Duty of fair representation

Duty of fair representation
LeBlanc v Security Services Unit, Council 82, Appellate Division, Third Department, 278 A.D.2d 732

The LeBlanc decision illustrates some of the technical hurdles confronting members of an employee organization attempting to sue their collective bargaining agent on the grounds that it violated its duty of fair representation.

The ruling also demonstrates the proposition that a collective bargaining agreement belongs to the union, rather than to the employees covered by the agreement.

State Environmental Conservation Officer Hilary J. LeBlanc, together with other current and former officers, sued Council 82 alleging that it breached its duty of fair representation when it refused to file a grievance.

LeBlanc claimed that the State failed to pay conservation officers overtime compensation under the collective bargaining agreement in place at that time and that Council 82 should have filed a grievance to vindicate their rights under the collective bargaining agreement.

As it turned out, the complaint was untimely. The Appellate Division affirmed a Supreme Court ruling dismissing LeBlanc's petition on the grounds that the statute of limitations for bringing the action had expired.

The court pointed out that a claim against an employee organization alleging it breached its duty of fair representation must be commenced within four months of the date the employee knew or should have known that the breach occurred or when the employee suffered actual harm, whichever is later.

Although LeBlanc conceded that the officers were aware of the alleged breach in 1987, they attempted to persuade the court that they did not experience actual harm until July 2, 1999 when they:

1. Were paid overtime compensation in accordance with the Fair Labor Standards Act rather than “contractual overtime compensation;” and

2. Became obligated to pay counsel fees, costs and disbursements incurred in litigating their claim of entitlement to such overtime compensation [Mulverhill v State of New York, 257 AD2d 735].

The Appellate Division rejected LeBlanc's theory, holding that Council 82, assuming that it did in fact breached its duty of fair representation by refusing to file the grievance, did so in July 1987, more than 12 years prior to LeBlanc filing this complaint.

The Appellate Division also dismissed LeBlanc's claim of “breach of contract.” The court said that LeBlanc's breach of contract claims are based on the collective bargaining agreement between the State and Council 82.

Pointing out that the conservation officers are not parties to the contract, they lack what is called privity and thus they may not assert contractual claims directly against the State based on the collective bargaining agreement. In other words, only the State or Council 82 could sue the other for any alleged breach of the contract.*

Finally the Appellate Division ruled that LeBlanc's reliance on a claim that the officers are third-party beneficiaries of the contract between the State and Council 82 “is equally misplaced,” citing Lundgren v Kaufman Astoria Studios, 261 AD2d 513.

Although courts have ruled that members of a union may be “third party beneficiaries” of a contract between the employer and the union [Helt v Britten-Fenton Co., 180 Misc 1077], the Court of Appeals has declared that the benefit “must be one that is not merely incidental, but must be immediate in such a sense and degree as to indicate the assumption of a duty to make reparation if the benefit is lost” [Associated Flour Haulers and Warehousemen v Hoffman, 282 NY 173].

While the LeBlanc case concerned an individual suing his or her union for alleged breach of contract, sometimes an employee may attempt to sue his or her public employer alleging a breach of the collective bargaining agreement.

As a general proposition, when a public employer and a union enter into a collective bargaining agreement that sets out a contract grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement. He or she must attempt to cure the alleged breach through the employee organization.

This proposition was set in by the Appellate Division, Third Department, in Sinacore v State of New York, decided November 16, 2000. In this situation, the court said that:

Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer.

The Appellate Division ruled that because Sinacore “failed to allege that the union breached its duty of fair representation,” he cannot sue the State for any alleged procedural defects in his 1995 disciplinary hearing.

* Contract privity is defined as the relationship or connection between the contracting parties. Privity is essential to maintaining any legal action between a plaintiff and a defendant with respect to the matter being sued on.

Electing a disciplinary penalty

Electing a disciplinary penalty
Public Employees Federation v NYS Workers' Compensation Board, NYS Supreme Court, Judge Mason, [Not selected for publication in the Official Reports]

This decision by Judge Reynold N. Mason resolves an appeal from a disciplinary arbitration. In addition to explaining substituting negotiated disciplinary procedures for statutory procedures such as those set out in Section 75 of the Civil Service Law, it provided a rather unusual remedy: the employee is given a choice of the disciplinary penalty to be imposed.

While conducting a hearing, a Workers Compensation Board Judge, Herbert L. Levy, told a claimant's attorney to “shut up.”

An investigation followed and Levy admitted to using this language, explaining that he had been “attempting to say something dramatic to break th[e] emotionalism that [the attorney] was involved in,” and to get her, the attorney, to stop talking and “get the hearing back on track.” Levy also conceded that his plan was “perhaps ill-conceived.”

Disciplinary charges were filed charges against Levy alleging “misconduct and/or incompetence.” The Board claimed that he had violated it policy “that Board employees maintain a civil, courteous, respectful and professional attitude and practice” and proposed a penalty of a ten-day suspension from work without pay.

Levy rejected the proposed penalty/settlement and his disciplinary grievance was submitted to arbitration in accordance with the terms of the collective bargaining agreement [CBA].

Arbitrator Max M. Doner found Levy guilty of misconduct and/or incompetence in the performance of his duties as law judge. The penalty imposed: a fine of $2,400.

Levy filed an Article 75 petition seeking to vacate the arbitrator's award on the grounds that the arbitrator had exceeded his powers and thus his determination is “arbitrary, capricious and irrational.”

Levy also contended that the award violates the strong policy of the State of New York and “denies petitioner his Constitutional right to due process of law....” The Board, on the other hand, filed a motion to confirm the award.

Levy major arguments: (1) The collective bargaining agreement provides for “compulsory” binding arbitration and accordingly “the award would have to be in accord with due process and supported by adequate evidence in the record in order to be sustained;” and (2) The penalty imposed, a fine of $2,400, violates public policy.

The collective bargaining agreement

Judge Mason rejected Levy's “compulsory” binding arbitration theory.

Citing Antinore v State of New York, 40 NY2d 6, the court said that “a provision in a public employee's CBA which provides for binding arbitration as the method for disposing of challenges to disciplinary action in lieu of a statutory disciplinary procedure such as Section 75 of the Civil Service Law is deemed to have been consented to by the employee (as such provision was voluntarily agreed to by the employee's representative, the union)....”

Accordingly, Levy's submission to arbitration pursuant to his CBA is deemed to be consented to, not compulsory.

The public policy issue

Judge Mason also rejected Levy's argument that the arbitrator's imposition of a $2,400 fine is in excess of his authority and is “arbitrary, capricious and irregular” in that it violates the “strong public policy” of New York State because Section 75 provides for a fine of not to exceed $100.

He said that because the CBA's disciplinary grievance procedure replaced Section 75 and provides that the arbitrator is to determine guilt and the appropriate penalty, the arbitrator is neither subject to nor limited by the penalties contained in Section 75.

As to the public policy issue, the court said that a fine to be imposed against a public employee not to exceed $100, does not constitute an expression of “public policy” such that the arbitrator's imposition of a fine greater than $100 is violative of public policy and must be set aside.

According to Judge Mason, the fine of $2,400 imposed by the arbitrator appears to be a reduction from the original penalty imposed -- a 10-day suspension without pay.

But, said the court, if Levy disagreed and “would actually prefer to suffer the 10-day suspension rather than pay $2,400,” he may elect the suspension since he “should not be worse off for having sought review of the original finding and penalty” by an arbitrator.”

Sustaining the determination of guilt, Judge Mason modified the award to allow Levy to elect the penalty he preferred.

Judge Mason applied the following standards in reaching his determination:

1. An arbitrator is free to apply his own sense of law and equity to the facts as he has found them to be in resolving a controversy, including consideration of the employee's personnel file in setting the penalty to be imposed.

2. The court's authority for overturning an arbitration award is limited to those provided under Article 75 of the Civil Practice Law and Rules.

3. Any limitation upon the remedial power of the arbitrator must be clearly contained in the arbitration clause.

4. Although an award which is violative of public policy will not be permitted to stand, courts must be careful not to decide the dispute on the merits under the guise of public policy.

Using an individual’s employment history in disciplinary action

Using an individual’s employment history in disciplinary action
A NYPPL review

Readers raise interesting questions. For example, a reader recently asked if there were any court decisions concerning the introduction of an employee's employment history into the record during a disciplinary hearing?

According to the reader, the Section 75 hearing officer admitted the accused employee's performance evaluations during the proceeding at the request of the appointing authority, indicating that the evaluations would be considered in determining the penalty the hearing officer would recommend if he found the employee guilty of one or more of the disciplinary charges.

The question raises a number of issues, including the following:

1. May such records be introduced into the record at the disciplinary hearing?

2. If the employee is found guilty of charges unrelated to adverse material in his or her personnel record, may the records be used to determine the penalty to be imposed by the hearing officer? By the appointing authority?

3. If the employee is found guilty of charges related to an adverse comment in his or her personnel records should further consideration be barred on the grounds of “double jeopardy?”

Introducing the personnel record:

In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott's argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing.

The court said that “such evidence was relevant to the determination of an appropriate penalty,” noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.

Considering the personnel record:

Having introduced the employee's personnel records, for what purpose(s) may they be used?

In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if:

1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and

2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

Is criticism discipline?

In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee's personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding.

In other words, the appointing authority's placing correspondence critical of the employee's conduct or performance in his or her personnel file did not constitute discipline.

The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

In contrast, alleged “constructive criticism” may not be used to frustrate an employee's right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.

As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000:

Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

What distinguishes lawful “constructive criticism” of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature? This could be a difficult question to resolve.

As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.

In the Fusco and Irving cases, the Commissioner of Education found that “critical comment” exceeded the parameters circumscribing “lawful instruction” concerning unacceptable performance.

In Fusco's case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board's claim that the memorandum was “intended to encourage positive change” in Fusco's performance.

The Commissioner noted that it “contains no constructive criticism or a single suggestion for improvement.” Rather, said the Commissioner, the memorandum focused on “castigating [Fusco] for prior alleged misconduct.”

In Irving's case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal.

The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law.

Concerning alleged "double jeopardy"

A “counseling memorandum” is placed in an individual's personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including or incorporating the events set out in the counseling memorandum as charges constitute “double jeopardy?”

No, according to the Court of Appeal's ruling in Patterson v Smith, 53 NY2d 98. In Patterson the court said that including charges concerning performance that were addressed in a counseling memorandum was not “double jeopardy.”

The court explained that a “proper counseling memoranda” contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself.

Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event.

Further, the memorandum may be introduced as evidence in the disciplinary hearing or for the purposes of determining the penalty to be imposed if the individual is found guilty.

The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate.

Member's claim of malpractice by the union's attorney rejected

Member's claim of malpractice by the union's attorney rejected
Mamorella v Derkasch, App. Div., Fourth Dept., 276 AD2d 152

Lucille Mamorella asked the Appellate Division “to reject as against public policy the well-established rule that an attorney who performs services for and on behalf of a union may not be held liable in malpractice to individual union members where the services at issue constitute a part of the collective bargaining process.”

The Appellate Division declined to do so. The court said,

Sound policy reasons as well as established precedent compel the conclusion that attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services the attorneys perform constitute a part of the collective bargaining process.

The court cited Peterson v Kennedy, 771 F2d 1244, in support of its ruling. 

Negotiating General Municipal Law Section 207-a procedures

Negotiating General Municipal Law Section 207-a procedures
City of Syracuse v Public Employment Relations Board, 279 AD2d 98

Two firefighters employed by the City were injured in the line of duty and began receiving salaries and benefits pursuant to General Municipal Law [GML] Section 207-a. The City subsequently received medical reports indicating that both firefighters were capable of performing light duty work.

Consistent with GML Section 207-a(3), the firefighters were directed to report for light duty assignments. One firefighter refused to report for light duty; the other reported to the light duty assignment late and then left early.

As to the authority for requiring a firefighter to perform “light duty,” Section 207-a(3) essentially provides that if a fireman not eligible for or not granted an accidental disability retirement allowance or retirement for disability incurred in performance of duty allowance or similar accidental disability pension but is nevertheless, in the opinion of such health authorities or physician, unable to perform his regular duties as a result of such injury or sickness but is able, to perform specified types of light-duty:

Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such firefighter if he shall refuse to perform such light-duty consistent with his or her status as a firefighter if the same is available and offered to him or her.

A hearing to determine “the possible termination” of their Section 207-a benefits were scheduled for both firefighters.

The Union, Firefighters Local 280, wrote to the fire chief claiming that “the procedures to determine whether GML Section 207-a benefits should be terminated were a subject of mandatory bargaining and that the implementation of any procedures, including these hearings, without the approval of the Union would constitute an improper practice.”

Notwithstanding this communication, the City went forward with the hearing. One firefighter, Firefighter A, appeared at his hearing while Firefighter B failed to appear at the hearing as scheduled and his hearing was held “in absentia.”

The hearing officer, the deputy chief, found that both Firefighter A and Firefighter B had failed to comply in a reasonable and prudent manner with the fire chief's directive. Their Section 207-a benefits were discontinued.

Local 280 filed an improper practice charge with PERB, alleging that the City violated Civil Service Law Section 209-a (1) (d) by unilaterally implementing procedures to determine whether to terminate Section 207-a benefits despite Local 280's objection to those procedures on the ground that they were the subject of mandatory bargaining.

Syracuse argued that the forfeiture of benefits under Section 207-a for refusal to perform an appropriate light duty assignment was not a mandatory subject of collective bargaining under the Taylor Law.

PERB's Administrative Law Judge [ALJ] dismissed the improper practice charge and Local 280 appealed to PERB. PERB, reversing its ALJ's determination and ruled that the City had committed an unfair labor practice by unilaterally establishing the hearing procedure challenged by the Local.

Syracuse filed an Article 78 petition seeking to annul PERB's determination.

The Appellate Division sustained PERB's determination, explaining:

1. Under Section 207-a, a firefighter injured in the line of duty may continue to receive salary and benefits.

2. The employer has the authority to make an initial determination to order a firefighter to report for a light duty assignment, which authority is not a subject of mandatory bargaining, citing Schenectady Police Benevolent Association v PERB, 85 NY2d 480, a case involving light duty assignments for police officers pursuant to GML Section 207-c.

3. The procedures for challenging the employer's initial determinations under Section 207-a(3) are, however, subjects of mandatory bargaining, citing City of Watertown v PERB, 95 NY2d 73.

The Appellate Division, quoting from Watertown, said “the public policy of this State in favor of collective bargaining is 'strong and sweeping' ... [and] [t]he presumption in favor of bargaining may be overcome only in 'special circumstances' where the legislative intent to remove the issue from mandatory bargaining is 'plain' and 'clear.'”

Here, said the court, the City's unilateral promulgation of administrative procedures to be used to determine the continued eligibility of a firefighter for Section 207-a benefits in the event he or she fails to comply with a directive to report for light duty constituted an improper practice within the meaning of the Taylor Law.

According to the ruling, the Union objected to the City's unilateral implementation of procedures to be used to determine whether to terminate GML Section 207-a benefits. The Appellate Division ruled:

Where, as here, a dispute not covered by the existing collective bargaining agreement arises during the term of an existing collective bargaining agreement, the parties to the agreement have a statutory duty to bargain collectively to resolve the dispute. A party's refusal to do so constitutes an improper practice.

The bottom line: the court said that “under the Taylor Law, the procedures to be used in determining whether to terminate section 207-a benefits are a subject of mandatory bargaining.”

Another element in the case was Syracuse's argument that Local 280 had failed to file a “notice of claim” and thus was barred from proceeding with its action. The Appellate Division, 4^th Department, did not agree.

It said that Syracuse claim relied a decision by the Appellate Division, Third Department, Deposit Central School District v PERB, 214 AD2d 288, holding that the notice of claim requirement in Education Law Section 3813 is a condition precedent to PERB's exercise of jurisdiction over an improper practice charge. “The City's “reliance on those Third Department cases is misplaced.”

Why? Because, explained the court, “[i]t would thus be unfair for similarly situated civil service employees employed by other municipalities without such a notice of claim requirement to be allowed to pursue an improper practice charge against their respective municipalities without the necessity of filing a notice of claim while requiring the Union employees herein to file a notice of claim.”

In addition, the Appellate Division commented that “both employers and employee organizations may file an improper practice charge with PERB and it would be inequitable to place a requirement on an employee organization that is not placed on an employer; an employee organization would be required to file a notice of claim while an employer would not.

Recommended disciplinary penalty rejected

Recommended disciplinary penalty rejected
NYC Dept. of Sanitation v Yovino, OATH Index Nos. 890-91/00

The Yovino case illustrates the fact that the appointing authority is not bound to follow the recommendation of a hearing officer regarding the penalty to be imposed upon an employee found guilty of disciplinary charges.

Michael Yovino, a New York City Department of Sanitation employee, was served with disciplinary charges alleging diminished productivity, insubordination, involvement in a vehicle accident, and being AWOL.

Although the Office of Administrative Tribunals and Hearings [OATH] recommended that Yovino be suspended without pay, the Commissioner, without explanation, dismissed Yovino.

Similarly, the appointing authority may reject a hearing officer's determination as to an employee's guilt, provided such a determination is supported by the disciplinary hearing record.