Out-of-title work

Out-of-title work

Haubert v GOER, 284 A.D.2d 879

In the Haubert case the Appellate Division, Third Department considered the issue of whether or not the assignment of certain additional duties to an individual, or specific changes in an employee's existing duties, constitutes “out-of-title” work. As the decision demonstrates, it all depends on the nature of the changes and the nature of the positions involved.

Section 61.2 of the Civil Service Law prohibits “out-of-title work.” In addition, no credit is given for out-of-title work in order to qualify for a promotion examination.

Ruth A. Haubert appealed the Governor's Office of Employee Relations' [GOER] denial of her out-of-title work grievance. The grievance arose after the State Department of Health changed its procedures with respect to surveying long-term health care facilities to ensure their compliance with State and federal laws and rules.

Initially the surveys were conducted by teams under the supervision of a Consultant Nurse, grade 24. In late 1996 Health revised its procedure and required various employees in grade 19, 20 or 22 specialized clinician positions to serve as the “team facilitator” on a rotating basis in addition to the designated “facilitator” remaining responsible for his or her primary tasks as a team member.

Claiming that the new role of team facilitator required them to perform out-of-title work, Haubert and other employees filed an “out-of-title” work grievance. The grievance was rejected at all steps and an appeal was filed in Supreme Court. Ultimately, the Appellate Division affirmed the Supreme Court's dismissal of Haubert's petition.

The Appellate Division said that not all additional duties assigned to an incumbent constitute out-of-title work. The question is whether the new duties are appropriate to the employee's titles and, or, are they similar in nature to, or a reasonable outgrowth of, the duties listed in the employee's job specifications.

In this instance, the court decided that based upon “the team concept of the survey work, which required coordination and cooperation among all team members, and the high level of expertise required of petitioners in order to qualify for their titles,” GOER rationally concluded that the obligation of a team facilitator to monitor the team's progress to ensure that the team accomplished its mission in a timely fashion “is appropriate to petitioners' titles and, or, constitutes a logical extension of their duties.” 

Determining seniority in a civil division of the State

Determining seniority in a civil division of the State

Turner v Ulster County, 284 A.D.2d 703

Seniority is the key to layoff rights in the public service. Typically seniority is based on the individual's uninterrupted service with the governmental entity in which the layoff takes place measured from the original date of the individual's permanent appointment in the civil service of that entity, regardless of the jurisdictional classification of the position or positions held by the individual.

Police Captain George B. Turner was laid off when the Town of Ulster abolished his position. Turner contended that he had displacement rights based on his seniority in the classified service and thus he could “bump” Donald H. Short, a lieutenant in the Town Police Department. The County personnel officer, Thomas J. Costello, ruled that Turner did not have displacement rights over Short as Short had more permanent service in the relevant civil division -- the Town of Ulster.

According to the decision, Turner was originally appointed as a Deputy Sheriff by the Ulster County Sheriff's Department on January 16, 1978 and was continuously employed there until November 9, 1990. On that date Turner was appointed to a position in the Town Police Department from a civil service open competitive eligible list. Turner was ultimately promoted to the position of police captain.

Short, on the other hand, had continuously served with the Town Police Department since January 1, 1983, and the Ulster County personnel director determined that he had been appointed as a permanent employee prior to Turner's appointment by the Town.

Ulster County Civil Service Rules and Regulations defines “permanent service,” a key element in determining seniority for the purposes of layoff, as “start[ing] on the date of the incumbent's original appointment on a permanent basis in the classified service.” The rules also provide that “[t]he permanent service of any employee who was transferred from another civil division shall start on the date of his/her original permanent appointment in the classified service in the other civil division [emphasis supplied].”

The Appellate Division said that: It is clear that for purposes of seniority, length of time in service is measured from the date of original appointment on a permanent basis in the classified service of the layoff unit where the abolishment occurs. Since petitioner was appointed to the position of lieutenant in the Town Police Department on November 9, 1990 from an open competitive eligible list, this date of appointment marks the commencement of his service in the classified service in the layoff [sic] unit. There is no merit to petitioner's contention that his original appointment in the classified service occurred in 1978 with his appointment to the Ulster County Sheriff's Department since he did not transfer from the Sheriff's Department to the Town Police Department.

The crux of the matter is the meaning of the term “civil division.” Section 2.8 of the Civil Service Law defines “service of a civil division” to “include all offices and positions in the civil division of any subdivision of the state and the term 'civil division' shall include within its meaning a city.”

The Appellate Division agreed with the personnel officer's determination that the Ulster County and the Town of Ulster are different and separate “civil divisions.” As the Court of Appeals said in Chittenden v Wurster, 152 NY 345, the civil divisions of the State are its counties and its towns and its villages. 

Eligibility for reinstatement from a preferred list to a “different” position

Eligibility for reinstatement from a preferred list to a “different” position

Davis v Mills, 285 A.D.2d 703, affirmed 98 N.Y.2d 120

As a general rule, a preferred list must be used to fill a vacancy for the same title, or a position found to be similar to, the position that gave rise to the creation of the preferred list in the first instance. Clearly the preferred list must be certified to fill vacancies having the same title. The determination of a “similar position” for the purposes of such certification is sometimes a less easy task.

School psychologist Maxine Davis was laid off by the Westport Central School District when the district abolished a school psychologist position. She claimed that she was entitled to be reinstated from the preferred list when the district decided to fill a newly created position of elementary counselor.

Davis argued that “because the majority of the duties that she performed as school psychologist consisted of the counseling and other related duties of the newly created elementary counselor position, the two positions are similar within the meaning of Education Law Section 2510.” Thus, she concluded, if the district wished to fill the newly created elementary counselor position, it was required to use the preferred list created as a result of her being laid off.

The Commissioner of Education disagreed and dismissed Davis' appeal after determining that the two positions were in different special subject tenure areas and required different certifications. The Appellate Division, Third Department, sustained the Commissioner's decision.

The court noted that although the abolished “school psychologist position apparently encompassed the duties of the newly created elementary counselor position, the record establishes that the school psychologist position included additional duties beyond those of the elementary counselor position” and which require “skills that were not necessary for the performance of the more limited duties of the elementary counselor position.”

In addition, said the court, the fact that some of the counseling-related duties of the school psychologist position became the duties of the elementary counselor position does not necessarily make the two positions similar.

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Removing a member of a school board

Removing a member of a school board

Matter of Lilker, CEd 14,588

Claiming that there were discrepancies between the published board minutes and audio recordings he made of the same board meeting, Stewart S. Lilker asked the Commissioner of Education to remove members of the Freeport Union Free School District Board of Education and the District Clerk from their respective positions.

As a starting point, the Commissioner noted that Lilker's appeal alleged violations of the Open Meetings Law [Public Officers Law Section 107]. Explaining that the State Supreme Court has “exclusive jurisdiction” over such complaints, the Commissioner said any alleged OML violations could not be adjudicated via an appeal pursuant to the Regulations of the Commissioner, 8 NYCRR 275.

However, said the Commissioner, even if he had jurisdiction, he would dismiss Lilker's appeal on the merits because Lilker “failed to establish facts sufficient to warrant the removal of respondents pursuant to the Education Law Section 306.”

A member of the board of education may be removed from office pursuant to Section 306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty within the meaning of the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education.

Lilker, said the Commissioner, failed to meet his burden of demonstrating that he had “a clear legal right to the relief requested” as well as his burden of demonstrating that board members and the district clerk engaged in willful or intentional misconduct warranting removal from office.

The Commissioner said that the alleged inaccuracies and discrepancies between the published minutes and Lilker's audio recordings are of an administrative nature and do not demonstrate any intentional misrepresentation or attempt to falsify board records.

Authority of the arbitrator to fashion a remedy affecting a party found to have violated the terms of the collective bargaining agreement

Authority of the arbitrator to fashion a remedy affecting a party found to have violated the terms of the collective bargaining agreement
Matter of Merrick Union Free School Dist. v Merrick Faculty Assn., Inc., 2011 NY Slip Op 06128, Appellate Division, Second Department

In this CPLR Article 75 action the Merrick Faculty Association, Inc. appealed an order of the Supreme Court, Nassau County that granted the school district’s petition seeking to vacate the arbitrator’s award and denied the Association’s cross motion to confirm the award. 

The Appellate Division modified the lower court’s order addressing the arbitrator’s award with respect to (1) providing health insurance to individuals in the negotiating unit whose spouses are afforded New York State Health Insurance Program [NYSHIP] coverage where those spouses are employed by a participating agency other than the Merrick Union Free School District, and (2) directed the parties to negotiate a remedy for affected bargaining unit members for the relevant period.

The collective bargaining agreement provided that the district “would provide employees with single or family health insurance coverage under NYSHIP except that the district would not provide NYSHIP dual family coverage to spouses of School District employees who were afforded NYSHIP coverage through the School District or another public employer. 

The New York State Department of Civil Service, which administers NYSHIP, subsequently issued a Policy Memo 133 indicating that participating employers could not enter into collective bargaining agreements that denied dependent health insurance coverage to an otherwise eligible employee based on the fact that the employee's spouse was eligible for NYSHIP coverage through a different employer. 

The Association filed a grievance based on the Memo seeking to obviate the provision in the collective bargaining agreement limiting dual family coverage and “that all employees affected by the Memo be offered the option to obtain NYSHIP dual family coverage or a buyout.”

The grievance was ultimately submitted to arbitration and the arbitrator sustained the grievance, invalidating the health insurance provisions in the CBA to the extent that they denied NYSHIP dual family coverage to employees whose spouses were afforded NYSHIP coverage through public employers other than the School District. 

The Appellate Division said that “An arbitration award may be vacated on one of three grounds: 1. that it violates a strong public policy; 2. is irrational; or 3. clearly exceeds a specifically enumerated limitation of the arbitrator's power.”

Noting that in determining whether an arbitration award should be vacated on the ground that the arbitrator clearly exceeded a specifically enumerated limitation of his or her authority, the court said "[i]t is not for the courts to interpret the substantive conditions of the contract or to determine the merits of the dispute." Rather, an award may be set aside upon this ground only where the arbitrator exceeded the express limitations of his or her powers, as set forth in the agreement itself.

In this instance the court found that the CBA provided that "[i]n the event any provision or provisions hereof are held to be unlawful, the remaining provisions of this [CBA] shall remain in effect and the parties thereto shall meet forth with [for] the purposes of modifying the same to conform with the law and/or negotiating provisions in lieu thereof." 

The Appellate Division ruled that Supreme Court erred in vacating the award on the ground that the arbitrator exceeded his authority in invalidating Article XI (D) of the CBA to the extent it violated Article II (B), explaining that “ Even if the arbitrator misconstrued or misapplied substantive rules of law, his determination did not exceed his authority and is not subject to judicial review.” 

As to the remedy directed by the arbitrator -- "grant health insurance or appropriate buyout compensation to bargaining unit members whose spouses are afforded coverage under the Empire Plan from a participating agency other than the Merrick Union Free School District" and directed the parties to negotiate, for the period from February 1, 2008, to April 30, 2009, a retroactive remedy to affected bargaining unit members”, the court concluded that this remedy was consistent with the broad power given to the arbitrator by the issues the parties agreed to submit to arbitration: (1) "[d]id the District violate Article II, Section B; Article XI, Section D and Article XXIII of the Collective Bargaining Agreement when it denied [NYSHIP] Health Insurance to bargaining unit members whose spouses are afforded [NYSHIP] coverage" and (2) "[I]f so, what shall be the remedy." 

However, said the court, while the parties' stipulation purported to grant the arbitrator unfettered authority to fashion a remedy, the arbitrator's remedial powers are specifically limited by Article XXIII of the CBA, which provides, "[i]n the event any provision or provisions hereof are held to be unlawful, the remaining provisions of this Agreement shall remain in effect and the parties thereto shall meet [forthwith for] the purposes of modifying the same to conform with the law and/or negotiating provisions in lieu thereof." 

The bottom line: the Appellate Division ruled that “The award was proper to the extent it directed the parties to negotiate a retroactive remedy for the period February 1, 2008, to April 1, 2009, as such relief is within the terms of Article XXIII of the CBA.” 

However, in contrast, the court said that the prospective relief in the arbitration award, which directed the district, as of May 1, 2009, to provide dual NYSHIP coverage or appropriate buyout compensation to bargaining unit members whose spouses are afforded NYSHIP coverage from a participating agency other than the School District, “exceeded the specifically enumerated limitation on the arbitrator's powers set forth in Article XXIII of the CBA,” concluding that Supreme Court properly vacated that portion of the award. 

The Appellate Division remitted the matter to the Supreme Court for an order directing the arbitrator to fashion a prospective remedy consistent with the determination in the arbitration award that (a) the Department of Civil Service’s Policy Memorandum 133 has the force and effect of law and (b) is in accordance with Article XXIII of the CBA.

Decisions concerning Article 75 motions seeking a stay of arbitration

Decisions concerning Article 75 motions seeking a stay of arbitration

Schenectady v Schenectady PBA, 285 AD2d 725

NYC Transit Authority v Amalgamated Transit Union Local 1056, 284 AD2d 466 

The PBA Case

The Schenectady Police Department unilaterally placed police officer Cheryl Flory on medical leave, effective April 10, 2000 to July 3, 2000, pursuant to the Family Medical Leave Act [FMLA].

Flory had been absent on unlimited paid sick leave for more than a year. Flory's union, the Schenectady PBA, grieved and demanded arbitration, contending that the department had violated the collective bargaining agreement. It alleged that the agreement provided “members with unlimited sick leave that guarantee that there will be no reduction in employee benefits or any unilateral changes in past practices.”

The department attempted to obtain a stay of arbitration on the ground that the grievance was not arbitrable because implementation of FMLA, a Federal statute, could not be considered a violation of the terms of the Agreement.*

A State Supreme Court justice denied the stay, finding that the grievance was arbitrable because it did not hinge on an interpretation of Federal law.

Instead, said the court, it simply raised the issue of whether the Agreement's provisions for employee leave time had been violated by department's unilateral imposition of one of the terms of the FMLA -- a mandatory minimum of a 12-week leave without pay -- on Flory's sick leave.

In considering the department's appeal of the denial of its petition for a stay of arbitration the Appellate Division said that, in general, grievances arising under public sector collective bargaining agreements are subject to arbitration where:

1. The Taylor Law authorizes arbitration of the dispute; and

2. The parties have agreed in their collective bargaining agreement to submit such disputes to arbitration.

The Appellate Division found that “[b]oth of these prerequisites for arbitrability are satisfied in the instant matter” since:

1. There is no dispute that the issue of employee leave time is a term or condition of employment; and

2. Although the parties did not agree to arbitrate matters pertaining to FMLA, the Agreement reflects that both parties did express their consent to arbitrate grievances regarding leave time, with “unresolved grievances * * * [to] be submitted to arbitration by either party”.

Accordingly, the court affirmed the Supreme Court's order denying the department's motion for a stay of arbitration.

FMLA entitles eligible employees to a total of 12 workweeks of leave without pay during any 12-month period for “qualifying” personal and family medical reasons. There is nothing in the FMLA barring an employer from deeming an employee to be on FMLA leave while simultaneously retaining the individual in sick leave at full pay status provided it advises the individual of this fact in writing. However, placing an individual on FMLA status does not automatically deprive the individual of other his or her rights under law, rule, or regulation or set out in a collective bargaining agreement.

The Local 1056 Case

The New York City Transit Authority [NYCTA] obtained a stay of arbitration from a State Supreme Court justice. Local 1056 appealed.

The case arose when the NYCTA received a notice from the New York State Department of Motor Vehicles [DMV] that the license of one of its bus drivers, Marvin Moses, would be suspended effective August 3, 1999, because he had allowed his automobile insurance to lapse. DMV subsequently confirmed that Moses's license had been suspended as of August 3, 1999.

Learning that Moses had continued to drive a bus during his suspension, NYCTA, citing Vehicle and Traffic Law Article 19-A, the NYCTA suspended Moses's employment for 64 days, a period equal to that during which he drove with a suspended license.

Local 1056, contending that the suspension of Moses's license was made in error, in that Moses had automobile insurance in effect during the entire period of the suspension, and that Moses was unaware of the suspension because the DMV failed to notify him, grieved the suspension.

NYCTA obtained a stay of arbitration of the denial of Moses's grievance on the theory that “the grievance was not arbitrable because it was merely performing its statutory obligation to enforce the Vehicle and Traffic Law, and that the performance of such a statutory duty was not subject to arbitration pursuant to the parties' arbitration agreement.”

The Appellate Division said that a court may stay arbitration on the ground that the particular claim sought to be arbitrated does not fall within the scope of the parties' arbitration agreement.

In making such a determination, the courts do not to engage in a penetrating analysis of the scope of the substantive provisions of a collective bargaining agreement but merely determine “whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [collective bargaining agreement].”

Here, said the Appellate Division, the arbitration provision is broad and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement.

The collective bargaining agreement bars the arbitrator from rendering a determination or opinion “limiting or interfering in any way with the statutory powers, duties, and responsibilities of the Authority in operating, controlling, and directing the maintenance and operation of the transit facilities, or with the Authority's managerial responsibility to run the transit lines safely, efficiently, and economically”.

However, “[c]ontrary to the contention of the NYCTA, whether the resolution of the grievance by the arbitrator would violate that prohibition is not a matter for the courts.” Rather, such an inquiry requires the type of exacting interpretation of the precise scope of the substantive provisions of the CBA that is for the arbitrator” to resolve.

Vacating the stay that the NYCTA had obtained from Supreme Court, the Appellate Division commented that fact that submitting the grievance to arbitration “may require the arbitrator to interpret or apply statutes such as Vehicle and Traffic Law Article 19-A does not compel a different result.”

* FMLA entitles eligible employees to a total of 12 workweeks of leave without pay during any 12-month period for “qualifying” personal and family medical reasons. There is nothing in the FMLA barring an employer from deeming an employee to be on FMLA leave while simultaneously retaining the individual in sick leave at full pay status provided it advises the individual of this fact in writing. However, placing an individual on FMLA status does not automatically deprive the individual of other his or her rights under law, rule, or regulation or set out in a collective bargaining agreement.

Unpaid student workers: are they volunteers or employees?

Unpaid student workers: are they volunteers or employees?

Onondaga-Cortland-Madison BOCES v McGowan, 285 AD2d 36

The Onondaga-Cortland-Madison County BOCES attempted to augment the workforce training programs available to public high school students by involving its construction technology students in the actual construction of an office building being built for the West Genesee Central School District.

Under the immediate supervision of their instructors, BOCES student workers erected exterior and interior walls, installed sheet rock and placed insulation. The commercial contractors, using skilled union workers, performed the majority of the construction work, including all plumbing, electrical, foundation, truss and roofing work.

Following a union officer's complaint, the State Labor Department held that the students could not be classified as volunteers in connection with the project and, therefore, they would be considered employees subject to the prevailing wage provisions of Labor Law Section 220.

The Department's conclusion: BOCES had failed to pay the participating students “prevailing wages and supplements.” The amount to be paid to the students was determined to be $44,012. BOCES appealed.

The Appellate Division said that the basic questions are whether the BOCES students should be considered employees of a contractor on the project. Its answer: the students should not be considered employees of the project's contractors for the following reasons:

1. Education Law Section 4606(6) provides that students participating in school-to-employment programs are not employees within the purview of the Labor Law.

2. There is a public policy to exempt unpaid student workers from classification as employees under circumstances where the primary purpose of the work is instructional training for future employment.

3. The BOCES students were not hired, were not paid or otherwise compensated for their work, did not work a regular workday, and performed no work without the direct and constant supervision of their instructors.

4. The students were assigned tasks in order to fulfill the requirements of their technology class and receive credit from their home school districts.

The Appellate Division then annulled the Labor Commissioner's determination.