Retirement and Social Security Law [RSSL], i.e., that the injury resulted from an “unexpected and sudden mischance” and not from a risk “inherent in the regular duties of the applicant.”

The first test is relatively simple to demonstrate; the second test -- that the injury resulted from an accident within the meaning of RSSL -- is substantially more difficult to prove.

To meet the second test the employee has the burden of presenting substantial evidence that his or her injury resulted from a “sudden or unexpected event” in contrast to being merely the result of physical exertion undertaken in the performance of his or her routine or regular employment duties.

In both the Bowns and Vecchi cases the Appellate Division sustained the Comptroller’s determination that for the purposes of qualifying for a RSSL disability retirement allowance, the disability suffered by these employees as a result of an on-the-job incident did not result from an accident within the meaning of the RSSL.

The Bowns case

Norman Bowns, a maintenance assistant employed by the State Office of Mental Retardation and Developmental Disabilities, filed an application for accidental disability retirement benefits claiming a disabling back injury he sustained while he and a co-worker were moving a heavy six-drawer file cabinet away from a wall. Bowns said that the cabinet became stuck and, when pushed, began to tip towards him and he had “catch the cabinet and support its weight in order to keep it from falling on him.”

This, Bowns argued, constituted an accident because “moving a file cabinet was unusual and unrelated to his normal work.” The court sustained the Comptroller’s finding that Bowns’ injury did not result from an accident because Bowns’ supervisor had specifically assigned him to perform this task and Bowns’ job duties included occasional assignments to perform manual labor jobs outside of his regular department.

The Vecchi decision

The Appellate Division also sustained the Comptroller’s rejection of Joanne Vecchi’s application for accidental disability retirement benefits. Vecchi, a school bus driver/cleaner, testified that she slipped on wet pavement following a rainstorm and although she attempted to balance herself, her foot caught on some gravel and she fell.

The court said that there was substantial evidence that Vecchi’s “injury occurred in the ordinary course of her duties and resulted from her own misstep, not from an unexpected event.” In other words, the mishap was not an accident for the purposes of qualifying for accidental disability retirement benefits.
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Impartiality of discipline panel members

Impartiality of discipline panel members
Informal Opinions of the Attorney General, 99-21

The impartiality of a disciplinary tribunal is a critical element in any disciplinary action. Further, even the appearance of any impropriety must be avoided. Would it be appropriate for an individual to serve on a disciplinary panel if there was a possibility that his or her son might be called as a witness in the proceeding?

David A. Menken, the Village Attorney, Village/Town of Mount Kisco, asked the Attorney General for his views with respect to such participation after the chief of police advised the board of trustees that disciplinary charges might be filed against one or more Mount Kisco police officers and the son of a trustee, who was a member of the police force, might be called as a witness.

The Attorney General commenced his analysis by noting that Section 5711-q(1) of the Unconsolidated Laws provides that such disciplinary charges must be heard by “at least a majority” of the Board of Trustees and that “even the appearance of impropriety should be avoided in order to maintain public confidence in government.”

The Attorney General concluded that the trustee should recuse herself because “the trustee may not be able to make an impartial judgment solely in the public interest if her son is called as a witness.” While state law does not bar members of the same family from serving in the same governmental unit, public officers have a responsibility to exercise their duties “solely in the public interest.”

The Attorney General said that the difficulty here was that “there was no objective way to verify” that the trustee was able to weigh the credibility of her son fairly and reached an impartial judgment. Under the circumstances, the Attorney General concluded, “there is at least an appearance of impropriety” and thus the trustee should recuse herself and “should not participate in or be present at the hearing, any deliberations, including deliberations conducted during an executive session of the board of trustees, or the determination of the disciplinary proceeding brought by the Mount Kisco Police Department.”

The designation of panel members by the district and the employee should not be viewed as the selection of a partisan representative. Rather they are impartial, quasi-judicial officials.

This point was made in Syquia v Harpursville Central School District, 568 NY2d 263, an "old law" Section 3020-a case. In Syquia, the court observed that a school board and a teacher have a statutory right to select a panel member to serve on the three-member board.

However, the court rejected the argument advanced by the attorney for the Harpursville School District suggesting that "a Section 3020-a hearing is, and is intended to be, something other than a fully impartial fact finding hearing...." The court clearly stated that the panel members selected by the Board of Education and by the teacher are not advocates for the party respectively selecting them, with only the chair of the hearing panel intended to be impartial.

The court said that it was taking its opportunity in this case to dispel any such "misapprehension in educational circles, if such in fact exists." It is likely that the same rationale would be applied to the selection of panel members by employers and employees under the new law.

In contrast to the Syquia decision, the Appellate Division decided in Meehan v Nassau Community College, 243 A.D.2d 12,[motion for leave to appeal denied, 92 N.Y.2d 814] that "a party-designated arbitrator may in fact be 'partial'" and that by itself this is not grounds for vacating an arbitration award.*

The case involved Nassau County Community College's attempt to overturn two arbitration awards under Article 75. One member of a three-person arbitration panel selected by the parties had direct personal knowledge of the disputed facts underlying the grievances and that this arbitrator actually testified concerning these facts during the arbitration. The Appellate Division had no problem with a panel member testifying at the hearing, holding that "dual capacity of arbitrator and witness may serve as a basis for vacatur only if his behavior in this regard can be properly characterized as constituting 'corruption, fraud, or misconduct' (CPLR 7511[b][1][i])."

* Related cases involving the same parties and issues: Mehan v Nassau Community College, 251 A.D.2d 415; Mehan v Nassau Community College, 251 A.D.2d 416; and Mehan v Nassau Community College, 251 A.D.2d 417.
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Probationary employee discharged for misrepresenting location of residence at time of employment

Probationary employee discharged for misrepresenting location of residence at time of employment
Munich v Dept. of Public Safety, 262 AD2d 959

A State Supreme Court judge annulled the Lackawanna Department of Public Safety’s dismissal of probationary firefighter Steven J. Munich prior to his completing his probationary period.

The Appellate Division reversed the lower court’s ruling, pointing out that “[i]t is axiomatic that a probationary employee may be discharged without a hearing and without a statement of the reasons for doing so provided the dismissal was not for a constitutionally impermissible purpose or in violation of statutory or decisional law.”

Here, said the court, Munich’s “false representations ... concerning his residence at the time of his employment with the City” provided a sufficient basis for his termination.
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Substantial evidence supports finding employee was guilty of disciplinary charges filed against him

Substantial evidence supports finding emplyee was guilty of disciplinary charges filed against him
Matter of Drury v Village of N. Syracuse, 2010 NY Slip Op 06944, Decided on October 1, 2010, Appellate Division, Fourth Department

Phillip Druyry commenced an CPLR Article 78* proceeding in an effort to obtain a court order annulling the determination terminating his employment as Village of North Syracuse Code Enforcement Officer and Fire Marshall following a disciplinary hearing held pursuant to Civil Service Law §75.

The Appellate Division dismissed his appeal, commenting that the disciplinary determination was supported by “substantial evidence, i.e., ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.’”

The court also concluded that, under the circumstances of this case, the penalty of termination of employment does not constitute an abuse of discretion as a matter of law because it is not " so disproportionate to the offense as to be shocking to one's sense of fairness,' " citing Matter of Kelly v Safir, 96 NY2d 32.

* Section 76 of the Civil Service Law provides alternative appeal procedures to challenge a Section 75 disciplinary determination: [1] Appeal to the Civil Service Commission having jurisdiction within 20 days of his or her receiving notice of the determination; or [2] A judicial appeal pursuant to Article 78 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06944.htm
NYPPL

Determining an educator’s seniority for the purposes of layoff and reinstatement from a preferred list

Determining an educator’s seniority for the purposes of layoff and reinstatement from a preferred list
Donna Marsico v Board of Education of the City School District of the City of Mount Vernon, Decisions of the Commissioner of Education, Decision #16,158

Donna Marsico was appointed to a probationary appointment as a teacher of business education, effective February 1, 1989. Her position was abolished in 1990 and her name was placed on a preferred list. Marsico was subsequently appointed as a business education teacher in the district, effective September 1, 1993 and was granted tenure, effective September 1, 1994.

On September 24, 2008, the board established a preferred eligibility list and Marisco was listed as the most senior business education teacher. Marsico was then told that her position was abolished for budgetary reasons effective October 3, 2008.

As the result of an “opinion letter” from the New York State United Teachers dated June 24, 2009, the board rescinded the September 24, 2008 seniority list and established a new seniority list with Concetta Fantini listed as the most senior business education teacher.

In September 2009, Fantini was reinstated from the reconstituted preferred list to a business education position with the district. When Marisco sued in Supreme Court, Westchester County, challenging Fantini’s appointment the court “issued a stay” on the proceeding to permit Marisco to appeal to the Commissioner.

In her appeal to the Commissioner Marisco claimed that she was “continuously employed as a tenured business education teacher from 1993 until her layoff in October 2008, rendering her the most senior business education teacher and eligible for the first recall from the preferred eligibility list.”

The school board, on the other hand, argued that Marisco “cannot claim seniority credit for years served in a non-tenure track position that does not require a teaching certificate. Therefore, such service is not “service in the system” as required under Education Law §2510(3) for purposes of recall rights.”

The Commissioner found that, based Marisco employment record, she served as an adult education teacher in a distance-learning program from September 1, 1993 through the 2006-2007 school year. Accordingly, said the Commissioner, “Since none of the tenure areas prescribed in Subpart 30-1 of the Rules of the Board Regents relate to teachers of adult education and there is no teaching certificate required for such position, I find that [Marisco’s] service as an adult education teacher was in a non-tenure track position and cannot be considered for purposes of recall rights,” citing Appeal of Thomas, Commissioner’s Decision #13,275.

Further, said the Commissioner, “It is well settled that for purposes of determining the recall rights of teachers on a preferred eligibility list, length of service in the system is used, not length of service within a particular tenure area,” citing Mahony v. Bd. of Educ. of Mahopac Cent. School Dist., 140 AD2d 33, appeal denied 73 NY2d 703.

As to what is considered “length of service in the system,” the Commissioner concluded that the phrase “length of service in the system” means length of service as a professional educator as defined in §30-1.1 of the Commissioner’s regulations.

Accordingly, said the Commissioner, Marisco’s service from September 1, 1993 until the 2006-2007 school year was not in a tenure-bearing position and, therefore, cannot be counted as “service in the system” for purposes of recall rights under Education Law §2510(3).

However, the Commissioner said that although he was “constrained to dismiss this appeal,” he noted that “the board lacked the authority to grant [Marisco] tenure in the business education tenure area for her service as an adult education teacher” and said that the board must follow “all pertinent provisions of the Civil Service Law, Education Law §2510 and Part 30 of Rules of the Board of Regents” in this regard.

NYPPL Comments: §80 of the Civil Service Law, which applies to individuals in the competitive class, provides, in pertinent part, that layoffs "shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.”

In contrast to “service in the system” within the meaning of §30-1.1 of the Commissioner’s Regulations, for the purposes of §80 of the Civil Service Law, once having attained permanent status an employee’s “seniority” is not truncated should he or she subsequently be appointed as a provisional employee or temporary employee or to a position in the exempt, noncompetitive or labor class or to a position in the unclassified service.

In the words of the statute, “A period of employment on a temporary or provisional basis, or in the unclassified service, immediately preceded and followed by permanent service in the classified service, shall not constitute an interruption of continuous service for the purposes of this section; nor shall a period of leave of absence without pay pursuant to law or the rules of the civil service commission having jurisdiction, or any period during which an employee is suspended from his position pursuant to this section, constitute an interruption of continuous service for the purposes of this section.”

Further, seniority is measured from the individual’s effective date of initial, uninterrupted, permanent appointment and not from the date he or she attained tenure in such position.

§80.2 of the Civil Service Law measures “continuous service” from the individual’s date of his or her first appointment on a permanent basis in the classified service followed by continuous service in the classified service on a permanent basis up to the time of the abolition or reduction of the competitive class position. Further, an employee who has resigned and who has been reinstated or reappointed in the service within one year thereafter shall, for the purposes of such section, be deemed to have continuous service.

§80-a of the Civil Service Law, which applies to employees of the State as an employer, provides similar protection for those State employees serving in a position in the non-competitive class.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16158.htm

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NYPPL